Brittany Morrison, individually and on behalf of all others similarly situated v. Yippee Entertainment, Inc.

• Court: District Court, S.D. California
• Decided: November 4, 2025
• Docket: 3:24-cv-00797
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRITTANY MORRISON, individually Case No.: 24-cv-00797-JO-KSC and on behalf of all others similarly 12 situated, 13 ORDER DENYING DEFENDANT’S Plaintiff, MOTION TO COMPEL 14 v. ARBITRATION [DKT. 13] 15 YIPPEE ENTERTAINMENT, INC., 16 Defendant. 17 18 19 20 On October 30, 2025, the Court held oral argument on Defendant’s motion to compel 21 arbitration. For the reasons stated on the record and set forth below, the Court denies 22 Defendant’s motion. 23 First, the Court finds that there was no binding agreement to arbitrate because 24 Plaintiff did not unambiguously manifest assent to the Terms of Service. For a user’s click 25 of a button to constitute an unambiguous manifestation of assent, the user must have been 26 “explicitly advised that the act of clicking will constitute assent to the terms and conditions 27 of an agreement.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 857 (9th Cir. 28 1 2022). “Even strongly implicit advisement isn’t enough.” Godun v. JustAnswer LLC, 135 2 F.4th 699, 711 (9th Cir. 2025). Courts have found that unambiguous assent is present when 3 there is an exact verbal match between the advisal language and the action constituting 4 assent. See Chabolla v. ClassPass Inc., 129 F.4th 1147, 1159 (9th Cir. 2025) (finding no 5 assent where advisal language did not match button and providing examples of cases where 6 advisal was sufficient because language matched). For example, a “Place Order” button 7 unambiguously manifested assent when the advisal explained that “by submitting an order, 8 the consumer ‘confirms [he] ... agree[s] to our privacy policy and terms of use.” Patrick 9 v. Running Warehouse, LLC, 93 F.4th 468, 477 (9th Cir. 2024). Similarly, clicking a 10 “Play” button unambiguously manifested assent to the terms of service when the screen 11 advised that “[b]y tapping ‘Play’ I agree to the Terms of Service.” Keebaugh v. Warner 12 Bros. Ent. Inc., 100 F.4th 1005, 1020 (9th Cir. 2024). 13 Here, the advisal language (“By clicking below, you agree to our Terms of Service, 14 Cookies Policy, Privacy Policy, and automatic renewal”) did not explicitly identify the 15 button (“Start subscription”) that would signal the consumer’s assent. See Chabolla, 129 16 F.4th at 1158 (no unambiguous manifestation of assent where advisal read “[b]y signing 17 up you agree to our Terms of Use and Privacy Policy,” and the only clickable button below 18 it read “Continue”). Customers were required to infer that “clicking below” referred to the 19 action of clicking the “Start subscription” button when there were also two other hyperlinks 20 (in blue text, to indicate that they were clickable) below the advisal, one entitled “Privacy 21 Policy” and the other, “Terms of Service.” See Dkt. 13-2, Ex. B. The presence of three 22 places one could click “below” the advisal interjects some level of ambiguity and potential 23 for confusion. See Chabolla, 129 F.4th at 1158 (where “the language could have been 24 clearer . . . the resulting ambiguity is dispositive”). Therefore, even if an exact verbal 25 match between advisal language and the button were not required under Circuit law, as 26 Defendant argues, the Court cannot conclude there was unambiguous assent by the 27 consumer. 28 1 Second, even if the Court were to find that Plaintiff agreed to the Terms of Service, 2 it would still find that the arbitration agreement does not govern the dispute. As a threshold 3 matter, the Court decides arbitrability because the parties did not clearly and unmistakably 4 delegate that authority to the arbitrator. The clause in the arbitration agreement that 5 delegates arbitrability applies to disputes between “you [i.e., consumers] and Vimeo,” and 6 makes no reference to disputes between consumers and third parties like Yippee. See Dkt. 7 13-2 (“Terms of Service”) § 10.2. (“Both you and Vimeo are entitled to fundamentally fair 8 proceedings at every stage of the arbitration, including the hearing (if any). The arbitrator 9 will decide all issues relating to the dispute, including the question of arbitrability, and can 10 grant any relief that a court could grant.”). Because the delegation clause’s terms are 11 expressly limited to Vimeo and users, they indicate intent for the delegation to only apply 12 to disputes between Vimeo and users. See Kramer v. Toyota Motor Corp., 705 F.3d 1122, 13 1127 (9th Cir. 2013) (no clear and unmistakable evidence that plaintiffs agreed to arbitrate 14 arbitrability with non-signatories because terms of agreement were expressly limited to 15 non-party dealers and plaintiffs by clause stating that “[e]ither you or we may choose to 16 have any dispute between you and us decided by arbitration.”). 17 Defendant argues that because the arbitration agreement references third parties like 18 Defendant who host websites on the Vimeo platform (called Producers in the agreement), 19 the delegation clause also encompasses disputes with these third parties. The Court 20 disagrees. In the section titled “Binding Arbitration with Producers,” the arbitration 21 agreement specifies that disputes between the consumer and third-party Producers will be 22 included in the agreement only when a certain contingency is met: “[t]o the extent that the 23 Producer has agreed to resolve disputes with consumers through arbitration in its 24 agreements with Vimeo.” Terms of Service § 10.7. Defendant has provided no evidence 25 that this contingency has been met. It is therefore unclear whether the arbitration 26 agreement applies to consumer disputes with third-party Producers, and, even it if did, the 27 agreement makes no mention of whether the arbitrability of these disputes is delegated to 28 1 the arbitrator. In the absence of clear and unmistakable assent, the Court decides 2 arbitrability, which includes the question of whether the dispute is covered by the 3 arbitration agreement. See Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1208 (9th Cir. 4 2016). 5 Finally, the Court concludes that the arbitration agreement contained in the Terms 6 of Service does not encompass the dispute at issue. Under the Terms of Service, the 7 arbitration agreement only applies to disputes “arising out of or relating to this Agreement 8 (including any alleged breach thereof), or your use of the Vimeo OTT Service.” Terms of 9 Service § 10.1. In addition, if a “Producer” “has agreed to resolve disputes with consumers 10 through arbitration in its agreements with Vimeo,” then any dispute “arising out of or 11 relating to [a consumer’s] purchase or viewing of a Producer’s Program or subscription” is 12 also subject to arbitration. Id. § 10.7. Here, Plaintiff’s complaint alleges that Defendant 13 Yippee (not Vimeo) used the Segment Application Programming Interface (API) to share 14 Plaintiff’s data with third parties for advertising purposes when Plaintiff accessed videos 15 on Defendant’s website. Dkt. 1 ¶¶ 54–56, 65. Plaintiff does not allege that this harvesting 16 of consumer data and its transmission to third parties occurred through the operation of the 17 Vimeo platform. And Defendant, who bears the burden of proving that the arbitration 18 agreement covers the dispute at issue, has provided no evidence in support of this 19 proposition—that it is Vimeo’s platform, not Defendant’s actions, that effects this alleged 20 transmission of consumer data. Plaintiff’s dispute therefore arises out of her “purchase or 21 viewing” of Defendant’s videos rather than her “use of the Vimeo OTT Service,” and the 22 arbitration agreement does not cover her claims unless § 10.7 applies. Section 10.7, in 23 turn, only applies “to the extent” the producer has agreed with Vimeo to resolve consumer 24 disputes through arbitration, and Defendant has failed to produce any evidence that this 25 condition has been met. Therefore, the Court finds that the arbitration agreement does not 26 cover Plaintiff’s claims. 27 28 1 For these reasons, the Court denies Defendant’s motion to compel arbitration [Dkt. 2 13]. 3 4 IT IS SO ORDERED.

5 ‘ Dated: November 4, 2025 ( | ’ Honorable Jinsook Ohta 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28