100 F.4th 1005
9th Cir.2024Background
- Plaintiffs filed a putative class action against Warner Bros. regarding misrepresentations in the Game of Thrones: Conquest (GOTC) mobile app.
- Plaintiffs alleged false advertising and consumer law violations, seeking, among other things, public injunctive relief.
- GOTC users access the app after tapping a "Play" button on the sign-in screen, below which notice is provided that tapping constitutes agreement to the Terms of Service (with hyperlinks to the policy documents).
- Warner Bros. moved to compel arbitration pursuant to the GOTC Terms of Service, but the district court denied the motion, finding the arbitration agreement lacked reasonably conspicuous notice to users under California law.
- Warner Bros. appealed the denial, arguing that both the context and visual presentation of the notice satisfied legal requirements; the Ninth Circuit reviewed the district court’s ruling de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the GOTC app's arbitration provision supported by reasonably conspicuous notice? | Keebaugh: Notice was not sufficiently conspicuous, so no valid assent to arbitration agreement. | Warner Bros.: Notice was conspicuous, using context and visual layout, consistent with relevant precedent. | Notice was reasonably conspicuous; agreement to arbitrate is enforceable. |
| Does the bar on public injunctive relief in the arbitration agreement render it unconscionable or unenforceable? | Keebaugh: Ban on public injunctive relief in any forum violates California law, making agreement unconscionable. | Warner Bros.: Provision is unenforceable under McGill but not unconscionable, so arbitration agreement survives. | Provision unenforceable under McGill, but not substantively unconscionable. |
| Should claims involving a minor or additional unconscionability arguments be resolved on appeal? | Keebaugh: Court should resolve minor's right to disaffirm and all unconscionability arguments now. | Warner Bros.: Leave unresolved issues for the district court on remand for fuller record development. | Left to district court to decide on remand. |
| Is the context-of-the-transaction test dispositive in evaluating sign-in wrap agreements? | Keebaugh: Context of transaction here does not reflect an ongoing relationship needing terms. | Warner Bros.: Visual presentation and context both matter; app context is ongoing access, not a one-off. | Context is one factor; both context and visuals showed sufficient notice. |
Key Cases Cited
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (close proximity of hyperlink without more is insufficient notice for online terms)
- Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022) (two-part test for enforceability of online agreements: conspicuous notice and unambiguous assent)
- Oberstein v. Live Nation Ent., Inc., 60 F.4th 505 (9th Cir. 2023) (mutual assent for online agreements is assessed by objective reasonableness; multiple notice points support conspicuousness)
- Blair v. Rent-A-Ctr., Inc., 928 F.3d 819 (9th Cir. 2019) (McGill rule does not violate the FAA; public injunctive relief waivers invalid in California)
- Poublon v. C.H. Robinson Co., 846 F.3d 1251 (9th Cir. 2017) (unenforceability of certain waivers does not make entire arbitration agreement unconscionable)