1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LORETTA WILLIAMS, Case No. 22-cv-03789-SI
8 Plaintiff, ORDER DENYING DEFENDANTS’ 9 v. JOINT MOTION TO COMPEL ARBITRATION 10 DDR MEDIA, LLC, et al., Re: Dkt. No. 29 11 Defendants.
12 13 On February 17, 2023, the Court held a hearing on defendants’ joint motion to compel 14 arbitration. For the reasons set forth below, the Court DENIES the motion. 15 16 BACKGROUND 17 On June 27, 2022, Loretta Williams filed a class action complaint against defendants DDR 18 Media LLC and Lead Intelligence Inc., d/b/a/ Jornaya, alleging that defendants violated the 19 California Invasion of Privacy Act, Cal. Penal Code § 631,1 and California’s Unfair Competition 20 Law, and invaded Williams’s and class members’ privacy rights under the California Constitution. 21 Williams alleges that defendants unlawfully recorded her electronic communications or interactions 22 with DDR Media’s website “SnappyRent2own.com” when she used the website on or around 23 December 10, 2021. Compl. ¶¶ 20–24 (Dkt. No. 1). 24 According to the complaint, Jornaya offers a product called “TCPA Guardian” to lead 25 generators and telemarketers. Id. ¶ 5. The product is “designed to allow these lead generators and 26 1 The California Invasion of Privacy Act criminalizes the use of a recording device to 27 “read[], or attempt[] to read, or to learn the contents or meaning of any message, report, or 1 telemarketers to attempt compliance with the federal Telephone Consumer Protection Act by 2 documenting alleged evidence of prior express consent to receive telemarketing calls provided on 3 websites.” Id. One feature of TCPA Guardian is a “visual playback” function, which records, in 4 real time, a person’s interactions with a website that is using TCPA Guardian. Id. ¶ 6. DDR Media 5 installed TCPA Guardian by embedding Jornaya’s code onto the SnappyRent2own.com website. 6 Id. ¶ 11. 7 Williams alleges that when she visited SnappyRent2own.com on December 10, 2021, “the 8 Jornaya TCPA Guardian replay function created a video that captured Williams’ keystrokes and 9 clicks on the website.” Id. ¶ 21. TCPA Guardian also captured the date and time of the visit, her IP 10 address, and her geographic location, as well as Williams’ name, address, and phone number. Id. 11 ¶¶ 21–23. Williams alleges that the recording was done without her consent, and that defendants 12 did not inform website visitors that their strokes and clicks would be recorded. Id. ¶ 24. 13 On December 15, 2022, defendants filed a joint motion to compel arbitration based upon an 14 arbitration agreement contained in the Terms of Use on the SnappyRent2Own.com website. 15 Defendants have submitted pictures of the website, which they implicitly represent is the version of 16 the website that Williams accessed.2 See Swaminathan Decl., Ex. 1 (Dkt. No. 29-2). The hyperlink 17 to the Terms of Use is on lines sixteen and seventeen of twenty-one in a full-justified paragraph of 18 text. 3 See id.; see also Appendix A. The paragraph states, 19 By clicking the “Get Started” button, I am agreeing by my electronic signature to give SnappyRent2Own, NHAProgram, and 20 its partners my prior express written consent and permission to send emails, as well as to call and send to me recurring text 21 messages at the cellphone number(s) I provided above and to any other subscriber or user of these cellphone number(s), using an 22 automated dialing system at any time from and after my inquiry to 23 2 The Court accessed the SnappyRent2Own.com website on February 22, 2023. On that 24 day, the website differed from the version depicted in defendants’ briefing in significant ways, including the absence of a long paragraph— or any language—stating that by taking any particular 25 action on the website, such as clicking a button, the user was agreeing to the Terms of Use.
26 3 The paragraph also contains a hyperlink to a Privacy Policy. While the Privacy Policy is not directly at issue in this motion, defendants emphasize that the Privacy Policy discloses that the 27 website is collecting users’ personally identifying information. Williams asserts that the hyperlink SnappyRent2Own, NHAProgram for purposes of all federal and 1 state telemarketing and Do-Not-Call laws, in each case to market to me products and services and for all other purposes. I 2 understand that my telephone company may impose charges on me for these contacts. I understand that my consent is not required to 3 buy any of these business’s products or services and it can be revoked at any time. For SMS message campaigns: text STOP to 4 stop and HELP for help. Terms & Conditions/privacy policy apply. In addition, I agree to the Terms of Use and the Privacy 5 Policy. I also authorize the auto dealers and financial institutions that receive my request to order my credit report to determine my 6 creditworthiness. I understand that SnappyRent2own.com, NHAProgram does not make credit decisions and is not a lender 7 or broker. 8 Id. The text of the entire paragraph is darker gray on a lighter gray background. Id. The Terms of 9 Use hyperlink is underlined, but otherwise is in the same style and color as the surrounding 10 words. Id. Above the paragraph containing the Terms of Use hyperlink are four white data fields, 11 which contain font approximately two times the size4 of the Terms of Use hyperlink font, where 12 users are prompted to fill in their contact information (first name, last name, phone number, and 13 email address). Id. Below the Terms of Use hyperlink paragraph is a large “CHECK LISTINGS” 14 button. Id. The button is blue and the text within it is white, in all caps, and the font is approximately 15 two to three5 times the size of the Terms hyperlink font. Id. Below the “CHECK LISTINGS” button 16 are photos of listings and their locations. Id. Below the photos is a “Get Started Today” button, 17 which is the same size as the “CHECK LISTINGS” button. Id. The “Get Started Today” button is 18 blue, the text within the button is white, and the font is approximately two to three times the size of 19 the Terms hyperlink font. Id. The Terms of Use hyperlink leads to a page titled “Terms and 20 Conditions.” Dkt. No. 29-3. The Terms and Conditions document is seven pages and is mostly 21 single-spaced. Id. The arbitration agreement appears on page five of seven. Id. at 5. 22 23 LEGAL STANDARD 24 A party seeking to compel arbitration bears the burden of proving the existence of an 25 agreement to arbitrate by a preponderance of the evidence. Johnson v. Walmart Inc., 57 F.4th 677, 26 4 The Terms of Use hyperlink font is 1/16th of an inch while the font in the data fields is 27 1/8th of an inch. 1 681 (9th Cir. 2023). The Federal Arbitration Act (“FAA”) “requires federal district courts to stay 2 judicial proceedings and of claims covered by a written and enforceable arbitration agreement.” 9 3 U.S.C. § 3; Nguyen v. Barnes & Nobel Inc., 763 F.3d 1171, 1175 (9th Cir. 2014). “The FAA limits 4 the district court’s role to determining whether a valid arbitration agreement exists, and whether the 5 agreement encompasses the disputes at issue.” Nguyen, 763 F.3d at 1175. “In determining whether 6 a valid arbitration agreement exists, federal courts ‘apply ordinary state-law principles that govern 7 the formation of contracts.’” Id.6 8 9 DISCUSSION 10 Before analyzing whether Williams agreed to arbitrate her claims, it is helpful to understand 11 the type of contract contained on the SnappyRent2Own.com website. The Ninth Circuit has 12 explained, 13 Contracts formed on the Internet come primarily in two flavors: “clickwrap” (or “click-through”) agreements, in which website users are required to click on an “I 14 agree” box after being presented with a list of terms and conditions of use; and “browsewrap” agreements, where a website’s terms and conditions of use are 15 generally posted on the website via a hyperlink at the bottom of the screen. 16 Id. at 1175–76. “Courts routinely find clickwrap agreements enforceable.” Oberstein v. Live Nation 17 Ent., Inc., __ F.4th __, No. 21-56200, 2023 WL 1954688, at *5 (9th Cir. Feb. 13, 2023). “Courts 18 are generally reluctant to enforce [browsewrap] agreements because they often leave users ‘unaware 19 that contractual terms were even offered, much less that continued use of the website will be deemed 20 to manifest acceptance of those terms.’” Id. (quoting Berman v. Freedom Fin. Network, LLC, 30 21 F.4th 849, 856 (9th Cir. 2022)). “When an online agreement falls between these two extremes, 22 courts analyze mutual assent under an objective-reasonableness standard.” Id. 23 The agreement here falls somewhere between a clickwrap and a browsewrap agreement. A 24 user is not required to click an “I agree” button after being shown the website’s Terms and 25 Conditions, but the website does inform users that if they click a button (the “Get Started” button), 26
27 6 The parties’ briefing assumes California law applies to this analysis. See Dkt. Nos. 29–32. 1 they agree to the Terms of Use. Regarding the enforceability of these types of agreements, the Ninth 2 Circuit has instructed: 3 Unless the website operator can show that a consumer has actual knowledge of the agreement, an enforceable contract will be found based on an inquiry notice theory 4 only if: (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 5 a button or checking a box, that unambiguously manifests his or her assent to those terms. 6 Berman, 30 F.4th at 856 (applying California law). 7 Defendants do not contend that Williams had actual notice. Instead, they argue that she had 8 inquiry notice because the website provided reasonably conspicuous notice of the Terms of Use, 9 and the Terms of Use hyperlink is conspicuous when viewed in the context of the website. Williams 10 contends that the notice of the Terms of Use is not reasonably conspicuous and that defendants have 11 not shown that she took any action that unambiguously manifested her assent to those terms. 12
13 I. Reasonably conspicuous notice 14 Reasonably conspicuous notice requires that: (1) the “notice must be displayed in a font size 15 and format such that the court can fairly assume that a reasonably prudent internet user would have 16 seen it,” and (2) the hyperlink to the terms and conditions “must be readily apparent” to a reasonably 17 prudent user. Id. at 856–57. 18
19 A. Font size and format of notice 20 Defendants contend that the notice disclosing the Terms of Use is conspicuous because it is 21 “primarily surrounded by text no larger than the notice itself” and it is “above the button to proceed, 22 meaning that a user cannot continue to use the next page without at least scrolling past” the Terms 23 of Use hyperlink. Dkt. No. 32 at 3. Defendants assert that the website in this case is “materially 24 indistinguishable” from the website in Pizarro v. QuinStreet, Inc., Case No. 22-cv-02083-MMC, 25 2022 WL 3357838 (N.D. Cal. Aug. 15, 2022), in which Judge Chesney of this court enforced an 26 arbitration agreement contained in a website’s Terms of Use. 27 1 form and clicked a “See My Rates” button under the form. Pizarro, 2022 WL 3357838, at *2. The 2 defendant argued that by clicking the “See My Rates” button, Pizarro agreed to arbitrate her claims 3 because directly underneath the “See My Rates” button, the website notified users that “By clicking 4 See My Rates you agree to the following,” including the Terms of Use containing an arbitration 5 agreement. Id. at *1–2. Judge Chesney held that the arbitration agreement was enforceable because 6 the website provided reasonably conspicuous notice of the Terms of Use: 7 QuinStreet’s textual notice and Terms of Use hyperlink, when viewed in the context of the overall design and content of the webpage, are “reasonably conspicuous” . . . 8 . In particular, the notice and hyperlink appear directly below the “See My Rates” button, are set off by ample white spacing, and are primarily surrounded by text no 9 larger than the notice itself. Further, the general design of the webpage, which is comprised of only two data fields, is relatively uncluttered and has a muted, and 10 essentially uniform, color scheme. 11 Id. at *3; see Appendix C (Pizarro website). 12 Williams argues the website here does not provide reasonably conspicuous notice of the 13 Terms of Use because the notice is in tiny gray font on a lighter gray background while other 14 elements of the website are in much larger font with contrasting color backgrounds. Williams 15 contends that the SnappyRent2Own.com website is similar to the browsewrap agreement in Berman 16 that the Ninth Circuit held unenforceable. 17 In Berman, the plaintiffs visited two of the defendants’ websites. The websites differed in 18 certain respects, but both “contained a set of hyperlinked terms and conditions that included a 19 mandatory arbitration provision.” Berman, 30 F.4th at 853. Both plaintiffs clicked on a “continue” 20 button found on the websites, and defendant argued that in doing so, the plaintiffs had agreed to the 21 terms and conditions. Id. at 857. The Ninth Circuit described the layout of one of the websites as 22 follows: 23 [T]he webpage she saw stated, in large orange letters across the top of the page, “Welcome back, stephanie!” In the middle of the screen, the webpage proclaimed, 24 “Getting Free Stuff Has Never Been Easier!” and included brightly colored graphics. In between those two lines of text appeared a box that stated at the top, “Confirm 25 your ZIP Code Below,” followed immediately by a pre-populated text box displaying the zip code 93930. Below that, the page displayed a large green button inviting 26 Hernandez to confirm the accuracy of the zip code so that she could proceed to the next page in the website flow. The text inside the button stated, in easy-to-read white 27 letters, “This is correct, Continue! >>” . . . . Between the comparatively large box displaying the zip code and the large green 1 “continue” button were two lines of text in a tiny gray font, which stated: “I understand and agree to the Terms & Conditions which includes mandatory 2 arbitration and Privacy Policy.” The underlined phrases “Terms & Conditions” and “Privacy Policy” were hyperlinks, but they appeared in the same gray font as the rest 3 of the sentence, rather than in blue, the color typically used to signify the presence of a hyperlink. 4 Id. at 853–54 (internal citation omitted).7 The Ninth Circuit held that the text disclosing the Terms 5 and Conditions was not conspicuous because “[i]t [was] printed in a tiny gray font considerably 6 smaller than the font used in the surrounding website elements, and indeed in a font so small that it 7 is barely legible to the naked eye,” id. at 856, and the font was surrounded by “comparatively larger 8 font . . . direct[ing] the user’s attention everywhere else.” Id. at 856–57; see Appendix B (Berman 9 websites). 10 The Court concludes that the SnappyRent2own.com website8 did not provide reasonably 11 conspicuous notice of the Terms of Use, and that the website is closer to (and arguably worse than) 12 the deficient Berman websites, and different from the Pizarro website in several material respects. 13 Here, like Berman, the text disclosing the Terms of Use is in a very small gray font. See Appendix 14 A. Worse than Berman, where the notice was two lines of gray text on a contrasting white 15 background, the text here is darker gray against a lighter gray background, and is buried in lines 16 sixteen and seventeen of twenty-one in a full-justified block paragraph. Id. The long paragraph 17 begins by stating “By clicking the ‘Get Started’ button, I am agreeing to,” followed by a long list of 18 items before reaching the sentence “In addition, I agree to the Terms of Use . . . .” Id. In addition, 19 similar to the websites in Berman, “the textual notice is further deemphasized by the overall design 20 of the webpage, in which other visual elements draw the user’s attention away from the barely 21 readable critical text.” Berman, 30 F.4th at 857; see Appendix A (text and images to the left of the 22 textual notice, photographs of properties underneath textual notice, “CHECK LISTINGS” button 23
24 7 The other website in Berman was formatted slightly differently, but “[a]s with the webpage Hernandez viewed, sandwiched between the buttons allowing Russell to select her gender and the 25 large green ‘continue’ button were the same two lines of text in tiny gray font stating, ‘I understand and agree to the Terms & Conditions which includes mandatory arbitration and Privacy Policy.’ 26 The hyperlinks were underlined but again appeared in the same gray font as the rest of the sentence.” Id. 27 1 directly below notice). This design runs contrary to the Ninth Circuit’s admonition that “[w]ebsite 2 users are entitled to assume that important provisions—such as those that disclose the existence of 3 proposed contractual terms—will be prominently displayed, not buried in fine print.” Berman, 30 4 F.4th at 857. Further, “[b]ecause ‘online providers have complete control over the design of their 5 websites,’ the onus must be on website owners to put users on notice of the terms to which they 6 wish to bind consumers.” Id. (internal citations omitted). 7 The Court finds that Pizarro does not aid defendants because in that case the notice 8 disclosing the Terms of Use was much more conspicuous. In Pizarro, directly below the “See My 9 Rates” button, the website user was notified that “By clicking See My Rates you agree to the 10 following:” followed by “To AmOne’s Privacy Notice, Terms of Use, and Consent to Receive 11 Electronic Communications.” Both “By clicking See My Rates . . .” and “To AmOne’s . . . Terms 12 of Use . . .” were set off by white space, and the text containing the Terms of Use hyperlink was 13 only two lines. See Appendix C; Pizarro, 2022 WL 3357838, at *1. In contrast, here the notice of 14 the Terms of Use is contained in a long gray-on-gray paragraph and it does not have any 15 distinguishing qualities to make the text conspicuous. See Appendix A. In addition, unlike 16 Pizarro’s website, which had “only two data fields,” was “relatively uncluttered,” and “a muted, 17 and essentially uniform, color scheme,” Pizarro, 2022 WL 3357838, at *3, the 18 SnappyRent2Own.com website has four data fields, multiple colors, pictures, and a more cluttered 19 appearance—all “elements that draw the user’s attention away from the barely readable critical 20 text.” Berman, 30 F.4th at 857. 21 22 B. Terms hyperlink 23 The Court also finds that the Terms of Use hyperlink is not “readily apparent” to a reasonably 24 prudent user. Id. Here, the hyperlink is underlined, but it is not in the traditional blue, nor is it all 25 capitalized or otherwise distinguishable from the surrounding text. See Appendix A. “Consumers 26 cannot be required to hover their mouse over otherwise plain-looking text or aimlessly click on 27 words on a page in an effort to ‘ferret out hyperlinks.’” Berman, 30 F.4th at 857 (quoting Ngyuen, 1 order to ensure that it is sufficiently ‘set apart’ from the surrounding text.” Id. 2 Customary design elements denoting the existence of a hyperlink include the use of a contrasting font color (typically blue) and the use of all capital letters, both of which 3 can alert a user that the particular text differs from other plain text in that it provides a clickable pathway to another webpage. 4 Id. (citing Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 1, 29 (Cal. Ct. App. 2021) (finding “Terms 5 of Service” insufficiently conspicuous because it did not use all capital letters or contrasting font 6 color). 7 Defendants argue that the Terms of Use hyperlink is readily apparent because it is in the 8 same formatting as the surrounding text, and it is located above the “button to proceed” (the 9 “CHECK LISTINGS” button). Dkt. No. 32 at 3–4. However, when the Terms hyperlink is not 10 conspicuously distinguished from the surrounding text, it is not readily apparent. Oberstein, 2023 11 WL 1954688, at *8 (“And, crucially, the “Terms of Use” hyperlink is conspicuously distinguished 12 from the surrounding text in bright blue font, making its presence readily apparent.”). 13
14 II. Manifesting unambiguous assent 15 The second requirement that must be met in order to enforce DDR Media’s online agreement 16 is that “the consumer takes some action, such as clicking a button or checking a box, that 17 unambiguously manifests his or her assent to those terms.” Berman, 30 F.4th at 856. “The conduct 18 of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct 19 and knows or has reason to know that the other party may infer from his conduct that he assents.” Id. 20 at 855 (citing Restatement (Second) of Contracts § 19(2) (1981)). In Berman, the Ninth Circuit 21 rejected the defendant’s argument that the plaintiffs manifested their assent to be bound by the 22 websites’ terms and conditions by clicking large green “continue” buttons: 23 [M]erely clicking on a button on a webpage, viewed in the abstract, does not signify 24 a user’s agreement to anything. A user’s click of a button can be construed as an unambiguous manifestation of assent only if the user is explicitly advised that the act 25 of clicking will constitute assent to the agreement. The presence of “an explicit textual notice that continued use will act as a manifestation of the user’s intent to be 26 bound” is critical to the enforceability of any browsewrap-type agreement. Nguyen, 763 F.3d at 1177. 27 appeared directly above the button, and on the webpage Hernandez visited it 1 appeared above the button separated by several intervening lines of text. But “even close proximity of the hyperlink to relevant buttons users must click on—without 2 more—is insufficient to give rise to constructive notice.” Id. at 1179. 3 Rather, the notice must explicitly notify a user of the legal significance of the action she must take to enter into a contractual agreement. The notice did not do so here. 4 Both webpages stated, “I understand and agree to the Terms & Conditions,” but they did not indicate to the user what action would constitute assent to those terms and 5 conditions. Likewise, the text of the button itself gave no indication that it would bind plaintiffs to a set of terms and conditions. This notice defect could easily have 6 been remedied by including language such as, “By clicking the Continue >> button, you agree to the Terms & Conditions.” 7 Id. at 857–58. 8 Here, users are instructed that “By clicking the ‘Get Started’ button, I am agreeing by my 9 electronic signature . . . . In addition, I agree to the Terms of Use and the Privacy Policy.” See 10 Appendix A. The long paragraph containing this instruction is followed not by a “Get Started” 11 button, but by a “CHECK LISTINGS” button, and a user reaches a “Get Started Today” button 12 (there is no “Get Started” button) after scrolling past “CHECK LISTINGS” and pictures of various 13 properties. Id. 14 Defendants assert, without any evidence,9 that a user “would have been required” to click 15 the “CHECK LISTINGS” button in order to proceed through the website, Dkt. No. 29 at 3, and they 16 argue that it is a “technicality” that the relevant assent button is labeled “CHECK LISTINGS” and 17 not “Get Started” as identified in the notice. Dkt. No. 32 at 4. Defendants argue, “there can be no 18 serious dispute that, as a real-world matter, any user of snappyrent2own.com would have been just 19 as aware of the Terms of Use regardless of whether the button . . . read ‘CHECK LISTINGS’ or 20 ‘Get Started.’” Id. at 5. Thus, under this theory, a user manifests assent to the Terms of Use by 21 clicking the “CHECK LISTINGS” button, despite the fact that the notice states that agreement is 22 manifested by “clicking the ‘Get Started’ button.” At the hearing on February 17, 2023, defense 23 counsel took a somewhat different position, arguing that inquiry notice does not require a user to 24 click any button, and that a user would be put on notice of the Terms of Use and therefore bound by 25 26 9 For example, defendants have not submitted a declaration from the SnappyRent2Own.com 27 web designer stating that a user must click “CHECK LISTINGS” in order to proceed through the 1 the arbitration agreement contained in the Terms and Conditions simply by visiting the website. 2 Under this latter theory, the Court would presumably analyze the agreement as a pure “‘browsewrap’ 3 agreement[], in which a website offers terms that are disclosed only through a hyperlink and the 4 user supposedly manifests assent to those terms simply by continuing to use the website.” Berman, 5 30 F.4th at 856. 6 The Court is unpersuaded by defendants’ arguments under either theory, and concludes that 7 defendants have not met their burden to show that Williams took some action that unambiguously 8 manifested her assent to the Terms and Conditions. As a threshold matter, the Court finds it 9 problematic that the notice informs users that they agree to the Terms and Conditions by clicking 10 the “Get Started” button, while neither button on the website is labeled “Get Started.” Even if 11 Williams clicked the “CHECK LISTINGS” button, as defendants’ originally argued, it is the Court’s 12 view that doing so would not unambiguously manifest assent to the Terms of Use because the notice 13 informs users that they agree to the Terms of Use by clicking a “Get Started” button, not the 14 “CHECK LISTINGS” button. 15 Defendants rely on Hicks|Park LLP v. ING Bank, FSB, No. CV 11-07330 ODW (AGRX), 16 2011 WL 5509097 (C.D. Cal. Nov. 9, 2011), to argue that the labeling of the assent button is a 17 “technicality” that should not defeat arbitration. In Hicks, a former client sued a law firm over a fee 18 dispute, and the law firm signed a “Notice of Client’s Right to Arbitration” and informed the client 19 of its right to mandatory fee arbitration. Id. at *1. The client signed a petition for arbitration. Id. 20 The law firm later objected to arbitration, arguing that the demand for arbitration was defective 21 because the request was filed against the named partner personally rather than the law firm. The 22 court rejected this argument, holding 23 The mere fact that the Notice of Attorney Responsibility is not addressed to HP, but rather “James B. Hicks” does not remove them from the original Petition. . . . 24 Nonetheless, even if it were ambiguous as to whom the demand was filed against, allowing this technicality to defeat Defendant’s petition for arbitration would be in 25 direct contradiction to public policy, which recognizes that “states are generally responsible for the regulation of lawyers.” 26 Id. at *2. In Hicks, there was no dispute as to the parties’ agreement to arbitrate, and the case has 27 1 Further, defendants have not submitted any evidence showing that Williams actually clicked 2 || the “CHECK LISTINGS” button. Berman explicitly holds that a website user must “take[] some 3 action, such as clicking a button or checking a box, that unambiguously manifests his or her assent 4 to those terms.” Berman, 30 F.4th at 856. Finally, as to defendants’ assertion that Williams 5 manifested her assent to the Terms of Use simply by visiting the website, the Ninth Circuit has 6 || repeatedly stated that “[c]ourts are generally reluctant to enforce such agreements because they often 7 leave users ‘unaware that contractual terms were even offered, much less that continued use of the 8 website will be deemed to manifest acceptance of those terms.’” Oberstein, 2023 WL 1954688, at 9 || *5 (quoting Berman, 30 F.4th at 856). 10 Because the Court concludes that defendants have not shown that Williams agreed to 11 arbitrate her claims, the Court does not reach the other arguments raised by the parties’ briefs, 12 |) including the question of whether Jornaya has standing to seek arbitration.
14 CONCLUSION 2 15 For the foregoing reasons and for good cause shown, defendants’ joint motion to compel 16 || arbitration is DENIED.
18 IT IS SO ORDERED. 19 ( 20 || Dated: February 28, 2023 SUSAN ILLSTON 21 United States District Judge 22 23 24 25 26 27 28
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