Unreported / Non-Citable
Background
Antoun Nader, Aaron Macom, Nathan Thomas, and Linda Pierce were the plaintiffs-appellees in a putative class action arising from the Snowflake, Inc. data security breach litigation. The Judicial Panel on Multidistrict Litigation assigned the action to the District of Montana. LendingTree, LLC and QuoteWizard.com, LLC, the defendants-appellants, sought to compel arbitration based on terms presented through their websites. The district court denied their motion, and they appealed to the Ninth Circuit.
The appeal concerned sign-in wrap agreements, under which a website links to terms and indicates that an action may bind the user without requiring the user to review those terms. Such an agreement can be enforceable through inquiry notice only if the website gives reasonably conspicuous notice and the user takes an action that unambiguously manifests assent. The court therefore examined the websites' visual presentation, including font size, hyperlink placement, surrounding notices, and overall screen design.
The Court’s Holding
The panel first addressed choice of law. Because the defendants had invited the district court to apply Ninth Circuit law, including decisions applying California law, the district court's choice of law was unreviewable. The panel nevertheless explained that the issue did not change the outcome: the transaction-context factor had not been dispositive below, and neither party disputed that Washington, Texas, and North Carolina contract law were substantively the same for these purposes. The court accordingly applied Ninth Circuit precedent without considering transaction context.
The panel reached the same result whether it reviewed the district court's visual findings for clear error or evaluated the websites de novo. Both websites used terms printed in a tiny font considerably smaller than surrounding elements. Unlike the uncluttered screen in Keebaugh, these pages contained competing visual features that drew attention away from the notice. QuoteWizard required users to scroll past larger text and a bright green “Get My Quotes” box. LendingTree placed its Terms of Use hyperlink well below the “View Your Rates” button and included other hyperlinks that diverted attention from the terms.
The court affirmed on November 4, 2026. It held that the websites did not provide reasonably conspicuous notice of the terms of use containing the arbitration provision. Because users lacked conspicuous notice of those terms, there could be no mutual assent to them. The decision rested on the combined effect of the small font, cluttered pages, hyperlink placement, and competing visual elements rather than on any single design feature.
Key Takeaways
- A sign-in wrap agreement requires both reasonably conspicuous notice of the applicable terms and an action that unambiguously manifests the user's assent.
- The Ninth Circuit evaluates how font size, text placement, hyperlinks, clutter, and other design elements actually appear together on the webpage rather than applying a bright-line design rule.
- Terms displayed in substantially smaller text than surrounding content may fail to provide conspicuous notice when the page's other features direct the user's attention elsewhere.
- QuoteWizard's prominent matching message and bright green quote button, together with LendingTree's below-the-button terms link and competing hyperlinks, supported the court's conclusion that both websites provided inadequate notice.
- Because the websites did not conspicuously disclose the terms containing the arbitration provision, the court concluded that there was no mutual assent and affirmed the denial of the motion to compel arbitration.
Why It Matters
The memorandum applies the Ninth Circuit's online-contract decisions to two distinct webpage designs and illustrates how visual hierarchy can determine whether a user receives inquiry notice. It also shows that a party's invitation to use particular law can make the district court's choice-of-law determination unreviewable, although that procedural point did not affect the result here.
The disposition is expressly not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Within this appeal, however, it leaves the district court's denial of arbitration in place and resolves the defendants' challenge without deciding any broader merits issue in the underlying data breach litigation.