Under CA law, a website can bind a user to terms of service when the user logs in 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 a button or checking a box, that unambiguously manifests his or her assent to those terms.
Chabolla v. ClassPass (9th Cir., Case No. 23-15999, Feb. 27, 2025).
Plaintiff Chabolla signed up for a ClassPass membership on this page:
Id. at 48.
Are the terms of service reasonably conspicuous? The majority says no because users enter their email and “the most obvious and natural next step” is to simply click “Continue.”
A reasonably prudent user would likely click “Continue” and read no further if she had no intention of using Facebook.
Id. at 16.
But there were two other screens! What about the next screen?
Id. at 49.
This screen has the terms of use more prominently and says “by signing up you agree to our Terms of Use,” but this page has no “sign up” button and therefore no means of unambiguously manifesting asset.
There is no “sign up” button, and the only button on screen 2 reads “Continue.”
Id. at 19.
Same for screen 3. There is no “sign up” — it says “Redeem now.”
Id. at 50.
Thus screen 1 fails the “reasonably conspicuous” test, and screens 2 and 3 fail the “unambiguous assent” test.
The dissent looks at the whole sign-up flow and says, huh?
ClassPass provided conspicuous notice of its Terms of Use on three separate occasions, and Chabolla unambiguously manifested her assent to those conditions at multiple points in the registration process by clicking either “Continue” or “Redeem now.”
Id. (dissent) at 25.
In some ways this feels like a debate between people who browse the web differently. If you are rushing through the pages, you are going to miss some text. But if you pause and consider each step, it’s hard to miss that you’re signing up. But people browse differently!