In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 23-2672
PILAR DOMER,
                                                 Plaintiff-Appellant,
                                 v.

MENARD, INC.,
                                                Defendant-Appellee.

                     ____________________

            Appeal from the United States District Court
                for the Western District of Wisconsin.
       No. 3:22-cv-00444-jdp — James D. Peterson, Chief Judge.
                     ____________________


  ARGUED JANUARY 25, 2024 — DECIDED SEPTEMBER 3, 2024
               ____________________

   Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges.
    BRENNAN, Circuit Judge. Pilar Domer submitted an online
order to pick up a can of paint at a Menards home improve-
ment store. Menards charged Domer a $1.40 fee for the pickup
service she selected. Domer commenced this putative class ac-
tion, alleging that Menards had not disclosed the pickup ser-
vice fee and used the fee to manipulate its prices. Menards
2                                                         No. 23-2672

moved to compel arbitration of Domer’s claims. The district
court granted Menards’s motion, finding that the parties had
entered into an arbitration agreement and that Domer’s
claims fell within its scope.
    Domer appealed, arguing that the arbitration agreement
was invalid and unenforceable, and in any event did not cover
her claims. We affirm the district court. Menards has shown
that its website provided reasonably conspicuous notice of
the terms to which Domer would be bound and Domer un-
ambiguously manifested her assent to those terms. Addition-
ally, each of Domer’s claims arise from or relate to the contract
between Domer and Menards. So, Domer’s claims are within
the scope of the arbitration agreement.
                                   I
    Menard, Inc. is a home improvement retail company that
sells goods through brick-and-mortar stores and on its web-
site. 1 Customers who purchase products online have three op-
tions for receiving their goods. They may go to a local store
and locate the item on the shelf, pay a small fee to have a
Menards employee locate the item on the shelf and prepare it
for pickup, or have the product shipped to their home.
    Domer visited the Menards website to purchase a can of
paint. Before checking out, she chose option three on the web-
site: to have an employee retrieve the correct item from the
shelf, prepare it for pickup at the Menards store in Valparaiso,
Indiana, and place it at the pickup counter. In exchange for
that service, Menards would charge her a $1.40 per item fee.


    1 Menards is owned by the defendant Menard, Inc. For clarity this

opinion uses “Menards” throughout, as did the district court.
No. 23-2672                                                    3

   After Domer selected the pickup option, the website pre-
sented her with the final page in the online checkout process:




    As shown, the page presented a summary of Domer’s
transaction. It included one shaded, bordered box listing her
“Billing & Credit Card Information” and an adjoining column
with her “Order Summary.” The “Billing & Credit Card Infor-
mation” listed her payment information. The box also pre-
sented options to receive text updates on the status of her or-
der and to use a gift card. The “Order Summary” column
listed four line-items: the “Merchandise Subtotal” (the price
of the items purchased); the “Processing Fees” (the pickup
service fee); the “Sales Tax”; and the “Total” cost. In addition,
the “Order Summary” column included a sentence explaining
how much money Domer had saved on her purchase, the op-
tion to submit her purchase, and a couple of sentences adver-
tising the Menards credit card.
4                                                 No. 23-2672

   The same page included an additional note to purchasers
immediately below the “Billing & Credit Card Information”
section:
      Please note: Gift cards may be used as a tender
      for any merchandise portion of your order and
      cannot be applied to purchase of another gift
      card. Applied gift card tenders will be used first
      towards your purchase and the remaining bal-
      ance applied to your entered credit card. By
      submitting your order you accept our Terms of
      Order.
The note began with bold font and used the same size and
style font as the surrounding text.
    Directly below the note, there were two hyperlinks: “View
Return Policy | Terms of Order Information.” The links, like
the note, used the same size font as the surrounding text. But
the links were green, unlike the black font of the surrounding
text. Clicking on the “Terms of Order Information” link
opened a text box with the Menards Terms of Order. The first
paragraph of the Terms of Order contained an arbitration
clause:
      READ               THIS            CONTRACT
      CAREFULLY. … Purchaser agrees that any and
      all controversies or claims arising out of or re-
      lating to this contract, or the breach thereof,
      shall be settled by binding arbitration adminis-
      tered by the American Arbitration Association
      under its applicable Consumer or Commercial
      Arbitration Rules. Purchaser agrees that all ar-
      bitrators selected shall be attorneys. This
No. 23-2672                                                                 5

        provision shall supersede any contrary rule or
        provision of the forum state. YOUR
        PURCHASE OF THE PRODUCT ON THIS
        CONTRACT           CONSTITUTES         YOUR
        AGREEMENT TO ALL TERMS AND
        CONDITIONS STATED ABOVE.
The text box for the Terms of Order used a larger font than the
surrounding text.
    Domer completed her purchase and picked up her can of
paint in the designated store. Domer then commenced this
putative class action. 2 Domer’s amended complaint included
three claims: (1) violation of the Indiana Deceptive Consumer
Sales Act, 

-4; (2) violation of the Wiscon-
sin Deceptive Trade Practices Act, 

; and
(3) unjust enrichment, see Sands v. Menard, 

,
798 (Wis. 2017) (describing the elements of Wisconsin’s unjust
enrichment law). She alleged that Menards had used the
pickup service fee to manipulate its prices—artificially deflat-
ing them by $1.40 in its advertising materials and then re-
couping that difference in the form of an undisclosed fee. Ad-
ditionally, she argued that the $1.40 processing fee for in-store
pickup had not been disclosed, and, had it been disclosed, she
would not have purchased the can of paint.


    2 The district court had jurisdiction under the Class Action Fairness

Act of 2005 (codified at 

(d)). Domer is a citizen of Indiana.
Menard, Inc. is incorporated and maintains its principal business offices
in Wisconsin. Menards also regularly conducts business and operates
store locations in Indiana. There are more than one hundred members in
the putative class and the amount in controversy is greater than
$5,000,000. We have jurisdiction over the appeal of the district court’s final
judgment pursuant to 

.
6                                                  No. 23-2672

    Menards moved to compel arbitration under the Federal
Arbitration Act, 

, 4. To Menards, Domer entered
into an enforceable arbitration agreement by accepting the
Menards Terms of Order when she completed her online pur-
chase. As a result, the parties had a valid and binding agree-
ment requiring arbitration of any disputes that either arise
from or relate to Domer’s online purchase. Menards further
contended that Domer’s claims fall within the scope of the ar-
bitration agreement and, therefore, must be arbitrated.
    The district court ruled for Menards. The court found that
the arbitration agreement was enforceable. The totality of the
circumstances demonstrated fair and adequate notice of the
existence of an agreement and the consequence of proceeding
with an online purchase. The court also found that “[a]ll of
Domer’s claims are related to her contract of purchase with
Menards: Domer agreed to pay Menards money, and
Menards provided her with a can of paint in exchange.” So,
her claims fell within the scope of the “expansive” arbitration
clause to which she had agreed.
                               II
   On appeal, Domer argues that the district court errone-
ously granted Menards’s motion to compel arbitration. To
her, the arbitration agreement was invalid and unenforceable,
and in any event did not cover her claims.
    The “[a]rbitrability of a dispute is often a question of law
that does not depend on undisputed facts… .” Scheurer v.
Fromm Fam. Foods LLC, 

 (7th Cir. 2017) (citing
21 WILLISTON ON CONTRACTS § 57:68 (4th ed. 2017)). Some-
times, though, it “present[s] a mixed question of law and
fact.” Id. We review a district court’s ruling on a motion to
No. 23-2672                                                     7

compel arbitration based on the procedural posture of that
ruling. Id.
   When a factual dispute exists about whether an arbitration
agreement was made, parties have options. If the question is
brought to a jury, we “must uphold the finding if it is sup-
ported by a reasonable basis in the record.” Id. This includes
evidence or expert testimony. Additionally, if the judge holds
an evidentiary hearing, we review findings of fact “for clear
error.” Id. The parties here chose neither of these possibilities.
Domer has conceded that here “the facts are undisputed.” 3
    In cases with no factual disputes, the district court decides
the issue as a matter of law. In these instances, like here, our
“review should be de novo.” Id.; see Gore v. Alltel Commc’ns,
LLC, 

 (7th Cir. 2012) (“We review de novo
a district court’s grant or denial of a motion to compel arbitra-
tion.”).
   A. Formation of the Arbitration Agreement
    Whether an agreement to arbitrate has been formed is gov-
erned by state-law principles of contract formation. Gore, 

. Wisconsin contract law applies here. Rock Hemp
Corp. v. Dunn, 

 (7th Cir. 2022) (citing Future-
Source LLC v. Reuters Ltd., 

 (7th Cir. 2002)).
But, as the district court stated, this case “calls for the appli-
cation of general rules of contract formation, so the choice of
law is not likely to affect the outcome.” Menards bears the
burden of proving that an agreement to arbitrate exists. See
A.D. v. Credit One Bank, N.A., 

 (7th Cir.
2018).


   3 Oral Argument, 5:30–5:40.
8                                                     No. 23-2672

   The Menards Terms of Order contains an arbitration
clause. Domer contends she did not agree to these terms, and
therefore did not agree to arbitrate her claims, when she sub-
mitted her purchase order on the Menards website.
    Under Wisconsin law, the formation of a valid contract re-
quires that “an offer was accepted.” Wells Fargo Bus. Credit v.
Hindman, 

 (7th Cir. 2013) (quoting Hoeft v.
U.S. Fire Ins. Co., 

 (Wis. Ct. App. 1989)).
Additionally, there must “be a meeting of the minds, a factual
condition that can be demonstrated by word or deed.” 

(quoting Zeige Distrib. Co. v. All Kitchens, Inc., 

(7th Cir. 1995). “Objective manifestations of assent, rather
than subjective intentions, are controlling.” 

 (citing Associ-
ated Milk Producers, Inc. v. Meadow Gold Dairies, Inc., 

 (7th Cir. 1994); see also Skycom Corp. v. Telstar Corp.,

 (7th Cir. 1987). Intent to manifest assent is
generally “‘derived from a consideration of th[e parties’]
words, written and oral, and their actions.’” Skyrise Constr.
Grp., LLC v. Annex Constr., LLC, 

 (7th Cir.
2020) (quoting Household Utils., Inc. v. Andrews Co., 

 (Wis. 1976)). But the parties are not required
to have signed the agreement for it to be valid. Tinder v. Pink-
erton Sec., 

 (7th Cir. 2002). Arbitration is “a
creature of contract.” Sgouros v. TransUnion Corp., 

 (7th Cir. 2016) (citing inter alia AT&T Mobility LLC.
v. Concepcion, 

, 339 (2011)). So, these principles ap-
ply with equal force to arbitration contracts, including those
purportedly formed over the internet.
   One way to assent to and form a contract online is for a
customer to click on an “I Accept” button as part of a “click-
wrap” agreement. See id. “Courts around the country have
No. 23-2672                                                       9

recognized that this type of electronic ‘click’ can suffice to sig-
nify the acceptance of a contract.” Id. These agreements differ
from “browsewrap” agreements, which provide veiled notice
to customers that mere use of the website constitutes agree-
ment to various terms and conditions. See Oberstein v. Live Na-
tion Ent., Inc., 

 (9th Cir. 2023) (comparing
clickwrap and browsewrap agreements in the context of
online arbitration agreements). Browsewrap agreements typ-
ically are not enforced. 

    But, as here, online agreements often fall somewhere in
between these two forms of agreement. Courts acknowledge
that some companies “rely on simply displaying,” some-
where on a webpage, “a notice of deemed acquiescence and a
link” to the putative terms. Cullinane v. Uber Techs., Inc., 

 (1st Cir. 2018). When this happens, “purported as-
sent is largely passive.” Schnabel v. Trilegiant Corp., 

 (2d Cir. 2012). And when assent is passive, a court
will recognize an enforceable contract “only if: (1) the website
provides reasonably conspicuous notice of the terms to which
the consumer will be bound; and (2) the consumer takes some
action, such as clicking a button or checking a box, that unam-
biguously manifests his or her assent to those terms.” Berman
v. Freedom Fin. Network, LLC, 

 (9th Cir. 2022)
(citing Meyer v. Uber Techs., Inc., 

 (2d Cir. 2017)).
    Although these questions may involve underlying facts,
they are questions of law. Rather than resolving questions of
fact, we undertake a fact-intensive legal analysis. See Sgouros,
817 F.3d at 1034–35. While this “may lead to different results
as courts encounter novel fact patterns, the general legal
framework remains unchanged.” Oberstein, 

.
10                                                    No. 23-2672

    Domer did not click a button saying “I Accept” to form the
arbitration agreement. So, to prove that the arbitration agree-
ment was formed, Menards must satisfy the test for when as-
sent is passive. Although we analyze the website checkout
page presentation, we do so to decide two legal questions:
(1) did the website provide reasonably conspicuous notice of
the terms to which the consumer will be bound, and (2) did
the consumer take some action that unambiguously mani-
fested his or her assent to those terms? See Berman, 

.
       1. Reasonably conspicuous notice
    We examine notice from the perspective of a reasonable
online shopper—that is, a person who is neither an expert nor
a novice with technology. See Meyer, 

 (“Accord-
ingly, when considering the perspective of a reasonable
smartphone user, we need not presume that the user has
never before encountered an app or entered into a contract
using a smartphone.”). This permits certain basic, objective
assumptions regarding the user’s familiarity with commercial
websites, hyperlinks, and online contracts, regardless of sub-
jective experience.
    When deciding whether an online disclosure has afforded
fair notice, we consider five elements: (1) the simplicity of the
screen; (2) the clarity of the disclosure; (3) the size and color-
ing of the disclosure’s font; (4) the spatial placement of the hy-
perlink; and (5) the temporal relationship to the user’s action.
See, e.g., 

 at 78–79. No single factor is dispositive: the ques-
tion is whether the website provided reasonable notice “in
light of the whole webpage.” Nicosia v. Amazon.com, Inc., 

 (2d Cir. 2016).
No. 23-2672                                                      11

    Simplicity of the screen. First, we assess the simplicity of the
information on the screen and the way that information is pre-
sented. See Meyer v. Uber Techs., Inc., 

 (2d Cir.
2017) (“The Payment Screen is uncluttered, with only fields
for [(1)] the user to enter his or her credit card details,
[(2)] buttons to register for a user account or to connect the
user's pre-existing PayPal account or Google Wallet to the
Uber account, and [(3)] the warning that ‘By creating an Uber
account, you agree to the TERMS OF SERVICE & PRIVACY
POLICY.’”). The district court concluded that Menards online
checkout page was “relatively uncluttered.”
   Menards online checkout page includes fields for (1) the
user to enter his credit card details, (2) an order summary list-
ing costs with a button to submit the order, (3) an option to
receive text updates on the status of the order, (4) a note about
the use of gift cards and explaining that “By submitting your
order you accept our Terms of Order,” (5) hyperlinks to the
Terms of Order Information and Return Policy, and (6) a note
explaining that the shopper could save money with a
Menards credit card. The only non-standard item in this list is
the Menards credit card note.
    Domer argues the Menards webpage is “sufficiently dis-
tracting so as to divert users’ attention from the disclosure and
consequences of placing an order.” She compares the check-
out page to the interface in Nicosia. 834 F.3d at 240–41. The
court in Nicosia found the webpage may not have been clear
because of the company’s use of many different fonts (“vari-
ous text is displayed in at least four font sizes and six colors
(blue, yellow, green, red, orange, and black)”); the presence of
numerous extraneous elements (“multiple buttons and pro-
motional advertisements”); the spatially dissipated, complex
12                                                   No. 23-2672

presentation of various categories of transaction-related infor-
mation (“customers’ personal address, credit card infor-
mation, shipping options, and purchase summary”); and the
sheer number of hyperlinks on the page (“between fifteen and
twenty-five links”). 

 at 236–38. But the court “d[id] not hold
that there was no objective manifestation of mutual assent
here as a matter of law.” Id. at 238. Rather, it concluded
“simply that reasonable minds could disagree on the reason-
ableness of notice.” Id. (holding that the district court erred in
concluding that Nicosia failed to state a claim under Federal
Rule of Civil Procedure 12(b)(6)).
    In contrast, the Menards page is streamlined, well-spaced,
and internally consistent. There is ample white space; nearly
all the text and images on the screen are pertinent to the
checkout process; and the page is organized into just a few
neat boxes and columns (see “Billing & Credit Card Infor-
mation” and “Order Summary”). And the page is not littered
with dozens (or even a handful) of hyperlinks. The page has
a consistent color and typeface, and only a few items are pre-
sented in bold type. So, those items—including the disclosure
of the Terms of Order—are likely to catch a user’s attention.
The district court correctly found that the Terms of Order
were reasonably conspicuous in this uncluttered presenta-
tion.
   Clarity of the disclosure. Where, as here, “terms are not dis-
played” directly to a user, but instead “must be brought up
by using a hyperlink,” a “clear prompt directing the user to
read them” is required. Sgouros, 

. That usually
means a statement prominently offset from other text—one
that is “bold, capitalized, or conspicuous in light of the whole
webpage.” Starke v. SquareTrade, Inc., 

 (2d Cir.
No. 23-2672                                                    13

2019). While it is permissible to disclose terms and conditions
through a hyperlink, “the fact that a hyperlink is present must
be readily apparent.” Berman, 

. A web designer
must do more than “simply underscore the hyperlinked text”
to ensure that it is sufficiently “‘set apart’” from the surround-
ing text. 

 (citing Sellers v. JustAnswer LLC, 

, 29 (2021)). Customary design elements denoting the exist-
ence of a hyperlink include “the use of a contrasting font color
(typically blue) and the use of all capital letters.” 

    The Menards disclosure provides such a prompt for the
consumer. It explicitly tells the user: “Please note: … By sub-
mitting your order you accept our Terms of Order.” Courts
have compelled arbitration based on similar prompts. See, e.g.,
Meyer, 868 F.3d at 78–79 (language stating “[b]y creating an
Uber account, you agree” was “a clear prompt directing users
to read the Terms and Conditions and signaling that their ac-
ceptance of the benefit of registration would be subject to con-
tractual terms” (quotations omitted)); Selden v. Airbnb, Inc., 

 (D.C. Cir. 2021) (“The screen provided reason-
able notice to Selden that, by signing up, he was agreeing to
Airbnb’s Terms of Service.”).
    Domer relies on Sgouros to argue that the Menards “Please
note” disclaimer was not conspicuous enough. But in Sgouros,
the bold text beneath the scroll box informed the purchaser
that clicking on the box constituted his authorization for the
company to obtain his personal information—it said “nothing
about contractual terms.” Sgouros, 

 (explain-
ing the web pages “contained no clear statement that his pur-
chase was subject to any terms and conditions of sale). So, the
court held that the company “actively misle[d]” the customer.

 “No reasonable person” would have thought that
14                                                     No. 23-2672

authorizing a company to retrieve personal information
would form a contract binding him to arbitration. 

 The
Menards checkout page is different: the prompt advises users
that by completing a purchase they are agreeing to the Terms
of Order, which included the arbitration agreement.
    On the Menards website, the prompt and the disclosure
are separated by two sentences about gift cards, but they con-
stitute only one line of text. This does not render the prompt
inconspicuous or misleading. As the district court correctly
observed, the bold font stating “Please note” “encourage[s] a
reasonable user to read through to the end of the notice.” That
Domer did not read the gift card sentences is not relevant.
What matters here is that a reasonable internet user would
have seen the bold font stating “Please note” against the
clean, white background and would have been on notice to
read the two lines of text following the prompt. See Meyer, 

 (“While it may be the case that many users will not
bother reading the additional terms, that is the choice the user
makes; the user is still on inquiry notice.”). This factor also
weighs in favor of the finding that the Terms of Order were
reasonably conspicuous.
    Design of the hyperlinks and disclosure. The hyperlinks to the
Terms of Order are offset from the white background in a
bright, green color, which, as the district court observed, con-
trasts with the black text of the disclosure immediately above
it. See Meyer, 

 (disclosure was conspicuous in
part because “the dark print contrasts with the bright white
background”).
    It does not matter that the text was green rather than the
“typical[] blue.” Berman, 

; see, e.g., Selden, 

 (a reasonable online shopper was on notice of terms
No. 23-2672                                                   15

appearing in red, hyperlinked text against a white back-
ground). “Reasonable notice does not turn on where the hy-
perlinked text falls on the color wheel… .” Selden, 

. Further, the text of the links themselves directs shoppers
to “[v]iew” the Return Policy and Terms of Order Infor-
mation, which is an indication that the terms are links and not
static text. Domer claims the text of the disclosure above the
hyperlinks was impermissibly small. Yet the font was the
same as much of the surrounding text, and more is not re-
quired. See Scribner v. Trans Union LLC, __ F. Supp. 3d ___,
___(E.D. Cal. July 2, 2024), 

 at *5 (considering
that the hyperlink to the Terms of Use Agreement was “the
same size as the surrounding text,” the court found that the
website “provided reasonably conspicuous notice”); cf. Ber-
man, 30 F.4th at 856–57 (finding the notice not reasonably con-
spicuous where the notice was “printed in a tiny gray font
considerably smaller than the font used in the surrounding
website elements, and indeed in a font so small that it is barely
legible to the naked eye”); Starke, 

 (finding the
notice not reasonably conspicuous where the Terms & Condi-
tions hyperlink was “some of the smallest text”).
    The disclosure begins with the bolded “Please note”,
drawing the customer’s attention. It is placed alone below the
“Billing & Credit Card Information,” where a customer is
likely to see it. That Menards chose to place the hyperlinks
below instead of within the disclosure does not increase the
likelihood that a customer would overlook them. Rather, hav-
ing the words “Terms of Order” listed twice, once in the dis-
closure and once in the hyperlink, makes it more likely the
customer sees them.
16                                                  No. 23-2672

    The district court correctly found that the font of the dis-
closure and hyperlinks are readable and distinct from the sur-
rounding text. So, this element weighs in favor of affirming
the district court’s finding of fair notice.
    Spatial placement of the disclosure. Text advising users of
terms should be spatially coupled with the act deemed to
manifest assent to those terms. See Starke, 

 (“The
text, including the hyperlinks to the Terms and Conditions
and Privacy Policy, appeared directly below, i.e., was spa-
tially coupled with the registration button.” (cleaned up)).
Domer argues that because the “By submitting your order”
disclosure is not spatially closer to the “SUBMIT ORDER”
button on the webpage, she did not have reasonable notice to
assent to the agreement. The district court found that “[t]he
distance between the [disclosure] and the purchase button
does not render Menards’ disclosure unreasonable.”
    Domer correctly contends that the page lists the disclosure
near the bottom with language discussing gift card use. But
the disclosure and hyperlinks are placed directly below the
“Billing & Credit Card Information” box, which a reasonable
shopper undoubtedly reviews, and they are part of the natu-
ral visual flow of reviewing the page. See Schnabel, 

 (“[T]he presentation of these terms at a place and time that
the consumer will associate with the initial purchase or en-
rollment, or the use of, the goods or services from which the
recipient benefits at least indicates to the consumer that he or
she is taking such goods or employing such services subject
to additional terms and conditions that may one day affect
him or her.”). The user can see the disclosure and click the
hyperlink while viewing the rest of the checkout information
and does not need to scroll far, if at all, to read them. See
No. 23-2672                                                   17

Meyer, 

 (finding the notice reasonable where the
“entire screen is visible at once, and the user does not need to
scroll beyond what is immediately visible to find notice of the
Terms of Service.”). The bold “Please note” draws the user’s
eye to the information, and the disclosure and hyperlink are
very close together with the hyperlink appearing directly be-
low the disclosure. It is enough that the disclosure and hyper-
links are “clearly visible when viewing the page.” Fagerstrom
v. Amazon.com, Inc., 

 (S.D. Cal. 2015),
aff'd sub nom. Wiseley v. Amazon.com, Inc., 

 (9th
Cir. 2017) (observing that notices likewise do not need to
“dominate the entire checkout page display”).
     Again, the cases Domer relies on are distinguishable. In
Wilson, the company’s notice was in small, unbolded text, and
it was placed underneath large, colorful buttons. See Wilson v.
Redbox Automated Retail, LLC, 

, 879 (N.D.
Ill. 2020) (attaching an image of the online notice). Those but-
tons were “entirely unrelated” to the transaction at hand. 

. Additionally, in Starke the “‘Terms & Conditions’ hy-
perlink was spatially decoupled from the transaction because
it was not provided near the portion of the Amazon purchase
page actually requiring Starke’s attention … or indeed any-
where on the purchase page.” Starke, 

. The
Menards notice, on the other hand, is flagged with bolded
text, a similar size to other text on the screen, and placed next
to credit card and shipping information that a user is likely to
review prior to submitting their order.
    So, the notice and disclosure are not, as Domer suggests,
“hidden” away. And this element weighs in favor of affirming
the district court’s finding of a reasonably conspicuous notice.
18                                                   No. 23-2672

    Temporal relationship. The disclosure is temporally con-
nected to the required act of the user—in other words, the
user encounters the disclosure on the same page where the
order will be placed. See Meyer, 

 (“temporal cou-
pling of the terms with the registration button” weighs in fa-
vor of “inquiry notice of the terms”); Schnabel, 

(explaining that the temporal presentation of the consumer’s
purchase suggests that receiving goods subjects that con-
sumer to additional terms and conditions). This leaves no dis-
crepancy between the necessary act (clicking the “SUBMIT
ORDER” button) and the disclosure requiring assent. The
“notice of the Terms of Service is provided simultaneously”
to submission of the purchase, “connecting the contractual
terms to the services to which they apply.” Meyer, 

. As a result, it is easy for the user to connect the disclosure
with the required activity. So, this element weighs in favor of
affirming the district court’s finding of fair notice.
    To summarize on this first prong of whether an agreement
was made when assent is passive, the Menards checkout page
is not a visually bewildering screen. As the district court
found, the website provided reasonably conspicuous notice of
the terms to which the consumer, Domer, will be bound.
       2. Assent to the Terms of Order
   On the second prong, Domer argues that because the
checkout webpage did not reasonably communicate the exist-
ence of the Terms of Order, she did not unambiguously as-
sent. See Cullinane, 

 (“Because the Plaintiffs were
not reasonably notified of the terms of the Agreement, they
did not provide their unambiguous assent to those terms.”).
According to Domer, a reasonably prudent internet user in
her position had no reason to understand that, by clicking the
No. 23-2672                                                   19

“SUBMIT ORDER” button, the user was unambiguously
manifesting assent to terms Menards had proposed elsewhere
on the checkout webpage.
    Domer is incorrect. “There is nothing automatically offen-
sive about such agreements, as long as the layout and lan-
guage of the site give the user reasonable notice that a click
will manifest assent to an agreement.” Sgouros, 817 F.3d at
1033–34. As explained above, the Menards notice was reason-
ably conspicuous, so Domer manifested her assent to accept
the Terms of Order by going through with the purchase. Un-
like with pure clickwrap agreements, clicking “SUBMIT
ORDER” “does not specifically manifest assent to the addi-
tional [arbitration] terms, for the purchaser is not specifically
asked whether she agrees or to say ‘I agree.’” Nicosia, 834 F.3d
at 236–37.
   Nevertheless, Domer unambiguously gave her assent to
the arbitration provision. Although Domer’s assent “was not
express, we are convinced that it was unambiguous in light of
the objectively reasonable notice of the terms, as discussed in
detail above.” Meyer, 

; see Register.com, Inc. v.
Verio, Inc., 

 (2d Cir. 2004) (“[R]egardless
whether [a user] did or did not say, ‘I agree’ … [the user’s]
choice was either to accept the offer of contract, taking the in-
formation subject to the terms of the offer, or, if the terms were
not acceptable, to decline to take the benefits.”).
   As described above:
       There is ample evidence that a reasonable user
       would be on inquiry notice of the terms, and the
       spatial and temporal coupling of the terms with
       the registration button indicated to the
20                                                 No. 23-2672

        consumer that he or she is … employing such
        services subject to additional terms and condi-
        tions that may one day affect him or her. … A
        reasonable user would know that by clicking
        the registration button, he was agreeing to the
        terms and conditions accessible via the hyper-
        link, whether he clicked on the hyperlink or not.
Meyer, 868 F.3d at 79–80 (citation and quotations omitted).
Reasonable consumers understand there will be terms and
conditions associated with using a website. That clicking the
register button had two functions—purchase of an order and
assent to the Terms of Service—does not render Domer’s as-
sent ambiguous. See id. at 80. So, clicking the “SUBMIT
ORDER” button demonstrated Domer’s unambiguous mani-
festation of assent to the arbitration agreement.
                         *      *      *
   Menards has shown that (1) its website provided reasona-
bly conspicuous notice of the terms to which Domer would be
bound, and (2) Domer’s click of the button “SUBMIT
ORDER” unambiguously manifested her assent to those
terms. See Berman, 

. So, the arbitration agree-
ment was formed when Domer submitted her order.
     B. Scope of the Arbitration Agreement
    Once the parties “have a contract that provides for arbitra-
tion of some issues between them, any doubt concerning the
scope of the arbitration clause is resolved in favor of arbitra-
tion as a matter of federal law.” Gore, 

.
    After concluding that Menards and Domer had formed a
valid arbitration contract, the district court found that
Domer’s claims all arise from or relate to her contract of
No. 23-2672                                                      21

purchase with Menards. So, Domer’s claims fall within the
scope of the arbitration agreement.
    Domer claims this court has no binding precedent for
cases like this one where “the conduct underlying the claims
occurred prior to the formation of the purchase contract.”
And she asks this court to “clarify” its existing case law and
adopt a bright-line rule that claims like hers are categorically
beyond the scope of even the most broadly worded arbitra-
tion clauses.
    Domer is correct that this court has not expressly ruled
that claims arising from action taken prior to the formation of
an arbitration agreement are within the scope of the agree-
ment. But such a ruling is not required. We have explained
that claims may be arbitrated when they fall “within the scope
of the agreement” to arbitrate. Rock Hemp Corp. 51 F.4th at 702.
A claim arises from a purchase agreement when it “draws its
very essence from the fact of and performance under the
[agreement] in question.” S+L+H S.p.A. v. Miller-St. Nazianz,
Inc., 

 (7th Cir. 1993). The “arising out of or
relating to” language is an “expansive” clause. Kiefer Specialty
Flooring, Inc. v. Tarkett, Inc., 

 (7th Cir. 1999);
see Welborn Clinic v. MedQuist, Inc., 

 (7th Cir.
2002). And the Supreme Court has emphasized that courts
must “enforce covered arbitration agreements according to
their terms.” Lamps Plus, Inc. v. Varela, 

 (2019);
Smith v. Bd. of Dirs. of Triad Mfg., Inc., 

, 619–20 (7th
Cir. 2021). Courts may not imply limitations or engraft addi-
tional terms that the parties did not include in their agree-
ment. See Lamps, 

.
22                                                    No. 23-2672

    The Menards Terms of Order represents a valid, binding
agreement to arbitrate and is framed in broad terms that state,
in part:
       Purchaser agrees that any and all controversies
       or claims arising out of or relating to this con-
       tract, or the breach thereof, shall be settled by
       binding arbitration … .
Each of Domer’s claims “arises out of” or “relates to” her con-
tract with Menards. We see this in her theory of liability and
in the injuries she claims. As the district court explained,
“[t]he theory behind her consumer protection and unjust en-
richment claims is that Menards misled her about the price
that she would pay for that purchase.” A party “may not
avoid a contractual arbitration clause merely by ‘casting its
complaint in tort.’” Sweet Dreams Unlimited, Inc. v. Dial-A-Mat-
tress Int’l, Ltd., 

, 643 (7th Cir. 1993) (quoting Altshul
Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 

 (2d
Cir. 1967)). Per the district court, Domer’s claims “could easily
be recast as breach of contract claims based on an alleged mis-
representation of the terms of the purchase.” And Domer can-
not avoid arbitrating her remaining claims merely because
she brought them under different causes of action. See Kroll v.
Doctor’s Assocs., 

 (7th Cir. 1993) (about tort
claims); Shearson/Am. Exp., Inc. v. McMahon, 

(1987) (about statutory claims). Domer’s claims therefore arise
out of and relate to the arbitration contract.
No. 23-2672                                                                   23

    Additionally, the only harms Domer alleges are rooted in,
and related to, the arbitration contract. 4 Domer disagrees, ar-
guing that her claims are not related to the contract. Accord-
ing to Domer, she “rel[ies] solely on the allegation that
Menards induced and enticed customers to patronize its web-
site through false representations regarding the price of items
listed on its website.” This “occurred prior to and inde-
pendently from the terms of the contract containing the arbi-
tration provision.”
    Domer believes this temporal argument differentiates her
case from cases like Sweet Dreams and Kiefer. Sweet Dreams, 1
F.3d at 640 (plaintiff alleged the defendant had “fraudulently
induced it to continue making expenditures … after the
Agreement had expired”); Kiefer, 

 (conduct al-
leged to be unlawful occurred “[d]uring the performance of
the … agreement”). But Domer’s claims rest on the contention
that Menards charged her too much for her purchase—a fact
that necessarily arose at or after contract formation.
   Domer also argues that none of her claims require her to
“reference [] the terms of the purchase contract” and are
therefore not “encompassed by the scope of the arbitration
provision.” But under IND. CODE § 24-5-0.5-4:
         A person relying upon an uncured or incurable
         deceptive act may bring an action for the dam-
         ages actually suffered as a consumer as a result of


    4 See Domer’s Amended Class Action Complaint, at ¶¶ 48, 52 (citing

$1.40 processing fee as an expenditure she would have avoided but-for the
alleged price deception); id. at ¶ 52 (same for the purchase itself); id. at ¶ 63
(describing the claimed pecuniary losses); id. at ¶¶ 60, 63 (alleging that the
unjust enrichment conferred on Menards is the $1.40 fee).
24                                                 No. 23-2672

         the deceptive act or five hundred dollars ($500),
         whichever is greater.
IND. CODE § 24-5-0.5-4 (emphasis added); see Castagna v. New-
mar Corp., 

 (N.D. Ind. 2018).
    Similarly, the elements of a private action under WIS. STAT.
§ 100.18 are: (1) the defendant advertised the product; (2) the
advertising was misleading; and (3) the plaintiff suffered pecu-
niary loss because of the misleading advertising. See WIS. STAT.
§ 100.18; Tietsworth v. Harley-Davidson, Inc., 

,
454–55 (Wis. 2003).
      Further, Wisconsin’s unjust enrichment law requires proof
of:
         (1) a benefit conferred on the defendant by the
         plaintiff; (2) appreciation or knowledge by the
         defendant of the benefit; and (3) acceptance or
         retention of the benefit by the defendant under
         circumstances making it inequitable to do so.
Sands, 904 N.W.2d at 798 (emphasis added).
    As shown in the emphasized language above, each of
these claims require an injury to Domer: (1) “damage actually
suffered,” (2) “suffered pecuniary loss,” or (3) “benefit con-
ferred on [Menards].” IND. CODE § 24-5-0.5-4; WIS. STAT.
§ 100.18; Sands, 904 N.W.2d at 798. Whether Domer was mis-
led to “patronize” Menards before the contract was formed
does not matter. Domer did not suffer an injury necessary to
bring a claim until the contract was formed. In other words,
Domer did not suffer real damages, a pecuniary loss, or confer
a benefit until the completion of the contract, not prior to it.
Without the contract there would be no claims; the contract is
an indispensable element of each.
No. 23-2672                                                     25

    Even if the conduct had occurred before formation of the
arbitration agreement, the Supreme Court and Seventh Cir-
cuit have compelled arbitration in those instances. See, e.g.,
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 

, 398–
99, 406 (1967) (an agreement to arbitrate claims “arising out of
or relating to” the agreement encompasses claims of fraudu-
lent misrepresentation and inducement occurring prior to
agreement); Gore, 

 (compelling arbitration of
all plaintiff’s claims because they were “inextricably linked to
the services he received” and the arbitration clause in the sec-
ond agreement expressly covered the services); Welborn, 

, 639–40 (compelling arbitration of claims based on
conduct that preceded the parties’ contract because they con-
stituted disputes over invoice amounts which was covered by
the agreement).
    Domer cites to authority that is non-binding and distin-
guishable. Her alleged injuries would not have existed with-
out the one contract that included the arbitration agreement.
Cf. Matalka v. Home Point Fin. Corp., 

, 376–77
(6th Cir. 2018) (ruling that contract containing arbitration pro-
vision did not apply because they were two separate contracts
with distinct scopes); Dr. Kenneth Ford v. NYLCare Health Plans
of Gulf Coast, Inc., 

 (5th Cir. 1998) (ruling that
the plaintiff would have “suffer[ed] the same injuries regard-
less of the agreement or a breach thereof.”).
   In the alternative, Domer suggests this court adopt a
standard she believes the Fifth and Sixth Circuits use to deter-
mine whether an arbitration provision encompasses a claim.
According to Domer, those circuits ask whether a claim can
be maintained without reference to the agreement at issue. So,
she argues her claim is “likely outside the scope of the
26                                                    No. 23-2672

arbitration agreement.” But Domer’s analysis of our fellow
circuits’ standards is faulty.
    The Fifth and Sixth Circuits, like this court, do not apply a
test distinct from the framework used to assess whether a
claim falls within the scope of an arbitration agreement. Once
the validity of the agreement has been confirmed, doubts con-
cerning the scope of arbitrability are resolved in favor of arbi-
tration. See Safer v. Nelson Fin. Grp., Inc., 

, 294 (5th
Cir. 2005); Masco Corp. v. Zurich Am. Ins. Co., 

(6th Cir. 2004). When confronted with questions of scope, the
Fifth and Sixth Circuits ask whether a claim can be main-
tained without reference to the contract itself. But that is only
another way of examining whether there is a sufficient nexus
between the subject matter of the contract and the substance
of the claim. See Fazio v. Lehman Bros., Inc., 

, 395
(6th Cir. 2003) (“Even real torts can be covered by arbitration
clauses ‘[i]f the allegations underlying the claims ‘touch mat-
ters’ covered by the [agreement].’”); Ford, 141 F.3d at 250–52.
Either way, Domer’s claims are arbitrable. As explained, the
contract between Domer and Menards is an indispensable el-
ement of each claim presented. None of Domer’s claims
would be viable if she had not entered the paint-purchase
contract with Menards. So, Domer’s argument that following
Fifth or Sixth Circuit precedent would show that her claims
are outside the arbitration agreement is incorrect.
   The general rules of contract formation, the elements of
Domer’s claims, and precedent assure us that the district
court correctly found that Domer’s claims are within the
scope of the arbitration agreement.
No. 23-2672                                               27

                             III
   We compliment the district court for its good work in this
case. Domer and Menards formed an arbitration agreement
which encompasses Domer’s claims. For these reasons, we
AFFIRM the district court’s decision.
28                                                            No. 23-2672

    HAMILTON, Circuit Judge, concurring in the judgment. Start
from the intuition that there is something odd about judges
looking at online user interfaces with magnifying glasses and
debating font color and size and the placement of hyperlinks.
This case illustrates why courts should try to rethink how we
approach the issues of “click-wrap” and “browse-wrap” con-
tracts of adhesion in online commerce. One modest step in
that project would be to treat whether a “browse-wrap” user
interface gives sufficient notice of hidden but hyperlinked
terms and conditions as a question of fact rather than a ques-
tion of law. In an appropriate case, the issue should be sub-
mitted to a jury, including in cases subject to the Federal Ar-
bitration Act.
    The issue here is one we all encounter with virtually every
online purchase. Somewhere in the steps to complete the pur-
chase, the online merchant includes on a screen a link that al-
lows the customer to access a long statement of terms and
conditions. They’re written in impenetrable legalese and usu-
ally include an arbitration clause, often even purporting to
waive a right to collective or class arbitration. Does anybody
read them? Empirical data indicate that only two or three cus-
tomers in a thousand spend more than one second looking at
those terms. 1


     1 See Yannis Bakos et al., Does Anyone Read the Fine Print? Consumer

Attention to Standard-Form Contracts, 

, 3 (2014) (finding
that 0.2 percent of consumers looked at digital terms of software license
agreement for more than one second); Florencia Marotta-Wurgler, Will In-
creased Disclosure Help? Evaluating the Recommendations of the ALI’s “Princi-
ples of the Law of Software Contracts”, 

, 179–81 (2011)
(enhanced disclosure of terms via a “click-wrap” contract increased con-
sumer reading by only 0.36% as compared to a “browse-wrap” contract).
No. 23-2672                                                  29

    I address in Part I how far the realities of online commerce
have drifted from the law of contracts. Part II addresses the
false assumptions underlying the reasonable notice require-
ment. Part III addresses the realities of user-interface design
and consumer behavior. Part IV summarizes how courts have
been deciding these issues about the terms of contracts and
argues that we should be treating them as issues of fact. Part
V briefly addresses jury trials under the Federal Arbitration
Act.
I. “Mutual Assent” in the Era of Digital Consumer Contracts of
   Adhesion
    The common law of contracts emerged from the paradigm
of agreements between two repeat-player merchants negoti-
ating all the terms to which both assent. Courts ask if there
was a meeting of the minds, shown through evidence of ob-
jective actions and communications. E.g., Household Utilities,
Inc. v. Andrews Co., 

, 

(1976) (explaining that a “‘meeting of the minds’ between par-
ties … is required to establish the existence of a contract”);
State v. Bembenek, 

, 

,

 (“A contract is based on a mutual meeting
of the minds as to terms, manifested by mutual assent.” (in-
ternal quotation omitted)).
   Mass retail commerce required courts to adapt that para-
digm for a world of high-volume contracts of adhesion. The
Supreme Court of New Jersey wrote two generations ago:
       The traditional contract is the result of free bar-
       gaining of parties who are brought together by
       the play of the market, and who meet each other
       on a footing of approximate economic equality.
30                                                  No. 23-2672

       In such a society there is no danger that freedom
       of contract will be a threat to the social order as
       a whole. But in present-day commercial life the
       standardized mass contract has appeared. It is
       used primarily by enterprises with strong bar-
       gaining power and position. “The weaker party,
       in need of the goods or services, is frequently
       not in a position to shop around for better terms,
       either because the author of the standard con-
       tract has a monopoly (natural or artificial) or be-
       cause all competitors use the same clauses. His
       contractual intention is but a subjection more or
       less voluntary to terms dictated by the stronger
       party, terms whose consequences are often un-
       derstood in a vague way, if at all.”
Henningsen v. Bloomfield Motors, Inc., 

, 

 (1960), quoting Friedrich Kessler, Contracts of Adhe-
sion—Some Thoughts About Freedom of Contract, 

, 632 (1943).
    Now, in online transactions, merchants use contracts of
adhesion with terms available only through hyperlinks that
the consumer might or might not even notice, let alone read
and understand. These online practices have taken us even
further from the paradigm of contract law. Digital terms and
conditions are “ubiquitous, and their terms are voluminous,
onerous, and complex. Because they are practically costless to
reproduce and update, businesses use them more frequently
and alter them often.” Nancy S. Kim, Adhesive Terms and Rea-
sonable Notice, 

, 91 (2022). This dy-
namic “creates the potential for unfair surprise, particularly
when those terms are at odds with longstanding consumer
No. 23-2672                                                     31

expectations and with contract law’s default rules.” Mark A.
Lemley, The Benefit of the Bargain, 2023 Wisc. L. Rev. 237, 266
(2023).
    Digital terms of service are contracts of adhesion. They
may be described as “click-wrap” or “browse-wrap” con-
tracts (or hybrids), in which a retailer states only that there are
terms and conditions that govern a transaction and that by
completing the purchase, you accept those terms. See Kim, 53
Seton Hall L. Rev. at 96 (“Online, where there is no option to
sign, courts have determined that a ‘manifestation of consent’
could be something other than a signature; it could be a click
on the icon that expresses acceptance.”). The contract pre-
sented in this case is a “browse-wrap.” The relevant infor-
mation is not contained in the notice itself. Instead, the “notice
provides no information other than that legal terms are availa-
ble.” Id. at 104. The consumer then has the burden of seeking
out “terms behind links,” and those links “do not necessarily
signal whether the hidden information is important or triv-
ial.” Id.
   Under these conditions, what happens to the meeting of
the minds and manifestations of mutual assent that are the
foundations of contract law? Judge Brennan’s opinion for the
court accurately reflects the state of the emerging case law,
but those cases deserve rethinking.
    Under the emerging case law, where the merchant uses a
design that prevents customers from completing transactions
without affirmatively “clicking” that they agree to the linked
terms, courts generally enforce those terms. The so-called
“click-wrap” design requires customers to decide whether
they want to spend the time to review those terms. If they de-
cide not to—usually a perfectly reasonable decision—courts
32                                                   No. 23-2672

treat that choice like signing a contract without reading it.
They enforce the available but unread terms of such contracts.
See Sgouros v. TransUnion Corp., 

, 1033–34 (7th
Cir. 2016); accord, e.g., Oberstein v. Live Nation Entertainment,
Inc., 

 (9th Cir. 2023); Berman v. Freedom Finan-
cial Network, LLC, 

 (9th Cir. 2022); Meyer v.
Uber Technologies, Inc., 

 (2d Cir. 2017); Nguyen v.
Barnes & Noble, Inc., 

, 1175–76 (9th Cir. 2014); see
generally Hill v. Gateway 2000, Inc., 

 (7th
Cir. 1997) (“A contract need not be read to be effective; people
who accept take the risk that the unread terms may in retro-
spect prove unwelcome.”).
   The problem here is different, going under the rubric of a
“browse-wrap” user interface. See, e.g., Oberstein, 

. Menards, like many other merchants, does not require
customers to “click” that they accept the terms. Instead,
Menards puts a hyperlink somewhere in the screens a cus-
tomer will encounter along the path to making a purchase.
Maybe the customer will notice, maybe not. When the cus-
tomer completes the transaction, has she, in the language of
contract law, manifested her assent to those terms? And how
should courts decide?
    The majority answers with what it calls “a fact-intensive
legal analysis,” ante at 9, citing Sgouros, 817 F.3d at 1034–35.
The majority finds that the arbitration clause is enforceable
because the Menards website provided “reasonably conspic-
uous notice” of the company’s Terms of Order, including the
arbitration clause. To reach that conclusion, the majority ap-
plies a five-factor test that considers (1) the simplicity or clut-
ter of the screen; (2) the clarity of the disclosure; (3) the size
and coloring of the disclosure’s font, in the context of the rest
No. 23-2672                                                   33

of the screen; (4) the “spatial placement” of the hyperlink; and
(5) the temporal relationship between the hyperlink and the
steps the customer must take to complete the transaction. The
majority takes this test from recent case law, citing Meyer, 868
F.3d at 78–79, and Nicosia v. Amazon.com, Inc., 

 (2d Cir. 2016). Ante at 10.
    To see the problem with this approach, take a look at the
two Uber payment screenshots below, taken from cellphones.
Each had a hyperlink for “Terms of Service and Privacy Pol-
icy,” and each hyperlink would lead a user to terms that in-
cluded a mandatory arbitration clause. But each used a
“browse-wrap” technique, not requiring affirmative assent
with a click. One circuit found that one screen provided users
with reasonable notice that they were agreeing to a manda-
tory arbitration clause by signing up for the service. A differ-
ent circuit found that the other did not. Compare Cullinane v.
Uber Technologies, Inc., 

, 62–64 (1st Cir. 2018), with
Meyer v. Uber Technologies, Inc., 

, 78–79 (2d Cir.
2017). Can you tell which was which?
34                                                             No. 23-2672




    In coming to opposite conclusions about essentially the
same user interface design, the two courts looked at the usual
factors, including relative clutter on the screen, placement of
the relevant warning text in proximity to the elements that us-
ers must interact with to complete the transaction, the size of
that text, the color of the text in comparison to the color of
other text on the page and the background, and so on. 2



     2 Spoiler alert: The image on the left is from Cullinane, 

,

where the First Circuit applied Massachusetts law and found that the
linked terms were not reasonably communicated to consumers. The image
on the right is from Meyer, 

, where the Second Circuit applied
California law and found as a matter of law that the consumer agreed to
the arbitration clause in the linked terms. Each appellate decision reversed
the respective district court decision.
No. 23-2672                                                 35

    These conflicting results for functionally identical inter-
faces are not surprising, given what courts have been doing
for almost a decade. We have been speculating about which
design features will put the hypothetical “reasonable person”
on “reasonable notice” that a digital purchase will bind him
to a long document of legal terms and conditions. See, e.g.,
Sgouros, 

 (courts ask whether a webpage de-
sign would “place a reasonable person on notice that there
were terms and conditions attached to the purchase and that
it would be wise to find out what the terms and conditions
were before making a purchase” (internal quotation omit-
ted)).
   I believe this emerging multifactor test takes courts far
from the law, far from judges’ competence, and far from the
practical realities of online commerce and user-interface de-
sign and consumer behavior.
II. The Flawed Assumptions Underlying the Reasonable Notice Re-
    quirement
    The multifactor test the majority applies today replaces
the familiar requirement of actual mutual assent with one of
“conspicuous notice” or “reasonable notice.” Nonetheless, it
imports other assumptions from traditional contract law that
do not reflect reasonable consumer behavior in online trans-
actions. The result is that every day, many times a day, rea-
sonable consumers give away key legal rights without realiz-
ing they have done so.
    Implicit in this “conspicuous notice” or “reasonable no-
tice” standard is a “duty to read.” See Michael L. Rustad &
Thomas H. Koenig, Wolves of the World Wide Web: Reforming
Social Networks’ Contracting Practices, 

                                                             No. 23-2672

1431, 1453 (2014) (explaining courts have expanded the
longstanding contract principle of a “duty to read” to digital
consumer contracts of adhesion). Courts have generally held
that if there is a sufficiently conspicuous notice that binding
terms and conditions exist, we assume (or our reasoning pre-
tends) that the reasonable consumer has read them (even if
doing so would be more costly than the transaction itself) and
has consented to them by completing the transaction.
    A “duty to read” makes sense in a negotiated transaction
between sophisticated parties. But empirical studies show
this fundamental assumption does not hold true when it
comes to digital contracts of adhesion, particularly where
user interfaces are designed to discourage consumers from
reading them. As noted above in note 1, virtually no consum-
ers read the fine print. See Bakos, 43 J. Legal Stud. at 3 (0.2
percent of consumers looked at digital terms of software li-
cense agreement for more than one second); Marotta-
Wurgler, 78 U. Chi. L. Rev. at 179–81 (enhanced disclosure of
terms via a “clickwrap” contract increased consumer reading
by only 0.36 percent as compared to a “browse-wrap” con-
tract).
   I suspect that, as a policy matter, we do not actually want
consumers to take the time to read every digital contract they
make. For example, in the time it takes to read Microsoft’s
terms and conditions for its ubiquitous Office suite of prod-
ucts, you could instead read Shakespeare’s Macbeth. 3 One es-
timate found it would take average Americans 250 hours each

     3 Nicholas LePan, Visualizing the Length of the Fine Print, for 14 Popular

Apps, Visual Capitalist (Apr. 18, 2020), https://www.visualcapital-
ist.com/terms-of-service-visualizing-the-length-of-internet-agreements/
[https://perma.cc/VS83-32UM].
No. 23-2672                                                                 37

to read all the digital contracts to which they agree in a given
year. 4 Another study found it would take the equivalent of 76
eight-hour workdays to read all the digital privacy policies
(usually separate documents incorporated by reference into
digital terms of service) to which the average internet user has
agreed in a given year. 5 If all U.S. consumers read all the dig-
ital privacy policies they accept, one study estimated, it would
cause a total productivity loss of $781 billion annually. See
Aleecia M. McDonald & Lorrie Faith Cranor, The Cost of Read-
ing Privacy Policies, 4 I/S J.L. & Policy Info. Soc’y 543, 563–65
(2008). Adjusted for inflation in 2024, that number would now
be above $1 trillion, with a “t.”
    Even assuming the “reasonable consumer” is willing to
devote so much time to reading these contracts, that does not
tell us whether consumers understand the terms to which they
are binding themselves. In an empirical test of 500 hybrid-
wrap digital contracts on popular websites and applications,
99.6% were written at a reading level above that of the average
adult. See Uri Benoliel & Shmuel I. Becher, The Duty to Read
the Unreadable, Bos. Col. L. Rev. 2255, 2275, 2278–79 (2019). Mi-
crosoft’s “privacy statement” runs 190 pages in print, with
many hyperlinks embedded in it. One study applied a stand-
ard measure for reading difficulty and found that the privacy


    4 David Berreby, Click to agree with what? No one reads terms of service,

studies confirm, The Guardian (Mar. 3, 2017), https://www.theguard-
ian.com/technology/2017/mar/03/terms-of-service-online-contracts-fine-print
[https://perma.cc/PE2L-2LBH].
     5 Alexis C. Madrigal, Reading the Privacy Policies You Encounter in a Year

Would Take 76 Work Days, The Atlantic (Mar. 1, 2012), https://www.theat-
lantic.com/technology/archive/2012/03/reading-the-privacy-policies-you-
encounter-in-a-year-would-take-76-work-days/253851/
[https://perma.cc/RY25-4E85].
38                                                       No. 23-2672

policies on popular sites such as CNN, Zoom, Disney, Airbnb,
and major league baseball were more difficult to read and un-
derstand than Immanuel Kant’s notoriously dense Critique of
Pure Reason. 6
   For an attorney or judge, spending an entire day parsing
such complex legal language might be daunting but not im-
possible. For the average consumer who just wants to place
an online order to pick up that last tool or can of paint to finish
a do-it-yourself project, the reading assignment is beyond un-
reasonable.
    The emerging legal standard is also based on an often-
false assumption of choice and competition—that if a con-
sumer is dissatisfied with a contract term, she can simply de-
cline to complete a transaction and take her business else-
where. See Jacques Crémer et al., Fairness & Contestability in
the Digital Markets Act, 40 Yale J. Reg. 973, 986 (2023) (“In to-
tally competitive markets, with totally rational consumers
with no cognitive limitations, … consumers would read all
the terms of the contracts proposed by the different suppliers
and would be able to carry out a well-founded cost benefit
analysis among the different offers. In practice, no consumer
can do so.”). For a modest consumer transaction like plaintiff
Domer’s, this assumption seems very distant from real con-
sumer behavior.
    This assumption also ignores the reality of market concen-
tration—not just in specific industries, but with regard to the

     6 See Kevin Litman-Navarro, Opinion, We Read 150 Privacy Policies.

They Were an Incomprehensible Disaster., N.Y. Times (June 12, 2019),
https://www.nytimes.com/interactive/2019/06/12/opinion/facebook-
google-privacy-policies.html [https://perma.cc/29Y9-CZTZ].
No. 23-2672                                                                 39

terms typically included in these digital contracts. See id. at
980 (digital gatekeepers “have gained the ability to easily set
commercial conditions and terms in a unilateral and detri-
mental manner for their … end users.”). 7 See also Lemley, su-
pra, at 262 (“Take it or leave it may also not be a practical op-
tion if the industry has coalesced around similar contract
terms.”); and Thomas D. Haley, Illusory Privacy, 98 Ind. L. J.
75, 79–80 (2022) (finding in survey of 222 platform terms from
major websites and smartphone apps that most key terms
were shared, such as allowing the platform to change the
terms of the agreement unilaterally without consumer con-
sent). 8
III. Real Consumers and the Science of User-Interface Design
    Given what we know about how a reasonable consumer
interacts with digital contracts of adhesion, the threshold
question of fair notice takes on heightened importance. The
literature reviewed in Part II casts doubt on whether it is ever
reasonable to enforce digital contract terms against ordinary

    7 The Crémer article quotes in turn Council Regulation 2022/1925,

2022 O.J. (L. 265) 1, Recital (13) (“Regulation of the European Parliament
and of the Council on Contestable and Fair Markets in the Digital Sector
(Digital Markets Act)”).
    8 Consumers are increasingly likely to have contracted away their

right to bring a consumer antitrust action against the very entity that sub-
jected them to such binding terms. Crémer et al., 40 Yale J. Reg. at 979
(internal quotation omitted); see also Mark A. Lemley & Christopher R.
Leslie, Antitrust Arbitration and Merger Approval, 110 Nw. Univ. L. Rev. 1,
46–47 (2015) (“Because firms with strong bargaining power can impose
onerous terms on their business partners, a monopolist could make all
sales contingent on the customer’s agreement to waive his or her right to
sue for an antitrust violation in federal court, or to bring any form of class-
wide arbitration.” (footnote omitted)).
40                                                   No. 23-2672

consumers. Enforcing those terms is doubly unreasonable if
we cannot even be sure that consumers know that they have
agreed to such terms.
    Reasonable notice is produced through the interaction of
real consumer behavior and user-interface design choices.
Plenty of data shows that (a) almost no consumers even
glance at the fine print on websites, let alone click through
links to review the terms and conditions, and (b) companies
design their interfaces carefully to influence consumer behav-
ior to maximize profits. Neither point is surprising. But they
show that our “reasonable notice” cases on whether these in-
terface designs result in binding contract terms bear little re-
lation to actual consumer behavior or to the traditional con-
tract principle of mutual assent.
    Because user-interface design is technical and empirically
testable, it should be possible for judges or juries to evaluate
evidence as to whether or not real-life consumers are on fair
notice that they have agreed to a long list of legal terms every
time they complete a purchase online or download a new ap-
plication on their devices. At heart, the way a reasonable con-
sumer responds to a particular user interface is a factual issue.
A plaintiff willing to present the necessary evidence may be
able to show genuine disputes of material fact that can then
be tried before a jury.
     A. The Realities of the “Reasonable Consumer”
     As we explained recently:
        Reasonable consumer behavior is not a matter
        of pure economic theory. Rather, reasonable
        consumer behaviors are “matters of fact, subject
        to proof that can be tested at trial, even if as
No. 23-2672                                                   41

       judges we might be tempted to debate and spec-
       ulate further about them.” In establishing rea-
       sonable consumer behavior, what matters is
       “how consumers actually behave—how they
       perceive advertising and how they make deci-
       sions.”
Kahn v. Walmart Inc., 

 (7th Cir. 2024), quoting
Bell v. Publix Super Markets, Inc., 

, 481 (7th Cir.
2020). In evaluating consumer behavior, courts must recog-
nize that people “have limited time, computational skills, and
memories, and we rationally use mental shortcuts to deal
with those limits.” 

 While Kahn considered state consumer
protection law in brick-and-mortar stores, the same principles
are relevant in considering how consumers interact with
online retail sites and their contracts of adhesion.
    “‘[W]e have often stressed that consumers are likely to ex-
hibit a low degree of care when purchasing low-priced, eve-
ryday items.’ This low degree of care does not make consum-
ers unreasonable—it makes them human, and even economi-
cally rational when search costs and transaction costs are in-
cluded in the utility calculus.” Kahn, 

, quoting
Bell, 982 F.3d at 479. The low degree of care, however, “also
makes them vulnerable to exploitation.” Id. In particular:
       Predictable tendencies in consumer behavior
       mean that retail settings can be engineered to in-
       fluence consumers in ways they (meaning we)
       do not fully anticipate or appreciate. “‘[M]arket
       outcomes frequently will be heavily influenced,
       if not determined, by the ability of one actor to
       control the format of information, the presenta-
       tion of choices, and, in general, the setting
42                                                   No. 23-2672

        within which market transactions occur,’ allow-
        ing some to ‘exploit those tendencies for gain.’”
Kahn, 

, quoting Honorable v. Easy Life Real Estate
System, 

 (N.D. Ill. 2000), quoting in
turn Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism
Seriously: The Problem of Market Manipulation, 

, 635 (1999).
    These predictable tendencies in consumer behavior mean
that a reasonable consumer may be more likely to overlook
the existence of terms than a judge engaged in a careful exam-
ination of a single user interface. Extrapolating from our own
experiences as busy consumers risks undervaluing the uncon-
scious processes and conditions that shape consumer deci-
sion-making.
     B. User-Interface Design and Consumer Behavior
    Do these realities matter? The businesses seeking to en-
force digital contracts certainly believe they do. Just as brick-
and-mortar supermarkets stock higher-margin items at eye-
level to nudge shoppers into spending more, see Kahn, 

 n.3, online retailers strategically place and format
certain information (while obscuring other information) to in-
fluence consumer behavior.
     User-interface design experts focus carefully on how the
details of a digital interface influence users’ interactions with
it. See Jamie Luguri & Lior Jacob Strahilevitz, Shining a Light
on Dark Patterns, 13 J. Legal Analysis 43, 48 (2021) (“e-com-
merce[] firms run thousands of consumers through identical
interfaces at a reasonable cost and see how small software
tweaks might alter user behavior”); Colin Gray et al., The Dark
(Patterns) Side of UX Design, In Proceedings of the 2018 CHI
No. 23-2672                                                   43

Conference on Human Factors in Computing Systems (CHI
’18), Association for Computing Machinery, Paper 534, 2
(2018) (user-interface design is “inherently a persuasive act”).
    Research can measure how various features change the
likelihood of consumers taking certain actions when using a
website or application. “Choice architects have long under-
stood that contrasting visual prominence can be used to
nudge choosers effectively into a choice the architect prefers.”
Luguri & Strahilevitz, 13 J. Legal Analysis at 55. For example,
one study found that the most effective design strategies in-
clude “hidden information” and “smaller print in a less visu-
ally prominent location.” Id. at 47. In a controlled study, such
a design choice doubled the number of consumers willing to
complete a purchase. Id. at 73–75. The authors of the study
concluded that such design choices “might cause consumers
to misunderstand material terms of a contractual offer they
have just accepted.” Id. at 94; see also Gray et al., supra, at 7
(explaining that the “primary motivator behind hidden infor-
mation is the disguising of relevant information as irrele-
vant”). These authors could have been describing Menards’
design and placement of its hyperlink to the terms and condi-
tions at issue here.
    If businesses like Menards invest in designing their user
interfaces “to influence the behavior of real consumers,”
courts should not allow them to enforce hidden contract
terms with arguments that “assume consumer behavior in
idealized markets with ‘perfect information, perfect competi-
tion, and no transactions costs.’” Kahn, 

, quot-
ing Honorable, 

. Like them, “we should
consider the behavior of real consumers instead of Adam
Smith’s homo economicus.” 

44                                                    No. 23-2672

    These empirical studies on consumer behavior in response
to a particular user interface are exactly the type of evidence
an expert could present to a jury to show that a consumer did
or did not have notice of the terms and conditions found on a
digital website. The evidence might show, for example, that
the interface has been designed to distract or mislead the con-
sumer, or at least to manipulate the consumer into proceeding
without bothering to look at the terms of the contract of adhe-
sion.
IV. The Multifactor Test — Law or Fact?
    As noted, the majority enforces the arbitration clause in
Menard’s terms and conditions by applying “a fact-intensive
legal analysis” that considers (1) the simplicity or clutter of
the screen; (2) the clarity of the disclosure; (3) the size and col-
oring of the disclosure’s font, in the context of the rest of the
screen; (4) the “spatial placement” of the hyperlink; and (5)
the temporal relationship between the hyperlink and the steps
the customer must take to complete the transaction. Ante at
10.
    I have been tempted to disagree with the majority’s appli-
cation of this multifactor test, which requires the decision-
maker to study high-resolution screenshots of various user in-
terfaces. On further consideration, though, I concluded that
such a debate would not be useful. First, plaintiff Domer
chose to litigate this case without trying to raise material fac-
tual disputes about fair notice. That’s why I concur in the
judgment here. Second, and more fundamental, the prospect
of debates among judges about such details of a user interface
as font size and color and the exact placement and labels for
hyperlinks to incomprehensible fine print shows, in my view,
that we need to think about these problems in a different way,
No. 23-2672                                                  45

one that is more consistent with older approaches to contract
formation.
    As Justice Kagan said recently, “we’re a court. We really
don’t know about these things. You know, these are not like
the nine greatest experts on the internet.” Transcript of Oral
Argument at 45–46, Gonzalez v. Google, 

 (2023). The
same is true of the judiciary as a whole. More specific to this
case, judges are not experts in the highly specialized and tech-
nical fields of user-interface design and human-computer in-
teraction. I suspect few judges know much about the fields
beyond our experience as consumers.
    Rather than debating among ourselves our impressions
about font size and color, the placement of hyperlinks, and
the choice between click-wrap and browse-wrap agreements,
we should start treating these issues about user-interface de-
sign as questions of fact. We should invite sufficiently moti-
vated parties to test alternative designs and to conduct dis-
covery into merchants’ actual design choices. If judges will
not do so, then legislators and/or consumer-protection agen-
cies should consider stepping in with more specific disclosure
requirements and regulatory safe harbors.
    I recognize that there may be room to debate whether the
contract terms in online commerce result from a race to the
bottom or a race to the top. Proponents of the browse-wrap
interface design might well assert that busy consumers prefer
not to be bothered with detailed contract terms they don’t care
about, and that competitors’ common terms and conditions
reflect an evolution toward an efficient solution to common
issues. Those assertions may be true, but they are assertions
of fact, subject to empirical proof and rebuttal.
46                                                  No. 23-2672

    Advocates of treating these problems as questions of law
might also argue that treating them as questions of fact would
invite expensive and inconclusive battles of experts. Online
merchants would be left guessing how to design their user-
interfaces to secure enforceable terms. To some extent, those
risks are a tradeoff chosen by online merchants who wish to
bind consumers to digital contracts of adhesion through
browse-wrap agreements. Merchants could avoid much of
the uncertainty of litigation by using click-wrap agreements,
which are usually enforced.
    Moreover, those risks do not change the inherently factual
nature of the questions. Nor do those risks justify having
judges apply their own experience as consumers to decide
factual questions that, in the real world of online commerce,
are the subject of genuinely expert study and design. If a
plaintiff is willing to invest in the needed expertise, courts and
juries should listen. Another alternative, more likely to offer
clearer rules, would be for legislatures or consumer-protec-
tion agencies to establish more specific guidelines for enforc-
ing terms and conditions for consumer transactions. Legisla-
tures and agencies are also better positioned to craft rules that
address the false assumptions underlying the reasonable no-
tice requirement.
    In any event, the foundation of contract law is mutual as-
sent. How can there be a meeting of the minds if the average
person has (quite reasonably) never seen, let alone read and
understood, the contract terms? Or if consumers are function-
ally deprived of an opportunity to opt out of the binding
terms? It would be virtually impossible to navigate our mod-
ern world without binding yourself to click-wrap and
browse-wrap contracts, yet empirical data show that only a
No. 23-2672                                                     47

vanishingly small segment of consumers can give anything
approaching meaningful consent to their terms. Courts
should account for those realities in deciding these disputes
over contract terms.
V. Jury Trials on Contract Formation under the FAA
   Finally, this reasoning points toward trying before juries
whether to enforce hyperlinked arbitration clauses in online
contracts of adhesion. Under the Federal Arbitration Act,
courts must look to state contract law to determine whether
such an agreement exists and is valid. See Tinder v. Pinkerton
Security, 

 (7th Cir. 2002). Under the FAA, if a
court finds a material factual dispute as to whether an agree-
ment to arbitrate was made, it “shall proceed summarily to
the trial thereof.” 

.
    “The burden is on the party opposing arbitration to “iden-
tify a triable issue of fact concerning the existence of the agree-
ment in order to obtain a trial on the merits of the contract.”
Tinder, 

. Whether there is a meeting of the
minds to form a contract is generally a question of fact under
Wisconsin contract law. See National Steel Serv. Ctr., Inc. v.
Wollin Silos & Equip., Inc., 

, 

 (1979) (“Whether there is an intent to make a contract is a
question of fact, which must be ascertained from the parties’
words and actions.”); Household Utilities, Inc. v. Andrews Co.,

, 

 (1976) (“There is no
meeting of the minds where the parties do not intend to con-
tract and the question of intent is generally one to be deter-
mined by the trier of fact.”); Ginsu Prods., Inc. v. Dart Indus.,
Inc., 

 (7th Cir. 1986) (applying Wisconsin law
and explaining that the intent to be bound is a question of
fact). A party who seeks a jury trial on whether an arbitration
48                                                No. 23-2672

agreement exists must request it specifically and quickly to
comply with section 4 of the FAA, 

.
    Ultimately, however, because plaintiff Domer did not try
to raise any genuine issues of material fact here, I concur in
the judgment affirming dismissal of her case.