Online contracts; Action under the Telephone Consumer Protection Act (TCPA); 47 USC § 227; Whether there was an “offer” & “acceptance” that created a binding contract to arbitrate when plaintiff clicked buttons on a website

[This appeal was from the ED-MI.] The court held that under the governing state law (California), plaintiff-Dahdah and the website “LowerMyBills” formed a binding arbitration agreement when he clicked specific buttons on the website, consenting to the Terms of Use. Dahdah went to the online site LowerMyBills.com seeking suggestions regarding house refinancing. This site informs users that if they click certain buttons, they are agreeing to its hyperlinked “Terms of Use.” They included a mandatory arbitration provision. LowerMyBills referred him to defendant-Rocket, who then began repeatedly contacting Dahdah, despite his listing his number on the Do Not Call registry and telling Rocket to stop. He sued under the TCPA. The district court ruled that there was no binding contract formed and denied Rocket’s motion to arbitrate. Applying California state law on contract formation, which employs an “objective test” regarding both “offers” and “acceptances,” the court held that the same laws apply online as in the “real world.” In this case, LowerMyBills proposed a “hybrid” offer under California law. To “qualify as a valid offer, the website’s proposal must give ‘reasonably conspicuous’ notice that a user will accept the terms by clicking a button, signing into an account, or taking a similar action. . . . And to qualify as a valid acceptance, the user must objectively show assent to the terms by (for example) taking the specified action.” Courts make the determination as to “conspicuousness” considering the totality of the circumstances. The court held that “LowerMyBills and Dahdah formed a binding arbitration agreement. LowerMyBills’ website told users that if they click specific buttons, they would ‘consent’ to its Terms of Use (including the arbitration provision).” The court found that, while it was a close question, “LowerMyBills website made a reasonably conspicuous offer” despite the use of a small font, and it informed “users that they would accept its Terms of Use if they ‘perform[ed]’ a ‘specified act’: ‘clicking’ the ‘Calculate’ and ‘Calculate your FREE results’ buttons.” And Dahdah did not dispute that he clicked them. This constituted “a valid acceptance.” Reversed and remanded.