Burzdak v. Universal Screen Arts, Inc. ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KAREN BURZDAK, Case No. 21-cv-02148-EMC 8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO COMPEL ARBITRATION 10 UNIVERSAL SCREEN ARTS, INC., Docket No. 20 11 Defendant. 12 13 14 Plaintiff Karen Burzdak has filed a class action against Defendant Universal Screen Arts, 15 Inc. (“USA”), asserting that it has a “practice of deceptively enrolling consumers into a paid and 16 automatically renewing membership program.” Compl. at 1. She has pled violations of California 17 Business & Professions Code §§ 17600 and 17200. Currently pending before the Court is USA’s 18 motion to compel arbitration. Having considered the parties’ briefs and accompanying 19 submissions, the Court hereby DENIES the motion to compel. 20 I. FACTUAL & PROCEDURAL BACKGROUND 21 A. Complaint 22 In her complaint, Ms. Burzdak alleges as follows. 23 USA is a “multi-company retailer that owns and operates myriad e-commerce websites and 24 brands including Acorn, Bas Bleu, Daedalus Books, Signals, Support Plus, and What on Earth.” 25 Compl. ¶ 1. After a consumer places and finalizes an order from one of USA’s websites, she is 26 presented with a free shipping option in a pop-up box. See Compl. ¶¶ 2, 16. For example: 27 1 . Signals VIP INSIDER 2 THANK YOU FOR YOUR ORDER! 3 Claim Your Free Shipping Refund Now! 4 US CAME URE Tm et) EO) eee) 18) 2: To claim your free shipping provide your information below 5 and click SUBMIT to join Signals VIP Insider today! 6 Signals iP Weider prograrsnd the Ten of Use Unless you cancel duting your tal, we'll matommatically cominue your membership benefits for $14.95 a month, plus taxes, if amy charged to the same card ending in 4726 that you used for today's purchase. Cancel 2tytime online of by calling BS8-70¢- 767 3 7 Frail Addrece ? As A VIP Insider Member, Discover All The Ways You Can Save! 10 11 10% CASH BACK & SHIPPING REBATES AT SIGNALS AND OUR FAMILY OF BRANDS a Signals = ACORN = BASBEEW pidahasfiocks SMtroth Sapportra . . . . 14 || Compl. 16. “[S]electing the free shipping option automatically enrolls [consumers] into a 7-day 15 free trial to [USA’s] VIP Insider membership program that renews every month for $14.95.” Sam A 16 || Compl. § 2. Although there is text in the pop-up box that mentions the VIP Insider membership 3 17 program, the free trial, the automatic renewal, and the cost thereafter, Ms. Burzdak asserts that the 18 information is not clear and conspicuous. See Compl. § 19. 19 In addition, Ms. Burzdak maintains that cancelling the VIP Insider membership is difficult. 290 || A consumer cannot “simply visit [the] website [where she made the purchase] and cancel the 71 membership.” Compl. § 21. Instead, a consumer can cancel the membership online only if she 22 || first creates an account with a different website (e.g., signalsvipinsider.com). See Compl. 4 □□□□□□□ 23 Also, although consumers can call a toll-free number to request cancellation, “[s]ome consumers 24 || have reported issues reaching [a] representative and some complain about being charged despite 25 || requesting to cancel.” Compl. § 21(i). See, e.g., Compl. §] 23 (discussing a complaint made about 26 || trying to cancel by phone). Because USA “does not offer a timely and easy-to-use mechanism for 27 cancelling the membership,” consumers have suffered “repeat and ongoing unauthorized charges.” 28 Compl. § 4. 1 With respect to Ms. Burzdak specifically, she made a purchase through Bas Bleu (one of 2 USA’s e-commerce websites) in October 2020. See Compl. ¶ 26. After she made the purchase, 3 she responded to the pop-up box and enrolled in the VIP Insider membership program. She did 4 not intend to enroll in the program and was not aware that she was enrolled “as part of her 5 purchase process.” Compl. ¶ 27. Seven days after her purchase, USA charged Ms. Burzdak’s 6 debt card $14.95 for the program. The deduction was automatically made for three months – 7 November 2020, December 2020, and January 2021. See Compl. ¶ 28. Ms. Burzdak did not see 8 the charges for about three months. When she discovered them, she called USA immediately to 9 cancel the membership. See Compl. ¶ 30. 10 Based on, inter alia, the above allegations, Ms. Burzdak alleges a violation of California’s 11 Automatic Renewal Law, codified at California Business & Professions Code § 17600 et seq. See, 12 e.g., Cal. Bus. & Prof. Code § 17602(a) (providing that “[i]t shall be unlawful for any business 13 that makes an automatic renewal offer . . . to a consumer” to, e.g., “[f]ail to present the automatic 14 renewal offer terms . . . in a clear and conspicuous manner before the subscription or purchasing 15 agreement is fulfilled and in visual proximity . . . to the request for consent to the offer”). She also 16 alleges a violation of § 17200. She seeks to represent a class defined as follows: “All persons in 17 the State of California who were charged for a VIP Insider membership.” Compl. ¶ 31. 18 B. Arbitration Agreement 19 USA contends that the claims asserted by Ms. Burzdak must be compelled to arbitration 20 based on an agreement between the parties. In support of its motion to compel arbitration, USA 21 has provided evidence related to the arbitration agreement and the surrounding circumstances. 22 According to USA, “Ms. Burzdak enrolled in the VIP Insider membership program by Bas Bleu 23 on or about October 25, 2020.” Radigan Decl. ¶ 3. An offer related to the program was presented 24 to Ms. Burzdak as part of a post-purchase process. The offer was presented “with the option of 25 receiving a free shipping refund on her order.” Radigan Decl. ¶ 5. Below is a part of “the offer 26 and blank enrollment form in substantially the same form as it would have been presented to Ms. 27 Burzdak on or about October 25, 2020.” Radigan Decl. ¶ 5. 1 2 VIP INSI DE R BAS | 3 THANK YOU FOR YOUR ORDER! 1 Claim Your Free Shipping Refund Now! Lee), keV aome) ha To claim your free shipping, provide your information below and click SUBMIT to join 6 VIP Insider by Bas Bleu today! Offer and Billing Details: By submitting your email address , you agree to enroll in a free 7 day trial of the VIP 7 Insider by Bas Bleu program and the Terms of Use. Unless you cancel during your trial, we'll automatically continue your membership benefits for $14.95 a month, plus taxes, if any, charged to the same card that you used for today's purchase. Cancel anytime online or by calling 866-221-2476. 8 Email Address 10 i As A VIP Insider Member, Discover All The Ways You Can Save! (%) & 13 10% CASH BACK & SHIPPING REBATES AT BAS BLEU AND OUR FAMILY OF BRANDS Signals = ACORN BAS BLE péedatus Books —“Iatwearth 9 Support Phas 5 14 IS Radigan Decl., Ex. | (offer). After Ms. Burzdak entered her email address and clicked the a 16 “Submit” button, “she would have been informed on a new webpage, ‘Welcome to VIP Insider by = Bas Bleu.” Radigan Decl. § 9; see also Radigan Decl., Ex. 2 (welcome page). Z 1 Lo: . . 8 As indicated above, the paragraph in the middle refers to the Terms of Use for the VIP 19 Insider membership program: “By submitting your email address, you agree to enroll in a free 7 2 . . 0 day trial of the VIP Insider by Bas Bleu program and the Terms of Use.” “The phrase “Terms of 71 Use’ is underlined to indicate it is a hyperlink.” Radigan Decl. §/ 7. However, the phrase is not 22 ‘ highlighted through, e.g., the use of a different color for the font. 23 “[A] ‘Terms of Use’ hyperlink was also included at the bottom of the enrollment 24 webpage.” Radigan Decl. § 11. (Although not entirely clear, USA seems to be referring to the 29 “Helpful Links” at the bottom of the enrollment webpage, one of which is the Terms of Use. See 2 . . . . . . 6 Radigan Decl., Ex. 1. Ms. Burzdak claims that she did not receive the entirety of this webpage, 27 . . but rather only the portion copied above. See Opp’n at 2.) 28 1 Finally, an email acknowledgment was sent to Ms. Burzdak following her enrollment. At 2 the very bottom of the email (in small font), there is the following sentence: “See Terms of Use for 3 full details.” Radigan Decl., Ex. 4. 4 A copy of the applicable Terms of Use can be found at Exhibit 3 to the Radigan 5 declaration. Radigan Decl. ¶ 10. 6 • The Terms of Use do not mention the arbitration agreement in the first paragraph. 7 • The Terms of Use consists of seventeen sections. The second to last section, titled 8 “Disputes,” contains the arbitration clause. The arbitration clause provides as 9 follows: 10 Any dispute relating in any way to your visit to vipinsiderbasbleu.com or to products you purchase through 11 vipinsiderbasbleu.com shall be submitted to confidential arbitration in Ohio, except that, to the extent you have in any manner violated 12 or threatened to violate vipinsiderbasbleu.com’s intellectual property rights, We may seek injunctive or other appropriate relief in any 13 state or federal court in the state of Ohio, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under 14 this agreement shall be conducted under the rules then prevailing of the American Arbitration Association, Inc. The arbitrator’s award 15 shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable 16 law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, 17 whether through class arbitration proceedings or otherwise. 18 Radigan Decl., Ex. 3 (Terms of Use). 19 II. DISCUSSION 20 A. Legal Standard 21 USA contends that the Federal Arbitration Act (“FAA”) governs the instant case, and Ms. 22 Burzdak does not argue to the contrary. Under the FAA, an agreement to arbitrate "shall be valid, 23 irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation 24 of any contract." 9 U.S.C. § 2. "The final clause of § 2, its saving clause, permits agreements to 25 arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or 26 unconscionability, but not by defenses that apply only to arbitration or that derive their meaning 27 from the fact that an agreement to arbitrate is at issue." Sakkab v. Luxottica Retail N. Am., Inc., 1 B. Contract Formation 2 Although Ms. Burzdak does not dispute that the FAA governs, she challenges USA’s 3 contention that the parties had an agreement to arbitrate. Whether there was an agreement to 4 arbitrate is a matter of contract formation. The FAA does not govern this question of contract 5 formation. Instead, contract formation is governed by state law. As to which state’s law governs 6 on the issue of contract formation, Ms. Burzdak contends that California law applies. USA 7 suggests that the governing law is either that of California or Ohio,1 but also indicates that there is 8 no material difference between the two, at least with respect to contract formation. Therefore, as a 9 practical matter, the Court focuses on California law alone.2 10 In the instant case, whether Ms. Burzdak agreed to arbitrate depends, in the first instance, 11 on whether she agreed to the Terms of Use (which contain the arbitration clause). The Ninth 12 Circuit has noted that, as a general matter, courts enforce browsewrap agreements3 (similar to the 13 agreement at issue in the instant case) where (1) the website user had actual knowledge of the 14 agreement or (2) the website puts a reasonably prudent website user on inquiry notice of the terms 15 of the agreement. See Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1176-77 (9th Cir. 2014). 16 This is consistent with California law. See Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 566 17 (9th Cir. 2014) (noting that, under California law, “‘[a]n offeree, regardless of apparent 18 manifestation of his consent, is not bound by inconspicuous contractual provisions of which he 19 was unaware, contained in a document whose contractual nature is not obvious’”). Because USA 20 does not argue that Ms. Burzdak had actual knowledge of the Terms of Use, the issue for the 21 22 1 USA is a Ohio corporation. 23 2 “The issue of contract formation . . . is not a delegable gateway issue” (i.e., an issue for an arbitrator to decide instead of a court). Eiess v. USAA Fed. Sav. Bank, 404 F. Supp. 3d 1240, 1248 24 (N.D. Cal. 2019). USA does not dispute such; it argues only that the arbitrator has been delegated the issues of enforceability and scope of the arbitration agreement. See Mot. at 6. 25 3 A browsewrap agreement differs from a clickwrap agreement – the latter requiring a user to click 26 a box indicating that the user agrees to the terms of the agreement. See Nguyen, 763 F.3d at 1175- 76 (noting that, with clickwrap agreements, “website users are required to click on an ‘I agree’ box 27 after being presented with a list of terms and conditions of use”; in contrast, with browsewrap 1 Court is whether a reasonably prudent website user was put on inquiry notice of the Terms of 2 Use.4 The Ninth Circuit has explained: 3 Whether a user has inquiry notice of a browsewrap agreement, in turn, depends on the design and content of the website and the 4 agreement's webpage. Where the link to a website's terms of use is buried at the bottom of the page or tucked away in obscure corners 5 of the website where users are unlikely to see it, courts have refused to enforce the browsewrap agreement. On the other hand, where the 6 website contains an explicit textual notice that continued use will act as a manifestation of the user's intent to be bound, courts have been 7 more amenable to enforcing browsewrap agreements. In short, the conspicuousness and placement of the "Terms of Use" hyperlink, 8 other notices given to users of the terms of use, and the website's general design all contribute to whether a reasonably prudent user 9 would have inquiry notice of a browsewrap agreement. 10 Nguyen, 763 F.3d at 1177 (emphasis added). 11 In support of her argument that the Terms of Use were not conspicuous, Ms. Burzdak cites 12 the Ninth Circuit’s decision in Lee v. Intelius Inc., 737 F.3d 1254 (9th Cir. 2013), as well as 13 several district court cases. See Opp’n at 7-9. Like the instant case, Intelius involved a seven-day 14 free trial of a product after which there was an automatic monthly fee. However, the facts relevant 15 to the conspicuousness of the Terms and Conditions in Intelius are distinguishable from the facts 16 relevant to the conspicuousness of the Terms of Use in the instant case. For example, in the 17 instant case, there is a reference to the Terms of Use in close visual proximity to the “Submit” 18 button. In contrast, in Intelius, there was no reference to the Terms and Conditions in close visual 19 proximity to the relevant button. Below is the relevant screen shown to the consumer in Intelius. 20 21 22 23 4 In its reply brief, USA contends that Ms. Burzdak improperly conflates the above inquiry notice standard with the substantive standard in determining whether there has been a violation of the 24 California Automatic Renewal Law. See Reply at 1, 4; see also Cal. Bus. & Prof. Code § 17602(a) (providing that it is unlawful for a “business that makes an automatic renewal offer or 25 continuous service offer to a consumer” to “[f]ail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the subscription or 26 purchasing agreement is fulfilled and in visual proximity . . . to the request for consent to the offer”) (emphasis added). Although the Court is not unsympathetic to USA’s implicit concern 27 here – i.e., that the decision on the motion to compel arbitration will impact the substantive merits 1 Thank You your order has been successfully completed INTELIUS 2 PEL CR mau eee amet CM alee me ein UM TU mer el 3 Complete the survey below and the short registration form to claim $10.00 Cash Back as a member of Family Safety Report FREE for 7 days (Click Here for Details) 4 Does your neighborhood have a sex offender alert program? © Yes Oo No © T don't know 5 What card type did you use for your Intelius purchase today? = © Credit Card 0 Debit Card a ee 6 eee nant Family Safety Report - Protect Your Family Now! Ce @ Locate registered sex offenders in your area 7 | By STs oe Sn eee ene © Get e-mail alerts when convicted predators move near you sritten wathorfeation ty charge debit your: el © Monitor sex offenders in multiple areas | account according to the Offer Details to the 8 | OFFER DETAILS: (Thi is 2 secured page) Simply click "Ves" to activate your trial membership and take advantage of the great benefits that Family Safety 9 Report has to offer plus clin your $10.00 Cash Back! The membership fee of £19.95 per month will be □□ oH | E-Mail Address: Gia (eet dtlos Gases iota ak wou tee Sew Eras chan □□□ —_————— ses Wosnclanhas tak iseiiag be act pees miotasioke 10 | Confirm E-Mail Address: securely transfer your name, address, and credit/debit card information to Family Safety Report. No matter what the [nn FREE $10.00 Cash Back is yours to claim! Remember, if for any reason you are dissatisfied, call our toll-free number | |) to cancel, and you'll no longer be charged/debited, If you used a debit card today, then beginning on or about 7 days fram now, your monthly membership fee for Family Safety Report will be automatically debited each month on or sbout 1 1 By clicking "Ves" Thave read and agree to the same ita from the aa poe ae cae card, a | eeoemetererete niet | maces idvcee and eredidehit card * Family Safety Report does not provide the Registered Sex offender Report. The report is administered and provided a 12 eee fasta teak cats ret a service ie ca enue to thei Tart of Sauk and nate ioe Finily Sifery Report cannot ssiaiak | provider of Intelius the accuracy of or information provided within the report. Privacy Policy | Terms snd Conditions 3 Vim titeh | a WUC v 14 Glick once avd weit 3 15 No, show my report | Sm □ SS 16 3 17 See also Intelius, 737 F.3d at 1261 (agreeing with district court that plaintiff did not enter into a 18 contract to arbitrate because “‘[nJeither the text above the ‘YES’ button nor the ‘Offer Details’ 19 || themselves mention the ‘Privacy Policy’ or the “Terms and Conditions’”; “[t]he arbitration clause 29 || was contained in the ‘Terms and Conditions’ that Lee would have seen only if he clicked on the hyperlink below ‘Offer Details’ on the right-hand side of the webpage”) (emphasis added). There 22 || was no clear statement that clicking the “Yes” button indicates acceptance of the Terms and 23 Conditions, though that fact could arguably be inferred. 24 Instead of Intelius, the Ninth Circuit’s decision in Lee v. Ticketmaster L.L.C., 817 Fed. 25 || Appx. 393 (9th Cir. 2020), is more informative. Below are the relevant screens that were shown 26 to the consumer in Ticketmaster. 27 28 oO 1 2 3 4 5 6 Sign In. Get Going. Discover millions of live events, receive alerts when your favorites hit the road 7 and checkout with ease with your Ticketmaster account. 8 Email Acaress 9 Password 10 : FF] Remember Me 11 12 | & 13 Forgot Password? outs pee v 14 New to Ticketmaster? Sign up © Ss B continuing past this page. ou agree to our Terms of Use. ny cat pa na Q 16 Z 18 19 20 21 22 23 24 25 26 27 28 nN 1 3 Payment ticketmaster: FS sec no an 4 Credit / Debit Card visa @B == OA Pe 5 Add New Card * Required 4 6 Card Number * Card Type * 7 ae oe aoe & verified tickets = Order Details 8 Billing Address Total 9222.95 9 Outside the US? Update delivery By chicling “Place Cider vou dares teal Vente of 1 First Name * Last Name * ] ] Address * WAN TRustTe> xs 12 Unit # Address Line 2 eC Caries Privacy: 13 City * State * Zip Code * # ow scones oO a Alternate Phone 3 15 €.g. 310-555-1212 2 % Store my card for faster checkout next time A 16 ti ry t t t ti 17 See Lee v. Ticketmaster L.L.C., No. 18-5987 VC (N.D. Cal.) (Docket No. 26) (Tobias Decl., Exs. 2 18 F, H). The Ninth Circuit found that the Terms of Use in Ticketmaster were sufficiently 19 conspicuous. It noted as follows: 20 Lee validly assented to Ticketmaster's Terms of Use, including the 1 arbitration provision, each time he clicked the "Sign In" button when signing into his Ticketmaster account, where three lines below the button, the website displayed the phrase, "By continuing past this page, you agree to our Terms of Use,” as well as each time he 3 clicked the "Place Order" button when placing an order for tickets, where directly above the button, the website displayed the phrase, "By clicking 'Place Order,’ you agree to our Terms of Use," where in both contexts, "Terms of Use” was displayed in blue font and 5 contained a hyperlink to Ticketmaster's Terms. Thus, Ticketmaster's website required users to "affirmatively acknowledge the agreement 26 before proceeding,” and "the website contain[ed] an explicit textual notice that continued use will act as a manifestation of the user's intent to be bound.” Lee "cannot avoid the terms of [the] contract on the ground that he . . . failed to read it before signing,” especially 28 when he "had a legitimate opportunity to review it." The fact that Lee indicated his assent to Ticketmaster's Terms of Use roughly twenty times during the relevant period only reinforces that he had 1 many such opportunities. 2 || Ticketmaster, 817 Fed. Appx. at 394-95. Unlike Intelius, the reader is clearly and explicitly 3 informed that by clicking the subject boxes, the reader assents to the Terms of Use. 4 Based on the Ninth Circuit’s Ticketmaster decision, this Court found that the Terms of Use 5 || ina slightly different Ticketmaster screen sufficiently conspicuous as well. See Hansen v. 6 || Ticketmaster Entm't, Inc., No. 20-cv-02685-EMC, 2020 U.S. Dist. LEXIS 233538 (N.D. Cal. Dec. 7 11, 2020). 8 9 NAD SN I LIV ow Pe OS es 1 uy £ Wi 10 VFl lets a Sign In “ ] ] = New to Ticketmaster? Sign Up 12 (Pree mall epee mc mel ted Pelee liam im elelitsie kate id Password 41 ee eon ra a ts Remember Me Forgot Password? wees 15 16 : if = 17 mass ‘au Peer 18 Hansen v. Ticketmaster Entm’t, Inc., No. C-20-2685 EMC (N.D. Cal.) (Docket No. 23) (Tobias 1 ? Decl., Ex. 3). 20 . . . This Court also took note of a similar holding reached by the Ninth Circuit in Dohrmann vy. 21 Intuit, Inc., 823 Fed. Appx. 482 (9th Cir. 2020). 22 23 24 25 26 27 28 1 2 INTUIT 3 #3 turbotax © quickbooks © mint 4 Sign In 6 One account. Everything Intuit Sign in to your Intuit account to access all our 7 products including TurboTax Learn more 8 9 User ID 10 Please enter a valid user ID 11 Password 12 = ~ Remember me 14 Sam Q 16 Turbo Terms of Use, TurboTax Terms of Use ind have read and acknowledge our Privacy Statement 18 | forgot my user ID or password New to Intuit? Create an account. 19 20 Privacy Policy Terms of Use 21 22 Legal Privacy Security 23 In re Intuit Free File Litig., No. C-19-2546 CDB (N.D. Cal.) (Docket No. 97) (Sun Decl. § 5). 24 The Ninth Circuit held that “[t]he relevant warning language and hyperlink to the Terms of Use 25 were conspicuous — they were the only text on the webpage in italics, were located directly below 26 || the sign-in button, and the sign-in page was relatively uncluttered. TurboTax's website therefore 27 provided sufficient notice to a reasonably prudent internet user of its Terms of Use, which include 28 1 an arbitration clause.” Intuit, 823 Fed. Appx. at 484. In all these cases, not only was assent to the 2 Terms of Use explicit, but the hyperlink was clearly delineated, uncluttered by collateral language, 3 and immediately proximate to the relevant button. 4 In the instant case, the Court finds that there are important differences between (1) the 5 screens at issue in the Ticketmaster cases and in the Intuit case and (2) the screen at issue in the 6 instant case. 7 • Although, in all cases, the font size for the Terms of Use is small (compared to the 8 font size of other text on the same screen), the Terms of Use in the Ticketmaster 9 and Intuit cases is visually highlighted to the eye by being in a brighter, different 10 color (i.e., blue). The underlining of the Terms of Use in the instant case does not 11 have the same visual prominence as it is not highlighted by a different color which 12 would also clearly connote a hyperlink. 13 • The Ticketmaster and Intuit screens do not distract the eye from the Terms of Use 14 by giving visual prominence to other text. In contrast, in the instant case, visual 15 prominence – through bolding, a different color, and/or capitalization – is given to 16 other text, including “Free Shipping,” and thus attention is diverted away from the 17 Terms of Use. 18 • The sign-in screens in the Ticketmaster and Intuit cases simply ask the consumer to 19 sign into an account. There is nothing promotional about the screens or any 20 enticement which would distract the consumer from the content of the screens, 21 including the reference to the Terms of Use (which as noted above are given visual 22 prominence). In contrast, in the instant case, there is an obvious enticement and 23 distraction – free shipping – which is also accompanied by the command 24 “HURRY!” 25 • Although there is, in the instant case, some visual proximity between the Terms of 26 Use and the relevant button (“Submit”) – similar to the situation in the Ticketmaster 27 and Intuit cases – the value of the visual proximity is reduced by the fact that the 1 largely focuses on and promotes free shipping and the VIP Insider program. This 2 stands in contrast to both the Ticketmaster and Intuit cases where the Terms of Use 3 are referred to in a short, simple sentence. 4 See also Maree v. Deutsche Lufthansa AG, No. SACV 20-885-MWF (MRWx), 2021 U.S. Dist. 5 LEXIS 16452, at *8-9 (C.D. Cal. Jan. 26, 2021) (holding that Expedia.com’s Terms of Use were 6 not “sufficiently noticeable to put a reasonable user on inquiry notice of its provisions” – even 7 though above the “Complete Booking” button, there was the statement: “By selecting to complete 8 this booking I acknowledge that I have read and accept the Rules & Restrictions, Terms of Use . . . 9 and Privacy Policy . . . and Government Travel Advice”); Berman v. Freedom Financial Network, 10 LLC, No. 18-cv-01060-YGR, 2020 U.S. Dist. LEXIS 160406, at *8 (N.D. Cal. Sept. 1, 2020) 11 (noting that the consumer is not clearly being asked to indicate her agreement to any Terms & 12 Conditions where the buttons state: “This is correct, Continue!” and “Continue” – in spite of text 13 above the buttons stating, “I understand and agree to the Terms & Conditions” and “I understand 14 and agree to the Terms & Conditions which include mandatory arbitration”). 15 Accordingly, the Court holds that, in the instant case, USA’s pop-up screen did not put a 16 reasonably prudent website user on inquiry notice of the Terms of Use and, therefore, Ms. 17 Burzdak cannot be bound by the Terms of Use which contain the arbitration provision. The 18 motion to compel arbitration is therefore denied. 19 III. CONCLUSION 20 For the foregoing reasons, the Court denies USA’s motion to compel arbitration. USA has 21 within thirty (30) days from the date of this order to file a response to the complaint. 22 This order disposes of Docket No. 20. 23 IT IS SO ORDERED. 24 25 Dated: August 16, 2021 26 ______________________________________ EDWARD M. CHEN 27 United States District Judge