In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 23-2672 

PILAR DOMER, 

Plaintiff-Appellant, 

v.

MENARD, INC.,

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court

for the Western District of Wisconsin. 

No. 3:22-cv-00444-jdp — James D. Peterson, Chief Judge. 

____________________ 

ARGUED JANUARY 25, 2024 — DECIDED SEPTEMBER 3, 2024 

____________________ 

Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges. 

BRENNAN, Circuit Judge. Pilar Domer submitted an online 

order to pick up a can of paint at a Menards home improvement store. Menards charged Domer a $1.40 fee for the pickup 

service she selected. Domer commenced this putative class action, alleging that Menards had not disclosed the pickup service fee and used the fee to manipulate its prices. Menards 
2 No. 23-2672 

moved to compel arbitration of Domer’s claims. The district 

court granted Menards’s motion, finding that the parties had 

entered into an arbitration agreement and that Domer’s 

claims fell within its scope.

Domer appealed, arguing that the arbitration agreement 

was invalid and unenforceable, and in any event did not cover 

her claims. We affirm the district court. Menards has shown 

that its website provided reasonably conspicuous notice of 

the terms to which Domer would be bound and Domer unambiguously manifested her assent to those terms. Additionally, each of Domer’s claims arise from or relate to the contract 

between Domer and Menards. So, Domer’s claims are within 

the scope of the arbitration agreement.

I 

Menard, Inc. is a home improvement retail company that 

sells goods through brick-and-mortar stores and on its website.1 Customers who purchase products online have three options for receiving their goods. They may go to a local store 

and locate the item on the shelf, pay a small fee to have a 

Menards employee locate the item on the shelf and prepare it 

for pickup, or have the product shipped to their home. 

Domer visited the Menards website to purchase a can of 

paint. Before checking out, she chose option three on the website: to have an employee retrieve the correct item from the 

shelf, prepare it for pickup at the Menards store in Valparaiso, 

Indiana, and place it at the pickup counter. In exchange for 

that service, Menards would charge her a $1.40 per item fee. 

1 Menards is owned by the defendant Menard, Inc. For clarity this 

opinion uses “Menards” throughout, as did the district court. 
No. 23-2672 3

After Domer selected the pickup option, the website presented her with the final page in the online checkout process: 

As shown, the page presented a summary of Domer’s 

transaction. It included one shaded, bordered box listing her 

“Billing & Credit Card Information” and an adjoining column 

with her “Order Summary.” The “Billing & Credit Card Information” listed her payment information. The box also presented options to receive text updates on the status of her order and to use a gift card. The “Order Summary” column 

listed four line-items: the “Merchandise Subtotal” (the price 

of the items purchased); the “Processing Fees” (the pickup 

service fee); the “Sales Tax”; and the “Total” cost. In addition, 

the “Order Summary” column included a sentence explaining 

how much money Domer had saved on her purchase, the option to submit her purchase, and a couple of sentences advertising the Menards credit card. 
4 No. 23-2672 

The same page included an additional note to purchasers 

immediately below the “Billing & Credit Card Information” 

section:

Please note: Gift cards may be used as a tender 

for any merchandise portion of your order and 

cannot be applied to purchase of another gift 

card. Applied gift card tenders will be used first 

towards your purchase and the remaining balance applied to your entered credit card. By 

submitting your order you accept our Terms of 

Order. 

The note began with bold font and used the same size and 

style font as the surrounding text. 

Directly below the note, there were two hyperlinks: “View 

Return Policy | Terms of Order Information.” The links, like 

the note, used the same size font as the surrounding text. But 

the links were green, unlike the black font of the surrounding 

text. Clicking on the “Terms of Order Information” link 

opened a text box with the Menards Terms of Order. The first 

paragraph of the Terms of Order contained an arbitration 

clause: 

READ THIS CONTRACT 

CAREFULLY. ... Purchaser agrees that any and 

all controversies or claims arising out of or relating to this contract, or the breach thereof, 

shall be settled by binding arbitration administered by the American Arbitration Association 

under its applicable Consumer or Commercial 

Arbitration Rules. Purchaser agrees that all arbitrators selected shall be attorneys. This 
No. 23-2672 5

provision shall supersede any contrary rule or 

provision of the forum state. YOUR 

PURCHASE OF THE PRODUCT ON THIS 

CONTRACT CONSTITUTES YOUR 

AGREEMENT TO ALL TERMS AND 

CONDITIONS STATED ABOVE. 

The text box for the Terms of Order used a larger font than the 

surrounding text. 

Domer completed her purchase and picked up her can of 

paint in the designated store. Domer then commenced this 

putative class action.2 Domer’s amended complaint included 

three claims: (1) violation of the Indiana Deceptive Consumer 

Sales Act, Ind. Code § 24-5-0.5-4; (2) violation of the Wisconsin Deceptive Trade Practices Act, Wis. Stat. § 100.18; and 

(3) unjust enrichment, see Sands v. Menard, 904 N.W.2d 789, 

798 (Wis. 2017) (describing the elements of Wisconsin’s unjust 

enrichment law). She alleged that Menards had used the 

pickup service fee to manipulate its prices—artificially deflating them by $1.40 in its advertising materials and then recouping that difference in the form of an undisclosed fee. Additionally, she argued that the $1.40 processing fee for in-store 

pickup had not been disclosed, and, had it been disclosed, she 

would not have purchased the can of paint. 

2 The district court had jurisdiction under the Class Action Fairness 

Act of 2005 (codified at 28 U.S.C. § 1332(d)). Domer is a citizen of Indiana. 

Menard, Inc. is incorporated and maintains its principal business offices 

in Wisconsin. Menards also regularly conducts business and operates 

store locations in Indiana. There are more than one hundred members in 

the putative class and the amount in controversy is greater than 

$5,000,000. We have jurisdiction over the appeal of the district court’s final 

judgment pursuant to 28 U.S.C. § 1291. 
6 No. 23-2672 

Menards moved to compel arbitration under the Federal 

Arbitration Act, 9 U.S.C. §§ 3, 4. To Menards, Domer entered 

into an enforceable arbitration agreement by accepting the 

Menards Terms of Order when she completed her online purchase. As a result, the parties had a valid and binding agreement requiring arbitration of any disputes that either arise 

from or relate to Domer’s online purchase. Menards further 

contended that Domer’s claims fall within the scope of the arbitration agreement and, therefore, must be arbitrated. 

The district court ruled for Menards. The court found that 

the arbitration agreement was enforceable. The totality of the 

circumstances demonstrated fair and adequate notice of the 

existence of an agreement and the consequence of proceeding 

with an online purchase. The court also found that “[a]ll of 

Domer’s claims are related to her contract of purchase with 

Menards: Domer agreed to pay Menards money, and 

Menards provided her with a can of paint in exchange.” So, 

her claims fell within the scope of the “expansive” arbitration 

clause to which she had agreed. 

II 

On appeal, Domer argues that the district court erroneously granted Menards’s motion to compel arbitration. To 

her, the arbitration agreement was invalid and unenforceable, 

and in any event did not cover her claims. 

The “[a]rbitrability of a dispute is often a question of law 

that does not depend on undisputed facts... .” Scheurer v. 

Fromm Fam. Foods LLC, 863 F.3d 748, 751 (7th Cir. 2017) (citing 

21 WILLISTON ON CONTRACTS § 57:68 (4th ed. 2017)). Sometimes, though, it “present[s] a mixed question of law and 

fact.” Id. We review a district court’s ruling on a motion to 
No. 23-2672 7

compel arbitration based on the procedural posture of that 

ruling. Id. 

When a factual dispute exists about whether an arbitration 

agreement was made, parties have options. If the question is 

brought to a jury, we “must uphold the finding if it is supported by a reasonable basis in the record.” Id. This includes 

evidence or expert testimony. Additionally, if the judge holds 

an evidentiary hearing, we review findings of fact “for clear 

error.” Id. The parties here chose neither of these possibilities. 

Domer has conceded that here “the facts are undisputed.”3

In cases with no factual disputes, the district court decides 

the issue as a matter of law. In these instances, like here, our 

“review should be de novo.” Id.; see Gore v. Alltel Commc’ns, 

LLC, 666 F.3d 1027, 1033 (7th Cir. 2012) (“We review de novo 

a district court’s grant or denial of a motion to compel arbitration.”). 

A. Formation of the Arbitration Agreement

Whether an agreement to arbitrate has been formed is governed by state-law principles of contract formation. Gore, 666 

F.3d at 1032. Wisconsin contract law applies here. Rock Hemp 

Corp. v. Dunn, 51 F.4th 693, 702 (7th Cir. 2022) (citing FutureSource LLC v. Reuters Ltd., 312 F.3d 281, 283 (7th Cir. 2002)). 

But, as the district court stated, this case “calls for the application of general rules of contract formation, so the choice of 

law is not likely to affect the outcome.” Menards bears the 

burden of proving that an agreement to arbitrate exists. See 

A.D. v. Credit One Bank, N.A., 885 F.3d 1054, 1063 (7th Cir. 

2018). 

3 Oral Argument, 5:30–5:40.
8 No. 23-2672 

The Menards Terms of Order contains an arbitration 

clause. Domer contends she did not agree to these terms, and 

therefore did not agree to arbitrate her claims, when she submitted her purchase order on the Menards website. 

Under Wisconsin law, the formation of a valid contract requires that “an offer was accepted.” Wells Fargo Bus. Credit v. 

Hindman, 734 F.3d 657, 667 (7th Cir. 2013) (quoting Hoeft v. 

U.S. Fire Ins. Co., 450 N.W.2d 459, 463 (Wis. Ct. App. 1989)). 

Additionally, there must “be a meeting of the minds, a factual 

condition that can be demonstrated by word or deed.” Id. 

(quoting Zeige Distrib. Co. v. All Kitchens, Inc., 63 F.3d 609, 612 

(7th Cir. 1995). “Objective manifestations of assent, rather 

than subjective intentions, are controlling.” Id. (citing Associated Milk Producers, Inc. v. Meadow Gold Dairies, Inc., 27 F.3d 

268, 272 (7th Cir. 1994); see also Skycom Corp. v. Telstar Corp., 

813 F.2d 810, 814 (7th Cir. 1987). Intent to manifest assent is 

generally “‘derived from a consideration of th[e parties’] 

words, written and oral, and their actions.’” Skyrise Constr. 

Grp., LLC v. Annex Constr., LLC, 956 F.3d 950, 956 (7th Cir. 

2020) (quoting Household Utils., Inc. v. Andrews Co., 236 

N.W.2d 663, 669 (Wis. 1976)). But the parties are not required 

to have signed the agreement for it to be valid. Tinder v. Pinkerton Sec., 305 F.3d 728, 736 (7th Cir. 2002). Arbitration is “a 

creature of contract.” Sgouros v. TransUnion Corp., 817 F.3d 

1029, 1033 (7th Cir. 2016) (citing inter alia AT&T Mobility LLC. 

v. Concepcion, 563 U.S. 333, 339 (2011)). So, these principles apply with equal force to arbitration contracts, including those 

purportedly formed over the internet. 

One way to assent to and form a contract online is for a 

customer to click on an “I Accept” button as part of a “clickwrap” agreement. See id. “Courts around the country have 
No. 23-2672 9

recognized that this type of electronic ‘click’ can suffice to signify the acceptance of a contract.” Id. These agreements differ 

from “browsewrap” agreements, which provide veiled notice 

to customers that mere use of the website constitutes agreement to various terms and conditions. See Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 513 (9th Cir. 2023) (comparing 

clickwrap and browsewrap agreements in the context of 

online arbitration agreements). Browsewrap agreements typically are not enforced. Id.

But, as here, online agreements often fall somewhere in 

between these two forms of agreement. Courts acknowledge 

that some companies “rely on simply displaying,” somewhere on a webpage, “a notice of deemed acquiescence and a 

link” to the putative terms. Cullinane v. Uber Techs., Inc., 893 

F.3d 53, 62 (1st Cir. 2018). When this happens, “purported assent is largely passive.” Schnabel v. Trilegiant Corp., 697 F.3d 

110, 120 (2d Cir. 2012). And when assent is passive, a court 

will recognize an enforceable contract “only if: (1) the website 

provides reasonably conspicuous notice of the terms to which 

the consumer will be bound; and (2) the consumer takes some 

action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.” Berman 

v. Freedom Fin. Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022) 

(citing Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017)).

Although these questions may involve underlying facts, 

they are questions of law. Rather than resolving questions of 

fact, we undertake a fact-intensive legal analysis. See Sgouros, 

817 F.3d at 1034–35. While this “may lead to different results 

as courts encounter novel fact patterns, the general legal 

framework remains unchanged.” Oberstein, 60 F.4th at 515. 
10 No. 23-2672 

Domer did not click a button saying “I Accept” to form the 

arbitration agreement. So, to prove that the arbitration agreement was formed, Menards must satisfy the test for when assent is passive. Although we analyze the website checkout 

page presentation, we do so to decide two legal questions: 

(1) did the website provide reasonably conspicuous notice of 

the terms to which the consumer will be bound, and (2) did 

the consumer take some action that unambiguously manifested his or her assent to those terms? See Berman, 30 F.4th at 

856. 

1. Reasonably conspicuous notice

We examine notice from the perspective of a reasonable 

online shopper—that is, a person who is neither an expert nor 

a novice with technology. See Meyer, 868 F.3d at 77 (“Accordingly, when considering the perspective of a reasonable 

smartphone user, we need not presume that the user has 

never before encountered an app or entered into a contract 

using a smartphone.”). This permits certain basic, objective 

assumptions regarding the user’s familiarity with commercial 

websites, hyperlinks, and online contracts, regardless of subjective experience. 

When deciding whether an online disclosure has afforded 

fair notice, we consider five elements: (1) the simplicity of the 

screen; (2) the clarity of the disclosure; (3) the size and coloring of the disclosure’s font; (4) the spatial placement of the hyperlink; and (5) the temporal relationship to the user’s action. 

See, e.g., id. at 78–79. No single factor is dispositive: the question is whether the website provided reasonable notice “in 

light of the whole webpage.” Nicosia v. Amazon.com, Inc., 834 

F.3d 220, 237 (2d Cir. 2016). 
No. 23-2672 11

Simplicity of the screen. First, we assess the simplicity of the 

information on the screen and the way that information is presented. See Meyer v. Uber Techs., Inc., 868 F.3d 66, 78 (2d Cir. 

2017) (“The Payment Screen is uncluttered, with only fields 

for [(1)] the user to enter his or her credit card details, 

[(2)] buttons to register for a user account or to connect the 

user's pre-existing PayPal account or Google Wallet to the 

Uber account, and [(3)] the warning that ‘By creating an Uber 

account, you agree to the TERMS OF SERVICE & PRIVACY 

POLICY.’”). The district court concluded that Menards online 

checkout page was “relatively uncluttered.” 

Menards online checkout page includes fields for (1) the 

user to enter his credit card details, (2) an order summary listing costs with a button to submit the order, (3) an option to 

receive text updates on the status of the order, (4) a note about

the use of gift cards and explaining that “By submitting your 

order you accept our Terms of Order,” (5) hyperlinks to the 

Terms of Order Information and Return Policy, and (6) a note 

explaining that the shopper could save money with a 

Menards credit card. The only non-standard item in this list is 

the Menards credit card note. 

Domer argues the Menards webpage is “sufficiently distracting so as to divert users’ attention from the disclosure and 

consequences of placing an order.” She compares the checkout page to the interface in Nicosia. 834 F.3d at 240–41. The 

court in Nicosia found the webpage may not have been clear 

because of the company’s use of many different fonts (“various text is displayed in at least four font sizes and six colors 

(blue, yellow, green, red, orange, and black)”); the presence of 

numerous extraneous elements (“multiple buttons and promotional advertisements”); the spatially dissipated, complex 
12 No. 23-2672 

presentation of various categories of transaction-related information (“customers’ personal address, credit card information, shipping options, and purchase summary”); and the 

sheer number of hyperlinks on the page (“between fifteen and 

twenty-five links”). Id. at 236–38. But the court “d[id] not hold 

that there was no objective manifestation of mutual assent 

here as a matter of law.” Id. at 238. Rather, it concluded 

“simply that reasonable minds could disagree on the reasonableness of notice.” Id. (holding that the district court erred in 

concluding that Nicosia failed to state a claim under Federal 

Rule of Civil Procedure 12(b)(6)).

In contrast, the Menards page is streamlined, well-spaced, 

and internally consistent. There is ample white space; nearly 

all the text and images on the screen are pertinent to the 

checkout process; and the page is organized into just a few 

neat boxes and columns (see “Billing & Credit Card Information” and “Order Summary”). And the page is not littered 

with dozens (or even a handful) of hyperlinks. The page has 

a consistent color and typeface, and only a few items are presented in bold type. So, those items—including the disclosure 

of the Terms of Order—are likely to catch a user’s attention. 

The district court correctly found that the Terms of Order 

were reasonably conspicuous in this uncluttered presentation. 

Clarity of the disclosure. Where, as here, “terms are not displayed” directly to a user, but instead “must be brought up

by using a hyperlink,” a “clear prompt directing the user to 

read them” is required. Sgouros, 817 F.3d at 1035. That usually 

means a statement prominently offset from other text—one 

that is “bold, capitalized, or conspicuous in light of the whole 

webpage.” Starke v. SquareTrade, Inc., 913 F.3d 279, 290 (2d Cir. 
No. 23-2672 13

2019). While it is permissible to disclose terms and conditions 

through a hyperlink, “the fact that a hyperlink is present must 

be readily apparent.” Berman, 30 F.4th at 857. A web designer 

must do more than “simply underscore the hyperlinked text” 

to ensure that it is sufficiently “‘set apart’” from the surrounding text. Id. (citing Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 

1, 29 (2021)). 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.” Id.

The Menards disclosure provides such a prompt for the 

consumer. It explicitly tells the user: “Please note: ... By submitting your order you accept our Terms of Order.” Courts 

have compelled arbitration based on similar prompts. See, e.g., 

Meyer, 868 F.3d at 78–79 (language stating “[b]y creating an 

Uber account, you agree” was “a clear prompt directing users 

to read the Terms and Conditions and signaling that their acceptance of the benefit of registration would be subject to contractual terms” (quotations omitted)); Selden v. Airbnb, Inc., 4 

F.4th 148, 157 (D.C. Cir. 2021) (“The screen provided reasonable notice to Selden that, by signing up, he was agreeing to 

Airbnb’s Terms of Service.”).

Domer relies on Sgouros to argue that the Menards “Please 

note” disclaimer was not conspicuous enough. But in Sgouros, 

the bold text beneath the scroll box informed the purchaser 

that clicking on the box constituted his authorization for the 

company to obtain his personal information—it said “nothing 

about contractual terms.” Sgouros, 817 F.3d at 1035 (explaining the web pages “contained no clear statement that his purchase was subject to any terms and conditions of sale). So, the 

court held that the company “actively misle[d]” the customer. 

Id. “No reasonable person” would have thought that 
14 No. 23-2672 

authorizing a company to retrieve personal information 

would form a contract binding him to arbitration. Id. The 

Menards checkout page is different: the prompt advises users 

that by completing a purchase they are agreeing to the Terms 

of Order, which included the arbitration agreement.

On the Menards website, the prompt and the disclosure 

are separated by two sentences about gift cards, but they constitute only one line of text. This does not render the prompt 

inconspicuous or misleading. As the district court correctly 

observed, the bold font stating “Please note” “encourage[s] a 

reasonable user to read through to the end of the notice.” That 

Domer did not read the gift card sentences is not relevant. 

What matters here is that a reasonable internet user would 

have seen the bold font stating “Please note” against the 

clean, white background and would have been on notice to 

read the two lines of text following the prompt. See Meyer, 868 

F.3d at 79 (“While it may be the case that many users will not 

bother reading the additional terms, that is the choice the user 

makes; the user is still on inquiry notice.”). This factor also 

weighs in favor of the finding that the Terms of Order were 

reasonably conspicuous.

Design of the hyperlinks and disclosure. The hyperlinks to the 

Terms of Order are offset from the white background in a 

bright, green color, which, as the district court observed, contrasts with the black text of the disclosure immediately above 

it. See Meyer, 868 F.3d at 78 (disclosure was conspicuous in 

part because “the dark print contrasts with the bright white 

background”). 

It does not matter that the text was green rather than the 

“typical[] blue.” Berman, 30 F.4th at 857; see, e.g., Selden, 4 F.4th 

at 157 (a reasonable online shopper was on notice of terms 
No. 23-2672 15

appearing in red, hyperlinked text against a white background). “Reasonable notice does not turn on where the hyperlinked text falls on the color wheel... .” Selden, 4 F.4th at 

157. Further, the text of the links themselves directs shoppers 

to “[v]iew” the Return Policy and Terms of Order Information, which is an indication that the terms are links and not 

static text. Domer claims the text of the disclosure above the 

hyperlinks was impermissibly small. Yet the font was the 

same as much of the surrounding text, and more is not required. See Scribner v. Trans Union LLC, __ F. Supp. 3d ___, 

___(E.D. Cal. July 2, 2024), 2024 WL 3274838 at *5 (considering 

that the hyperlink to the Terms of Use Agreement was “the 

same size as the surrounding text,” the court found that the 

website “provided reasonably conspicuous notice”); cf. Berman, 30 F.4th at 856–57 (finding the notice not reasonably conspicuous where the notice was “printed in a tiny gray font 

considerably smaller than the font used in the surrounding 

website elements, and indeed in a font so small that it is barely 

legible to the naked eye”); Starke, 913 F.3d at 293 (finding the 

notice not reasonably conspicuous where the Terms & Conditions hyperlink was “some of the smallest text”).

The disclosure begins with the bolded “Please note”, 

drawing the customer’s attention. It is placed alone below the 

“Billing & Credit Card Information,” where a customer is 

likely to see it. That Menards chose to place the hyperlinks 

below instead of within the disclosure does not increase the 

likelihood that a customer would overlook them. Rather, having the words “Terms of Order” listed twice, once in the disclosure and once in the hyperlink, makes it more likely the 

customer sees them.
16 No. 23-2672 

The district court correctly found that the font of the disclosure and hyperlinks are readable and distinct from the surrounding text. So, this element weighs in favor of affirming 

the district court’s finding of fair notice. 

Spatial placement of the disclosure. Text advising users of 

terms should be spatially coupled with the act deemed to 

manifest assent to those terms. See Starke, 913 F.3d at 292 (“The 

text, including the hyperlinks to the Terms and Conditions 

and Privacy Policy, appeared directly below, i.e., was spatially coupled with the registration button.” (cleaned up)). 

Domer argues that because the “By submitting your order” 

disclosure is not spatially closer to the “SUBMIT ORDER” 

button on the webpage, she did not have reasonable notice to 

assent to the agreement. The district court found that “[t]he 

distance between the [disclosure] and the purchase button 

does not render Menards’ disclosure unreasonable.” 

Domer correctly contends that the page lists the disclosure 

near the bottom with language discussing gift card use. But 

the disclosure and hyperlinks are placed directly below the 

“Billing & Credit Card Information” box, which a reasonable 

shopper undoubtedly reviews, and they are part of the natural visual flow of reviewing the page. See Schnabel, 697 F.3d at 

127 (“[T]he presentation of these terms at a place and time that 

the consumer will associate with the initial purchase or enrollment, or the use of, the goods or services from which the 

recipient benefits at least indicates to the consumer that he or 

she is taking such goods or employing such services subject 

to additional terms and conditions that may one day affect 

him or her.”). The user can see the disclosure and click the 

hyperlink while viewing the rest of the checkout information 

and does not need to scroll far, if at all, to read them. See 
No. 23-2672 17

Meyer, 868 F.3d at 78 (finding the notice reasonable where the 

“entire screen is visible at once, and the user does not need to 

scroll beyond what is immediately visible to find notice of the 

Terms of Service.”). The bold “Please note” draws the user’s 

eye to the information, and the disclosure and hyperlink are 

very close together with the hyperlink appearing directly below the disclosure. It is enough that the disclosure and hyperlinks are “clearly visible when viewing the page.” Fagerstrom 

v. Amazon.com, Inc., 141 F. Supp. 3d 1051, 1069 (S.D. Cal. 2015), 

aff'd sub nom. Wiseley v. Amazon.com, Inc., 709 F. App’x 862 (9th 

Cir. 2017) (observing that notices likewise do not need to 

“dominate the entire checkout page display”). 

Again, the cases Domer relies on are distinguishable. In 

Wilson, the company’s notice was in small, unbolded text, and 

it was placed underneath large, colorful buttons. See Wilson v. 

Redbox Automated Retail, LLC, 448 F. Supp. 3d 873, 879 (N.D. 

Ill. 2020) (attaching an image of the online notice). Those buttons were “entirely unrelated” to the transaction at hand. Id. 

at 884. Additionally, in Starke the “‘Terms & Conditions’ hyperlink was spatially decoupled from the transaction because 

it was not provided near the portion of the Amazon purchase 

page actually requiring Starke’s attention ... or indeed anywhere on the purchase page.” Starke, 913 F.3d at 294. The 

Menards notice, on the other hand, is flagged with bolded 

text, a similar size to other text on the screen, and placed next 

to credit card and shipping information that a user is likely to 

review prior to submitting their order.

So, the notice and disclosure are not, as Domer suggests, 

“hidden” away. And this element weighs in favor of affirming 

the district court’s finding of a reasonably conspicuous notice.
18 No. 23-2672 

Temporal relationship. The disclosure is temporally connected to the required act of the user—in other words, the 

user encounters the disclosure on the same page where the

order will be placed. See Meyer, 868 F.3d at 79 (“temporal coupling of the terms with the registration button” weighs in favor of “inquiry notice of the terms”); Schnabel, 697 F.3d at 127 

(explaining that the temporal presentation of the consumer’s 

purchase suggests that receiving goods subjects that consumer to additional terms and conditions). This leaves no discrepancy between the necessary act (clicking the “SUBMIT 

ORDER” button) and the disclosure requiring assent. The 

“notice of the Terms of Service is provided simultaneously” 

to submission of the purchase, “connecting the contractual 

terms to the services to which they apply.” Meyer, 868 F.3d at 

78. As a result, it is easy for the user to connect the disclosure 

with the required activity. So, this element weighs in favor of 

affirming the district court’s finding of fair notice.

To summarize on this first prong of whether an agreement 

was made when assent is passive, the Menards checkout page 

is not a visually bewildering screen. As the district court 

found, the website provided reasonably conspicuous notice of 

the terms to which the consumer, Domer, will be bound.

2. Assent to the Terms of Order

On the second prong, Domer argues that because the 

checkout webpage did not reasonably communicate the existence of the Terms of Order, she did not unambiguously assent. See Cullinane, 893 F.3d at 64 (“Because the Plaintiffs were 

not reasonably notified of the terms of the Agreement, they 

did not provide their unambiguous assent to those terms.”). 

According to Domer, a reasonably prudent internet user in 

her position had no reason to understand that, by clicking the 
No. 23-2672 19

“SUBMIT ORDER” button, the user was unambiguously 

manifesting assent to terms Menards had proposed elsewhere 

on the checkout webpage. 

Domer is incorrect. “There is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click 

will manifest assent to an agreement.” Sgouros, 817 F.3d at 

1033–34. As explained above, the Menards notice was reasonably conspicuous, so Domer manifested her assent to accept 

the Terms of Order by going through with the purchase. Unlike with pure clickwrap agreements, clicking “SUBMIT 

ORDER” “does not specifically manifest assent to the additional [arbitration] terms, for the purchaser is not specifically 

asked whether she agrees or to say ‘I agree.’” Nicosia, 834 F.3d 

at 236–37. 

Nevertheless, Domer unambiguously gave her assent to 

the arbitration provision. Although Domer’s assent “was not 

express, we are convinced that it was unambiguous in light of 

the objectively reasonable notice of the terms, as discussed in 

detail above.” Meyer, 868 F.3d at 79; see Register.com, Inc. v. 

Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004) (“[R]egardless 

whether [a user] did or did not say, ‘I agree’ ... [the user’s] 

choice was either to accept the offer of contract, taking the information subject to the terms of the offer, or, if the terms were 

not acceptable, to decline to take the benefits.”). 

As described above: 

There is ample evidence that a reasonable user 

would be on inquiry notice of the terms, and the 

spatial and temporal coupling of the terms with 

the registration button indicated to the 
20 No. 23-2672 

consumer that he or she is ... employing such 

services subject to additional terms and conditions that may one day affect him or her. ... A 

reasonable user would know that by clicking 

the registration button, he was agreeing to the 

terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not. 

Meyer, 868 F.3d at 79–80 (citation and quotations omitted).

Reasonable consumers understand there will be terms and 

conditions associated with using a website. That clicking the 

register button had two functions—purchase of an order and 

assent to the Terms of Service—does not render Domer’s assent ambiguous. See id. at 80. So, clicking the “SUBMIT 

ORDER” button demonstrated Domer’s unambiguous manifestation of assent to the arbitration agreement.

* * * 

Menards has shown that (1) its website provided reasonably conspicuous notice of the terms to which Domer would be 

bound, and (2) Domer’s click of the button “SUBMIT 

ORDER” unambiguously manifested her assent to those 

terms. See Berman, 30 F.4th at 856. So, the arbitration agreement was formed when Domer submitted her order.

B. Scope of the Arbitration Agreement

Once the parties “have a contract that provides for arbitration of some issues between them, any doubt concerning the 

scope of the arbitration clause is resolved in favor of arbitration as a matter of federal law.” Gore, 666 F.3d at 1032. 

After concluding that Menards and Domer had formed a 

valid arbitration contract, the district court found that 

Domer’s claims all arise from or relate to her contract of 
No. 23-2672 21

purchase with Menards. So, Domer’s claims fall within the 

scope of the arbitration agreement. 

Domer claims this court has no binding precedent for 

cases like this one where “the conduct underlying the claims 

occurred prior to the formation of the purchase contract.” 

And she asks this court to “clarify” its existing case law and 

adopt a bright-line rule that claims like hers are categorically 

beyond the scope of even the most broadly worded arbitration clauses. 

Domer is correct that this court has not expressly ruled 

that claims arising from action taken prior to the formation of 

an arbitration agreement are within the scope of the agreement. But such a ruling is not required. We have explained 

that claims may be arbitrated when they fall “within the scope 

of the agreement” to arbitrate. Rock Hemp Corp. 51 F.4th at 702. 

A claim arises from a purchase agreement when it “draws its 

very essence from the fact of and performance under the 

[agreement] in question.” S+L+H S.p.A. v. Miller-St. Nazianz, 

Inc., 988 F.2d 1518, 1524 (7th Cir. 1993). The “arising out of or 

relating to” language is an “expansive” clause. Kiefer Specialty 

Flooring, Inc. v. Tarkett, Inc., 174 F.3d 907, 909 (7th Cir. 1999); 

see Welborn Clinic v. MedQuist, Inc., 301 F.3d 634, 639 (7th Cir. 

2002). And the Supreme Court has emphasized that courts 

must “enforce covered arbitration agreements according to 

their terms.” Lamps Plus, Inc. v. Varela, 587 U.S. 176, 178 (2019); 

Smith v. Bd. of Dirs. of Triad Mfg., Inc., 13 F.4th 613, 619–20 (7th 

Cir. 2021). Courts may not imply limitations or engraft additional terms that the parties did not include in their agreement. See Lamps, 587 U.S. at 178. 
22 No. 23-2672 

The Menards Terms of Order represents a valid, binding 

agreement to arbitrate and is framed in broad terms that state, 

in part: 

Purchaser agrees that any and all controversies 

or claims arising out of or relating to this contract, or the breach thereof, shall be settled by 

binding arbitration ... .

Each of Domer’s claims “arises out of” or “relates to” her contract with Menards. We see this in her theory of liability and 

in the injuries she claims. As the district court explained, 

“[t]he theory behind her consumer protection and unjust enrichment claims is that Menards misled her about the price 

that she would pay for that purchase.” A party “may not 

avoid a contractual arbitration clause merely by ‘casting its 

complaint in tort.’” Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 643 (7th Cir. 1993) (quoting Altshul 

Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158, 159 (2d 

Cir. 1967)). Per the district court, Domer’s claims “could easily 

be recast as breach of contract claims based on an alleged misrepresentation of the terms of the purchase.” And Domer cannot avoid arbitrating her remaining claims merely because 

she brought them under different causes of action. See Kroll v. 

Doctor’s Assocs., 3 F.3d 1167, 1170 (7th Cir. 1993) (about tort 

claims); Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226 

(1987) (about statutory claims). Domer’s claims therefore arise 

out of and relate to the arbitration contract.
No. 23-2672 23

Additionally, the only harms Domer alleges are rooted in, 

and related to, the arbitration contract.4 Domer disagrees, arguing that her claims are not related to the contract. According to Domer, she “rel[ies] solely on the allegation that 

Menards induced and enticed customers to patronize its website through false representations regarding the price of items 

listed on its website.” This “occurred prior to and independently from the terms of the contract containing the arbitration provision.” 

Domer believes this temporal argument differentiates her 

case from cases like Sweet Dreams and Kiefer. Sweet Dreams, 1 

F.3d at 640 (plaintiff alleged the defendant had “fraudulently 

induced it to continue making expenditures ... after the 

Agreement had expired”); Kiefer, 174 F.3d at 908 (conduct alleged to be unlawful occurred “[d]uring the performance of 

the ... agreement”). But Domer’s claims rest on the contention 

that Menards charged her too much for her purchase—a fact 

that necessarily arose at or after contract formation.

Domer also argues that none of her claims require her to 

“reference [] the terms of the purchase contract” and are 

therefore not “encompassed by the scope of the arbitration 

provision.” But under IND. CODE § 24-5-0.5-4: 

A person relying upon an uncured or incurable 

deceptive act may bring an action for the damages actually suffered as a consumer as a result of 

4 See Domer’s Amended Class Action Complaint, at ¶¶ 48, 52 (citing 

$1.40 processing fee as an expenditure she would have avoided but-for the 

alleged price deception); id. at ¶ 52 (same for the purchase itself); id. at ¶ 63 

(describing the claimed pecuniary losses); id. at ¶¶ 60, 63 (alleging that the 

unjust enrichment conferred on Menards is the $1.40 fee).
24 No. 23-2672 

the deceptive act or five hundred dollars ($500), 

whichever is greater. 

IND. CODE § 24-5-0.5-4 (emphasis added); see Castagna v. Newmar Corp., 340 F. Supp. 3d 728, 740 (N.D. Ind. 2018). 

Similarly, the elements of a private action under WIS. STAT. 

§ 100.18 are: (1) the defendant advertised the product; (2) the 

advertising was misleading; and (3) the plaintiff suffered pecuniary loss because of the misleading advertising. See WIS. STAT. 

§ 100.18; Tietsworth v. Harley-Davidson, Inc., 661 N.W.2d 450, 

454–55 (Wis. 2003). 

Further, Wisconsin’s unjust enrichment law requires proof 

of: 

(1) a benefit conferred on the defendant by the 

plaintiff; (2) appreciation or knowledge by the 

defendant of the benefit; and (3) acceptance or 

retention of the benefit by the defendant under 

circumstances making it inequitable to do so.

Sands, 904 N.W.2d at 798 (emphasis added).

As shown in the emphasized language above, each of 

these claims require an injury to Domer: (1) “damage actually 

suffered,” (2) “suffered pecuniary loss,” or (3) “benefit conferred on [Menards].” IND. CODE § 24-5-0.5-4; WIS. STAT. 

§ 100.18; Sands, 904 N.W.2d at 798. Whether Domer was misled to “patronize” Menards before the contract was formed 

does not matter. Domer did not suffer an injury necessary to 

bring a claim until the contract was formed. In other words, 

Domer did not suffer real damages, a pecuniary loss, or confer 

a benefit until the completion of the contract, not prior to it. 

Without the contract there would be no claims; the contract is 

an indispensable element of each. 
No. 23-2672 25

Even if the conduct had occurred before formation of the 

arbitration agreement, the Supreme Court and Seventh Circuit have compelled arbitration in those instances. See, e.g., 

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 398–

99, 406 (1967) (an agreement to arbitrate claims “arising out of 

or relating to” the agreement encompasses claims of fraudulent misrepresentation and inducement occurring prior to 

agreement); Gore, 666 F.3d at 1036 (compelling arbitration of 

all plaintiff’s claims because they were “inextricably linked to 

the services he received” and the arbitration clause in the second agreement expressly covered the services); Welborn, 301 

F.3d at 636, 639–40 (compelling arbitration of claims based on 

conduct that preceded the parties’ contract because they constituted disputes over invoice amounts which was covered by 

the agreement).

Domer cites to authority that is non-binding and distinguishable. Her alleged injuries would not have existed without the one contract that included the arbitration agreement. 

Cf. Matalka v. Home Point Fin. Corp., 753 F. App’x 372, 376–77 

(6th Cir. 2018) (ruling that contract containing arbitration provision did not apply because they were two separate contracts 

with distinct scopes); Dr. Kenneth Ford v. NYLCare Health Plans 

of Gulf Coast, Inc., 141 F.3d 243, 252 (5th Cir. 1998) (ruling that 

the plaintiff would have “suffer[ed] the same injuries regardless of the agreement or a breach thereof.”).

In the alternative, Domer suggests this court adopt a 

standard she believes the Fifth and Sixth Circuits use to determine whether an arbitration provision encompasses a claim. 

According to Domer, those circuits ask whether a claim can 

be maintained without reference to the agreement at issue. So, 

she argues her claim is “likely outside the scope of the 
26 No. 23-2672 

arbitration agreement.” But Domer’s analysis of our fellow

circuits’ standards is faulty.

The Fifth and Sixth Circuits, like this court, do not apply a 

test distinct from the framework used to assess whether a 

claim falls within the scope of an arbitration agreement. Once 

the validity of the agreement has been confirmed, doubts concerning the scope of arbitrability are resolved in favor of arbitration. See Safer v. Nelson Fin. Grp., Inc., 422 F.3d 289, 294 (5th 

Cir. 2005); Masco Corp. v. Zurich Am. Ins. Co., 382 F.3d 624, 627 

(6th Cir. 2004). When confronted with questions of scope, the 

Fifth and Sixth Circuits ask whether a claim can be maintained without reference to the contract itself. But that is only

another way of examining whether there is a sufficient nexus 

between the subject matter of the contract and the substance 

of the claim. See Fazio v. Lehman Bros., Inc., 340 F.3d 386, 395 

(6th Cir. 2003) (“Even real torts can be covered by arbitration 

clauses ‘[i]f the allegations underlying the claims ‘touch matters’ covered by the [agreement].’”); Ford, 141 F.3d at 250–52. 

Either way, Domer’s claims are arbitrable. As explained, the 

contract between Domer and Menards is an indispensable element of each claim presented. None of Domer’s claims 

would be viable if she had not entered the paint-purchase 

contract with Menards. So, Domer’s argument that following 

Fifth or Sixth Circuit precedent would show that her claims 

are outside the arbitration agreement is incorrect. 

The general rules of contract formation, the elements of 

Domer’s claims, and precedent assure us that the district 

court correctly found that Domer’s claims are within the 

scope of the arbitration agreement.
No. 23-2672 27

III

We compliment the district court for its good work in this 

case. Domer and Menards formed an arbitration agreement

which encompasses Domer’s claims. For these reasons, we 

AFFIRM the district court’s decision. 
28 No. 23-2672 

HAMILTON, Circuit Judge, concurring in the judgment. Start 

from the intuition that there is something odd about judges 

looking at online user interfaces with magnifying glasses and 

debating font color and size and the placement of hyperlinks. 

This case illustrates why courts should try to rethink how we 

approach the issues of “click-wrap” and “browse-wrap” contracts of adhesion in online commerce. One modest step in 

that project would be to treat whether a “browse-wrap” user 

interface gives sufficient notice of hidden but hyperlinked 

terms and conditions as a question of fact rather than a question of law. In an appropriate case, the issue should be submitted to a jury, including in cases subject to the Federal Arbitration Act.

The issue here is one we all encounter with virtually every 

online purchase. Somewhere in the steps to complete the purchase, the online merchant includes on a screen a link that allows the customer to access a long statement of terms and 

conditions. They’re written in impenetrable legalese and usually include an arbitration clause, often even purporting to 

waive a right to collective or class arbitration. Does anybody 

read them? Empirical data indicate that only two or three customers in a thousand spend more than one second looking at 

those terms.1 

1 See Yannis Bakos et al., Does Anyone Read the Fine Print? Consumer 

Attention to Standard-Form Contracts, 43 J. Legal Stud. 1, 3 (2014) (finding 

that 0.2 percent of consumers looked at digital terms of software license 

agreement for more than one second); Florencia Marotta-Wurgler, Will Increased Disclosure Help? Evaluating the Recommendations of the ALI’s “Principles of the Law of Software Contracts”, 78 U. Chi. L. Rev. 165, 179–81 (2011) 

(enhanced disclosure of terms via a “click-wrap” contract increased consumer reading by only 0.36% as compared to a “browse-wrap” contract).
No. 23-2672 29 

I address in Part I how far the realities of online commerce 

have drifted from the law of contracts. Part II addresses the

false assumptions underlying the reasonable notice requirement. Part III addresses the realities of user-interface design 

and consumer behavior. Part IV summarizes how courts have 

been deciding these issues about the terms of contracts and 

argues that we should be treating them as issues of fact. Part 

V briefly addresses jury trials under the Federal Arbitration 

Act. 

I. “Mutual Assent” in the Era of Digital Consumer Contracts of 

Adhesion 

The common law of contracts emerged from the paradigm 

of agreements between two repeat-player merchants negotiating all the terms to which both assent. Courts ask if there 

was a meeting of the minds, shown through evidence of objective actions and communications. E.g., Household Utilities, 

Inc. v. Andrews Co., 71 Wis. 2d 17, 29, 236 N.W.2d 663, 669

(1976) (explaining that a “‘meeting of the minds’ between parties ... is required to establish the existence of a contract”); 

State v. Bembenek, 2006 WI App 198, ¶ 11, 296 Wis. 2d 422, 430, 

724 N.W.2d 685, 689 (“A contract is based on a mutual meeting 

of the minds as to terms, manifested by mutual assent.” (internal quotation omitted)). 

Mass retail commerce required courts to adapt that paradigm for a world of high-volume contracts of adhesion. The 

Supreme Court of New Jersey wrote two generations ago:

The traditional contract is the result of free bargaining of parties who are brought together by 

the play of the market, and who meet each other 

on a footing of approximate economic equality.
30 No. 23-2672 

In such a society there is no danger that freedom 

of contract will be a threat to the social order as 

a whole. But in present-day commercial life the 

standardized mass contract has appeared. It is 

used primarily by enterprises with strong bargaining power and position. “The weaker party, 

in need of the goods or services, is frequently 

not in a position to shop around for better terms, 

either because the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses. His 

contractual intention is but a subjection more or 

less voluntary to terms dictated by the stronger 

party, terms whose consequences are often understood in a vague way, if at all.” 

Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 389, 161 A.2d 

69, 86 (1960), quoting Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 Colum. L.

Rev. 629, 632 (1943). 

Now, in online transactions, merchants use contracts of 

adhesion with terms available only through hyperlinks that 

the consumer might or might not even notice, let alone read 

and understand. These online practices have taken us even 

further from the paradigm of contract law. Digital terms and 

conditions are “ubiquitous, and their terms are voluminous, 

onerous, and complex. Because they are practically costless to 

reproduce and update, businesses use them more frequently 

and alter them often.” Nancy S. Kim, Adhesive Terms and Reasonable Notice, 53 Seton Hall L. Rev. 85, 91 (2022). This dynamic “creates the potential for unfair surprise, particularly 

when those terms are at odds with longstanding consumer 
No. 23-2672 31 

expectations and with contract law’s default rules.” Mark A. 

Lemley, The Benefit of the Bargain, 2023 Wisc. L. Rev. 237, 266 

(2023). 

Digital terms of service are contracts of adhesion. They 

may be described as “click-wrap” or “browse-wrap” contracts (or hybrids), in which a retailer states only that there are 

terms and conditions that govern a transaction and that by 

completing the purchase, you accept those terms. See Kim, 53 

Seton Hall L. Rev. at 96 (“Online, where there is no option to 

sign, courts have determined that a ‘manifestation of consent’ 

could be something other than a signature; it could be a click 

on the icon that expresses acceptance.”). The contract presented in this case is a “browse-wrap.” The relevant information is not contained in the notice itself. Instead, the “notice 

provides no information other than that legal terms are available.” Id. at 104. The consumer then has the burden of seeking 

out “terms behind links,” and those links “do not necessarily 

signal whether the hidden information is important or trivial.” Id.

Under these conditions, what happens to the meeting of 

the minds and manifestations of mutual assent that are the 

foundations of contract law? Judge Brennan’s opinion for the 

court accurately reflects the state of the emerging case law, 

but those cases deserve rethinking. 

Under the emerging case law, where the merchant uses a 

design that prevents customers from completing transactions 

without affirmatively “clicking” that they agree to the linked 

terms, courts generally enforce those terms. The so-called 

“click-wrap” design requires customers to decide whether 

they want to spend the time to review those terms. If they decide not to—usually a perfectly reasonable decision—courts 
32 No. 23-2672 

treat that choice like signing a contract without reading it. 

They enforce the available but unread terms of such contracts. 

See Sgouros v. TransUnion Corp., 817 F.3d 1029, 1033–34 (7th 

Cir. 2016); accord, e.g., Oberstein v. Live Nation Entertainment, 

Inc., 60 F.4th 505, 513 (9th Cir. 2023); Berman v. Freedom Financial Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022); Meyer v. 

Uber Technologies, Inc., 868 F.3d 66, 75 (2d Cir. 2017); Nguyen v. 

Barnes & Noble, Inc., 763 F.3d 1171, 1175–76 (9th Cir. 2014); see 

generally Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th 

Cir. 1997) (“A contract need not be read to be effective; people 

who accept take the risk that the unread terms may in retrospect prove unwelcome.”). 

The problem here is different, going under the rubric of a 

“browse-wrap” user interface. See, e.g., Oberstein, 60 F.4th at 

513. Menards, like many other merchants, does not require 

customers to “click” that they accept the terms. Instead, 

Menards puts a hyperlink somewhere in the screens a customer will encounter along the path to making a purchase. 

Maybe the customer will notice, maybe not. When the customer completes the transaction, has she, in the language of 

contract law, manifested her assent to those terms? And how 

should courts decide?

The majority answers with what it calls “a fact-intensive 

legal analysis,” ante at 9, citing Sgouros, 817 F.3d at 1034–35. 

The majority finds that the arbitration clause is enforceable 

because the Menards website provided “reasonably conspicuous notice” of the company’s Terms of Order, including the 

arbitration clause. To reach that conclusion, the majority applies a five-factor test that considers (1) the simplicity or clutter of the screen; (2) the clarity of the disclosure; (3) the size 

and coloring of the disclosure’s font, in the context of the rest 
No. 23-2672 33 

of the screen; (4) the “spatial placement” of the hyperlink; and 

(5) the temporal relationship between the hyperlink and the 

steps the customer must take to complete the transaction. The 

majority takes this test from recent case law, citing Meyer, 868 

F.3d at 78–79, and Nicosia v. Amazon.com, Inc., 834 F.3d 220, 

237 (2d Cir. 2016). Ante at 10. 

To see the problem with this approach, take a look at the 

two Uber payment screenshots below, taken from cellphones. 

Each had a hyperlink for “Terms of Service and Privacy Policy,” and each hyperlink would lead a user to terms that included a mandatory arbitration clause. But each used a 

“browse-wrap” technique, not requiring affirmative assent 

with a click. One circuit found that one screen provided users 

with reasonable notice that they were agreeing to a mandatory arbitration clause by signing up for the service. A different circuit found that the other did not. Compare Cullinane v. 

Uber Technologies, Inc., 893 F.3d 53, 62–64 (1st Cir. 2018), with

Meyer v. Uber Technologies, Inc., 868 F.3d 66, 78–79 (2d Cir. 

2017). Can you tell which was which?
34 No. 23-2672 

 

In coming to opposite conclusions about essentially the 

same user interface design, the two courts looked at the usual 

factors, including relative clutter on the screen, placement of 

the relevant warning text in proximity to the elements that users must interact with to complete the transaction, the size of 

that text, the color of the text in comparison to the color of 

other text on the page and the background, and so on.2 

2 Spoiler alert: The image on the left is from Cullinane, 893 F.3d at 58, 

where the First Circuit applied Massachusetts law and found that the 

linked terms were not reasonably communicated to consumers. The image 

on the right is from Meyer, 868 F.3d at 81, where the Second Circuit applied 

California law and found as a matter of law that the consumer agreed to 

the arbitration clause in the linked terms. Each appellate decision reversed 

the respective district court decision.
No. 23-2672 35 

These conflicting results for functionally identical interfaces are not surprising, given what courts have been doing 

for almost a decade. We have been speculating about which 

design features will put the hypothetical “reasonable person” 

on “reasonable notice” that a digital purchase will bind him 

to a long document of legal terms and conditions. See, e.g., 

Sgouros, 817 F.3d at 1035 (courts ask whether a webpage design would “place a reasonable person on notice that there 

were terms and conditions attached to the purchase and that 

it would be wise to find out what the terms and conditions 

were before making a purchase” (internal quotation omitted)).

I believe this emerging multifactor test takes courts far 

from the law, far from judges’ competence, and far from the 

practical realities of online commerce and user-interface design and consumer behavior.

II. The Flawed Assumptions Underlying the Reasonable Notice Requirement

The multifactor test the majority applies today replaces 

the familiar requirement of actual mutual assent with one of 

“conspicuous notice” or “reasonable notice.” Nonetheless, it 

imports other assumptions from traditional contract law that 

do not reflect reasonable consumer behavior in online transactions. The result is that every day, many times a day, reasonable consumers give away key legal rights without realizing they have done so.

Implicit in this “conspicuous notice” or “reasonable notice” standard is a “duty to read.” See Michael L. Rustad & 

Thomas H. Koenig, Wolves of the World Wide Web: Reforming 

Social Networks’ Contracting Practices, 48 Wake Forest L. Rev. 
36 No. 23-2672 

1431, 1453 (2014) (explaining courts have expanded the 

longstanding contract principle of a “duty to read” to digital 

consumer contracts of adhesion). Courts have generally held 

that if there is a sufficiently conspicuous notice that binding 

terms and conditions exist, we assume (or our reasoning pretends) that the reasonable consumer has read them (even if 

doing so would be more costly than the transaction itself) and 

has consented to them by completing the transaction. 

A “duty to read” makes sense in a negotiated transaction 

between sophisticated parties. But empirical studies show 

this fundamental assumption does not hold true when it 

comes to digital contracts of adhesion, particularly where 

user interfaces are designed to discourage consumers from 

reading them. As noted above in note 1, virtually no consumers read the fine print. See Bakos, 43 J. Legal Stud. at 3 (0.2 

percent of consumers looked at digital terms of software license agreement for more than one second); MarottaWurgler, 78 U. Chi. L. Rev. at 179–81 (enhanced disclosure of 

terms via a “clickwrap” contract increased consumer reading 

by only 0.36 percent as compared to a “browse-wrap” contract).

I suspect that, as a policy matter, we do not actually want

consumers to take the time to read every digital contract they 

make. For example, in the time it takes to read Microsoft’s 

terms and conditions for its ubiquitous Office suite of products, you could instead read Shakespeare’s Macbeth.3 One estimate found it would take average Americans 250 hours each 

3 Nicholas LePan, Visualizing the Length of the Fine Print, for 14 Popular 

Apps, Visual Capitalist (Apr. 18, 2020), https://www.visualcapitalist.com/terms-of-service-visualizing-the-length-of-internet-agreements/ 

[https://perma.cc/VS83-32UM].
No. 23-2672 37 

to read all the digital contracts to which they agree in a given 

year.4 Another study found it would take the equivalent of 76 

eight-hour workdays to read all the digital privacy policies 

(usually separate documents incorporated by reference into 

digital terms of service) to which the average internet user has 

agreed in a given year.5 If all U.S. consumers read all the digital privacy policies they accept, one study estimated, it would 

cause a total productivity loss of $781 billion annually. See 

Aleecia M. McDonald & Lorrie Faith Cranor, The Cost of Reading Privacy Policies, 4 I/S J.L. & Policy Info. Soc’y 543, 563–65 

(2008). Adjusted for inflation in 2024, that number would now 

be above $1 trillion, with a “t.” 

Even assuming the “reasonable consumer” is willing to 

devote so much time to reading these contracts, that does not 

tell us whether consumers understand the terms to which they 

are binding themselves. In an empirical test of 500 hybridwrap digital contracts on popular websites and applications, 

99.6% were written at a reading level above that of the average 

adult. See Uri Benoliel & Shmuel I. Becher, The Duty to Read 

the Unreadable, Bos. Col. L. Rev. 2255, 2275, 2278–79 (2019). Microsoft’s “privacy statement” runs 190 pages in print, with 

many hyperlinks embedded in it. One study applied a standard measure for reading difficulty and found that the privacy 

4 David Berreby, Click to agree with what? No one reads terms of service, 

studies confirm, The Guardian (Mar. 3, 2017), https://www.theguardian.com/technology/2017/mar/03/terms-of-service-online-contracts-fine-print

[https://perma.cc/PE2L-2LBH].

5 Alexis C. Madrigal, Reading the Privacy Policies You Encounter in a Year 

Would Take 76 Work Days, The Atlantic (Mar. 1, 2012), https://www.theatlantic.com/technology/archive/2012/03/reading-the-privacy-policies-youencounter-in-a-year-would-take-76-work-days/253851/ 

[https://perma.cc/RY25-4E85]. 
38 No. 23-2672 

policies on popular sites such as CNN, Zoom, Disney, Airbnb, 

and major league baseball were more difficult to read and understand than Immanuel Kant’s notoriously dense Critique of 

Pure Reason.6

For an attorney or judge, spending an entire day parsing 

such complex legal language might be daunting but not impossible. For the average consumer who just wants to place 

an online order to pick up that last tool or can of paint to finish 

a do-it-yourself project, the reading assignment is beyond unreasonable. 

The emerging legal standard is also based on an oftenfalse assumption of choice and competition—that if a consumer is dissatisfied with a contract term, she can simply decline to complete a transaction and take her business elsewhere. See Jacques Crémer et al., Fairness & Contestability in 

the Digital Markets Act, 40 Yale J. Reg. 973, 986 (2023) (“In totally competitive markets, with totally rational consumers 

with no cognitive limitations, ... consumers would read all 

the terms of the contracts proposed by the different suppliers 

and would be able to carry out a well-founded cost benefit 

analysis among the different offers. In practice, no consumer 

can do so.”). For a modest consumer transaction like plaintiff 

Domer’s, this assumption seems very distant from real consumer behavior.

This assumption also ignores the reality of market concentration—not just in specific industries, but with regard to the 

6 See Kevin Litman-Navarro, Opinion, We Read 150 Privacy Policies. 

They Were an Incomprehensible Disaster., N.Y. Times (June 12, 2019), 

https://www.nytimes.com/interactive/2019/06/12/opinion/facebookgoogle-privacy-policies.html [https://perma.cc/29Y9-CZTZ].
No. 23-2672 39 

terms typically included in these digital contracts. See id. at 

980 (digital gatekeepers “have gained the ability to easily set 

commercial conditions and terms in a unilateral and detrimental manner for their ... end users.”).7 See also Lemley, supra, at 262 (“Take it or leave it may also not be a practical option if the industry has coalesced around similar contract 

terms.”); and Thomas D. Haley, Illusory Privacy, 98 Ind. L. J. 

75, 79–80 (2022) (finding in survey of 222 platform terms from 

major websites and smartphone apps that most key terms 

were shared, such as allowing the platform to change the 

terms of the agreement unilaterally without consumer consent).8

III. Real Consumers and the Science of User-Interface Design

Given what we know about how a reasonable consumer 

interacts with digital contracts of adhesion, the threshold 

question of fair notice takes on heightened importance. The 

literature reviewed in Part II casts doubt on whether it is ever 

reasonable to enforce digital contract terms against ordinary 

7 The Crémer article quotes in turn Council Regulation 2022/1925, 

2022 O.J. (L. 265) 1, Recital (13) (“Regulation of the European Parliament 

and of the Council on Contestable and Fair Markets in the Digital Sector 

(Digital Markets Act)”).

8 Consumers are increasingly likely to have contracted away their 

right to bring a consumer antitrust action against the very entity that subjected them to such binding terms. Crémer et al., 40 Yale J. Reg. at 979 

(internal quotation omitted); see also Mark A. Lemley & Christopher R. 

Leslie, Antitrust Arbitration and Merger Approval, 110 Nw. Univ. L. Rev. 1, 

46–47 (2015) (“Because firms with strong bargaining power can impose 

onerous terms on their business partners, a monopolist could make all 

sales contingent on the customer’s agreement to waive his or her right to 

sue for an antitrust violation in federal court, or to bring any form of classwide arbitration.” (footnote omitted)).
40 No. 23-2672 

consumers. Enforcing those terms is doubly unreasonable if 

we cannot even be sure that consumers know that they have 

agreed to such terms.

Reasonable notice is produced through the interaction of 

real consumer behavior and user-interface design choices. 

Plenty of data shows that (a) almost no consumers even 

glance at the fine print on websites, let alone click through 

links to review the terms and conditions, and (b) companies 

design their interfaces carefully to influence consumer behavior to maximize profits. Neither point is surprising. But they 

show that our “reasonable notice” cases on whether these interface designs result in binding contract terms bear little relation to actual consumer behavior or to the traditional contract principle of mutual assent. 

Because user-interface design is technical and empirically 

testable, it should be possible for judges or juries to evaluate 

evidence as to whether or not real-life consumers are on fair 

notice that they have agreed to a long list of legal terms every 

time they complete a purchase online or download a new application on their devices. At heart, the way a reasonable consumer responds to a particular user interface is a factual issue. 

A plaintiff willing to present the necessary evidence may be 

able to show genuine disputes of material fact that can then 

be tried before a jury.

A. The Realities of the “Reasonable Consumer”

As we explained recently: 

Reasonable consumer behavior is not a matter 

of pure economic theory. Rather, reasonable 

consumer behaviors are “matters of fact, subject 

to proof that can be tested at trial, even if as 
No. 23-2672 41 

judges we might be tempted to debate and speculate further about them.” In establishing reasonable consumer behavior, what matters is 

“how consumers actually behave—how they 

perceive advertising and how they make decisions.”

Kahn v. Walmart Inc., 107 F.4th 585, 595 (7th Cir. 2024), quoting 

Bell v. Publix Super Markets, Inc., 982 F.3d 468, 481 (7th Cir. 

2020). In evaluating consumer behavior, courts must recognize that people “have limited time, computational skills, and 

memories, and we rationally use mental shortcuts to deal 

with those limits.” Id. While Kahn considered state consumer 

protection law in brick-and-mortar stores, the same principles 

are relevant in considering how consumers interact with 

online retail sites and their contracts of adhesion. 

“‘[W]e have often stressed that consumers are likely to exhibit a low degree of care when purchasing low-priced, everyday items.’ This low degree of care does not make consumers unreasonable—it makes them human, and even economically rational when search costs and transaction costs are included in the utility calculus.” Kahn, 107 F.4th at 597, quoting 

Bell, 982 F.3d at 479. The low degree of care, however, “also 

makes them vulnerable to exploitation.” Id. In particular:

Predictable tendencies in consumer behavior 

mean that retail settings can be engineered to influence consumers in ways they (meaning we) 

do not fully anticipate or appreciate. “‘[M]arket 

outcomes frequently will be heavily influenced, 

if not determined, by the ability of one actor to 

control the format of information, the presentation of choices, and, in general, the setting 
42 No. 23-2672 

within which market transactions occur,’ allowing some to ‘exploit those tendencies for gain.’” 

Kahn, 107 F.4th at 595, quoting Honorable v. Easy Life Real Estate 

System, 100 F. Supp. 2d 885, 888 (N.D. Ill. 2000), quoting in 

turn Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism 

Seriously: The Problem of Market Manipulation, 74 N.Y.U. L. Rev. 

630, 635 (1999). 

These predictable tendencies in consumer behavior mean 

that a reasonable consumer may be more likely to overlook 

the existence of terms than a judge engaged in a careful examination of a single user interface. Extrapolating from our own 

experiences as busy consumers risks undervaluing the unconscious processes and conditions that shape consumer decision-making. 

B. User-Interface Design and Consumer Behavior

Do these realities matter? The businesses seeking to enforce digital contracts certainly believe they do. Just as brickand-mortar supermarkets stock higher-margin items at eyelevel to nudge shoppers into spending more, see Kahn, 107 

F.4th at 596 n.3, online retailers strategically place and format 

certain information (while obscuring other information) to influence consumer behavior.

User-interface design experts focus carefully on how the 

details of a digital interface influence users’ interactions with 

it. See Jamie Luguri & Lior Jacob Strahilevitz, Shining a Light 

on Dark Patterns, 13 J. Legal Analysis 43, 48 (2021) (“e-commerce[] firms run thousands of consumers through identical 

interfaces at a reasonable cost and see how small software 

tweaks might alter user behavior”); Colin Gray et al., The Dark 

(Patterns) Side of UX Design, In Proceedings of the 2018 CHI 
No. 23-2672 43 

Conference on Human Factors in Computing Systems (CHI 

’18), Association for Computing Machinery, Paper 534, 2 

(2018) (user-interface design is “inherently a persuasive act”).

Research can measure how various features change the 

likelihood of consumers taking certain actions when using a 

website or application. “Choice architects have long understood that contrasting visual prominence can be used to 

nudge choosers effectively into a choice the architect prefers.” 

Luguri & Strahilevitz, 13 J. Legal Analysis at 55. For example, 

one study found that the most effective design strategies include “hidden information” and “smaller print in a less visually prominent location.” Id. at 47. In a controlled study, such 

a design choice doubled the number of consumers willing to 

complete a purchase. Id. at 73–75. The authors of the study 

concluded that such design choices “might cause consumers 

to misunderstand material terms of a contractual offer they 

have just accepted.” Id. at 94; see also Gray et al., supra, at 7 

(explaining that the “primary motivator behind hidden information is the disguising of relevant information as irrelevant”). These authors could have been describing Menards’ 

design and placement of its hyperlink to the terms and conditions at issue here.

If businesses like Menards invest in designing their user 

interfaces “to influence the behavior of real consumers,” 

courts should not allow them to enforce hidden contract 

terms with arguments that “assume consumer behavior in 

idealized markets with ‘perfect information, perfect competition, and no transactions costs.’” Kahn, 107 F.4th at 597, quoting Honorable, 100 F. Supp. 2d at 888. Like them, “we should 

consider the behavior of real consumers instead of Adam 

Smith’s homo economicus.” Id. 
44 No. 23-2672 

These empirical studies on consumer behavior in response 

to a particular user interface are exactly the type of evidence 

an expert could present to a jury to show that a consumer did 

or did not have notice of the terms and conditions found on a 

digital website. The evidence might show, for example, that

the interface has been designed to distract or mislead the consumer, or at least to manipulate the consumer into proceeding

without bothering to look at the terms of the contract of adhesion. 

IV. The Multifactor Test — Law or Fact?

As noted, the majority enforces the arbitration clause in 

Menard’s terms and conditions by applying “a fact-intensive 

legal analysis” that considers (1) the simplicity or clutter of 

the screen; (2) the clarity of the disclosure; (3) the size and coloring of the disclosure’s font, in the context of the rest of the 

screen; (4) the “spatial placement” of the hyperlink; and (5) 

the temporal relationship between the hyperlink and the steps 

the customer must take to complete the transaction. Ante at 

10. 

I have been tempted to disagree with the majority’s application of this multifactor test, which requires the decisionmaker to study high-resolution screenshots of various user interfaces. On further consideration, though, I concluded that 

such a debate would not be useful. First, plaintiff Domer 

chose to litigate this case without trying to raise material factual disputes about fair notice. That’s why I concur in the 

judgment here. Second, and more fundamental, the prospect 

of debates among judges about such details of a user interface 

as font size and color and the exact placement and labels for 

hyperlinks to incomprehensible fine print shows, in my view, 

that we need to think about these problems in a different way, 
No. 23-2672 45 

one that is more consistent with older approaches to contract 

formation. 

As Justice Kagan said recently, “we’re a court. We really 

don’t know about these things. You know, these are not like 

the nine greatest experts on the internet.” Transcript of Oral 

Argument at 45–46, Gonzalez v. Google, 598 U.S. 617 (2023). The 

same is true of the judiciary as a whole. More specific to this 

case, judges are not experts in the highly specialized and technical fields of user-interface design and human-computer interaction. I suspect few judges know much about the fields 

beyond our experience as consumers.

Rather than debating among ourselves our impressions 

about font size and color, the placement of hyperlinks, and 

the choice between click-wrap and browse-wrap agreements, 

we should start treating these issues about user-interface design as questions of fact. We should invite sufficiently motivated parties to test alternative designs and to conduct discovery into merchants’ actual design choices. If judges will 

not do so, then legislators and/or consumer-protection agencies should consider stepping in with more specific disclosure 

requirements and regulatory safe harbors. 

I recognize that there may be room to debate whether the 

contract terms in online commerce result from a race to the 

bottom or a race to the top. Proponents of the browse-wrap 

interface design might well assert that busy consumers prefer 

not to be bothered with detailed contract terms they don’t care 

about, and that competitors’ common terms and conditions 

reflect an evolution toward an efficient solution to common 

issues. Those assertions may be true, but they are assertions 

of fact, subject to empirical proof and rebuttal.
46 No. 23-2672 

Advocates of treating these problems as questions of law 

might also argue that treating them as questions of fact would 

invite expensive and inconclusive battles of experts. Online 

merchants would be left guessing how to design their userinterfaces to secure enforceable terms. To some extent, those

risks are a tradeoff chosen by online merchants who wish to 

bind consumers to digital contracts of adhesion through 

browse-wrap agreements. Merchants could avoid much of

the uncertainty of litigation by using click-wrap agreements, 

which are usually enforced. 

Moreover, those risks do not change the inherently factual 

nature of the questions. Nor do those risks justify having 

judges apply their own experience as consumers to decide 

factual questions that, in the real world of online commerce, 

are the subject of genuinely expert study and design. If a 

plaintiff is willing to invest in the needed expertise, courts and 

juries should listen. Another alternative, more likely to offer 

clearer rules, would be for legislatures or consumer-protection agencies to establish more specific guidelines for enforcing terms and conditions for consumer transactions. Legislatures and agencies are also better positioned to craft rules that 

address the false assumptions underlying the reasonable notice requirement. 

In any event, the foundation of contract law is mutual assent. How can there be a meeting of the minds if the average 

person has (quite reasonably) never seen, let alone read and 

understood, the contract terms? Or if consumers are functionally deprived of an opportunity to opt out of the binding 

terms? It would be virtually impossible to navigate our modern world without binding yourself to click-wrap and

browse-wrap contracts, yet empirical data show that only a 
No. 23-2672 47 

vanishingly small segment of consumers can give anything 

approaching meaningful consent to their terms. Courts 

should account for those realities in deciding these disputes 

over contract terms.

V. Jury Trials on Contract Formation under the FAA

Finally, this reasoning points toward trying before juries 

whether to enforce hyperlinked arbitration clauses in online 

contracts of adhesion. Under the Federal Arbitration Act, 

courts must look to state contract law to determine whether 

such an agreement exists and is valid. See Tinder v. Pinkerton 

Security, 305 F.3d 728, 733 (7th Cir. 2002). Under the FAA, if a 

court finds a material factual dispute as to whether an agreement to arbitrate was made, it “shall proceed summarily to 

the trial thereof.” 9 U.S.C. § 4. 

“The burden is on the party opposing arbitration to “identify a triable issue of fact concerning the existence of the agreement in order to obtain a trial on the merits of the contract.”

Tinder, 305 F.3d at 735. Whether there is a meeting of the 

minds to form a contract is generally a question of fact under 

Wisconsin contract law. See National Steel Serv. Ctr., Inc. v. 

Wollin Silos & Equip., Inc., 92 Wis. 2d 133, 138, 284 N.W.2d 606, 

609 (1979) (“Whether there is an intent to make a contract is a 

question of fact, which must be ascertained from the parties’ 

words and actions.”); Household Utilities, Inc. v. Andrews Co., 

71 Wis. 2d 17, 28, 236 N.W.2d 663, 669 (1976) (“There is no 

meeting of the minds where the parties do not intend to contract and the question of intent is generally one to be determined by the trier of fact.”); Ginsu Prods., Inc. v. Dart Indus., 

Inc., 786 F.2d 260, 262 (7th Cir. 1986) (applying Wisconsin law

and explaining that the intent to be bound is a question of 

fact). A party who seeks a jury trial on whether an arbitration 
48 No. 23-2672 

agreement exists must request it specifically and quickly to 

comply with section 4 of the FAA, 9 U.S.C. § 4. 

Ultimately, however, because plaintiff Domer did not try 

to raise any genuine issues of material fact here, I concur in 

the judgment affirming dismissal of her case.