UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHARISSA KEEBAUGH; No. 22-55982 STEPHANIE NEVEU; HEATHER MERCIERI; SOPHIA NICHOLSON; D.C. No. P.W., by and through his Guardian 2:22-cv-01272- JOIE WEIHER; on behalf of MEMF-AGR themselves and all others similarly situated, OPINION Plaintiffs-Appellees,

v. WARNER BROS. ENTERTAINMENT INC., a Delaware corporation,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Maame Ewusi-Mensah Frimpong, District Judge, Presiding

Argued and Submitted January 12, 2024 Pasadena, California

Filed April 26, 2024 2 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

Before: Richard C. Tallman and Mark J. Bennett, Circuit Judges, and Robert S. Lasnik, * District Judge.

Opinion by Judge Bennett

SUMMARY **

Arbitration

The panel reversed the district court’s order denying Warner Bros. Entertainment Inc.’s motion to compel arbitration pursuant to the Terms of Service in a mobile application Game of Thrones: Conquest (“GOTC”). Plaintiffs filed a putative class action against Warner Bros. alleging false and misleading advertising within GOTC. Warner Bros. moved to compel arbitration of all claims, which the district court denied because Warner Bros. failed to provide reasonably conspicuous notice of its Terms of Service. The GOTC has a “sign-in wrap agreement” where users are required to advance through a sign-in screen which states “By tapping ‘Play,’ I agree to the Terms of Service.” Under California law, a sign-in wrap agreement may be an enforceable contract based on inquiry notice if the website provides reasonably conspicuous notice of the terms, and the

* The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 3

consumer takes some action that unambiguously manifests assent to those terms. Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022). The panel held that the district court erred in finding that Warner Bros. failed to provide reasonably conspicuous notice. The district court focused almost exclusively on whether the context of the transaction put Plaintiffs on notice that they were agreeing to the Terms of Service. To the extent that the district court treated this factor as dispositive, that holding was erroneous. A court must look to both “the context of the transaction” and the “placement of the notice” when conducting a Berman review. Warner Bros. succeeded on both counts. The GOTC satisfied the context-of-the- transaction test from Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 1, 15 (Cal. Ct. App. 2021), and the notice was conspicuous and put the reasonable user on notice that they were agreeing to be bound by the Terms of Service. The panel rejected Plaintiffs’ argument that the arbitration agreement was rendered unconscionable by its ban on public injunctive relief. The panel held that the Terms of Service impermissibly foreclosed the opportunity to seek public injunctive relief in any forum, and this provision thus violated the McGill rule and was unenforceable in California. But unenforceable is not the same as unconscionable. The panel concluded that the unenforceability of the waiver of one’s right to seek public injunctive relief did not make either this provision or by extension the arbitration agreement unconscionable or otherwise unenforceable. 4 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

COUNSEL Raphael Ja