This decision will make Puja happy… 

We’ll file this one under “good to know.”

Ever since the Berman case came out last year there was a lot of disagreement as to whether hyperlinks had to be blue to be enforceable. That was sort of the implication in Berman:

Customary design elements denoting the existence of a hyperlink include the use of a contrasting font color (typically blue) and the use of all capital letters, both of which can alert a user that the particular text differs from other plain text in that it provides a clickable pathway to another webpage.

To be on the safe side many folks simply read “typically blue” to mean “it better be blue.”

But in Hooper v. Jerry Insurance Agency, LLC, 2023 WL 3992130 (N.D. Cal. June 1, 2023) a California federal court held that pink was just as good as blue when it comes to enforcing hyperlinks.

In Hooper the Plaintiff apparently visited the Jerry website and clicked on a “continue” button after providing his phone number. The Plaintiff then sued when he received robocalls as a result.

Plaintiff claimed that the disclosure form on the webpage was unenforceable against him because it was not “reasonably conspicuous” but the Court disagreed.

Hooper first claimed the arbitration disclosure was not reasonably conspicuous because it is in a “tiny light font,” while the surrounding text is in “comparatively larger font.” She also claimed that the “overall design of the webpage” draw users’ attention away from the “barely readable” notice.

Now the Court’s decision does not actually include a screenshot of the disclosure as it existed on the date in question–but here is what the disclosure looks like today. Pretty conspicuous if you ask me.

And the Court agreed:

Based on the screenshot of Jerry’s website, the Court disagrees. Despite Hooper’s characterizations, the notice text is plainly readable. The dark grey text contrasts clearly with the white background and is “conspicuously displayed directly … below the action button.”  In addition, the webpage is “uncluttered and wholly visible,” as it consists only of a field for a phone number, the “Continue” button, and the text referring to the Terms of Use.

You will notice the Court references a below the button disclosure, whereas Jerry’s current form has the disclosure above the button. That tells me Jerry’s likely tightened up its consent process following this suit.

Regardless, whether the disclosure was above or below the button the fact that the disclosure form was very elegant and the disclosure was in close proximity to the button the consumer was properly advised of the impact of clicking the button.

But my favorite part of the decision was Plaintiff’s argument that the hyperlink had to be blue to be enforceable. The Court flat rejected that argument:

Jerry’s “Terms of Use” hyperlink appears in bright pink font, in contrast to the surrounding gray font. This is sufficient to “set apart” the hyperlink from the rest of the text.

So there you go. Pretty good case for enforcing arbitration clauses over a format challenge.

Couple of important notes here:

1. Despite the fact that courts routinely enforce these provisions the FCC is looking at banning hyperlinks for consent forms. Please keep this in mind!;
2. This case involved a motion to compel arbitration–not an effort to enforce consent. The standard for arbitration is that a disclosure be reasonably conspicuous whereas consent must be clear and conspicuous. It remains to be seen, therefore, whether a different standard is applicable to consent–so just because a web format might be enforced for arbitration does not necessarily mean it will work for consent.