Sellers v. JustAnswer LLC
289 Cal.Rptr.3d 1
Cal. Ct. App.2021Background
- Plaintiffs (Sellers and O’Grady) used JustAnswer’s website to submit a single question expecting a one-time $5 charge but were automatically enrolled in a recurring monthly membership and charged monthly fees.
- JustAnswer’s payment screens showed a prominent “Start my trial” button; a small, understated line of text beneath (and separate from) the button said clicking indicated agreement to hyperlinked “Terms of Service” (26 pages containing an arbitration clause and class waiver).
- On mobile, a later “View response” screen required checking a box labeled “I agree to the Disclaimer and re‑agree to the Terms of Service,” but the link went first to disclaimers and only indirectly to the Terms.
- Plaintiffs filed a putative class action alleging violations of California’s Automatic Renewal Law (ARL), the CLRA, and the UCL; JustAnswer petitioned to compel individual arbitration under the Terms of Service.
- The trial court denied the petition, finding the on‑screen textual notices were inconspicuous and did not provide constructive notice of the Terms; JustAnswer appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs manifested assent to arbitration by clicking “Start my trial” (sign‑in wrap) | The notice was tiny, faint, not adjacent to the button, and thus did not give actual or constructive notice of the Terms | Clicking the button (and on mobile, checking the box) manifests assent to hyperlinked Terms including arbitration | No — assent not shown; the textual notices were not sufficiently conspicuous to bind plaintiffs to arbitration |
| Whether statutory context (ARL) affects conspicuousness standard | ARL targets $/trial→auto‑renew transactions; any notice limiting ARL remedies must be at least as conspicuous as ARL requires | The general sign‑in wrap precedents control and their textual notice standard suffices | ARL context matters; notices here were less conspicuous than ARL’s definition of “clear and conspicuous,” so arbitration cannot bar litigation of ARL claims |
| Whether the mobile “View response” checkbox/re‑agree link bound users to arbitration | The link’s presentation and destination (disclaimer page, then separate link) did not clearly present arbitration terms or occur in visual proximity to the request for consent | The checkbox and re‑agree language was an affirmative assent equivalent to clickwrap | No — the mobile flow occurred after enrollment (not in visual proximity to the consent request) and the hyperlink routing made notice inadequate |
| Whether federal sign‑in wrap decisions compel enforcement | Federal cases often uphold sign‑in wraps; JustAnswer argued those precedents show its notice suffices | Plaintiffs: federal cases apply subjective tests and ignore ARL context; California should require clearer notice | Court declined to adopt an expansive rule from federal cases; focused on California law and ARL context and found notice insufficient |
Key Cases Cited
- Long v. Provide Commerce, Inc., 245 Cal.App.4th 855 (Cal. Ct. App. 2016) (browsewrap unenforceable where hyperlink was inconspicuous; courts should consider placement, color, size, and overall design)
- Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002) (download button did not communicate assent where license terms were on a submerged screen below the button)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (proximity of a terms hyperlink alone, without more, is insufficient to give rise to constructive notice)
- Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017) (transactional context matters; clear notice on payment/registration screens can support enforceability of online terms)
- Engalla v. Permanente Medical Group, Inc., 15 Cal.4th 951 (Cal. 1997) (party seeking arbitration bears burden to prove existence of valid arbitration agreement)
- California State Automobile Assn. v. Barrett Garages, Inc., 257 Cal.App.2d 71 (Cal. Ct. App. 1967) (receipt of a physical contract is often sufficient to place an offeree on inquiry notice)