A federal court in Colorado recently confirmed that a conspicuous arbitration clause may preclude a consumer from prosecuting class claims in court even if the consumer did not affirmatively and expressly consent to the clause.
In Brant et al. v. Parking Revenue Recovery Services Inc., No. 1:25-cv-01771 (D. Colo. 2026), a consumer sought to assert claims on behalf of a nationwide class against the owners of a large network of parking lots. The plaintiff alleged that customers were overcharged for parking at lots located across the country as a result of confusing payment systems and predatory pricing tactics. The defendant moved to compel arbitration, relying on an arbitration clause displayed on conspicuous signage posted at entrances, exits, and pay stations at the lots:
The court found this arbitration clause and class action waiver binding and compelled arbitration, rejecting the plaintiff’s argument that the signs were insufficient to establish mutual assent. The court analogized the physical signs to “clickwrap” agreements in the digital context, where users must affirmatively accept the terms before they can use the software or website in question. The court found that drivers parking their cars and walking away without reading the contracts set forth on the signs were akin to online users skipping through the terms of use and clicking “Accept” without reading—though the consumer in both instances may not be aware of the terms they agreed to, they are nonetheless bound by them.
The decision in Brant is a reminder that mutual assent analysis in the context of a motion to compel arbitration is a fact dependent inquiry, and that prominently displayed clauses are more likely to be enforced by courts.