Regan v. Pinger, Inc

[7] 8 UNITED STATES DISTRICT COURT [9] NORTHERN DISTRICT OF CALIFORNIA [10] SAN JOSE DIVISION [11] 12 LUCAS REGAN, Case No. 20-CV-02221-LHK 13 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND COMPEL 14 v. ARBITRATION 15 PINGER, INC., 16 Defendant. [17] 18 Before the Court is Defendant Pinger, Inc.’s (“Defendant”) motion to dismiss and compel 19 arbitration. ECF No. 20 (“Mot.”). Having considered the parties’ submissions, the relevant law, 20 and the record in this case, the Court GRANTS Defendant’s motion to dismiss and compel 21 arbitration. 22 I. BACKGROUND 23 A. Factual Background 24 Plaintiff Lucas Regan (“Plaintiff”) is a resident of Illinois. Complaint at ¶ 9, ECF No. 1 25 (“Compl.”). Defendant Pinger is a Delaware corporation with its principle place of business in 26 California. Id. at ¶ 10. Defendant develops applications (“apps”) for mobile phones. Relevant to 27 the instant case is an app Defendant developed called “Sideline.” Id. at ¶ 20. Sideline is a paid 1 service that allows users to create a “virtual,” alternative telephone line for their mobile phone. Id. 2 1. Creating a Sideline Account 3 To create a Sideline account a user must first download the Sideline Application (“Sideline 4 App”). Declaration of Jocelyn Cloutier, ECF 20-1, at ¶ 25 (“Cloutier Decl.”). The user is then 5 presented with a screen instructing the user how to proceed with creating an account. The design 6 of that screen has changed over time. Id. Plaintiff’s complaint does not allege when Plaintiff 7 created his first account, but Defendant’s declarant attests that Plaintiff created 186 different 8 Sideline accounts between April 23, 2016 and March 16, 2019. Id. at ¶ 9. 9 Between October 2, 2017 and March 16, 2019, the Sideline App used two different 10 iterations of the account creation screen. In one iteration, used during the period when Plaintiff 11 created 41 Sideline accounts, the user was presented with a screen that included a space to type in 12 a phone number and password, and at the bottom of the screen the user could click a button 13 labeled “CREATE ACCOUNT.” Directly above the “CREATE ACCOUNT” button was a line 14 that read “By registering, I agree to Sideline’s Terms and Conditions.” “Terms and Conditions” 15 was in neon green, and the remainder of the sentence was in gray. Id. at ¶ 29–30. If a user clicked 16 on the “Terms and Conditions” hyperlink, the user was brought to a page that contained the full 17 text of the Sideline Terms of Service (“TOS”). Id. at ¶ 30. A screenshot of this page in color is 18 displayed below: [27] ¥ 4 12:30 [1] € New Account [2] 3 (408) 555-1234 4 seve SHOW [5] By registering, | agree to Sideline’s Terms and 6 Conditions CREATE ACCOUNT [8] 9 1 2 3 - 10 4 5 6 = 7 «68 9 «@ 12 0 . @ rs [14] 3 45 In a second iteration, used during the period when Plaintiff created 89 accounts, the user 16 was presented with a screen that stated “To optimize your experience, tell us how you plan to use 8 17 Sideline.” Jd. at § 32-33. Underneath that text one button read “For Professional Use” and the 18 other button read “For Personal Use.” Below these buttons a smaller gray line of text stated “By 19 || tapping ‘For Professional Use’, ‘For Personal Use’, or ‘Log in’ you’re agreeing to our Privacy 20 || Policy and Terms of Service.” “Privacy Policy” and “Terms of Service” were in neon green font. 21 Id. “Terms of Service” was hyperlinked to a page with Sideline’s full TOS. /d. at 932. A 22 || screenshot of this page in color is displayed below: [28] Case No. 20-CV-02221-LHK Y 4 w 12:30 [1] Log In [4] 5 14 3 Welcome to Sideline [7] To optimize your experience, tell us how you 8 plan to use Sideline: [11] By tapping “For Professional Use", “For Personal Use", or TT a € wz [14] 5 Prior to April 23, 2016, during the period when Plaintiff created his other 56 accounts, the a 16 Sideline App used two similar screens to allow a user to create an account. /d. at ¢ 34. On these 8 || Screens a user was required to input a phone number and new password into two text boxes. 1g || Underneath that information was a button labeled “Create Account.” Immediately below that 19 || button a line of text stated “By registering, I agree to Sideline’s Terms & Conditions.” ECF No. 29 || 20-5 (Ex. D). “Terms & Conditions” was hyperlinked, and the text of the hyperlink was colored 71 turquoise. The remainder of the text was gray. /d; Cloutier Decl. at § 34. A screenshot of these 27 || pages in color is displayed below: [28] Case No. 20-CV-02221-LHK [1] Pa wn 2 oesy(e(] [lal □ (cwuracererel Hn 3 (408) 644-3469 (408) 644-3469 4 ] Show | Show [5] CREATE ACCOUNT [6] By registering. | agree to Sideline's Terms & Conditions By registering, | agree to Sideline’s Terms & Conditions [9] UVE4ZESPOPS □□□ PSs 10 Nar: rc CHEF EURO Pou i SLA ae bite 12 ae en ee g 13 Fag ane) 3 Tap here to fill entire screen 15 a: Finally, at various times during the period when Plaintiff used the Sideline App, the login 1 . . . A 6 screen for returning users contained a line between the phone number/password box and “Login” 1 □□□ 7 button that read “By registering, I agree to Sideline’s Terms and Conditions.” “Terms and [6] Z 1 . . 8 Conditions” was in neon green font, and the remainder of the line was gray text. /d. at § 37. 1 . a ata: ? “Terms and Conditions” was hyperlinked to a page with Sideline’s full TOS. /d. A screenshot of 2 . . 0 this page in color is displayed below: [28] Case No. 20-CV-02221-LHK 1 ¥ 4 12:30 < Welcome Back [2] (408) 555-1234 3 (408) 4 Password 1234, HIDE 5 By registering, | agree to Sideline’s Terms and Conditions [6] FORGOT PASSWORD? LOGIN [8] 9 1 2 3 ~ 7 8 9 @ __ © [14] 2. Arbitration Provision _ = 1S From April 23, 2016 to March 16, 2019, the period during which Plaintiff created his A 16 Sideline Accounts, Sideline’s TOS always contained a provision that required the user to arbitrate M “any dispute” between the user and Defendant. /d. at § 12. During this period, Sideline used four 18 different iterations of the TOS. 19 The first and second iterations of the TOS contained the following identical language: “If 20 you download an App for use in the United States .. . any dispute between you and [Defendant] 21 shall be resolved through binding arbitration...” Jd. at § 21; ECF No. 20-4, at 21, 42 (Ex. C-1 22 and C-2). The first and second iterations of the TOS were in use between April 23, 2016 and 23 February 5, 2018, during which time Plaintiff created his initial 76 Sideline accounts □□□ at ¥ 20, 24 23. 2 The third and fourth iterations of the TOS contained the following identical language: 26 “Any dispute between you and [Defendant] . . . shall be resolved through binding arbitration . . .” 27 Id. at § 13; ECF No. 20-3, at 24, 48 (Ex. B-1 and B-2). The third and fourth iterations of the TOS [28] Case No. 20-CV-02221-LHK 1 also included an identical opt-out provision, which stated: 2 You may opt out of arbitration by providing written notice to Pinger, Inc. at the address noted above, which must be received no later than thirty (30) 3 calendar days from the date of your original acceptance of the license, the outbound terms and the inbound terms with this arbitration provision 4 included. If you do not send notice as required in the foregoing sentence, you will not have opted out of arbitration. [5] Id. at ¶ 17 (original in all caps). At no time did Plaintiff opt out of the Sideline arbitration [6] provision. Id. at ¶ 24. The third and fourth iterations of the TOS were in use between February 6, [7] 2018 and March 16, 2019, during which time Plaintiff created his remaining 110 Sideline [8] accounts. Id. at ¶¶ 13, 19. [9] 3. Plaintiff’s Sideline Accounts [10] Plaintiff was a subscriber to the Sideline App, but allegedly cancelled his accounts in or [11] around March 2019. Compl. at ¶ 23. According to Plaintiff’s complaint, after Plaintiff cancelled [12] his Sideline accounts Defendant began a “win-back” campaign. This involved Defendant utilizing [13] a computer-based dialing system to send 10-15 identical text message at midnight to urge Plaintiff [14] to sign up for Defendant’s Sideline App. Id. at 25. Each text message stated “Reply STOP to opt [15] out of these texts,” to which Plaintiff responded with a “stop” request and received a confirmation. [16] Id. at ¶¶ 26–28. Rather than cease this practice, Defendant allegedly conducted the same text17 message solicitation on 5 or 6 further occasions. Id. at ¶¶ 29–30. Plaintiff alleges that these [18] messages were sent without Plaintiff’s consent and violated Plaintiff’s seclusion and caused [19] annoyance. Id. at ¶ 44. Defendant’s text messages to Plaintiff also allegedly depleted Plaintiff’s [20] cellphone battery life. Id. at ¶ 46. [21] B. Procedural History [22] On January 22, 2020, Plaintiff filed a complaint against Defendant in Plaintiff’s home [23] district, the Northern District of Illinois, containing factual allegations identical to those in the [24] instant case. See Regan v. Pinger, Inc., 1:20-CV-00486 (N.D. Ill Jan. 22, 2020), ECF No. 1. On [25] February 19, 2020, the Seventh Circuit decided Gadelhak v. AT&T Services, which adopted an [26] interpretation of the Telephone Consumer Protection Act (“TCPA”) that excludes text messaging [27] 1 platforms that do not “generate random or sequential numbers.” 950 F.3d 458 , 469 (7th Cir. 2 2020). In reaching this conclusion, the Seventh Circuit declined to follow the Ninth Circuit’s 3 more expansive interpretation of the TCPA in Marks v. Crunch San Diego, 904 F.3d 1041 (9th 4 Cir. 2018), which included such text messaging platforms. See Gadelhak. 950 F.3d at 466. On 5 the day that the Seventh Circuit announced its decision in Gadelhak, Plaintiff voluntarily 6 dismissed his case. Regan, 1:20-CV-00486, ECF No. 18. 7 On April 1, 2020, Plaintiff filed a complaint in this district alleging that Defendant violated 8 the TCPA by sending Plaintiff text messages without Plaintiff’s prior consent. Compl. at 10. On 9 March 21, 2020, Defendant filed the instant motion to dismiss and compel arbitration. ECF No. 10 20 (“Mot.”). 11 On June 18, 2020, Plaintiff filed a motion for leave to conduct arbitration-related 12 discovery. ECF No. 27. On July 2, 2020, Defendant filed an opposition to Plaintiff’s motion to 13 conduct arbitration-related discovery. ECF No. 28. On July 10, 2020, Plaintiff filed a reply. ECF 14 No. 31. On July 21, 2020, United States Magistrate Judge Susan van Keulen granted in part 15 Plaintiff’s motion for leave to conduct arbitration-related discovery. ECF No. 33. 16 On August 4, 2020, Defendant filed a motion for relief from Judge van Keulen’s order 17 granting leave to conduct arbitration-related discovery. ECF No. 37. On August 6, 2020, the 18 Court denied Defendant’s motion for relief. ECF No. 38. 19 On October 5, 2020, Plaintiff filed an opposition to Defendant’s motion to dismiss and 20 compel arbitration. ECF No. 58. On October 30, 2020, Defendant filed a reply. ECF No. 62. 21 II. LEGAL STANDARD 22 The Federal Arbitration Act (“FAA”) applies to arbitration agreements in any contract 23 affecting interstate commerce. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). 24 If all claims in the case are subject to a valid arbitration agreement, the Court may dismiss or stay 25 the case. See Hopkins & Carley, ALC v. Thomson Elite, 2011 WL 1327359 , at *7–8 (N.D. Cal. 26 Apr. 6, 2011). 27 The interpretation of an arbitration agreement generally turns on state law. See Arthur 1 Anderson LLP v. Carlisle, 556 U.S. 624 , 630–31 (2009). However, the United States Supreme 2 Court has stated that “the first task of a court asked to compel arbitration of a dispute is to 3 determine whether the parties agreed to arbitrate that dispute,” and that “[t]he court is to make this 4 determination by applying the federal substantive law of arbitrability, applicable to any arbitration 5 agreement within the coverage of the Act.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 6 Inc., 473 U.S. 614, 626 (1985). 7 Whether a dispute is arbitrable under federal law turns on two questions: (1) whether the 8 parties agreed to arbitrate; and, if so, (2) whether the scope of the agreement to arbitrate 9 encompasses the claims at issue. See Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). 10 When deciding whether the parties agreed to arbitrate a certain matter, courts generally apply 11 ordinary state law principles of contract interpretation. First Options of Chi., Inc. v. Kaplan, 514 12 U.S. 938 , 944 (1995). Thus, in determining whether parties have agreed to arbitrate a dispute, the 13 Court applies “general state-law principles of contract interpretation, while giving due regard to 14 the federal policy in favor of arbitration by resolving ambiguities as to the scope of arbitration in 15 favor of arbitration.” Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1044 (9th Cir. 2009) 16 (quoting Wagner v. Stratton Oakmont, Inc., 83 F.3d 1046, 1049 (9th Cir. 1996)). As such, “[t]he 17 standard for demonstrating arbitrability is not a high one; in fact, a district court has little 18 discretion to deny an arbitration motion, since the [FAA] is phrased in mandatory terms.” 19 Republic of Nicar. v. Std. Fruit Co., 937 F.2d 469, 475 (9th Cir. 1991). 20 III. DISCUSSION 21 According to Defendant, Plaintiff’s claim is subject to arbitration pursuant to the 22 arbitration provision contained within the Sideline TOS. In opposition, Plaintiff disputes that his 23 claim is subject to arbitration for two reasons. First, Plaintiff contends that he never agreed to the 24 TOS on the Sideline App. Second, Plaintiff contends that, even assuming he did agree to the TOS, 25 the arbitration provision contained within the TOS does not apply to Plaintiff’s claim under the 26 TCPA. The Court considers these arguments in turn. 27 A. Whether Plaintiff Agreed to the Sideline Application’s Terms of Service 1 Plaintiff first contends that he did not agree to the Sideline TOS when he created an 2 account on the Sideline App. Opp. at 4. “Before a party to a lawsuit can be ordered to arbitrate 3 and thus be deprived of a day in court, there should be an express, unequivocal agreement to that 4 effect. Only when there is no genuine issue of fact concerning the formation of the agreement 5 should the court decide as a matter of law that the parties did or did not enter into such an 6 agreement.” Cordes v. Uber Tech., 228 F. Supp. 3d 985, 988 (N.D. Cal. 2017) (quoting Three 7 Valleys Mun. Water Dist. V.E.F. Hutton & Co., 925 F.2d 1136, 1141 (9th Cir. 1991)). 8 Importantly, “[q]uestions of contract formation are questions of state law,” and in California, 9 “mutual assent is the key to contract formation.” Id. 10 Both parties agree that this case implicates the law of internet-based contract formation. 11 “Contracts formed on the Internet come primarily in two flavors: ‘clickwrap’ (or ‘click-through’) 12 agreements, in which website users are required to click on an ‘I agree’ box after being presented 13 with a list of terms and conditions of use; and ‘browsewrap’ agreements, where a website’s terms 14 and conditions of use are generally posted on the website via a hyperlink at the bottom of the 15 screen.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 , 1175–76 (9th Cir. 2014). Importantly, 16 “[u]nlike a clickwrap agreement, a browsewrap agreement does not require the user to manifest 17 assent to the terms and conditions expressly . . . [a] party instead gives his assent simply by using 18 the website.” Id. (internal quotation marks omitted). “Indeed, ‘in a pure-form browsewrap 19 agreement, the website will contain a notice that—by merely using the services of, obtaining 20 information from, or initiating applications within the website—the user is agreeing to and is 21 bound by the site’s terms of service.’” Id. (quoting Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 , 22 837 (S.D.N.Y. 2012)). “[B]y visiting the website—something that the user has already done—the 23 user agrees to the Terms of Use not listed on the site itself but available only by clicking a 24 hyperlink.” Id. (internal quotations and citation removed). Thus, the “validity of [a] browsewrap 25 contract depends on whether the user has actual or constructive knowledge of a website’s terms 26 and conditions.” Id. Thus, whether there is a valid agreement “turns on whether the website puts 27 a reasonably prudent user on inquiry notice of the terms of the contract,” which in turn “depends 1 on the design and content of the website.” Id. at 1177. 2 Plaintiff contends that the Sideline App uses a browsewrap agreement that did not provide 3 sufficient notice to Plaintiff of the terms of the contract, and therefore that Plaintiff did not assent 4 to the TOS. Opp. at 5. Defendant, by contrast, eschews the distinction between browsewrap and 5 clickwrap agreements and instead focuses on the proximity and clarity of the TOS notification on 6 the Sideline App’s account creation page. Mot. at 15. In order to determine whether the parties 7 manifested mutual assent, the Court first reviews the process of creating an account on the 8 Sideline App. The Court then considers whether the Sideline TOS are properly described as a 9 browsewrap or clickwrap agreement. Finally, the Court considers whether Plaintiff assented to the 10 TOS by creating an account on the Sideline App. 11 1. Creating an Account 12 As the Court has already described, the process of creating an account on the Sideline App 13 varied over the period Plaintiff created 186 Sideline accounts. See Cloutier Decl. at ¶¶ 9, 28. 14 When Plaintiff created 130 of his Sideline accounts Plaintiff was shown one of two 15 screens. Id. at ¶ 28. When Plaintiff created 41 of these accounts, Plaintiff was shown a screen that 16 required Plaintiff to input his phone number and a password in two entry boxes. Underneath those 17 boxes, and above the “Create Account” button, a line of text stated “By registering, I agree to 18 Sideline’s Terms and Conditions.” The bulk of this text was written in gray, with the hyperlinked 19 “Terms and Conditions” colored neon green. Id. at ¶ 29. 20 When Plaintiff created a further 89 accounts, Plaintiff was shown a screen that stated: “To 21 optimize your experience, tell us how you plan to use Sideline.” Underneath this text there were 22 two buttons Plaintiff could click, one which read “For Professional Use” and another that read 23 “For Personal Use.” Beneath these boxes a line of text stated “By tapping ‘For Professional Use’, 24 ‘For Personal Use’, or ‘Log in’ you’re agreeing to our Privacy Policy and Terms of Service.” Id. 25 at ¶ 32. The bulk of this text was in gray, with the hyperlinked “Privacy Policy” and “Terms of 26 Service” in neon green. Id. 27 When Plaintiff created his remaining 56 Sideline accounts, he was shown one of two 1 almost identical screens. Id. at ¶ 34. On these screens Plaintiff was required to input a phone 2 number and new password. Underneath that information was a button labeled “Create Account.” 3 Immediately below that button a line of text stated: “By registering, I agree to Sideline’s Terms & 4 Conditions.” ECF No. 20-5 (Ex. D). “Terms & Conditions” was hyperlinked and turquoise 5 colored. The remainder of the text was gray. Id. 6 Moreover, during the period in which Plaintiff used the Sideline App, Plaintiff was 7 periodically reminded of his consent to the TOS by the Sideline App’s login screen, which 8 contained a line of text beneath the “Login” button that stated “By registering, I agree to Sideline’s 9 Terms and Conditions.” The bulk of this text was in gray, but the hyperlinked “Terms and 10 Conditions” was in neon green. Id. at ¶ 36–37. 11 2. Browsewrap or Clickwrap 12 Given the process for creating an account on the Sideline App described above, the Court 13 finds that the Sideline TOS is neither a “true browsewrap agreement” nor a “pure-form clickwrap 14 agreement.” See Nevarez v. Forty Niners Football Company, Inc., 2017 WL 3492110 , at *7 (N.D. 15 Cal. Aug. 15, 2017) (explaining a middle-ground between these approaches). 16 Unlike a true browsewrap agreement—in which a user purportedly assents to terms of 17 service merely by browsing a website— a user of the Sideline App had to take an affirmative 18 action to agree to the Sideline TOS when the user created an account and often when the user 19 logged back into the Sideline App. Thus, a user of the Sideline App had to make at least one, and 20 sometimes two, affirmative acknowledgments that the user was agreeing to the Sideline TOS by 21 creating an account. Mot. at 13; Cloutier Decl. at ¶¶ 29, 32, 37. 22 However, the Sideline TOS are also not a “pure-form clickwrap agreement.” Fteja, 841 F. 23 Supp. 2d at 836–37; see also Nevarez, 2017 WL 3492110 , at *8 (same). In a pure-form clickwrap 24 agreement, “users typically click an ‘I agree’ box after being presented with a list of terms and 25 conditions of use.” Id. A user of the Sideline App, by contrast, was not forced to actually read the 26 TOS before assenting to them. Moreover, a Sideline user did not click a button labeled “I agree” 27 when they assented to the TOS. Instead, a user clicked buttons for actions like “Create Account,” 1 “For Personal Use,” or “Login,” and those buttons did not explicitly reference the TOS. See 2 Nevarez, 2017 WL 3492110 , at *8 (explaining distinction between buttons that explicitly 3 reference assent and those that do not). Accordingly, the Sideline App does not use a pure 4 clickwrap agreement, whereby users “are presented with the proposed license terms and forced to 5 expressly and unambiguously manifest either assent or rejection prior to being given access to the 6 product.” Fteja, 841 F. Supp. 2d at 836 . 7 As such, the Court finds that the Sideline App’s TOS are somewhere between a pure 8 clickwrap agreement and a pure browsewrap agreement. Courts now sometimes refer to these 9 hybrid approaches as “sign-in wrap” agreements, whereby a website “notif[ies] the user of the 10 existence of the website’s terms of use and, instead of providing an ‘I agree” button, advise[s] the 11 user that he or she is agreeing to the terms of service when registering or signing up.” Meyer v. 12 Uber Techs., Inc., 868 F.3d 66 , 75–76 (2d Cir. 2017); see also Peter v. Doordash, Inc., 445 F. 13 Supp. 3d 580, 585–586 (N.D. Cal. 2020) (noting this hybrid approach and finding arbitration 14 agreement enforceable on a similar set of facts). 15 Regardless of the precise label, based on the design and function of the Sideline App, the 16 Court finds that Plaintiff assented to the Sideline TOS by creating an account. As the Court has 17 already explained, the Sideline App sufficiently informed Plaintiff either (1) that by creating an 18 account the user agreed to Sideline’s TOS, or (2) that by clicking the “Create Account,” “For 19 Professional Use,” “For Personal Use,” or “Login” button, Plaintiff was agreeing to the Sideline 20 TOS. See Cloutier Decl. at ¶¶ 29, 32 34. Plaintiff was also repeatedly reminded that he agreed to 21 the TOS by creating an account when Plaintiff clicked the “Login” button upon returning to use 22 the Sideline App. Id. at 37. As such, when Plaintiff created each account, Plaintiff assented to the 23 Sideline TOS by creating that account. 24 This determination is consistent with the decisions of numerous courts in this circuit that 25 have concluded that disclosures similar to Defendant’s provided users with sufficient notice to 26 manifest mutual assent to the website’s terms of service. See, e.g., Doordash, 445 F. Supp 3d at 27 585 (enforcing arbitration clause where hyperlinked terms and conditions was in a contrasting 1 color and located near the “Sign In” button); Harbers v. Eddie Bauer, LLC, 2019 WL 6130822 , at 2 *8 (W.D. Wash. Nov. 19, 2019) (enforcing arbitration clause contained within terms of service 3 where user clicked “Submit Order” button above hyperlinked text that read “By ordering you 4 agree to eddiebauer.com’s Privacy Policy and Terms of Use”); Dupler v. Orbitz, LLC, 2018 WL 5 6038309, at *3 (C.D. Cal. July 5, 2018) (enforcing arbitration clause where text putting a user on 6 notice of the terms of use was located directly above the “Complete Booking” button); and 7 Nevarez, 2017 WL 3492110 , at *8 (enforcing arbitration clause contained within terms of use 8 where users agreed to the terms of use by clicking on “Accept and Continue” or “Sign In,” and the 9 terms were hyperlinked and located nearby). 10 Plaintiff argues that the facts in the instant case are more analogous to those in Nguyen v. 11 Barnes & Noble Inc., and therefore the arbitration provision within the Sideline TOS should not be 12 enforced. 763 F.3d at 1171 ; Opp. at 5–6. However, the facts in Nguyen only serve to demonstrate 13 the distinction between a pure browsewrap agreement and the Sideline TOS at issue in the instant 14 case. In Nguyen, the Ninth Circuit noted that the terms of use for the defendant’s website were 15 “available via a conspicuous hyperlink on every page of the website.” Id. at 1179 . The Court 16 went on to explain, however, that the defendant’s website “otherwise provides no notice to users 17 nor prompts them to take any affirmative action to demonstrate assent,” and that as such, “even 18 close proximity of the hyperlink to relevant buttons users must click on—without more—is 19 insufficient to give rise to constructive notice.” Id. 20 By contrast, in the instant case, the Sideline App not only included notice of the TOS via a 21 hyperlink in close proximity to the relevant action button, but the text of the notice itself further 22 informed Plaintiff that by registering an account or clicking a button Plaintiff was consenting to 23 the Sideline TOS. This further notice distinguishes the instant case from Nguyen, in which the 24 Ninth Circuit considered a website with only the hyperlinked terms of service available at the 25 bottom of each page, but provided no further notice that proceeding on the website would 26 constitute acceptance of the terms of service. Id. at 1177 (acknowledging that “where the website 27 contains an explicit textual notice that continued use will act as a manifestation of the user’s intent 1 to be bound, courts have been more amenable to enforcing browsewrap agreements.”). 2 Importantly, Plaintiff does not cite any case from this circuit with similar facts that support 3 Plaintiff’s argument that defendant’s arbitration agreement is not enforceable. Instead, Plaintiff 4 primarily cites out of circuit, inapposite decisions that courts within the Ninth Circuit have not 5 followed. See, e.g., Cullinane v. Uber Techs., Inc., 893 F.3d 53, 64 (1st Cir. 2018) (insufficient 6 notice of terms of service where notice was inconspicuous); Nicosia v. Amazon.com, Inc., 834 7 F.3d 220 , 237 (2d Cir. 2016) (arbitration clause was not enforceable where disclosure was 8 inconspicuous in the context of the page). In contrast to these out of circuit decisions, Defendant’s 9 notice of the TOS was clearly conspicuous and is therefore enforceable. Moreover, courts within 10 the Ninth Circuit have not followed either decision. 11 The remaining in-circuit cases that Plaintiff cites are either distinguishable or support 12 Defendant’s argument. In McKee v. Audible, Inc., the court found that the arbitration provision at 13 issue was not enforceable for several reasons, including (1) the first disclosure that a user was 14 shown lacked hyperlinks to the terms of service and was in “small, undifferentiated font”; (2) 15 further disclosures required the user to scroll down on an iPhone and the user could click the 16 “Start Now” button without scrolling down; and (3) the notice of the terms of service referred to 17 “making a purchase,” but plaintiff did not make a purchase. 2017 WL 4685039 , at *8–10. (C.D. 18 Cal. July 17, 2017). In the instant case, by contrast, Plaintiff was shown a conspicuous notice of 19 the TOS that was in close proximity to the relevant action button and was hyperlinked, and 20 Plaintiff clicked through the create account screen and created 186 Sideline accounts. 21 In Weiman Chen v. Sierra Trading Post, Plaintiff’s other in-circuit case, the court found 22 that the hyperlinked notice of the terms of service was enforceable because it was capitalized and 23 underlined and thus “distinguishable from the surrounding text.” 2019 WL 3564659 , at *3 (W.D. 24 Wash. Aug. 6, 2019). In the instant case, the notice of the TOS was capitalized and set off from 25 the surrounding text by brightly colored front and thus “distinguishable from the surrounding 26 text.” Id. As such, Plaintiff has not provided any case from this circuit that supports his argument 27 that he did not agree to the Sideline TOS. 3. Discrepancy in Language [1] Finally, Plaintiff argues that Plaintiff did not assent to the TOS on the Sideline App [2] because in one iteration the Sideline App stated: “By registering, I agree to Sideline’s Terms and [3] Conditions,” but the corresponding button directly next to the text read “Create Account.” Opp. at [4] 9–10; see Cloutier Decl. at ¶ 29. Plaintiff argues that “creating an account” is only the first step in [5] the registration process of a Sideline account, and therefore Plaintiff did not know that by clicking [6] the “Create Account” button Plaintiff would assent to the Sideline TOS. Id. However, as [7] Defendant argues, the Sideline App appears to often use the terms “create” and “register” [8] interchangeably, and therefore there is no difference between creating and registering an account. [9] Reply at 6–7; see also ECF No. 20-3 at 7–9 (providing examples of this use). [10] Moreover, the Second Circuit held that a website user had sufficient notice of the terms of [11] service on a set of facts almost identical to those at issue in the instant case. The Second Circuit [12] explained that “[a]lthough the warning text used the term ‘creat[e]’ instead of ‘register,’ as the [13] button was marked, the physical proximity of the notice to the register button and the placement of [14] the language in the registration flow make clear to the user that the linked terms pertain to the [15] action the user is about to take.” Meyer, 868 F.3d at 80 . The Court agrees with this reasoning and [16] finds that the disclosure alerting Plaintiff that “By registering, I agree to Sideline’s Terms and [17] Conditions,” located immediately above the “Create Account” button, was sufficient notice that [18] Plaintiff would be bound by the Sideline TOS when Plaintiff clicked the “Create Account” button. [19] Plaintiff cites three cases that Plaintiff argues stand for the proposition that Plaintiff was [20] not put on sufficient notice of the TOS by clicking “Create Account” because the purported notice [21] referenced creating an account. Opp. at 10. However, Plaintiff’s cases are inapposite. In McKee [22] v. Audible, the court found that plaintiff was not bound by the terms of service at issue because the [23] website’s disclosure stated that “’making’ a ‘purchase’ binds the user to Audible’s [terms of use],” [24] but plaintiff only clicked the adjacent “Start Now” button above the disclosure and did not make a [25] purchase. 2017 WL 4685039 , at *8. In the instant case, by contrast, Plaintiff went through the [26] full process of creating and using an account more than one hundred times. Mot. at 3. [27] 1 In Weber v. Amazon.com, the court found that a user was not put on constructive notice of 2 the terms of use where a webpage contained an initial “Place your Order” button at the top of the 3 page with a disclosure above it, but then the user had to fill out several sections of vital 4 information below, after which the user was presented with a second “Place Your Order” button. 5 This second button did not include a disclosure nearby, and plaintiff pressed this second button, 6 rather than scrolling up to the top to press the first. 2018 WL 6016975 , at *10-11 (C.D. Cal. June 7 4, 2018). In the instant case, by contrast, Plaintiff was presented with only one button, and that 8 button was immediately adjacent to the applicable disclosure of the Sideline TOS. 9 Finally, in Wilson v. Playtika, the court found that plaintiff was not bound by terms of use 10 because the website used a pure browsewrap agreement, whereby the terms of service hyperlink 11 was not paired with any text indicating that clicking “Continue” manifested the user’s assent to the 12 website’s terms. 349 F. Supp. 3d 1028, 1038 (W.D. Wash. 2018). Rather, the website interface 13 buried the terms of service hyperlink at the bottom of the page, away from the button and with no 14 text indicating that clicking “Continue” bound a user to the terms of service. Id. Accordingly, 15 none of these cases support Plaintiff’s argument that Plaintiff was not put on sufficient notice that 16 he was consenting to the TOS by a disclosure that read “By registering, I agree to Sideline’s 17 Terms and Conditions,” located immediately above the “Create Account” button. 18 Accordingly, the Court finds that Plaintiff assented to the Sideline TOS when Plaintiff 19 created his 186 Sideline accounts between April 23, 2016 and March 16, 2019, and thus Plaintiff 20 assented to the arbitration provision contained within the Sideline TOS. 21 B. Whether Plaintiff’s Claim is Subject to the Arbitration Provision 22 Having concluded that Plaintiff assented to the Sideline TOS, and thus assented to the 23 arbitration provision contained within the Sideline TOS, the remaining question before the Court 24 is whether that arbitration provision governs the instant dispute between the parties. 25 Given the strong federal policy favoring arbitration, “any doubts concerning the scope of 26 arbitrable issues should be resolved in favor of arbitration.“ Moses H. Cone Memorial Hosp. v. 27 Mercury Constr. Corp., 460 U.S. 1 , 24–25 (1983). Accordingly, “arbitration should only be 1 denied where it may be said with positive assurance that the arbitration clause is not susceptible of 2 an interpretation that covers the asserted dispute.” AT&T Tech., Inc. v. Commc’n Workers, 475 3 U.S. 643 , 650 (1986) (internal quotation marks omitted). Moreover, this presumption in favor of 4 arbitration is “particularly applicable” where the arbitration clause is broadly worded. Id. 5 Defendant argues that given the extremely broad language shared by the operative Sideline 6 TOS, which require that Plaintiff and Defendant arbitrate “any dispute” between the parties, 7 Plaintiff’s TCPA claim is clearly covered by, and subject to, the arbitration provision in the 8 Sideline TOS. Mot. at 15–16. Plaintiff argues in opposition that under both California contract 9 law and Ninth Circuit precedent a party cannot be compelled to arbitrate a claim that bears no 10 relation to the underlying contract between the parties. Opp. at 14. 11 The Court agrees with Plaintiff that under California contract law even broad contractual 12 language compelling arbitration covers only those disputes that “have their roots in the 13 relationship between the parties which was created by the contract.” Rice v. Downs, 248 Cal. App. 14 4th 175, 188 (Cal. Ct. App. 2016). However, the Ninth Circuit has clarified that where an 15 arbitration clause includes broad contractual language, Plaintiff’s “allegation need only ‘touch 16 matters’ covered by the contract containing the arbitration clause and all doubts are to be resolved 17 in favor of arbitrability.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999); see also 18 Parish v. Fitness Intern., LCC, 2020 WL 5371510 , at *4 (C.D. Cal. June 10, 2020) (noting that 19 “’sweeping language’ like ‘any dispute’ covers a broad range of disputes that may arise between 20 parties to an arbitration agreement, even those that may arise outside of the agreement.”). 21 Courts around the country have considered whether broad contractual language compelling 22 arbitration covers claims brought under the TCPA and have reached conflicting conclusions. See, 23 e.g., Breda v. Cellco P’ship, 934 F.3d 1, 8 (1st Cir. 2019) (motion to compel arbitration was 24 correctly denied because plaintiff’s TCPA claims were entirely unrelated to the previous 25 contractual relationship between the parties); Augustine v. TLC Resorts Vacation Club, LLC, 2018 26 WL 3913923 , at *8 (S.D. Cal. Aug. 16, 2018) (TCPA claim arising out of text messages 27 addressing unpaid dues was subject to arbitration “[g]iven the circumstances of this case and the 1 plain, broad language of the arbitration provision, as well as the strong presumption in favor of 2 arbitration.”); and Wexler v. AT&T Corp., 211 F. Supp. 3d 500, 504 (E.D.N.Y. 2016) (TCPA 3 claim stemming from unsolicited calls and text messages from defendant were not sufficiently 4 related to contract formed between plaintiff and defendant’s corporate-affiliate to be subject to the 5 arbitration clause in that contract). 6 Moreover, district courts within this circuit have reached conflicting conclusions regarding 7 whether TCPA claims fall within the scope of broad arbitration provisions, depending on the facts 8 of the case and the nature of the underlying contract. For example, in In re Jiffy Lube Int’l Inc. 9 Text Spam Litigation, plaintiff signed a contract with defendant containing an arbitration 10 agreement when plaintiff purchased an oil change. 847 F. Supp. 2d 1253, 1262 (S.D. Cal. 2012) 11 (“In re Jiffy Lube”). Defendant later sent plaintiff text messages offering membership in a club 12 that provided discounts on oil changes. Id. at 1263 . Plaintiff brought a TCPA claim on the basis 13 of these text messages, and defendant moved to compel arbitration. The court denied the motion 14 to compel arbitration because the court found that the later text messages were insufficiently 15 connected to the earlier contractual agreement for a single oil change. Id. 16 By contrast, in Parish v. Fitness International, LLC, plaintiff signed a contract for a gym 17 membership that contained an arbitration provision similar to the one at issue in the instant case. [18] 2020 WL 5371510 , at *1. Plaintiff made one payment under the contract, but then failed to make 19 further payments. Id. Defendant later sent plaintiff text messages offering an enrollment fee 20 waiver and other discounts. Plaintiff brought a TCPA claim on the basis of these text messages, 21 and defendant moved to compel arbitration. Id. The court found that plaintiff’s TCPA claims 22 were subject to arbitration under the contract because the broad “any dispute” language of the 23 contract’s arbitration clause covered even conduct that fell outside of the contractual agreement. 24 Id. at *4. Plaintiff argues that the instant case is analogous to In re Jiffy Lube Int’l and that “[t]he 25 barrage of text messages Plaintiff received have no relationship with his use of the Sideline 26 Account. Instead, Plaintiff received those messages after he terminated his subscription and 27 instructed Pinger to stop contacting him.” Opp. at 15. 1 Neither of these arguments are convincing. First, Defendant asserts that Pinger’s records 2 demonstrate that Plaintiff failed to close 2 of his 186 Sideline accounts, including the final account 3 that Plaintiff opened on March 16, 2019. Cloutier Decl. at ¶ 11; Macias v. Excel Bldg. Serv. LLC, [4] 767 F. Supp. 2d 1002, 1007 (N.D. Cal. 2011) (“In deciding a motion to compel arbitration, [the 5 court] may consider the pleadings, documents of uncontested validity, and affidavits submitted by 6 either party.” (internal citation and quotation marks omitted)); Concat LP v. Unilever, PLC, 350 F. 7 Supp. 2d 796, 804 (N.D. Cal. 2004) (noting that on a motion to compel a court may consider 8 evidence outside the pleadings, such as declarations, using “a standard similar to the summary 9 judgment standard of [Federal Rule of Civil Procedure 56].”). Plaintiff has not disputed this 10 assertion. 11 Second, as Defendant argues, the Sideline TOS bear directly on Plaintiff’s TCPA claim. 12 Specifically, the Sideline TOS provide that “For Sideline Accounts, you agree that [Pinger] may 13 contact you at the mobile phone number you provide during registration about your Account 14 and/or about setting up an Account.” ECF No. 20-3 at 8, 52. Thus, in the instant case, unlike in In 15 re Jiffy Lube, Defendant’s communications with Plaintiff via Plaintiff’s mobile number were 16 expressly envisioned by the contract between the parties. 17 Moreover, Defendant’s text messages to Plaintiff’s mobile number are directly related to 18 the contract between the parties. Plaintiff used his mobile number to create his Sideline accounts, 19 and the Sideline App requires users to utilize their mobile number to operate the Sideline app. 20 Thus, Plaintiff’s mobile number and corresponding limitations on how Defendant may use and 21 communicate with that number are directly connected to the contract between the parties. 22 However, on the record before the Court, whether Plaintiff’s TCPA claim falls within the 23 scope of the Sideline App’s arbitration provision is a close question. Two considerations 24 ultimately compel the Court to find that Plaintiff’s TCPA claim is covered by the arbitration 25 provision. First, the facts of this case are closer to those of Parish than In re Jiffy Lube. The 26 underlying contract in In re Jiffy Lube concerned a one-time transaction, and the only connection 27 between the contract and the text messages to plaintiff was that plaintiff likely provided his ] telephone number when he signed the contract. 847 F. Supp. 2d at 1263 (explaining that 2 || arbitration provision in oil change contract did not cover Plaintiff's TCPA claim). By contrast, in 3 || the instant case, like in Parish, the parties had an extended contractual relationship that may have 4 || remained ongoing at the time of the allegedly nonconsensual contact by Defendant. As such, the 5 instant case is more like previous cases in this circuit where courts have found that a TCPA claim 6 || fell within the scope of a contract’s arbitration provision. See, e.g., Parish, 2020 WL 5371510 , at 7 || *4(TCPA claim covered by arbitration provision); Augustine, 2018 WL 3913923 , at *8 (TCPA 8 claim arising out of text messages concerning unpaid dues was subject to arbitration). 9 Second, the United States Supreme Court has repeatedly admonished courts that “any 10 || doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses 11 || H. Cone Memorial Hosp., 460 U.S. at 24-25 ; see also AT&T Tech., 475 US. at 650 (explaining 12 || that “arbitration should only be denied where it may be said with positive assurance that the g 13 arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” (internal 14 || quotation marks omitted)). The Court follows the United States Supreme Court’s clear directive 3 15 and finds that the scope of the Sideline TOS’s arbitration provision encompasses Plaintiff's TCPA a 16 || claim. Jd; see also Brennan, 796 F.3d at 1130 (claim is subject to arbitration where the scope of 3 17 || the agreement to arbitrate encompasses the claims at issue). 18 lav. CONCLUSION 19 For the foregoing reasons, Defendant’s motion to compel arbitration is GRANTED. 20 || Plaintiffs claim against Defendant is dismissed without prejudice. See Sparling v. Hoffmann 21 Constr. Co., 864 F.2d 635 , 638 (9th Cir. 1988) (explaining that when arbitration is mandatory, the 22 || court has discretion to stay or dismiss the case); Nevarez, 2017 WL 34 92110, at *15 (dismissing 23 claims without prejudice where arbitration of plaintiffs’ claims was mandatory and the parties did 24 || not raise any reason for why a stay was more appropriate). 25 || ITISSO ORDERED. 26 || Dated: February 23, 2021 H. Fab 28 21 Case No. 20-CV-02221-LHK LUCY H. KOH 1 United States District Judge