UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KSENIYA GODUN; MOYA No. 24-2095 MCDOWELL; RENEE PETTIT; D.C. No. KRISTIE NELSON; TASHA 3:22-cv-06051-JD DAVIS; LATOYA FOUST, Individually and on behalf of all others similarly situated, OPINION

Plaintiffs - Appellees,

v. JUSTANSWER LLC,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding Argued and Submitted February 10, 2025 Pasadena, California Filed April 15, 2025 Before: Richard A. Paez, Sandra S. Ikuta, and Ryan D. Nelson, Circuit Judges. Opinion by Judge R. Nelson; Concurrence by Judge R. Nelson 2 GODUN V. JUSTANSWER LLC

SUMMARY *

Arbitration

The panel affirmed the district court’s order denying defendant JustAnswer LLC’s motion to compel arbitration in a putative class action under the Electronic Funds Transfer Act and California’s and other states’ consumer protection laws. Plaintiffs alleged that they created accounts on justanswer.com and paid to ask questions. Under JustAnswer’s Terms of Service, paying for answers to their questions automatically enrolled plaintiffs in a recurring monthly subscription. JustAnswer sought arbitration under a provision in its Terms of Service, asserting that plaintiffs were put on inquiry notice of those terms and agreed to arbitrate any claims arising out of their use of the site when they signed up for its service. The panel applied California contract law to a “sign-in wrap” agreement, under which a link to the Terms of Service was provided to plaintiffs but they were not required to separately indicate that they had read or agreed with those terms before using justanswer.com’s services. Instead, they purportedly manifested agreement by signing up for or continuing to use justanswer.com. The panel concluded that no contracts were formed between plaintiffs and JustAnswer under an inquiry theory of notice, which requires a showing that (1) a website provided reasonably conspicuous notice of the terms to which a consumer will be bound, and (2) the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GODUN V. JUSTANSWER LLC 3

consumer took some action, such as clicking a button or checking a box, that unambiguously manifested their assent to those terms. The panel concluded that some plaintiffs were presented with advisals that were insufficiently conspicuous to put them on inquiry notice, and others were not explicitly advised of what actions would be taken to signal assent to contractual terms. Concurring, Judge R. Nelson wrote that at step one of the inquiry-notice contract formation analysis, the bottom line of the visual-conspicuousness inquiry is reasonableness, but this court’s precedent has created confusion, suggesting that something more or something in particular must be looked for. As to the step-two analysis, Judge R. Nelson wrote that this court’s precedent has committed to an erroneous doctrinal path by demanding consideration of whether some action taken by the internet user unambiguously manifests their assent to proposed contractual terms, requiring that a website explicitly advise a user that certain acts will be taken to signal that assent.

COUNSEL Mark R. Sigmon (argued) and Matthew E. Lee, Milberg Coleman Bryson Phillips Grossman PLLC, Raleigh, North Carolina; John Nelson, Milberg Coleman Bryson Phillips Grossman PLLC, San Diego, California; for Plaintiffs- Appellees. Dominic E. Draye (argued), Robert J. He