No. 23-1727

JOYCE TOTH,

Plaintiff, Appellant,

v.

EVERLY WELL, INC. and EVERLY HEALTH, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

Stefanie L. Ostrowski, with whom Anna C. Haac, Gemma Seidita, Kristen G. Simplicio, Leora N. Friedman, Tycko & Zavareei LLP, Zachary Arbitman, Alan M. Feldman, Edward S. Goldis, Feldman Shephard, Wohlgelernter Tanner Weinstock & Dodig LLP, Jennifer D. Bennett, Matthew W.H. Wessler, Robert D. Friedman, Alisa Tiwari, and Gupta Wessler LLP were on brief, for appellant.

Katherine M. Peaslee, with whom Krysta Kauble Pachman, Susman Godfrey LLP, Fabien M. Thayamballi, Shapiro Arato Bach LLP, William F. McGonigle, and Arrowood LLP were on brief, for appellee. September 25, 2024 HOWARD, Circuit Judge. While registering an at-home lab test on the testing company's website, Joyce Toth clicked on a checkbox indicating that she read and accepted certain terms and conditions, which were contained in a linked "User Agreement." Her representation was only half true. Toth, like countless consumers before her, did not read the terms and conditions that she ostensibly accepted. Had she reviewed the User Agreement and documents linked to it, she would have discovered arbitration provisions (hereafter sometimes referred to collectively as the "arbitration agreement") covering almost all disputes related to her use of the test. Relying on the arbitration agreement, the district court dismissed Toth's putative class action against the testing company. Toth now challenges the district court's ruling, arguing that no contract was formed between the company and herself and that, even if one were, the arbitration agreement within was invalid. Unfortunately for Toth, however, she formed a valid "clickwrap" contract with the company when she clicked on the checkbox. Accordingly, we affirm.

I.

A.

Everly Health, Inc. and its subsidiary Everly Well, Inc. (collectively, "Everlywell") sell health-related services and commodities. Everlywell offers a wide array of at-home health tests, but few are more popular than its "Food Sensitivity Test."

- 3 - Relying on a blood sample provided by the user, the Food Sensitivity Test claims to assess the user's "reactivity to 204 common foods that may be causing discomfort" by "measur[ing] [the] user's immunoglobulin G (IgG) response to various foods." Prospective users can purchase test kits directly from Everlywell's website or indirectly from retailers, such as in physical stores or online from Target. The test kit's packaging suggests a simple process for obtaining results -- "Purchase Kit . . . Collect Sample & Send . . . Receive Fast Online Results" -- but also stipulates that "[p]urchase, registration, and use are subject to agreeing to the Everlywell User Agreement, which can be read at everlywell.com/terms[.]"

Because the test is designed to be taken at home, instructions enclosed within each kit explain how to administer the blood test, how to send the sample to Everlywell's laboratory, and how to access test results. The instructions also direct the user to create an account on Everlywell's website and register the test kit, warning that "[t]he lab can only process your sample if you . . . register your kit." The account-creation page on its website asks users to i