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ARTICLE · 12 DECEMBER 2025

The Missing Sentence That Can Sink Your Online Terms Of Service

Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
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Frankfurt Kurnit Klein & Selz PC

Frankfurt Kurnit Klein & Selz PC

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To mitigate against the risk of class actions, many companies include mandatory arbitration agreements and class action waivers in their online terms of service.

United StatesLitigation, Mediation & Arbitration

To mitigate against the risk of class actions, many companies include mandatory arbitration agreements and class action waivers in their online terms of service. There has been a flurry of recent litigation about whether users are actually bound to these arbitration agreements and class action waivers. Courts have made clear that a link to a terms of service in a website footer is insufficient to bind users. Instead, users must receive clear and conspicuous notice, and they must manifest assent. But what does this mean in practice? What might seem like a simple implementation detail has become a study in UI design, with plenty of trapdoors.

A recent California decision is a good reminder that certain ingredients are essential—namely, explicit language telling users that by checking a box or clicking a specific action button (e.g., "Pay Now" or "Submit"), they are agreeing to the site's terms of service.

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www.fkks.com

This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

Originally published by the New York Legal Ethics Reporter

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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