Tejon v. Zeus Networks: How Hyperlink Placement Killed an Arbitration Clause — And What It Means for TCPA Consent
Key Takeaways
The Eleventh Circuit held in Tejon v. Zeus Networks, LLC, No. 24-11114 (11th Cir. May 1, 2026), that Zeus's arbitration clause was unenforceable because the Terms of Service hyperlink was not conspicuous enough to put a reasonably prudent internet user on inquiry notice.
Four design failures sank Zeus: (1) link below the action button, (2) small font size, (3) low-contrast gray-on-black text, (4) no explicit "by clicking" language tying the action to the agreement.
The reasoning applies far beyond arbitration. Any hyperlinked disclosure — TCPA consent, class action waivers, privacy policies, partner lists, auto-renewal terms — faces the same conspicuousness standard.
Operators in lead generation, insurance, mortgage, fintech, AI voice, and PropTech should audit signup flows now. The fix is usually a checkbox-based clickwrap with explicit "by clicking" language.
Table of Contents
- The Page That Lost the Case
- Browsewrap vs. Clickwrap: A Quick Definition
- The Four Design Failures
- Why This Matters for TCPA Consent
- The Consent Page Design Checklist
- Who Should Read This as a Working Memo
- What to Do This Week
- FAQ
What the Eleventh Circuit Decided
Zeus Networks had an arbitration clause. The Eleventh Circuit just held it doesn't.
Not because the clause was unconscionable. Not because the Federal Arbitration Act doesn't apply. Because Zeus put the link to its Terms of Service in small gray text below a big red Subscribe button — and a panel majority decided that no reasonably prudent internet user would scroll past the button to find it.
On May 1, 2026, the Eleventh Circuit affirmed the denial of Zeus's motion to compel arbitration in Tejon v. Zeus Networks, LLC, No. 24-11114 (11th Cir. May 1, 2026). Tejon sued under the Video Privacy Protection Act, 18 U.S.C. § 2710, for sharing his viewing data with a social media platform. Zeus tried to push the case into arbitration. Zeus lost — over a hyperlink.
If you run a signup flow, a consent page, or any web form that depends on a hyperlinked disclosure, Tejon v. Zeus Networks is your new design spec. The fact that the case is about arbitration is incidental. The court's reasoning applies to every browsewrap-style disclosure on the internet: TCPA consent, class action waivers, privacy policies, dispute resolution clauses, auto-renewal terms.
The Page That Lost the Case
Zeus's "Choose your plan" page had three things on it: two large red action buttons (annual and monthly), a block of small gray text below the buttons covering age restrictions and auto-renewal, and — buried in that block — an underlined "Terms of Service" link. The Terms of Service page contained the mandatory arbitration clause.
That's the entire fact pattern. There was no checkbox. No "By clicking Subscribe, you agree…" language. No contrasting blue link. No bold. No all caps. Just a small gray underlined phrase below the button the user actually had to click.
Browsewrap vs. Clickwrap: A Quick Definition
A clickwrap agreement requires a user to affirmatively check a box or click a button to acknowledge acceptance of the terms — for example, an "I agree to the Terms of Service" checkbox the user has to actively check before submitting.
A browsewrap agreement merely places a hyperlink to the terms on the page and treats continued use of the website as implied consent.
Florida courts (the law that governed Tejon) enforce browsewrap agreements only when the hyperlink is "conspicuous enough to put a reasonably prudent person on inquiry notice." MetroPCS Commc'ns, Inc. v. Porter, 273 So. 3d 1025, 1028 (Fla. 3d DCA 2018) (quoting Vitacost.com, Inc. v. McCants, 210 So. 3d 761, 762 (Fla. 4th DCA 2017)). Clickwrap, because it requires affirmative action, almost always satisfies that standard. Browsewrap is where the litigation lives.
The Four Design Failures
The Eleventh Circuit identified four design failures that defeated conspicuousness in Tejon v. Zeus Networks.
1. Location: Below the Action Button
The link was beneath the action buttons. Citing Vitacost.com and Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002), the court held that when important terms sit below a highly conspicuous action button, it is not reasonable to assume users will keep scrolling. The user's eye stops at the button. So does the user's attention.
2. Font Size: Too Small to Notice
The link appeared in small text on the bottom half of the page. The surrounding informational text — payment terms, age restrictions — was the same size and color, so the link blended in instead of standing out.
3. Color and Contrast: Dim Gray on Black
The link was dim gray on black. No contrasting blue. No all caps. Underlining alone was not enough. As the Ninth Circuit put it in Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 857 (9th Cir. 2022), "[s]imply underscoring words or phrases…will often be insufficient to alert a reasonably prudent user that a clickable link exists."
4. No Explicit "By Clicking" Notice
The page said nothing telling the user that clicking the red button would subject them to anything. No "By clicking Subscribe, you agree to our Terms of Service, including a binding arbitration clause." The link itself didn't even read "ARBITRATION AGREEMENT." Zeus chose to bury the clause and the court let the consequences land where Zeus put them.
What the Dissent Said
The dissent (Branch, J.) thought the page was close enough to the conspicuous design upheld in Mia. Dolphins, Ltd. v. Engwiller, 410 So. 3d 685 (Fla. 3d DCA 2025), where a Florida court enforced an underlined link adjacent to a sign-in button on an otherwise minimalist page. Branch argued the majority overweighted out-of-state precedent and treated below-button placement as a per se defect when Florida law calls for a holistic, fact-intensive analysis. The vote was 2-1. Operators should not bet on Branch's view becoming the rule.
Why This Matters for TCPA Consent
The opinion is about arbitration. The principle is about consent.
Every modern lead-gen page, insurance quote form, mortgage application, and AI voice opt-in relies on the same architecture Zeus used: a hyperlinked disclosure sitting near an action button, with the legal weight of the entire transaction resting on whether a court treats that disclosure as enforceable.
For TCPA, the FCC's one-to-one consent rule (effective 2025) requires "prior express written consent" to a single seller. That consent has to be "clear and conspicuous." Whatever "clear and conspicuous" means, Tejon v. Zeus Networks just narrowed it. If your consent disclosure sits below the submit button in small gray text, you have an argument problem with both the FCC and the plaintiffs' bar.
Three places where the Tejon logic now bites in TCPA work.
The Consent Disclosure Language Itself
If your form says "By clicking Submit, you agree to be contacted at the number above by Acme and its marketing partners, and you agree to our Terms and Privacy Policy" — that text has to be visible, contrasting, and proximate to the click. Buried below the button means buried below the standard.
The Partner List Behind a "Marketing Partners" Link
Post-2025, one-to-one consent typically requires either a single named seller or a prominent, accessible list. If the link to that list looks like Zeus's gray Terms of Service link, plaintiffs will cite Tejon v. Zeus Networks for the proposition that the list was never effectively disclosed and therefore consent was never effectively given.
Arbitration and Class Waivers Embedded in Your Terms
If a TCPA defendant gets sued and tries to compel arbitration the way Zeus did, Tejon is the new ceiling. Burying the clause in a hyperlinked Terms of Service that itself is buried in small gray text below the button is a losing posture.
Need a consent-page audit? Henson Legal runs flat-fee audits of signup, lead, and subscription flows against the Tejon design standard and the FCC's one-to-one consent rule. Schedule a 20-minute call.
The Consent Page Design Checklist
If you operate a signup, lead, or subscription flow, audit it against these seven requirements now.
1. Use a Clickwrap, Not a Browsewrap
A checkbox the user has to actively check, with disclosure text that names the actual obligation, defeats nearly every conspicuousness argument. The court in Tejon v. Zeus Networks said it directly: "Even better, the owner could use a clickwrap. But Zeus chose to do none of this." The cost of adding a checkbox to your signup flow is trivial. The cost of losing arbitration on a class action is not.
2. Put the Disclosure Above the Action Button, Not Below
Or beside it. Anywhere the user's eye reaches before the click. Below-button placement is now a documented Eleventh Circuit problem.
3. Use Explicit "By Clicking" Language
The model phrase: "By clicking [Subscribe / Submit / Get My Quote], you agree to [Acme]'s Terms of Service and consent to be contacted by Acme and its marketing partners at the phone number above, including by autodialer and prerecorded voice." Tie the action to the agreement in the same sentence. Tejon and Berman both flagged the absence of this language as fatal.
4. Make the Link Look Like a Link
Contrasting color (blue is canonical). Underlined. Larger or bolder than surrounding text. All caps where the clause is high-stakes. A link in the same color and size as the surrounding informational text fails Tejon on its face.
5. Name the Clause in the Link Itself Where It Matters
Zeus could have used "ARBITRATION AGREEMENT" instead of "Terms of Service." That single change would have made the conspicuousness argument harder to lose. For TCPA, consider linking "Marketing Consent" or "Partner List" rather than burying both inside a generic Terms of Service.
6. Strip Surrounding Clutter
Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017), upheld a browsewrap because the page was uncluttered. Zeus's page was cluttered with payment auto-renewal language and age restrictions that competed with the disclosure. Every additional block of text near the button reduces the disclosure's visual weight.
7. Document the Design
Save dated screenshots of every version of your signup flow. If you get sued in 2027 over a 2026 signup, you need to be able to prove what the user actually saw — pixel by pixel. Plaintiffs' firms have entire archives of bad consent pages. Build your own.
Who Should Read This as a Working Memo
Lead Generation Platforms
If you run a quote form that delivers leads to multiple buyers, your consent disclosure is the load-bearing wall of the entire business. Tejon v. Zeus Networks tightens the standard for what counts as effective disclosure. Re-audit every form, every partner page, every iframe.
Insurance Agencies and Aggregators
Same logic. Your TCPA exposure scales with the number of agents and carriers receiving leads. A bad consent page multiplies that exposure across every routing decision.
Mortgage and Fintech Operators
Subscription, loan application, and account-opening flows all depend on hyperlinked terms. Arbitration and class waivers in your terms are only as strong as the conspicuousness of the link to them.
Real Estate Tech and PropTech
Tour scheduling, automated outreach, and showing-confirmation flows generate consent that must survive plaintiff scrutiny years later. Below-button placement is now an Eleventh Circuit liability.
AI Voice Platforms
AI calls live or die on whether the consumer consented to receive them. If your customer's consent capture page fails Tejon, every call your platform places to that consumer is exposure — for the customer, and potentially for the platform. Push your customers to clickwrap. Refuse to onboard customers with browsewrap-only consent flows. The 50-State AI Voice Law Survey does not save you from a federal browsewrap problem.
What to Do This Week
Pull up your highest-volume signup flow on a phone and a desktop. Take a screenshot. Show it to someone outside your company who has never seen it. Ask three questions:
- Where is the agreement to terms?
- What does clicking the button mean?
- Did you see anything about arbitration, class action waivers, or consent to be called?
If the answer to any of those questions is "no" or "I had to look for it," your consent architecture is below the Tejon v. Zeus Networks line. Fix it before someone else makes the case for you.
FAQ
What did the Eleventh Circuit decide in Tejon v. Zeus Networks?
The court held that Zeus's arbitration clause was unenforceable because the hyperlink to its Terms of Service was not conspicuous enough to put a reasonably prudent internet user on inquiry notice. The link sat below the subscribe button, in small gray text indistinguishable from surrounding informational copy. The decision was 2-1, with Judge Branch dissenting.
Does Tejon v. Zeus Networks apply outside the Eleventh Circuit?
The decision is binding only in the Eleventh Circuit (Alabama, Florida, Georgia), but it draws on Ninth Circuit (Berman v. Freedom Fin. Network, LLC) and Florida state court (Vitacost.com, Miami Dolphins) precedent that other courts cite. Operators nationwide should treat it as the operative design standard for browsewrap agreements.
Is a browsewrap agreement still enforceable after Tejon?
Yes, but only if the hyperlink is genuinely conspicuous — contrasting color, prominent placement, ideally adjacent to or above the action button, with explicit "by clicking" language. The safer path is a clickwrap with a checkbox. Browsewrap is now a litigation invitation in any flow where a meaningful clause is buried in the linked terms.
How does Tejon affect TCPA consent disclosures?
TCPA consent must be "clear and conspicuous" under FCC rules. A consent disclosure designed like Zeus's Terms of Service link — small, gray, below the button, undifferentiated from surrounding text — is unlikely to satisfy that standard. The FCC's 2025 one-to-one consent rule sharpens this further.
What is the single most important fix for a signup page after Tejon?
Add a checkbox the user must affirmatively check, with explicit text naming the obligation: "I agree to Acme's Terms of Service, including a binding arbitration clause and class action waiver, and consent to be contacted by Acme at the phone number above." Affirmative acceptance moots the entire conspicuousness fight.
What is the difference between clickwrap and browsewrap?
A clickwrap agreement requires the user to affirmatively check a box or click a button to acknowledge acceptance. A browsewrap agreement only places a hyperlink to the terms on the page and treats continued use as implied consent. Clickwrap is materially harder to attack in court.
