FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA KNAPKE,

Plaintiff-Appellee,

v.

PEOPLECONNECT, INC.,

Defendant-Appellant.

No. 21-35690

D.C. No.

2:21-cv-00262-MJP

OPINION

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted May 18, 2022

Seattle, Washington

Filed June 29, 2022

Before: Kim McLane Wardlaw, Ronald M. Gould, and 

Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett
2 KNAPKE V. PEOPLECONNECT

SUMMARY*

Choice of Law / Arbitration

The panel vacated the district court’s denial of a motion 

to compel arbitration in an action involving a right of 

publicity claim against PeopleConnect, LLC under Ohio 

law.

Plaintiff Barbara Knapke claimed that PeopleConnect 

used her name and likeness in its Classmates.com school 

yearbook database without her consent. Knapke retained an 

attorney, Christopher Reilly, who created a Classmates.com 

account and searched for Knapke on the site. In creating the 

account, Reilly agreed to the Terms of Service, which 

contained an arbitration provision. Applying Ohio law, the 

district court denied PeopleConnect’s motion to compel 

arbitration, holding that there was no evidence that Knapke 

gave her counsel authority to bind her to the Terms of 

Service containing the arbitration provision.

The panel held that the district court erred in applying 

Ohio law because Washington law governed the threshold 

question of arbitrability. Here, because no conflict was 

shown to exist between the law of Washington (the forum 

state) and Ohio law, Washington law applied. 

The panel held that on the record before the district court, 

questions of fact precluded ruling on the motion to compel 

arbitration. These questions of fact included: whether 

Knapke and Reilly had an agency relationship when Reilly 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
KNAPKE V. PEOPLECONNECT 3

agreed to the Terms of Service; if they did have an agency 

relationship, whether and how Knapke limited Reilly’s 

authority as her agent; and whether Knapke ratified Reilly’s 

agreement to arbitrate even if Reilly initially lacked 

authority to bind her to the agreement. The panel rejected 

Knapke’s contention that Fed. R. Civ. P. 11 obligations 

affected Reilly’s use of the Classmates.com account. The 

panel held further that PeopleConnect had a right to conduct 

discovery on these and related arbitrability issues before the 

district court decides the motion to compel arbitration. The 

panel remanded for further proceedings.

COUNSEL

Ian Heath Gershengorn (argued) and Illyana A. Green, 

Jenner & Block LLP, Washington, D.C.; Clifford W. 

Berlow, Debbie L. Berman, and Wade A. Thomson, Jenner 

& Block LLP, Chicago, Illinois; Brent Caslin, Jenner & 

Block LLP, Los Angeles, California; for DefendantAppellant.

Roger Perlstadt (argued), Ryan D. Andrews, and Ben 

Thomassen, Edelson PC, Chicago, Illinois; Philip L. 

Fraietta, Bursor & Fisher P.A., New York, New York; for 

Plaintiff-Appellee.
4 KNAPKE V. PEOPLECONNECT

OPINION

BENNETT, Circuit Judge:

Barbara Knapke claims that PeopleConnect, Inc. uses 

her name and likeness in its Classmates.com school 

yearbook database without her consent. Knapke, an Ohio 

resident, wanted to pursue an individual and class action 

right of publicity claim against PeopleConnect under Ohio 

law. Knapke retained an attorney, Christopher Reilly, but 

the record does not reflect when she retained him. Reilly 

created a Classmates.com account and searched for Knapke 

on the site. By creating the account, Reilly agreed to the 

site’s Terms of Service, which contained an arbitration 

provision. Knapke eventually filed suit in the U.S. District 

Court for the Western District of Washington, represented 

by Reilly and his law firm. PeopleConnect sought to compel 

arbitration through a motion to dismiss1 and alternatively 

asked for the right to conduct arbitration-related discovery. 

Applying Ohio law, the district court denied the motion, 

holding that there was no evidence that Knapke gave her 

counsel authority to bind her to the Terms of Service 

containing the arbitration provision. The district court also 

denied discovery.

The district court erred. First, Washington law, not Ohio 

law, governs the threshold question of arbitrability. And 

second, on the record before the district court, questions of 

fact precluded ruling on the motion to compel arbitration. 

These questions of fact include whether Knapke and Reilly 

had an agency relationship when Reilly agreed to the Terms 

of Service; if they did have an agency relationship, whether 

1 We follow the parties’ lead in referring to the motion to dismiss as 

a motion to compel arbitration.
KNAPKE V. PEOPLECONNECT 5

and how Knapke limited Reilly’s authority as her agent; and 

whether Knapke ratified Reilly’s agreement to arbitrate even 

if Reilly initially lacked authority to bind her to the 

agreement. PeopleConnect has a right to conduct discovery 

on these and related arbitrability issues before the district

court decides the motion to compel arbitration. We have 

jurisdiction under 9 U.S.C. § 16(a)(1), and we vacate the 

district court’s denial of the motion to compel arbitration and 

remand for further proceedings.

I. BACKGROUND

PeopleConnect, Inc., a Delaware corporation with its 

principal place of business in Seattle, Washington, owns and 

operates Classmates.com, an online library of more than 

450,000 yearbooks. Although any Classmates.com user 

may access some of that library, a user must register for 

either a free or paid account to access most of it. To register, 

a user must agree, by clicking “Submit”, to hyperlinked 

Terms of Service and a privacy policy. The Terms of 

Service contain an arbitration provision. The arbitration 

provision covers, with almost no exceptions, “any and all 

disputes that have arisen or may arise” between the user and 

an array of PeopleConnect entities. The Terms of Service 

also allow a user to “opt-out and not be bound by [the] 

arbitration provision by sending written notice of [the] 

decision to opt-out” within thirty days.

Knapke lives in Sidney, Ohio. Her class action 

complaint is based on Classmates.com’s use of her and other 

Ohioans’ names and likenesses to advertise its products 

without their consent in violation of Ohio’s right to publicity 

statute. The complaint included screenshots from parts of 

Classmates.com accessible only to a user who had first 

agreed to the Terms of Service. Some screenshots show that 

a user named “Christopher” was logged into a 
6 KNAPKE V. PEOPLECONNECT

Classmates.com account when the screens captured in the 

screenshots were displayed. And PeopleConnect confirmed 

that Christopher Reilly, Knapke’s attorney, created a 

Classmates.com account on January 7, 2021, and purchased 

a three-month subscription on January 29, 2021. Reilly 

could not have done either without first agreeing to the 

Classmates.com Terms of Service.

PeopleConnect moved to compel arbitration, arguing 

that the arbitration clause covered this dispute. 

PeopleConnect argued that Knapke was bound by the 

arbitration clause because her counsel, Reilly, had agreed to 

the Terms of Service (which include the arbitration 

provision) while acting as her agent. PeopleConnect’s 

Associate Director of Compliance and Intellectual Property 

declared that users must agree to the Terms of Service before 

accessing the results of a Classmates.com search or 

registering for either a free or paid account. PeopleConnect 

also asserted that Reilly was Knapke’s attorney and agent, 

but it did not offer evidence that Knapke had either retained 

or otherwise given authority to Reilly when he agreed to the 

Terms of Service. PeopleConnect stated, as well, that if the 

district court denied its motion, it wished to engage in 

limited discovery about Knapke’s “knowledge of and 

acquiescence to counsel’s use of Classmates.com on her 

behalf” and “the identity of the person who took the 

screenshots that appear in the complaint.”

Knapke argued that she had no relationship with 

PeopleConnect and that Reilly’s agreement to the 

Classmates.com Terms of Service did not bind her. Knapke 

maintained that she had never been a Classmates.com 

customer, had never seen the arbitration agreement, and that 

the “hidden” nature of the clause within the “several 

thousand-word” Terms of Service accessible via hyperlink 
KNAPKE V. PEOPLECONNECT 7

rendered the clause “irrelevant” regardless. Knapke also 

argued that her counsel created the account to satisfy his 

obligations under Federal Rule of Civil Procedure 11(b); in 

her view, “the failure . . . to check if a plaintiff’s identity was 

in fact publicized by the website would likely draw . . .

sanctions.” And Knapke claimed that PeopleConnect’s 

attempt to bind her to the arbitration clause was 

“extraordinary overreach” because it would allow websites 

to force every plaintiff into arbitration. Knapke also argued 

that her counsel could not have bound her to the Terms of 

Service because the Terms forbid the creation of accounts on 

behalf of another person and that estoppel does not compel 

her, as a nonsignatory, to arbitrate her claims because she 

did not knowingly accept any benefit from PeopleConnect. 

And Knapke maintained that her counsel did not discuss 

creating a Classmates.com account with her—and that the 

discussions they did have were privileged.

The district court denied PeopleConnect’s motion to 

compel arbitration.2

 See Knapke v. PeopleConnect Inc., 

553 F. Supp. 3d 865 (W.D. Wash. 2021). The district court 

applied Ohio law “because Knapke resides in Ohio and Ohio 

law should apply to interpreting any attorney-client 

relationship that she entered into from her domicile.” Id.

at 872. It rejected PeopleConnect’s argument that Reilly’s 

agreement to the Terms of Service bound Knapke. Id.

at 872–74. The district court also found there was “no 

evidence that Knapke gave her counsel any authority to bind 

2 PeopleConnect also argued that Knapke’s claim was: (i) barred by 

Section 230, a provision of the Communications Decency Act; 

(ii) preempted by Section 301 of the Copyright Act; (iii) insufficient to 

state a claim under the Ohio right of publicity statute; (iv) barred by the 

First Amendment; and (v) barred by the Dormant Commerce Clause. 

The district court rejected each of these arguments, and these issues are 

not before us on appeal.
8 KNAPKE V. PEOPLECONNECT

her to Classmates’ terms of service.” Id. at 873. It found no 

evidence that Reilly acted at Knapke’s direction or that 

Classmates.com understood counsel’s actions to have been 

undertaken on Knapke’s behalf. Id. And it found both that 

Knapke did not discuss creating a Classmates.com account 

with Reilly and that the Terms of Service forbade the 

creation of accounts on behalf of others. Id.

The district court also found that Reilly created and used 

the Classmates.com account to satisfy his Rule 11 

obligations. Id. And the district court rejected 

PeopleConnect’s request for discovery because, in its view, 

Knapke had disclosed in her opposition both the extent of 

her knowledge of and acquiescence to Reilly’s use of the 

account and the identity of the person who took the 

screenshots used in the complaint (Reilly). Id. at 874. 

PeopleConnect timely appealed.

II. STANDARD OF REVIEW

We review an order denying a motion to compel 

arbitration de novo, questions of arbitrability “with a healthy 

regard for the federal policy favoring arbitration,” and any 

underlying factual findings for clear error. O’Connor v. 

Uber Techs., Inc., 904 F.3d 1087, 1093 (9th Cir. 2018) 

(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. 

Corp., 460 U.S. 1, 24 (1983)).

III. DISCUSSION

The Federal Arbitration Act (“FAA”) “governs the 

enforceability of arbitration agreements in contracts 

involving interstate commerce.” Kramer v. Toyota Motor 

Corp., 705 F.3d 1122, 1126 (9th Cir. 2013). Under the FAA, 

private agreements to arbitrate are “valid, irrevocable, and 

enforceable, save upon such grounds as exist at law or in 
KNAPKE V. PEOPLECONNECT 9

equity for the revocation of any contract.” 9 U.S.C. § 2. 

“The question whether the parties have submitted a 

particular dispute to arbitration, i.e., the question of 

arbitrability, is an issue for judicial determination unless the 

parties clearly and unmistakably provide otherwise.” 

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 

(2002) (cleaned up). “Generally, a court must determine two 

issues before deciding whether to compel arbitration: 

(1) whether there is an agreement to arbitrate between the 

parties; and (2) whether the agreement covers the dispute.” 

Zoller v. GCA Advisors, LLC, 993 F.3d 1198, 1201 (9th Cir. 

2021). Knapke does not dispute that the arbitration clause 

covers her claim. The question is thus whether Knapke 

agreed to arbitrate with PeopleConnect.

The FAA “supplies not simply a procedural framework 

applicable in federal courts; it also calls for the application, 

in state as well as federal courts, of federal substantive law 

regarding arbitration.” Preston v. Ferrer, 552 U.S. 346, 349 

(2008). “As federal substantive law, the FAA preempts

contrary state law.” Mortensen v. Bresnan Commc’ns, LLC, 

722 F.3d 1151, 1158 (9th Cir. 2013). And under the FAA’s 

procedural framework, “[i]f the making of the arbitration 

agreement . . . be in issue, the court shall proceed summarily 

to the trial thereof.” 9 U.S.C. § 4. “In applying this 

language, district courts rely on the summary judgment 

standard of Rule 56 of the Federal Rules of Civil Procedure.” 

Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th 

Cir. 2021). As a result, “a court is not authorized to dispose 

of a motion to compel arbitration until after [material] 

factual disputes have been resolved.” Id. at 671.

At summary judgment, if a court “concludes that there 

are genuine disputes of material fact as to whether the parties 

formed an arbitration agreement, the court must proceed 
10 KNAPKE V. PEOPLECONNECT

without delay to a trial on arbitrability and hold any motion 

to compel arbitration in abeyance until the factual issues 

have been resolved.” Id. at 672. “The district court may 

decide the case in a bench trial if the party opposing 

arbitration does not demand a jury trial. But if a jury trial is 

demanded, ‘the court shall make an order referring the issue 

or issues to a jury in the manner provided by the Federal 

Rules of Civil Procedure, or may specially call a jury for that 

purpose.’” Id. at 670 (quoting 9 U.S.C. § 4).

Because the FAA does not “alter background principles 

of state contract law regarding the scope of agreements 

(including the question of who is bound by them),” state law 

governs this inquiry. Arthur Andersen LLP v. Carlisle, 

556 U.S. 624, 630 (2009). Knapke’s status as a nonsignatory 

to the arbitration agreement does not alter the applicability 

of state law. See GE Energy Power Conversion France SAS, 

Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 

1643 (2020) (“Chapter 1 of the Federal Arbitration Act 

(FAA) permits courts to apply state-law doctrines related to 

the enforcement of arbitration agreements.”); see also 

O’Hanlon v. Uber Techs., Inc., 990 F.3d 757, 766 (3d Cir. 

2021) (“Those background principles include ‘doctrines 

[like estoppel] that authorize the enforcement of a contract 

[against] a nonsignatory.’” (alterations in original) (quoting 

GE Energy, 140 S. Ct. at 1643)); 21 Richard A. Lord, 

Williston on Contracts § 57:19 (4th ed. May 2022 Update) 

(“Thus, a nonsignatory may acquire rights under or be bound 

by an arbitration agreement if so dictated by the ordinary 

principles of contract and agency.” (footnotes omitted)).

PeopleConnect, “as the party seeking to compel 

arbitration, must prove the existence of a valid agreement by 

a preponderance of the evidence.” Wilson v. Huuuge, Inc., 

944 F.3d 1212, 1219 (9th Cir. 2019). It has not proven the 
KNAPKE V. PEOPLECONNECT 11

existence of such an arbitration agreement binding Knapke 

at this initial stage.

A. Choice of Law

The district court erred in its choice-of-law analysis by 

applying Ohio law, Knapke argued that Ohio law applied, 

and PeopleConnect argued that Washington law applied, but 

neither claimed that the choice of law would affect the 

outcome. However, both parties now agree that Washington 

law applies. District courts sitting in diversity apply the 

choice-of-law rules of the forum state. See Lazar v. 

Kroncke, 862 F.3d 1186, 1194 (9th Cir. 2017). And 

Washington, the forum state, employs the “most significant 

relationship test” to determine choice-of-law questions. 

FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. 

Holdings, Inc., 331 P.3d 29, 36 (Wash. 2014) (citing 

Restatement (Second) of Conflict of Laws §§ 145, 148 

(1971)). But before courts apply that test, “[a]n actual 

conflict between the law of Washington and the law of 

another state must be shown to exist.” Burnside v. Simpson 

Paper Co., 864 P.2d 937, 942 (Wash. 1994). “Absent such 

a showing, the forum may apply its own law.” Id. Here, 

because no conflict has been shown to exist between 

Washington and Ohio law, Washington law applies.

B. Arbitration Agreement

The record does not establish whether Reilly was 

Knapke’s attorney when he agreed to the Classmates.com 

Terms of Service. But even if the record showed that Reilly 

agreed to the Terms of Service after Knapke retained him, 

that would not be enough, on its own, to show that the 

arbitration clause binds Knapke.
12 KNAPKE V. PEOPLECONNECT

1. Agency Relationship

It is unclear whether Reilly and Knapke had an attorneyclient relationship, and thus an agent-principal relationship, 

when Reilly agreed to the Terms of Service. See West v. 

Thurston County, 275 P.3d 1200, 1212 (Wash. Ct. App. 

2012) (“We recognize that the attorney-client relationship is 

generally a type of principal-agent relationship.”).3 Under 

Washington law, “[t]he burden of establishing an agency 

relationship is on the party asserting it exists”—here, 

PeopleConnect. Afoa v. Port of Seattle, 421 P.3d 903, 911 

(Wash. 2018).

The record does not show when Knapke and Reilly 

formed their agency relationship. Reilly did become 

Knapke’s attorney at some point. But it is unclear if that 

happened before Reilly initially registered for his 

Classmates.com account, or if not, before he bought his 

three-month subscription. The screenshots discussed above 

are evidence of Reilly’s assent to the arbitration agreement. 

See Tompkins v. 23andMe, Inc., No. 5:13-CV-05682-LHK, 

2014 WL 2903752, at *7 (N.D. Cal. June 25, 2014) (access 

to portions of website requiring assent to Terms of Service 

is sufficient evidence of assent to arbitration clause 

contained in it), aff’d, 840 F.3d 1016 (9th Cir. 2016). But 

the record does not establish when Reilly became Knapke’s 

agent, whether as her attorney or otherwise. As discussed 

below, this issue might be material to determining whether 

3 Knapke need not have formally retained Reilly’s law firm by that 

time for an agency relationship to have formed. “Consent [to an agency 

relationship] may be implied,” and there need only be “facts or 

circumstances that establish that one person is acting at the instance of 

and in some material degree under the direction and control of the other.” 

Wash. Imaging Servs., LLC v. Wash. State Dep’t of Revenue, 252 P.3d 

885, 892 (Wash. 2011) (internal quotation marks omitted).
KNAPKE V. PEOPLECONNECT 13

Knapke is bound by Reilly’s agreement to the Terms of 

Service. We thus remand for discovery on this issue.

Knapke focuses on PeopleConnect’s decision not to take 

discovery on this issue before moving to compel arbitration. 

Instead, PeopleConnect noted in its motion that if the district 

court did not grant its motion, it requested leave to engage in 

limited discovery about the agency relationship. So, 

according to Knapke, PeopleConnect “wanted it both 

ways—if it won the motion to compel, great; if it didn’t win, 

only then did it want discovery. Although [PeopleConnect] 

had the burden to present evidence [of an agreement to 

arbitrate], it rolled the dice and chose not to pursue 

additional discovery at the outset.” Appellee’s Br. 16 

(quoting Wilson, 944 F.3d at 1220). But the defendant in 

Wilson “waived its discovery request as it was insufficiently 

raised in a two-line footnote in a reply brief.” 944 F.3d 

at 1220. Here, PeopleConnect conditionally, and 

sufficiently, requested discovery in its motion to compel. 

Nothing required PeopleConnect to seek discovery first, and 

the district court never found (nor could it have) that 

PeopleConnect waived taking discovery. And since Wilson, 

we have confirmed that the FAA’s procedure mirrors the 

three phases of federal civil lawsuits: a motion to compel 

arbitration akin to a motion to dismiss; followed by optional 

discovery before summary judgment, if the motion is denied; 

followed by a mini-trial, if necessary. See Hansen, 1 F.4th 

at 670.

2. Binding Effect

Because of a factual dispute about the scope of Reilly’s 

authority, the record does not allow a determination of 

whether Knapke is bound to the arbitration through Reilly’s 

assent. Under Washington law, “[a]rbitration agreements 

may encompass nonsignatories under contract and agency 
14 KNAPKE V. PEOPLECONNECT

principles.” Romney v. Franciscan Med. Grp., 349 P.3d 32, 

42 (Wash. Ct. App. 2015). Washington also recognizes 

various theories under which a nonsignatory may be bound 

by a contract, including agency. Satomi Owners Ass’n v. 

Satomi, LLC, 225 P.3d 213, 230 n.22 (Wash. 2009). “An 

agency relationship may exist, either expressly or by 

implication, when one party acts at the instance of and, in 

some material degree, under the direction and control of 

another.” Hewson Constr., Inc. v. Reintree Corp., 685 P.2d 

1062, 1064 (Wash. 1984). And an agent may bind a 

principal through either actual authority (express or implied) 

or apparent authority. King v. Riveland, 886 P.2d 160, 165 

(Wash. 1994).

A principal may also be bound by contracts her agent 

makes without authority if the principal later ratifies the 

agent’s agreement. Bill McCurley Chevrolet, Inc. v. Rutz, 

808 P.2d 1167, 1170 (Wash. Ct. App. 1991). “A principal 

ratifies an agent’s agreement if the principal (1) receives, 

accepts, and retains benefits from the contract; (2) remains 

silent or fails to repudiate the contract; or (3) otherwise 

exhibits conduct demonstrating adoption and recognition of 

the contract.” Hoglund v. Meeks, 170 P.3d 37, 46 n.7 (Wash. 

Ct. App. 2007).

Under both implied actual authority and ratification, it is 

unclear if Reilly’s agreement to the arbitration provision 

binds Knapke, even if Reilly were Knapke’s attorney when 

he agreed. Knapke’s status as an undisclosed principal when 

Reilly was her agent does not alter the application of 

Washington agency law here. Nor does Reilly’s obligation 

under Federal Rule of Civil Procedure 11 to adequately 

investigate Knapke’s claim.
KNAPKE V. PEOPLECONNECT 15

a. Implied Actual Authority

The parties dispute whether Reilly had implied actual 

authority to agree to the Classmates.com Terms of Service 

on Knapke’s behalf. Under Washington law, “[i]mplied 

authority is actual authority, circumstantially proved, which 

the principal is deemed to have actually intended the agent 

to possess.” King, 886 P.2d at 165. And “actual authority 

to perform certain services on a principal’s behalf results in 

implied authority to perform the usual and necessary acts 

associated with the authorized services.” Hoglund, 170 P.3d 

at 44. Such usual and necessary acts can include agreeing to 

contracts. See, e.g., Chi. Title Ins. Co. v. Wash. State Off. of 

Ins. Comm’r, 309 P.3d 372, 382 (Wash. 2013). Attorneys 

licensed in Washington also possess the same implied 

authority to act on behalf of their clients. See Wash. R. of 

Prof’l Conduct 1.2(a) (“A lawyer may take such action on 

behalf of the client as is impliedly authorized to carry out the 

representation.”).

At some point, Knapke retained Reilly and his law firm 

to file suit against PeopleConnect based on 

Classmates.com’s alleged unauthorized use of her image. 

But the scope of both their agreement and Reilly’s 

corresponding authority are unclear on this record. Knapke 

now argues that she retained Reilly’s law firm not “to enter 

into the PeopleConnect Terms of Service,” but only “to 

investigate and file a lawsuit.” Appellee’s Br. 21. But 

Knapke filed no declaration, and Reilly’s declaration does 

not discuss this issue. Discovery could reveal, among other 

things, both the contours of Knapke’s agreement with 

Reilly’s law firm and the limits, if any, on Reilly’s authority 

to act on Knapke’s behalf.

Knapke’s memorandum in opposition to the motion to 

compel stated that counsel had no discussion with Knapke 
16 KNAPKE V. PEOPLECONNECT

about creating an account on Classmates.com. But this 

statement is unsupported by any declaration. Knapke’s 

memorandum also states that counsel’s discussions with 

Knapke are protected by privilege and that counsel’s 

representations regarding things they did not discuss do not 

operate as a waiver of the privilege on any subject. The 

district court rejected PeopleConnect’s request for 

“discovery to learn about Knapke’s knowledge and 

acquiescence to counsel’s use of the account” because 

“[t]hat information ha[d] already been provided in the 

Opposition, rendering the requested discovery a nullity.” 

Knapke, 553 F. Supp. 3d at 874. But that information, if it 

was provided, was not provided in a declaration. 

PeopleConnect is entitled to discovery in these areas and 

need not accept at face value the statements Knapke’s 

counsel made in a memorandum of law.

On remand, the district court should determine the 

contours of the attorney-client privilege and any potential 

waiver of that privilege. The district court should also 

determine the consequences, if any, of Knapke 

simultaneously denying an agency relationship regarding the 

arbitration agreement and asserting a privilege for 

communications that would bear directly on that issue. See 

5A Karl B. Tegland, Wash. Prac., Evidence Law and 

Practice § 501.26 (6th ed. Aug. 2021 Update) (“A party 

waives the privilege by placing confidential 

communications at issue, i.e., by raising an issue as to 

whether confidential communications did or did not occur.

Waivers have occasionally been found when the intent of a 

contract or other document was placed in issue.” (footnote 

omitted)); 1 Paul R. Rice et al., Attorney-Client Privilege: 

State Law Wash. § 9:30 (July 2020 Update) (“Consistent 

with federal law, Washington courts will not allow the

attorney-client privilege to be used as both a sword and a 
KNAPKE V. PEOPLECONNECT 17

shield” and “will not permit selective disclosure of parts of 

privileged communications that are favorable to the client’s 

position and then raise the privilege to prevent disclosure of 

the remaining portions that give context and meaning to 

what the client has disclosed.”).

b. Ratification

On this record, it is also unclear if Knapke is bound 

because she ratified Reilly’s agreement to the Terms of 

Service, even if she would not otherwise be bound. In its 

motion to compel arbitration, PeopleConnect noted in 

conditionally requesting discovery that it would ask about 

Knapke’s “knowledge of and acquiescence to [Reilly’s] use 

of Classmates.com on her behalf.” Acquiescence is one 

method of ratification. Barnes v. Treece, 549 P.2d 1152, 

1157 (Wash. Ct. App. 1976). “Under agency law, 

ratification is the affirmance by a person of a prior act which 

did not bind him but which was done or professedly done on 

his account, whereby the act, as to some or all persons, is 

given effect as if originally authorized by him.” Riss v. 

Angel, 934 P.2d 669, 683 (Wash. 1997) (cleaned up). 

Principals can ratify an agent’s agreement in three ways: 

(1) by receiving, accepting, and retaining benefits from the 

contract; (2) by remaining silent, acquiescing, or failing to 

repudiate the contract; or (3) by otherwise exhibiting 

conduct demonstrating adoption and recognition of the 

contract. Hoglund, 170 P.3d at 46 n.7; Barnes, 549 P.2d at 

1157. Ratification by silence or acquiescence requires 

knowledge and either “acceptance of the benefits from the 

contract or prejudicial reliance by the other party.” 

Lockwood v. Wolf Corp., 629 F.2d 603, 609 (9th Cir. 1980) 

(citing Barnes, 549 P.2d at 1157).

The record does not establish whether Knapke knew that 

Reilly had agreed to the Terms of Service on her behalf. 
18 KNAPKE V. PEOPLECONNECT

There is no evidence that Knapke knew, when she filed her 

complaint, that Reilly had even agreed to the Terms of 

Service. And were that still the state of the record following 

discovery, it would follow that there could be no evidence 

that Knapke knew that Reilly had agreed to the Terms of 

Service on her behalf. But the ratification inquiry looks not 

only to the principal’s knowledge, but also to the principal’s 

later actions.

PeopleConnect argues that Knapke learned of Reilly’s 

agreement at the latest when PeopleConnect argued in its 

motion to compel arbitration that Reilly agreed to the Terms 

of Service. And as PeopleConnect notes, in her opposition, 

Knapke did not renounce Reilly’s agreement and employed 

materials that Reilly had obtained for her benefit through his 

agreeing to the Terms of Service. “Ratification can be 

inferred from the principal’s silence if the circumstances are 

such that, according to the ordinary experience and habits of 

men, one would naturally be expected to speak if he did not 

consent.” Smith v. Hansen, Hansen & Johnson, Inc., 

818 P.2d 1127, 1135 (Wash. Ct. App. 1991) (cleaned up). 

But the record does not establish the facts necessary to 

decide this issue, including what Knapke knew and when she 

knew it. Knapke’s supposed silence even after 

PeopleConnect moved to compel arbitration does not 

necessitate a finding of ratification on the current record. 

Thus, PeopleConnect is also entitled to discovery on 

ratification.

c. Undisclosed Principal Status

Knapke’s status as a possible undisclosed principal does 

not alone determine whether she is bound by Reilly’s 

agreement. Under Washington law, “where an agent on 

behalf of his principal enters into a simple contract as though 

made for himself, and the existence of the principal is not 
KNAPKE V. PEOPLECONNECT 19

disclosed, the contract inures to the benefit of the principal 

who may appear and hold the other party to the contract 

made by the agent.” Dana v. Boren, 135 P.3d 963, 965 

(Wash. Ct. App. 2006) (quoting Columbia Sec. Co. v. Aetna 

Accident & Liab. Co., 183 P. 137, 141 (Wash. 1919)). If the 

principal “appear[s] and claim[s] the benefit of the contract,” 

then the contract “becomes [her] own to the same extent as 

if [her] name had originally appeared as a contracting party.” 

Id. (quoting Columbia, 183 P. at 141).

Knapke argues that Reilly did not intend to agree to the 

Terms of Service on her behalf, and so as an undisclosed 

principal, she is not bound. But “[a]n undisclosed principal 

only becomes a party to a contract when an agent acts on the 

principal’s behalf in making the contract. Thus, an 

undisclosed principal does not become a party to a contract 

when the agent does not intend to act for the principal.” 

Restatement (Third) of Agency § 6.03 cmt. c (2006). Cf. 

Kim v. Moffett, 234 P.3d 279, 284 n.10 & 287 (Wash. Ct. 

App. 2010) (citing § 6.03 cmts. d & e when assessing 

Washington law). The question is thus whether Reilly acted 

on Knapke’s behalf in agreeing to the Classmates.com 

Terms of Service, not, as Knapke argues, whether Reilly 

intended to bind her. Further factual development is 

necessary to answer this question.

d. Federal Rule of Civil Procedure 11

Federal Rule of Civil Procedure 11 requires attorneys to 

make a reasonable prefiling inquiry into the facts and law 

supporting intended claims. See Fed. R. Civ. P. 11(b). 

Knapke argues that “one, if not the primary, use of the 

Classmates.com account by Mr. Reilly was to satisfy his 

obligations under Civil Rule 11.” First, nothing in Reilly’s 

declaration supports that proposition or even discusses 

Rule 11. And second, while Reilly’s motivations could 
20 KNAPKE V. PEOPLECONNECT

perhaps inform whether he agreed to the Terms of Service 

on Knapke’s behalf, that issue, while relevant, is not 

necessarily determinative. Moreover, Reilly’s obligation 

under Rule 11 to adequately investigate Knapke’s claim does 

not alter the application of Washington agency law.

Rule 11 cannot explain Reilly’s choice not to opt out of 

arbitration, either. Under the Terms of Service, users may 

opt out of arbitration through written notice within thirty 

days of first using Classmates.com. Reilly could have 

satisfied his Rule 11 obligation by creating his 

Classmates.com account and then opting out of arbitration to 

retain the right to judicial recourse. He simply did not do so.

IV. CONCLUSION

VACATED and REMANDED on an open record.4

The parties shall bear their own costs.

4 The parties make various waiver claims. For example, 

PeopleConnect claims that Knapke waived any argument about the 

timing of the formation of her agency relationship with Reilly. And 

Knapke claims that PeopleConnect waived its ratification argument. On 

remand, the district court should consider all relevant arguments, 

irrespective of any initial waiver.