An arbitration clause cannot bind a consumer simply because it appears somewhere in a company’s online terms. In Oakley v. FloatMe Corp., No. 1318 WDA 2025, 2026 PA Super 221 (Pa. Super. Ct. Oct. 1, 2026), the Pennsylvania Superior Court reinforced the requirement that consumers receive clear notice that they are surrendering their right to a jury trial when they agree to arbitrate.
The decision relies heavily on Duffy v. Tatum, 354 A.3d 14 (Pa. Super. Ct. 2026), which we discussed recently. Although Pennsylvania favors arbitration, that policy does not eliminate the need to establish a valid agreement.
Courts apply a two-step process. First, they determine whether a valid agreement to arbitrate exists. Second, they determine whether the particular dispute falls within that agreement’s scope. A broadly worded arbitration clause cannot overcome a failure at the first step.
In Duffy, a customer booking moving services had to check a box accepting the company’s terms of service. However, he did not have to open the hyperlink containing those terms. The registration screen also failed to explain that accepting them meant waiving a jury trial.
Duffy required explicit notice of that waiver on the registration website and application screens, before registration could be completed. It further required that any waiver within hyperlinked terms appear prominently in bold, capitalized text. The notice must accompany the agreement process so the consumer can make an informed choice.
FloatMe’s registration process had the same fundamental problem. Users could continue registering without opening or viewing its terms and conditions. Although the hyperlink appeared in bold pink lettering, the registration screen did not clearly disclose the jury-trial waiver. Users had to click the link to discover the arbitration language.
Even then, the terms stretched across 27 pages. The arbitration provision began on page 21, while the express jury-trial waiver appeared on page 25. The court found that this presentation failed to conspicuously inform the consumer of the rights she was surrendering.
The court also discussed decisions applying Duffy, including Pierce v. Empower Finance Inc., 359 A.3d 1 (Pa. Super. Ct. 2026), and the nonprecedential decision in Miller v. Festival Fun Parks, LLC, 2026 WL 2199005 (Pa. Super. Ct. July 30, 2026). These decisions reinforce the need for clear notice and informed assent. Relying on Miller, the court also rejected FloatMe’s argument that this protection improperly discriminated against arbitration under federal law.
Ultimately, the court concluded that Oakley “did not unambiguously manifest her assent to the terms of FloatMe’s arbitration agreement.” Citing Duffy, it held that the absence of mutual assent meant no valid agreement existed. The order denying arbitration therefore stood.
Conclusions
In the appellate cases described above, the courts did not expressly limit their holdings to consumer-related agreements. For example, while Duffy involved a consumer paying to have their personal items transported, the “personal” (i.e., non-commercial) aspect was unimportant for the court. As such, until the courts rule otherwise, the reasoning of these cases can also apply to purely commercial contracts where, for example, one business contracts with another for an entirely commercial service, such as copying or advertising.
Thus, for businesses and consumers alike, the lesson is clear: a jury-trial waiver must be presented openly when agreement is sought. Burying it behind a hyperlink and deep within lengthy terms does not establish informed agreement.
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