“Clickwrap” arbitration agreements—that is, agreements that require an online “click” to agree—are enforceable under Florida law if certain requirements are met. And a defendant’s unrebutted declaration describing the circumstances of the “click,” and the terms to which the user agreed, may be sufficient to require arbitration. Lamonaco v. Experian Inform. Sols., Inc., 2025 WL 1831283 (11th Cir. July 3, 2025).
Carmen Lamonaco sued Experian, alleging violations of the Fair Credit Reporting Act, after a $26,922 auto loan showed up on her credit report. Experian answered, filed a case management report, and provided initial disclosures before filing a motion to compel arbitration. In support of the motion, Experian submitted a declaration from a corporate officer of its affiliate ConsumerInfo.com. The declaration, signed under penalty of perjury, set forth that it was made on personal knowledge based on business records; that Lamonaco enrolled in the CreditCheck Total service on February 16, 2020; that her enrollment required clicking a “submit” button below a bolded notice referring to the applicable Terms of Use; and that the Terms of Use included an arbitration clause covering “all disputes and claims” between the user and Experian and its affiliates. The declaration included as attachments a screenshot of the screen with the “submit” button and a copy of the Terms of Use.
In response, relying heavily on Bazemore v. Jefferson Capital Systems, LLC, 837 F3d. 1325 (11th Cir. 2016), Lamonaco argued that the declaration was insufficient to prove that she had agreed to arbitrate her claims. She also claimed that Experian had by its litigation conduct waived its right to insist on arbitration. Lamonaco did not argue that the scope of the arbitration provision did not cover her claims; did not dispute that ConsumerInfo.com is an Experian affiliate; and did not dispute that she had enrolled in the CreditCheck Total program. The district court denied the motion to compel arbitration, finding that the declaration submitted in support of the motion offered only conclusory assertions and rested on business records not attached to the declaration. The district court also held that Experian had waived its right to insist on arbitration. Experian appealed.
The Eleventh Circuit reversed, holding that the district court erred on both issues. The court’s opinion, written by Judge Tjoflat, reviewed the procedure provided by 9 U.S.C. § 4: “[i]f the existence of the arbitration agreement is not genuinely disputed, the court must compel arbitration,” “[b]ut if the opposing party raises a genuine dispute of material fact as to contract formation, the court must hold a summary trial.” That procedure applies equally to a “clickwrap” agreement, the existence of which requires, under Florida law, a showing by the preponderance of the evidence that the relevant terms were reasonably presented and that the user took “clear, affirmative steps” to accept them.
Lamonaco relied on Bazemore to argue that the declaration submitted in support of Experian’s motion fell short of those requirements. “But Bazemore turned on a failure of proof that is not present” in Lamonaco’s case. The Bazemore defendant submitted no evidence of what the plaintiff saw during the “clickwrap” process, including whether the plaintiff saw any reference to the relevant terms and conditions. The declaration in Bazemore also said only that a standard agreement including an arbitration agreement “would have been sent” to the plaintiff in the mail, without proof of mailing and without providing a copy of the standard agreement. Experian, by contrast, submitted a declaration that “described the online enrollment process in detail” and included both a screenshot of the page with the “submit” button and a reference to the Terms of Use and a copy of the Terms themselves. That submission, unrebutted by Lamonaco, was sufficient to show by the required preponderance that the parties entered into the arbitration agreement.
Because the arbitration agreement delegated to the arbitrator “all disputes over the interpretation, applicability, or enforceability of the arbitration agreement,” and an amendment to the agreement stated specifically that the delegation included questions of waiver, Lamonaco’s argument that Experian waived its arbitration right was for the arbitrator to decide. While waiver is presumptively a question for the court, Grigsby & Assoc. v. M. Sec. Inv., 664 F.3d 1350 (11th Cir. 2011), that default rule does not apply when the parties have “clearly and unmistakably” delegated the issue to an arbitrator.