Valiente v. Nexgen Global: Agreeing to Get Texts Isn't Agreeing to Arbitrate

The Checkout

The consumer sued in August 2022, alleging the seller sent unsolicited telemarketing messages to numbers on the National Do Not Call Registry without prior express consent. The seller said he'd bought two products on its website in February 2022 and agreed to arbitrate along the way.

Its argument went like this. A "Terms of Use" link appeared on the site. At checkout, a "Go To Step #2" button carried language about consenting to its "Messaging Program." The Messaging Program was "governed by" the Terms of Use, which contained the arbitration clause. And after purchase, the consumer confirmed his email in a "double opt-in."

The district court denied arbitration, and the Eleventh Circuit affirmed. Because Florida and California law pointed to the same result, the court didn't have to pick between them.

Theory One: Browsewrap

A browsewrap agreement links to terms without requiring a click to accept. Whether it binds depends on whether a reasonable user would be on inquiry notice.

Not here. The court described a long page, densely packed with images and bright text, large green call-to-action buttons, and the Terms of Use link in small white font at the very bottom. Nothing told users that using the site meant agreeing to the terms. The seller even conceded that Florida and California courts decline to enforce browsewraps with buried links when the site never directs users to them.

Theory Two: Clickwrap

A clickwrap agreement forms when users click a button near a disclosure of the terms. Here's the twist. The text under the "Go To Step #2" button said the user consented "to receive from Nexgen emails, calls, and SMS text messages at any time." It said nothing about arbitration, the Messaging Program, or the Terms of Use.

So even assuming the click formed an agreement, that agreement didn't include arbitration. In fact, the court said, spelling out consent to messages without mentioning arbitration "suggests the opposite" of the seller's argument. The consumer was never directed to the Terms of Use and never asked to say he'd read them. He didn't have to "root around" the site for extra terms.

Theory Three: Double Opt-In

The seller had the burden of proving an agreement, under a framework that mirrors summary judgment. It never attached the confirmation email or the page it led to. Without evidence of what that email said, the court couldn't find that it pointed the consumer to the arbitration clause or required him to agree to it.

Why It Matters

• Consent to messages is its own thing. A checkbox or button about texts doesn't sweep in arbitration unless it says so.
• Design matters. Tiny footer links on busy pages won't give inquiry notice.
• Bring the receipts. If you rely on an email opt-in, put the email in the record.
• The presumption favoring arbitration doesn't apply to formation. The court noted it covers scope, not whether an agreement exists.

Affirmed. The case stays in court.

Read the full Eleventh Circuit opinion.