On December 2, 2025, Justice Bannon of the New York County issued a decision in Firmauto USA Inc. v. Walter Auto Loan Trust, 2025 NY Slip Op. 34670(U), holding that clickwrap agreement on the defendant’s website containing an agreement to arbitrate did not control over the dispute resolution terms of the parties’ written contract, explaining:
It is well settled that a party cannot be compelled to submit to arbitration unless the agreement to arbitrate expressly and unequivocally encompasses the subject matter of the particular dispute. The burden is on the party seeking arbitration to demonstrate a clear and unequivocal agreement to arbitrate the claim. Unless that burden is met, a party cannot be compelled to forego the right to seek judicial relief and instead submit to arbitration. Agora has not met its burden.
In support of its motion, Agora relies upon a brief fill-in-the-blank style statement of Angela Walsh, a VP of Compliance & Legal, who summarily avers that before executing the MRA, FirmAuto accessed Agora’s website to check the status of the loans to be covered by the MRA. According to Walsh, to use the platform, FirmAuto was required to agree to the Agora’s Terms of Use by clicking a box on the website. Section 15 of the Terms of Use states that the parties agree to final and binding arbitration of any claims arising from use of the platform and provides a hyperlink to the arbitration agreement. Section 17 of the Terms of Use is a choice of law and forum selection clause requiring any non-arbitral proceeding” to enforce any of its terms to be governed by the laws of the State of Texas and be brought in a state or federal court sitting in Dallas, Texas.
Walsh does not invoke Section 17 of the Terms of Use but only Section 15. She opines that because FirmAuto clicked the box indicating “I agree”, all of its present claims are subject to arbitration under this clickwrap agreement, notwithstanding Section 7.7 of the MRA. In that regard, Walsh wholly fails to address the first paragraph of the Terms of Use which expressly states that “[t]o the extent of any express inconsistency between these Terms and any other agreement you may have with Agora, that other agreement shall prevail unless otherwise explicitly stated therein.” That other agreement is the MRA. That alone is dispositive.
To be sure, courts have found hyperlinked arbitration provisions to be enforceable. These cases are distinguishable as the parties’ agreement here was not found in Agora’s website or any phone app but in a separate written and executed MRA which contains a choice of law and forum selection clause and which is expressly made controlling by Agora’s own Terms of Use. Thus, contrary to Agora’s contention, the arbitration agreement hyperlinked in this case does not demonstrate a clear and unequivocal agreement to arbitrate FirmAuto’s claims alleged in the complaint. For the same reasons, FirmAuto’s cross-motion to stay the arbitration is granted.
(Internal quotations and citations omitted).