UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KATHERINE CHABOLLA, No. 23-15999 Individually and on Behalf of All Others Similarly Situated, D.C. No. 4:23-cv-00429- Plaintiff-Appellee, YGR

v. OPINION CLASSPASS INC.; CLASSPASS, LLC; CLASSPASS USA, LLC,

Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted September 11, 2024 San Francisco, California

Filed February 27, 2025

Before: Jay S. Bybee, Salvador Mendoza, Jr., Circuit Judges, and Michael W. Fitzgerald,* District Judge. * The Honorable Michael W. Fitzgerald, United States District Judge for the Central District of California, sitting by designation. 2 CHABOLLA V. CLASSPASS, INC.

Opinion by Judge Mendoza; Dissent by Judge Bybee

SUMMARY**

Arbitration

The panel affirmed the district court’s order denying ClassPass, Inc.’s motion to compel arbitration in a case in which plaintiff filed a complaint, on behalf of herself and a class of California consumers similarly charged for an auto- renewed subscription, alleging that ClassPass—a company that offers packaged-deal access to gyms, fitness studios, and fitness classes—violated California’s Automatic Renewal Law, Unfair Competition Law, and Consumers Legal Remedies Act. Plaintiff purchased an online subscription. ClassPass did not charge plaintiff’s account for months during the COVID- 19 pandemic, but when gym operations resumed so did ClassPass’s charges. ClassPass argued that when plaintiff used its website, she agreed to arbitrate any claims against it. Because ClassPass’s website provides a link to the Terms of Use but does not require that the user actually read them before moving on to purchase a subscription, the website most closely resembles a “sign-in wrap agreement.”

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CHABOLLA V. CLASSPASS, INC. 3

Plaintiff navigated through four webpages to purchase her subscription: the landing page and screens 1, 2, and 3. The panel held that neither the landing page nor screen 1 provided plaintiff with reasonably conspicuous notice of the Terms of Use. Even if screens 2 and 3 did, at no point did plaintiff unambiguously manifest her assent to the Terms of Use on those screens. Nor did plaintiff’s use of the website, viewed in total, amount to her unambiguous manifestation of assent to the Terms of Use. Plaintiff did not agree to be bound to the arbitration clause within those Terms of Use. Dissenting, Judge Bybee would hold that plaintiff agreed to ClassPass’s Terms of Use. The screens, considered individually, required plaintiff to manifest her assent to the Terms of Use. When considering all three screens together, that conclusion is overwhelming. Plaintiff received three conspicuous notices of the Terms and unambiguously assented three times during the sign-up process. This was enough to bind her in contract. He would reverse the judgment of the district court and order the arbitration provision enforced.

COUNSEL Jessica L. Hunter (argued), Wittels McInturff Palikovic, New York, New York; Daniel E. Birkhaeuser, Robert M. Bramson, and Alan R. Plutzik, Bramson Plutzik Mahler & Birkhaeuser LLP, Walnut Creek, California; for Plaintiff- Appellee. Benjamin G. Shatz (argued), Christine M. Reilly, and Justin J. Rodriguez, Manatt Phelps & Phillips LLP, Los Ang