Unreported / Non-Citable
Background
Brittany Morrison sued Yippee Entertainment, Inc. individually and on behalf of others similarly situated in the Southern District of California, and Yippee appealed the district court’s denial of its motion to compel Morrison to arbitration. The Ninth Circuit exercised jurisdiction under 28 U.S.C. § 1291 as specified in 9 U.S.C. § 16(a)(1)(B), reviewed the denial de novo, and reviewed underlying factual findings for clear error. The appeal, docketed as No. 25-7161, was argued and submitted in Pasadena on October 30, 2026, and the unpublished memorandum was filed November 5, 2026.
The panel sat as PAEZ, OWENS, and SANCHEZ, Circuit Judges, with District Judge Jinsook Ohta presiding below. The appeal turned on whether Morrison assented to an arbitration agreement through Yippee’s sign-in wrap. Yippee also argued that the district court erred by ruling on assent instead of treating the issue as waived or conceded because Morrison had not raised it earlier; the court rejected that argument because the district court provided Yippee a full and fair opportunity to respond to Morrison’s assent arguments in a supplemental brief. The district court’s denial also rested on alternative grounds that the Ninth Circuit did not need to reach.
The Court’s Holding
The panel first rejected Yippee’s procedural objection. It did not hold that Morrison raised assent late; it held only that the district court did not abuse its discretion in ruling on the argument after giving Yippee a full and fair opportunity to respond in supplemental briefing, consistent with authority allowing district courts to consider new arguments when the opposing party has an adequate chance to respond.
On the merits, the court agreed with the district court that Yippee failed to show formation of an agreement to arbitrate. Applying California law and the Ninth Circuit’s sign-in-wrap cases, the panel explained that a user must be explicitly advised that clicking will constitute assent, and the webpage must identify exactly which action does so; strongly implicit advisement is not enough. Yippee’s advisal said a user agreed to terms containing the arbitration agreement by “clicking below,” but it did not unambiguously connect that phrase to the “Start subscription” button.
The page presented six clickable items below the advisal: hyperlinks to Yippee’s terms of service, cookie policy, and privacy policy; the “Start Subscription” button; and hyperlinks to Google’s terms of service and privacy policy. That layout left no explicit indication which click manifested assent to arbitrate. The panel distinguished cases enforcing online agreements because those pages explicitly and unambiguously connected the advisal to the assenting action. It therefore affirmed on formation grounds and expressly declined to address the district court’s alternative grounds.
Key Takeaways
- A sign-in-wrap page must explicitly identify the particular user action that will be treated as assent to contractual terms.
- The phrase “clicking below” was inadequate where six different clickable items appeared below the arbitration-related advisal.
- A district court may rule on an argument the opposing party claims was not raised earlier without abusing its discretion when that party received a full and fair opportunity to respond in a supplemental brief.
- The Ninth Circuit affirmed solely on failure to prove assent and did not decide the district court’s alternative grounds for denying arbitration.
Why It Matters
The decision applies the court’s existing internet-contract framework to a concrete webpage-design problem: an arbitration advisal and an action button must be explicitly connected, not merely placed in general proximity. Multiple links and buttons beneath a generalized instruction can defeat the required unambiguous manifestation of assent.
The ruling also separates the procedural waiver ruling from the formation merits. The supplemental-briefing record supported the district court’s decision to reach assent, while the formation holding made it unnecessary to review any alternative basis for denying Yippee’s motion.