MacDonald v. Rocket Mortgage: A Hybrid Clickwrap on a Quote Form Compelled Arbitration of a Do Not Call Claim

The Website Flow

On June 8, 2022, the plaintiff visited quickenloans.com and submitted a request for information through 18 webpages. Each page had a footer with a "Terms of Use" hyperlink. The final page had a button labeled "Click to See your Results!" Below it was a bold heading, "Communication Consent," followed by text stating: "By submitting your contact information you agree to our Terms of Use and our Security and Privacy Policy." The hyperlinks were bright blue but not underlined. The Terms of Use, about ten pages long, included a provision requiring the user to "arbitrate TCPA claims."

Rocket Mortgage then called and texted the plaintiff's number, which was on the National Do Not Call Registry. He sued in December 2023.

Evidence Matters

The plaintiff indicated at a case management conference that he would argue he never visited the site and would submit declarations. His opposition came with no declaration. The court held that unsupported statements in a brief cannot defeat a motion to compel arbitration, which is decided under the summary judgment standard. Several of his assertions were contradicted by his own exhibits.

Applying Berman

Under Berman, a user is bound if the website gives reasonably conspicuous notice of the terms and the user takes an action that unambiguously manifests assent. The parties did not seriously dispute the second prong, because the page told users that submitting their information meant agreeing to the terms.

On notice, the court weighed five factors:

• Text size. Smaller than the rest of the page, but not "tiny" as in Berman.
• Contrast. The text was in black on a white background.
• Location. The notice was below the button, which weighed against Rocket Mortgage, but no scrolling was needed to see it.
• Hyperlinks. Bright blue links in the first line under a bold heading.
• Layout. Simple and uncluttered.

The court concluded that, "although not a slam dunk on every factor," a reasonably prudent internet user would have seen the notice. It cautioned in a footnote that hybrid designs invite second-guessing and that a true clickwrap is the safest choice.

Distinguishing Other Rocket Mortgage Cases

The plaintiff relied on Daschbach v. Rocket Mortgage (D.N.H. 2023) and Dahdah v. Rocket Mortgage (E.D. Mich. 2023), where courts denied arbitration. Those cases involved a different website. In Daschbach, small gray text sat on a gray background, and in Dahdah, the key text was in tiny light gray font. The page here had a bold heading, black text, and blue links.

The court did not decide which state's law applied, since neither party identified a material difference. The case was administratively closed pending arbitration, and the motion to dismiss was denied as moot.

Practical Points

• Design details decide these motions. Font, contrast, placement, and link visibility can change the outcome.
• Opposition needs evidence. Denying website use requires a declaration, not just argument.
• Clickwrap remains safest. Courts continue to signal that a checkbox is more reliable than a hybrid notice.

Read the District of Arizona order.