The Ninth Circuit Affirms Denial of Motion to Compel Arbitration: Website Terms of Service Not Enforceable

The Ninth Circuit affirmed the denial of a motion to compel arbitration in a consumer class action against a subscription-based website, finding that users were not adequately notified of the contractual terms via “sign-in wrap,” including the arbitration provision. In short, consumers were not put on inquiry notice of the terms.

When Plaintiffs accessed justanswer.com, each was first shown a landing page. Plaintiff Godun would have seen the following landing page:

We do not know what the landing page looked like for the other Plaintiffs. In any case, Plaintiffs—once they typed a question into a text box—were taken to a payment page to enter their email address and credit card information. Plaintiffs accessed the website at different times and the design of the site changed over time. Because those changes matter, we reproduce the parties’ representations of those pages here.

Plaintiff Davis saw the following payment page:

*705 Plaintiff Nelson accessed an updated page that looked like this:

Plaintiffs Godun, Faust, and McDowell, in turn, each saw similar versions of the payment page. Godun and Faust saw a version that looked like this:

*706

And Plaintiff McDowell’s page looked like this:

The blue check-marked box on Plaintiffs *707 Godun, Faust, and McDowell’s payment pages was pre-checked, so the parties only needed to click the “Connect now” button to finish the signup process. It is unclear whether they could uncheck the box even if they desired to do so.

Conspicuousness of Contract Terms

The court emphasized that, under California law, a valid online contract requires that users receive “reasonably conspicuous notice” of the terms to which they will be bound. The visual design of the website—including font size, color, placement, and contrast of advisals—plays a central role in determining whether notice is sufficient. In this case, advisals were found to be visually “buried,” displayed in small or low-contrast text, and not placed near the action buttons, making them unlikely to capture a reasonable user’s attention.

Under an inquiry theory of notice, contracts are formed between website users and operators only where “(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 unambiguously manifests his or her assent to those terms.” Id., at 856; accord Chabolla v. ClassPass Inc., 129 F.4th 1147, 1154 (9th Cir. 2025); see also Sellers, 73 Cal. App. 5th at 469, 289 Cal.Rptr.3d 1; Herzog v. Superior Ct., 101 Cal. App. 5th 1280, 1296, 321 Cal.Rptr.3d 93 (2024).

…

Importantly—again, at least under California law— “even minor differences” in the design elements may make the difference in this fact-intensive analysis. Sellers, 73 Cal. App. 5th at 481, 289 Cal.Rptr.3d 1. At bottom, when visually analyzing the conspicuousness of an advisal and any hyperlinks, courts must be tuned to the expectations of a reasonably prudent internet user. See id. at 471, 483, 289 Cal.Rptr.3d 1. A hefty dose of common sense goes a long way.

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[Here], [t]he advisal text is printed in relatively small text and not located “directly above or below” the action (“Start my trial”) button. Oberstein, 60 F.4th at 516; see Sellers, 73 Cal. App. 5th at 479, 289 Cal.Rptr.3d 1. This creates the impression of being visually “buried.” Berman, 30 F.4th at 856–57.

Explicit Advisal of Assent Required

Beyond conspicuousness, the court held that users must be explicitly advised of what action constitutes assent to the terms. Simply stating “I agree” or providing a pre-checked box without clear language such as “By clicking ‘Start my trial,’ you agree to the Terms and Conditions” is insufficient. The court rejected the argument that context alone (such as entering payment information for a recurring subscription) could substitute for explicit advisal.

Following California caselaw, we have considered, for example, (1) whether the transaction contemplates a “continuing relationship” by creating an account requiring a “full registration process,” Oberstein, 60 F.4th at 517 (quoting Sellers, 73 Cal. App. 5th at 480, 289 Cal.Rptr.3d 1); (2) whether the user is entering a “free trial,” id.; Blizzard, 76 Cal. App. 5th at 947, 292 Cal.Rptr.3d 47; (3) whether a user enters “credit card information,” Meyer, 868 F.3d at 78, 80; and (4) whether the user has downloaded an app on their phone (suggesting consistent accessibility), Keebaugh, 100 F.4th at 1020; cf. Herzog, 101 Cal. App. 5th at 1303, 321 Cal.Rptr.3d 93.

No “Magic Words,” But Clarity Is Key

While the court cautioned against rigid, one-size-fits-all rules for hyperlink formatting or advisal language, it made clear that the totality of the circumstances—including the context of the transaction and the expectations of a reasonable internet user—must support a finding of notice and assent. However, the absence of an explicit statement tying a user’s action to agreement with the terms was fatal to contract formation in this case.

Post-Transaction Notices Are Not Enough

Attempts to provide notice of terms after the transaction—such as through follow-up emails, text messages, or chat disclaimers—were deemed insufficient. The court found that such communications were not temporally coupled with the relevant transaction and did not clearly indicate their contractual nature.

Godun v. JustAnswer LLC, 135 F.4th 699 (9th Cir. 2025).