USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 1 of 22

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-2010

LORETTA SABRINA MARSHALL, Individually and on behalf of all others similarly situated,

Plaintiff - Appellee,

v.

GEORGETOWN MEMORIAL HOSPITAL, d/b/a Tidelands Health,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:21-cv-02733-RMG-JDA)

Argued: January 23, 2024 Decided: August 13, 2024

Before KING, GREGORY, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the majority opinion, in which Judge King and Judge Gregory joined.

ARGUED: Thomas Alan Bright, OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Greenville, South Carolina, for Appellant. Shelby Hannah Leighton, PUBLIC JUSTICE, PC, Washington, D.C., for Appellee. ON BRIEF: David A. Nauheim, NAUHEIM LAW OFFICE, LLC, Charleston, South Carolina, for Appellee. USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 2 of 22

PAMELA HARRIS, Circuit Judge:

Loretta Marshall applied for a nursing job with Tidelands Health, using Tidelands’

online application process. After Marshall failed a mandatory physical agility test, she was

denied employment. Marshall then sued Tidelands in federal court, alleging that its use of

the physical agility test constitutes prohibited discrimination.

Tidelands moved to compel arbitration, arguing that the online application materials

submitted by Marshall included an arbitration agreement covering the parties’ dispute. The

district court denied the motion, concluding that Tidelands had not shown the existence of

an agreement to arbitrate. We agree with the district court and affirm its judgment.

I.

A.

This appeal arises from a putative class action against Tidelands Health

(“Tidelands”), a South Carolina healthcare provider. The action challenges Tidelands’

policy of requiring new hires to pass a physical agility test, alleging principally that this

policy discriminates against persons with disabilities in violation of the Americans with

Disabilities Act, or the ADA,

, and has a disparate impact on people with

disabilities and women in violation of the ADA and Title VII, 42 U.S.C. § 2000e-2. 1

1 The suit also alleges violations of the Rehabilitation Act,

; Section 510 of the Employee Retirement Income Security Act, or ERISA,

; and state law. 2 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 3 of 22

The plaintiff, Loretta Marshall, was originally employed by Tidelands as a

registered nurse in 2008. She remained with Tidelands until 2011, when she left to work

elsewhere. During this first period of employment, Marshall was not subject to the physical

agility test policy for new hires, which was introduced by Tidelands only in 2010.

In 2016, Marshall again applied for a nursing position with Tidelands, this time

using Tidelands’ then-new online application process. That online employment

application included an arbitration clause, and there is no dispute that Marshall entered into

a valid arbitration agreement with Tidelands when she submitted her online application in

2016.

In 2016, the process worked as follows. As an initial online applicant, Marshall,

after inputting personal information and creating a profile, was required to scroll through

– and directed to read – a “PRE-EMPLOYMENT STATEMENT” that included an

“Agreement to Arbitrate” governing “all claims, disputes or controversies arising out of or

relating to your application for employment and application process.” J.A. 49-50. At the

end of the pre-employment statement was a box to be checked and the words “I ACCEPT,”

along with a space for an e-signature that would automatically be date- and time-stamped.

Directly beneath the box was clear notice as to the implications of checking and signing:

“By checking the box above next to the ‘I ACCEPT’ button, I am . . . agreeing to the PRE-

EMPLOY[ME]NT STATEMENT which contains the Agreement to Arbitrate[.]” J.A. 52.

Again, in 2016, Marshall could not submit her application until she scrolled past the

pre-employment statement and checked the “I ACCEPT” box. See J.A. 187. The parties

agree that Marshall complied with those procedures, checking the box and signing

3 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 4 of 22

electronically, and that in so doing she entered into an arbitration agreement with

Tidelands. But Marshall was not hired in 2016, because she did not pass the physical

agility test.

In 2020, Marshall applied for a new position with Tidelands, again using the online

application process. And it is at this point that the parties’ positions diverge: Tidelands

argues that Marshall again entered into a binding arbitration agreement when she submitted

her 2020 online application, but Marshall insists that she did not.

As a returning user of Tidelands’ online application system, Marshall faced a

different process than she had in 2016. After Marshall logged into the online portal with

her username and password, a current application appeared, already populated with the

information from her previous 2016 application. Marshall could see and make changes to

pre-populated information highlighted in yellow, and she updated certain items, such as

her anticipated start date. At the top of the webpage there was a “submit” button, allowing

the applicant to submit her updated application.

Only by scrolling down further would a returning applicant also see the pre-

employment statement containing the proposed arbitration agreement. That statement, too,

would be pre-populated with any previous acceptance of the arbitration agreement. If

Marshall scrolled all the way down before clicking “Submit,” in other words, she would

see her 2016 arbitration agreement with the “I ACCEPT” box already checked, and her

name and “4/12/2016” – the date of her previous application – already filled in next to the

box. But – and in contrast to the process she underwent in 2016 – Marshall was not

4 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 5 of 22

required to scroll down through that arbitration agreement before submitting a new

employment application.

Marshall submitted her application in June 2020. 2 After a series of emails with

Tidelands’ human resources coordinator, Marshall scheduled a physical agility test. She

again was unable to pass the test, and consistent with its policy, Tidelands did not employ

her.

B.

Marshall filed her putative class action lawsuit in federal district court in 2021.

Tidelands promptly moved to compel arbitration under the Federal Arbitration Act

(“FAA”), see

, giving rise to the appeal now before us.

In its initial motion to compel, Tidelands did not argue that Marshall entered into an

arbitration agreement in connection with her 2020 application. Instead, it moved to compel

based on the arbitration agreement signed by Marshall in 2016, when she first used

Tidelands’ online employment system. According to Tidelands, that 2016 arbitration

agreement governed all future employment applications, including the one submitted by

Marshall in 2020. For support, Tidelands submitted a declaration from Angela Traver, its

2 Marshall does not dispute that she submitted an employment application in 2020. That matters, because it became apparent during this litigation that Tidelands’ online system sometimes recorded a completed application even when a user did not in fact apply but instead clicked a “Save & Return” button on the website. And Tidelands does not contend, of course, that an applicant could manifest assent to an arbitration agreement contained in an employment application by saving rather than submitting the application. But because the parties agree that Marshall indeed submitted a 2020 application, this technical glitch, while perhaps raising questions about the general reliability of Tidelands’ system, does not bear on the outcome here.

5 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 6 of 22

Director of Employee Relations and HR Compliance, expressing her view that Marshall’s

2016 application and arbitration agreement “remained active” in 2020, continuing to bind

Marshall to arbitration. J.A. 45.

The magistrate judge to whom Marshall’s case was assigned disagreed. Marshall

v. Georgetown Mem’l Hosp., No. 2:21-cv-02733-RMG-JDA,

(D.S.C.

Dec. 29, 2021) (Marshall I). Nothing about the 2016 arbitration agreement, the magistrate

judge concluded, put Marshall on notice that it would remain in effect beyond the 2016

application cycle and cover future job applications, as well. Instead, the language of the

agreement was to the contrary, referring in the singular to “differences [that] may arise

between [the parties] during the application,” and binding the parties to arbitrate claims

“arising out of or relating to your application.”

, at *5. 3 Accordingly,

the magistrate judge issued a report and recommendation concluding that Tidelands had

not met its burden of showing the existence of an arbitration agreement related to

Marshall’s 2020 employment application.

Tidelands filed objections to the report and recommendation. Importantly, it did not

object to the magistrate judge’s dispositive finding: that nothing in the 2016 arbitration

agreement would have informed Marshall that it governed her 2020 employment

3 The relevant part of the “Agreement to Arbitrate” states as follows: “You and Tidelands Health recognize that differences may arise between you during the application that cannot be resolved without the assistance of an outside party. Both you and Tidelands Health agree to resolve any and all claims, disputes or controversies arising out of or relating to your application for employment and application process exclusively by arbitration to be administered by the American Arbitration Association (“AAA”) pursuant to its Rules for the resolution of employment disputes.” J.A. 50. 6 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 7 of 22

application, as well. Instead, Tidelands advanced a new theory, supported by a new

declaration from Traver. Marshall, Tidelands now asserted, entered into the relevant

arbitration agreement not in 2016 but in 2020, when she again applied for employment

through its online system. This was so, Tidelands argued, because “[i]n order to submit”

her new application in 2020, Marshall “had to scroll past the Agreement to Arbitrate

language” and “hit the ‘submit’ button at the bottom of the page.” J.A. 135; see also Traver

Declaration, J.A. 142 (stating a returning applicant when modifying their application “must

scroll to the bottom of the page, passing through the arbitration and class waiver

language[.]”).

Given Tidelands’ new argument and evidence, the district court referred the matter

back to the magistrate judge for full briefing of issues related to the purported 2020

agreement to arbitrate. Marshall v. Georgetown Mem'l Hosp., No. 2:21-2733-RMG,

(D.S.C. Feb. 14, 2022) (Marshall II).

In a second report and recommendation, the magistrate judge analyzed Marshall’s

2020 application process and again found that Tidelands could not establish the existence

of an agreement to arbitrate. Marshall v. Georgetown Mem'l Hosp., No. 2:21-cv-02733-

RMG-JDA,

(D.S.C. July 7, 2022) (Marshall III). The magistrate judge

began by rejecting as factually inaccurate Tidelands’ latest theory, under which a returning

user would be required to scroll through her prior arbitration agreement before hitting the

“Submit” button at the bottom of the document. In fact, the magistrate judge explained,

the screenshots attached to Traver’s new declaration showed the opposite: There was a

second “submit” button located at the very top of the document, on the initial screen

7 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 8 of 22

encountered by a returning user, which would have allowed Marshall to update her

personal information and then submit her employment application without ever seeing, on

screens further down, the pre-employment statement and her 2016 arbitration agreement.

, at *3; see J.A. 202.

Nor, the magistrate judge concluded, was Marshall otherwise provided with

reasonable notice of a 2020 arbitration agreement on offer by Tidelands. In the internet

context, the magistrate judge reasoned, a user who can conduct her business on one screen

of a website is not presumed to have notice of content that would become visible only if

the user took further action, like scrolling down to see additional screens.

at *6 (citing

Sgouros v. TransUnion Corp.,

(7th Cir. 2016); Specht v. Netscape

Commc’ns Corp.,

, 23 (2d Cir. 2002)). And here, the magistrate judge

concluded, there was nothing on the first screen notifying Marshall of the need to scroll

down further to find a proposed arbitration agreement. There was, to be sure, an

“Arbitration Notice” at the top of the employment application, stating in all capital letters

that “THIS APPLICATION AND APPLICATION PROCESS IS SUBJECT TO

ARBITRATION PURSUANT TO” South Carolina law. J.A. 157. But that notice, the

magistrate judge found, did not provide the actual terms of an arbitration agreement or

direct Marshall’s attention to contract terms elsewhere on the webpage.

, at *6 n.8.

And in any event, the magistrate judge found, even if Marshall had scrolled to the

bottom of the webpage to her 2016 arbitration agreement, she still would not have been on

adequate notice of a proposed new arbitration agreement. All Marshall would have seen

8 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 9 of 22

at the bottom of the document, the magistrate judge explained, was an “I ACCEPT” box

already checked and a signature already stamped with the date of Marshall’s 2016

application. Nothing on the page indicated that the terms of the 2016 agreement were on

offer again, and “would be revived and converted into a new agreement to arbitrate” in

2020 if Marshall assented.

. Rather than the terms of a “new agreement that could

be executed,” in other words, the final screen appeared to contain just “a copy of the 2016

Arbitration Agreement,” already signed and date-stamped “4/12/2016.”

at *7 & n.9.

A lack of reasonable notice was not the only problem with Tidelands’ position, the

magistrate judge went on to find. Even if Marshall had been on notice of a proposed 2020

arbitration agreement, Tidelands could not show that she manifested her assent to that

agreement.

. As a returning user, Marshall could apply for employment simply

by modifying some personal information and then clicking a “submit” button – and the

“word ‘submit,’” the magistrate judge explained, “does not, in its ordinary meaning,

manifest assent to an agreement or acceptance of any terms and conditions.”

Nor was

there any notice “adjacent to or near the ‘submit’ button” to fill that gap, explaining that

by clicking “submit,” the applicant would be agreeing to arbitrate.

(citing Sgouros,

).

In sum, the magistrate judge concluded that Tidelands could establish neither that

Marshall was on reasonable notice of a proposed 2020 agreement to arbitrate nor that she

manifested assent to such an agreement. Because Tidelands could not meet its burden of

showing the existence of an agreement to arbitrate, the magistrate judge again

recommended that its motion to compel arbitration be denied. Id. at *7-8.

9 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 10 of 22

Tidelands again objected, dropping what had been its primary argument before the

magistrate judge – that a returning job applicant would be required to scroll through a prior

arbitration agreement before applying – but disputing other parts of the report and

recommendation. The district court agreed with the magistrate judge, summarizing and

endorsing her reasoning and denying Tidelands’ motion to compel arbitration. Marshall

v. Georgetown Mem'l Hosp., No. 2:21-2733-RMG,

(D.S.C. Sept. 6,

2022) (Marshall IV).

Tidelands timely appealed. We have jurisdiction to consider that appeal under the

FAA. See

; Chorley Enterprises, Inc. v. Dickey’s Barbecue Restaurants, Inc.,

(4th Cir. 2015).

II.

The district court “in effect granted summary judgment” to Marshall, finding that

the undisputed evidence shows, “as a matter of law, [that] the parties did not form an

agreement.” Rowland v. Sandy Morris Fin. & Estate Planning Servs., LLC,

(4th Cir. 2021). We review that decision de novo.

.

The dispositive question on appeal is whether Tidelands can show that Marshall

entered into an agreement to arbitrate when she submitted her online application for

employment in 2020. 4

4 Marshall argues both that she did not agree to arbitrate in 2020 and, in the alternative, that her claims regarding Tidelands’ physical agility test fall outside the scope of the purported arbitration agreement on which Tidelands relies. See Am. Gen. Life & (Continued) 10 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 11 of 22

As the district court emphasized, Tidelands “bears the burden of establishing the

existence of a binding contract to arbitrate.” Minnieland Priv. Day Sch., Inc. v. Applied

Underwriters Captive Risk Assurance Co., Inc.,

(4th Cir. 2017); see

Marshall IV,

, at *2; Marshall III,

, at *4. To the

extent Tidelands suggests that it can rely on the “liberal federal policy favoring arbitration

agreements,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

(1983), to assist in meeting this burden, it is mistaken. Arbitration is “strictly a matter of

consent,” Lamps Plus, Inc. v. Varela,

(2019) (internal quotation marks

omitted), and unless Tidelands can show that there “already exists an enforceable

arbitration agreement between the parties,” there is no presumption in favor of arbitration

to be applied. Raymond James Fin. Servs., Inc., v. Cary,

(4th Cir.

2013); see Marshall III,

, at *3 n.4 (“Although courts have recognized

a presumption in favor of arbitration . . . that presumption does not apply to disputes

concerning whether an agreement to arbitrate has been entered between the parties.”).

“Whether an agreement to arbitrate was formed is . . . a question of ordinary state

contract law principles.” Rowland,

. The parties here agree that South

Carolina contract law governs, and they also agree – at least in broad brush-strokes – as to

what it requires: Under South Carolina law, Tidelands must show (1) that Marshall had

reasonable notice of an offer to enter into an arbitration agreement, and (2) that Marshall

Accident Ins. Co. v. Wood,

(4th Cir. 2005) (listing elements movant must establish in support of motion to compel arbitration). Like the district court, we agree with Marshall’s first point and therefore do not address the second. 11 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 12 of 22

manifested her assent to that agreement. See Lampo v. Amedisys Holding, LLC,

, 489-90 (S.C. Ct. App. 2022), cert. granted, No. 2022-001362 (S.C. Feb. 7, 2024);

Edens v. Laurel Hill, Inc.,

(S.C. 1978). 5 The district court held that

Tidelands could make neither of these showings, and for the reasons explained below, we

agree.

A.

We begin with the question of reasonable notice. The parties agree that when

Marshall entered the Tidelands’ online portal in 2020 as a returning user, the “Agreement

to Arbitrate” she signed in 2016 became available to her – not on the screen initially visible,

but at the bottom of the document, to which she could have scrolled. According to

Tidelands, that was enough to put Marshall on notice that it was offering her an arbitration

agreement in 2020: “It was all there in the application she was revising. It was all in one

document.” Br. of Appellant at 14. Like the district court, we disagree.

The parties disagree on one issue related to notice, with Marshall contending that 5

only actual notice will do and Tidelands arguing that constructive or inquiry notice is sufficient. We need not bear down here on the distinction between actual and constructive notice under South Carolina law, which has at times generated confusion in the South Carolina courts themselves. See Strothers v. Lexington Cnty. Recreation Comm’n,

, 122 & n.6 (S.C. 1998) (addressing confusion in appellate courts). Instead, we can decide this case in Marshall’s favor even if we assume, arguendo, that the less demanding constructive notice standard applies. We do note, however, that the authority on which Marshall relies for her actual notice argument addresses only the notice required when an employer attempts to modify an employment agreement unilaterally through edits to an employee handbook. See Fleming v. Borden, Inc.,

(S.C. 1994). South Carolina courts have yet to extend the actual notice rule beyond that context. See Lampo, 877 S.E.2d at 490; see also Hughes v. Charter Commc’ns, Inc., No. 3:19-CV- 01703-SAL,

, at *9 (D.S.C. Mar. 2, 2020). 12 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 13 of 22

As our court has observed, “[t]here is no question that the digital age has changed

the nature of contract formation.” Rowland,

. The fundamental principles

of contract law continue to apply, id.; the “trick” is that now they must be applied to a new

form of contracting, Sgouros,

; Lampo, 877 S.E.2d at 490-91 (explaining

that South Carolina courts “judge online transactions by the same law that has long

governed contracts”). In the internet context, the traditional notice inquiry focuses on “the

design and content of the relevant interface,” see Starke v. SquareTrade, Inc.,

(2d Cir. 2019), and asks whether it would put a “reasonably prudent user” on

notice of a contract on offer and its terms, Foster v. Walmart, Inc.,

(8th

Cir. 2021); see also, e.g., Starke,

; Sgouros,

; Sarchi v.

Uber Techs., Inc.,

(Me. 2022). Offers and terms that are made

“reasonably conspicuous” generally will satisfy this standard. See Foster,

(internal quotation marks omitted); Soliman v. Subway Franchisee Advert. Fund Tr., Ltd.,

(2nd Cir. 2021). 6 But Tidelands’ online application system, as

experienced by Marshall as a returning user in 2020, falls short.

6 As noted above, South Carolina law governs this dispute. But the law on internet contracts is not yet well-developed in South Carolina, and like our sister courts, we find it helpful to look for guidance to cases applying similar state contract-law principles in the internet context. See, e.g., Sgouros,

; Soliman,

n.4; Sarchi,

. We note that neither party has identified any feature of South Carolina contract law that might distinguish it from the state law at issue in these other cases.

Some courts applying traditional state contract principles have found it helpful to sort internet contracts into certain categories corresponding roughly to the means by which a website invites assent. See, e.g., Foster,

(describing “clickwrap” and (Continued) 13 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 14 of 22

1.

Tidelands’ earlier position, recall, was that Marshall necessarily was on notice of an

offer to renew her 2016 arbitration agreement when she returned to its online system in

2020, because she was required to scroll through that 2016 agreement to reach a “submit”

button at the bottom of the webpage. It is true that when an internet user is required to

“interact” with contract terms, “such as by having to scroll through them,” she is generally

treated as having actual notice of those terms. Sarchi,

; see Foster,

. But Tidelands has since dropped this argument, because it turns out that the

factual premise is incorrect: Thanks to a second “Submit” button at the top of the webpage,

Marshall could enter all necessary updates and submit her application without ever

scrolling down to the 2016 arbitration agreement. Marshall IV,

, at *2.

Instead, Tidelands relies now on the fact that Marshall could have scrolled down to

find the 2016 arbitration agreement near the end of its webpage. But in the internet context,

courts have rejected constructive notice claims based on information that “would have

become visible to [users] only if they had scrolled to the next screen.” See Starke,

(quoting Specht, 306 F.3d at 23). Where a user can complete her business on one

screen, “there is no reason to assume that [she] will scroll down to subsequent screens

“browsewrap” arrangements); Sarchi,

(adding categories of “sign-in wrap” agreements, “a hybrid of clickwrap and browser wrap agreements” and “scrollwrap” agreements, which “require[] a user actually to view . . . the terms”). But how a web-based agreement is classified does not resolve the validity of a putative contract, which remains a “fact-intensive inquiry.” Soliman,

(internal quotation marks omitted). Because the parties and the district court have analyzed Tidelands’ webpage without using this terminology, we likewise do not apply it here. 14 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 15 of 22

simply because screens are there.” Specht, 306 F.3d at 32; see Sgouros,

(“[W]e cannot presume that a person who clicks on a box that appears on a computer screen

has notice of all contents not only of that page but of other content that requires further

action (scrolling, following a link, etc.)”). Marshall may well have known that there was

“unexplored” territory below the screens on which she was operating. Specht, 306 F.3d at

32. But without more, she was not on inquiry notice that this territory included a contract

offer and she was not obliged to go exploring for one. Id.

For Tidelands, this is all just a new twist on the old “I didn’t read the contract”

excuse, and Tidelands reminds us that failure to read a contract is not a defense to

enforceability. Multiple courts have rejected similar arguments, however, explaining that

the duty-to-read principle must take account of the realities of the digital realm. While a

person signing a physical contract “will rarely be unaware of that fact,” a person using the

internet “may not realize that she is agreeing to a contract at all,” or that contract terms

appear on submerged screens or through hyperlinks. Sgouros,

. And

the duty-to-read rule has always excepted cases in which “the writing does not appear to

be a contract and the terms are not called to the attention of the recipient.” Specht, 306

F.3d at 30; Starke,

. Transposed to the internet context, “the duty to read

does not morph into a duty to ferret out contract provisions when they are contained in

inconspicuous hyperlinks,” Starke,

, or can be found only by scrolling down

through additional screens, Specht, 306 F.3d at 30-32.

2.

15 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 16 of 22

Tidelands has a fallback argument, as well. Even if internet users are not generally

bound to go searching around for contract terms, Tidelands says, Marshall was put on

notice of the need to scroll down by the arbitration statement at the top of its webpage:

“ARBITRATION NOTICE: THIS APPLICATION AND APPLICATION PROCESS IS

SUBJECT TO ARBITRATION PURSUANT TO THE SOUTH CAROLINA UNIFORM

ARBITRATION ACT, S.C. CODE ANN. § 15-48-10, ET SEQ.” J.A. 157. Once Marshall

saw that notice, Tidelands argues, she would have known that an arbitration agreement was

on offer somewhere on its webpage and that it was up to her to find the terms.

Marshall does not dispute that a conspicuous alert on the screen before her, drawing

her attention to the existence of contract terms elsewhere in the document, would have been

enough to put her on inquiry notice of those terms. That is a wise concession. Courts –

including in South Carolina – generally find that when a website provides clear and

reasonably conspicuous notice that there are contract terms available by scrolling down or

clicking a hyperlink, the user is on reasonable notice of those terms even if she never reads

them. See Lampo, 877 S.E.2d at 488, 490 (finding employee on notice of arbitration

agreement accessible by hyperlink where link is accompanied by notice that it contains

important materials affecting legal rights that employees are required to read, and employee

clicks button to “acknowledge” receipt); see also, e.g., Sgouros,

(noting

importance of using conspicuous hyperlinks to ensure purchasers are on notice of terms);

Specht, 306 F.3d at 31 (declining to enforce contract terms available only by scrolling down

in absence of “immediately visible notice of the existence of [contract] terms”); Sarchi,

16 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 17 of 22

-71 & n.11 (canvassing authority on whether interface gives reasonable

notice of contract terms available by hyperlink).

The question, then, is whether the arbitration statement at the top of Tidelands’

webpage was enough to put Marshall on reasonable notice that there was an agreement on

offer, and that she should scroll down to find it. The district court thought not. The court

did not express any doubt as to the “conspicuousness” of Tidelands’ all-caps arbitration

notice. The problem, as the district court saw it, was with the content: The arbitration

statement neither provided nor referred to the actual terms of a proposed agreement. See

Marshall IV,

, at *2. There was nothing, that is, to call Marshall’s

attention to contract terms further down the webpage, or even to notify her of the existence

of such terms. Instead, as Marshall argues, an unequivocal statement that her application

already was subject to arbitration by operation of South Carolina law might give the

opposite impression, conveying not that she was being asked to agree to arbitrate but

instead that the matter was out of her hands and already resolved.

We are inclined to agree with the district court. To put a user on reasonable notice

of the need to search for contract terms, there must be some “clear and conspicuous”

statement. See Soliman,

; Sgouros,

(refusing to enforce

arbitration agreement accessible by hyperlink where “the web pages on which [the user]

completed his purchase contained no clear statement” of “any terms and conditions of

sale”). And what Tidelands’ top-of-the-page statement most clearly tells a user is that her

application is subject to South Carolina arbitration law – not that it is subject to contract

17 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 18 of 22

“terms and conditions” that can be reviewed and agreed to by scrolling down or clicking a

hyperlink. Cf. Sgouros,

.

3.

But even if Tidelands were right – even if Marshall were obliged to scroll down – it

would not change the outcome here, because we also agree with the district court that

scrolling down still would not have provided Marshall with reasonable notice. As the court

explained, the only thing Marshall would have found had she scrolled to the bottom of the

Tidelands’ webpage was her 2016 arbitration agreement, date-stamped April 12, 2016, its

“I ACCEPT” box already checked, and her electronic signature already appended.

Marshall III,

, at *7. Nothing about that set-up would have indicated,

clearly and conspicuously, that Marshall was not reviewing an old agreement but instead

being asked to form a new one.

Tidelands’ position is that the language of the 2016 arbitration agreement itself does

that work, clearly outlining the terms of an agreement on offer just as it did in 2016. But

in 2016, of course, the context around that language was different. As a first-time user,

Marshall was required not only to scroll down through the lengthy arbitration agreement

but also to check a then-open “I ACCEPT” box at the end – a clear enough indication that

she was being offered, and accepting, an agreement to arbitrate. In 2020, by contrast,

Marshall would have encountered only the text of her 2016 arbitration agreement, clearly

labeled as such. And that text alone cannot be enough to give notice of an offer to arbitrate

in 2020. We know that because the magistrate judge, in her first report and

recommendation, rejected almost precisely the same contention, finding that the terms of

18 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 19 of 22

the 2016 agreement would not put a user on notice that the agreement could apply as well

to future job applications. See Marshall I,

, at *5 (emphasizing singular

nature of arbitration agreement’s references to “the application” and “your application”).

And Tidelands, critically, never objected to that ruling, pivoting instead to a new argument,

which means we cannot revisit the issue here. See Martin v. Duffy,

(4th

Cir. 2017) (explaining that failure to object forfeits issue on appeal).

At bottom, all of Tidelands’ notice arguments reduce to this: Marshall should have

known she needed to scroll down to the 2016 arbitration agreement at the end of its

webpage, and if she had, she would have known that the same terms were on offer again.

The district court rejected both prongs of that analysis, and for the reasons given above, we

agree.

B.

We also agree with the district court that Tidelands cannot show the second

requirement for contract formation under South Carolina law: that Marshall manifested

her assent to its arbitration agreement in 2020. To apply for a job online in 2020, Marshall

was not required to scroll through Tidelands’ pre-employment statement and agreement to

arbitrate, or to click the “I ACCEPT” button. Instead, she needed only to update pre-

populated personal information as needed (for instance, by entering a new proposed start

date) and click a “Submit” button at the top of the webpage. As the district court held, that

is not enough to manifest assent to an arbitration agreement.

Here again, we apply old contract principles to a new online context. So it remains

the case, as Tidelands argues, that assent to a contract may be manifested by conduct. See

19 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 20 of 22

Lampo, 877 S.E.2d at 490; Meyer v. Uber Techs., Inc.,

(2d Cir. 2017)

(recognizing that online assent may come in form of word or conduct). But that does not

mean that every use of a website – every purchase, download, application, or the like – can

reasonably be understood as consent to contractual terms.

Instead, courts “have emphasized the importance of clearly signaling to the [user]

in some fashion that, by continuing with the transaction or by using a website, she will be

agreeing to the terms contained” in an accompanying contract. Soliman,

.

It is not enough that a user has clicked a button: “[C]licking on a button on a webpage,

viewed in the abstract, does not signify a user’s agreement to anything.” Berman v.

Freedom Fin. Network, LLC,

(9th Cir. 2022). Only “if the user is

explicitly advised that the act of clicking will constitute assent” to an agreement will it have

that effect. Id.; see also, e.g., Specht, 306 F.3d at 29-30 (holding that “clicking on a

download button does not communicate assent to contractual terms if the offer did not

make clear to the consumer that” it “would signify assent”).

The formation of Marshall’s 2016 arbitration agreement provides a useful point of

comparison. In 2016, after scrolling through the agreement to arbitrate that was part of

Tidelands’ pre-employment statement, Marshall was required to click a button labeled “I

ACCEPT.” J.A. 52. When website buttons have labels denoting assent, like “I accept” or

“I agree,” a user’s click “can suffice to signify the acceptance of a contract.” Sgouros,

; see Sarchi,

(“[A]n agreement is more likely to be

enforceable if the button to be clicked clearly signals assent, such as ‘I agree,’ rather than

. . . ‘continue’ or ‘register.’”). And even if a button is not so labeled, a clear and

20 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 21 of 22

conspicuous notice that a click nevertheless will be taken as assent can do the trick. See

Berman,

; Soliman,

. In 2016, Tidelands took that

extra measure, as well, specifying immediately under its “I ACCEPT” box that “[b]y

checking the box above next to the ‘I ACCEPT’ button” the user is “agreeing to the PRE-

EMPLOY[ME]NT STATEMENT which contains the Agreement to Arbitrate[.]” J.A. 52.

But Tidelands took neither of those precautions in 2020 with respect to now-

returning user Marshall. In 2020, as the district court observed, the only button Marshall

was required to click said “submit,” and unlike “accept” or “agree,” “the word ‘submit’

does not, in its ordinary meaning, manifest assent to an agreement or acceptance” of

contract terms. Marshall III,

, at *6; see also Sarchi,

(holding that clicking “DONE” button on Uber website does not manifest assent because

“to a reasonably prudent user, clicking ‘DONE’ would not indicate assent to a contract”).

Nor, this time, was there any notice near the relevant button to explain that “by clicking

‘submit,’ the applicant is agreeing to any terms and conditions or that she would be bound

to an arbitration agreement.” Marshall III,

, at *6. And contrary to

Tidelands’ suggestion, there also was nothing to indicate that Marshall could uncheck the

“I ACCEPT” box in her 2016 arbitration agreement if she wished to decline the same offer

in 2020. In contrast to the belt-and-suspenders approach it took in 2016, in other words,

Tidelands in 2020 did nothing to inform Marshall that her conduct – clicking a “submit”

button to enter a job application through its online system – would constitute assent to an

arbitration agreement. See Sarchi,

(“In the context of online contracts, the

question of assent often comes down to whether the website adequately informs the user

21 USCA4 Appeal: 22-2010 Doc: 28 Filed: 08/13/2024 Pg: 22 of 22

that conduct such as clicking on a button constitutes assent to contract terms so as to justify

an inference that the user intends to be bound.”)

III.

Internet contracts have routinely been upheld by courts, including in South Carolina,

see Lampo, 877 S.E.2d at 490-92, and nothing in this opinion should be understood to

suggest any skepticism of such contracts. Indeed, the parties agree that Marshall entered

into a valid web-based arbitration agreement once before: In 2016, Marshall was put on

reasonable notice of the arbitration agreement on offer when she was required to scroll

through it and then check a box indicating acceptance; and she manifested her assent when

she checked an “I ACCEPT” box immediately adjacent to notice that checking it would

constitute agreement to arbitrate. But for whatever reason – perhaps no more than

oversight – Tidelands did not adhere to the same standards in 2020, 7 and we must agree

with the district court that no arbitration agreement was formed when Marshall submitted

her 2020 application.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

7 Counsel for Tidelands indicated at oral argument that the company has since revised its online application system for returning users, addressing the issues identified by the district court and discussed in this opinion. 22