FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL BERMAN; STEPHANIE 

HERNANDEZ; ERICA RUSSELL,

Plaintiffs-Appellees,

v.

FREEDOM FINANCIAL NETWORK,

LLC; FREEDOM DEBT RELIEF, LLC;

FLUENT, INC.; LEAD SCIENCE, LLC,

Defendants-Appellants.

No. 20-16900

D.C. No.

4:18-cv-01060-

YGR

OPINION

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted October 21, 2021

San Francisco, California

Filed April 5, 2022

Before: Paul J. Watford and Andrew D. Hurwitz, Circuit 

Judges, and M. Miller Baker,* International Trade Judge.

Opinion by Judge Watford;

Concurrence by Judge Baker

* The Honorable M. Miller Baker, Judge for the United States Court 

of International Trade, sitting by designation.
2 BERMAN V. FREEDOM FINANCIAL NETWORK

SUMMARY**

Arbitration

The panel affirmed the district court’s order denying 

defendants’ motion to compel arbitration in a putative class 

action under the Telephone Consumer Protection Act.

In Part I of its opinion, the panel summarized the facts 

and procedural history. Plaintiffs used defendants’ websites 

but did not see a notice in fine print stating, “I understand 

and agree to the Terms & Conditions which includes 

mandatory arbitration.” When a dispute arose and plaintiffs 

filed this lawsuit, defendants moved to compel arbitration, 

arguing that plaintiffs’ use of the websites signified their 

agreement to the mandatory arbitration provision found in 

the hyperlinked terms and conditions.

In Part II, the panel held that plaintiffs did not 

unambiguously manifest their assent to the terms and 

conditions when navigating through the websites, and as a 

result they never entered into a binding agreement to 

arbitrate their dispute, as required under the Federal 

Arbitration Act. The parties agreed that either New York or 

California contract law governed. To form a contract under 

New York or California law, including a contract formed 

online, the parties must manifest their mutual assent to the 

terms of the agreement, and they may do so through conduct. 

The panel explained that the courts have routinely found 

enforceable “clickwrap” agreements, in which a website 

presents users with specified contractual terms on a pop-up 

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

has been prepared by court staff for the convenience of the reader.
BERMAN V. FREEDOM FINANCIAL NETWORK 3

screen and users must check a box explicitly stating “I agree” 

in order to proceed. Courts are more reluctant to enforce 

“browsewrap” agreements, in which a website offers terms 

that are disclosed only through a hyperlink and the user 

supposedly manifests assent to those terms simply by 

continuing to use the website. 

The panel held that unless the web operator can show 

that a consumer has actual knowledge of an arbitration 

agreement, an enforceable contract will be found based on 

an inquiry notice theory only if: (1) the website provides 

reasonably conspicuous notice of the terms to which the 

consumer will be bound; and (2) the consumer takes some 

action, such as clicking a button or checking a box, that 

unambiguously manifests his or her assent to those terms. 

The panel concluded that defendants’ webpages did not 

provide reasonably conspicuous notice because of the small 

font size and format and because the fact that a hyperlink 

was present was not readily apparent. The panel further 

concluded that by clicking on a large green “continue” 

button, plaintiffs did not unambiguously manifest their 

assent to be bound by the terms and conditions.

In Part III, the panel held that the district court properly 

exercised its discretion in denying defendants’ motion for 

reconsideration based on deposition testimony taken two 

months prior to the district court’s ruling on the motion to 

compel arbitration.

Concurring, Judge Baker wrote that he joined Parts I and 

III of Judge Watford’s opinion, and he would reach the same 

result by a different route. Judge Baker wrote that he would 

conduct a choice-of-law analysis and, pursuant to Supreme 

Court precedent, would utilize the forum state of 

California’s choice-of-law rules and apply California law. 
4 BERMAN V. FREEDOM FINANCIAL NETWORK

He would conclude that under recent decisions of the 

California Court of Appeal, defendants’ websites contained 

“sign-in wrap” agreements, which fall within a gray zone in 

which enforceability requires conspicuous textual notice that 

completing a transaction or registration signifies consent to 

the site’s terms and conditions. Under this standard, 

defendants’ notices were insufficiently conspicuous and 

were not unambiguously tied to some act of the website user 

that manifested assent to the site’s terms and conditions. 

Accordingly, defendants’ sign-in wrap agreements were not 

enforceable.

COUNSEL

Jay T. Ramsey (argued), Sheppard Mullin Richter & 

Hampton LLP, Los Angeles, California; Matthew G. 

Halgren, Sheppard Mullin Richter & Hampton LLP, San 

Diego, California; for Defendants-Appellants.

Matthew W.H. Wessler (argued), Gupta Wessler, 

Washington, D.C.; Anthony I. Paronich, Paronich Law P.C., 

Hingham, Massachusetts; Beth E. Terrell, Terrell Marshall 

Law Group PLLC, Seattle, Washington; for PlaintiffsAppellees.
BERMAN V. FREEDOM FINANCIAL NETWORK 5

OPINION

WATFORD, Circuit Judge:

We revisit an issue first addressed by our court in Nguyen 

v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014): 

Under what circumstances can the use of a website bind a 

consumer to a set of hyperlinked “terms and conditions” that 

the consumer never saw or read?

In this case, plaintiffs used defendants’ websites but did 

not see a notice in fine print stating, “I understand and agree 

to the Terms & Conditions which includes mandatory 

arbitration.” When a dispute arose and plaintiffs filed this 

lawsuit, defendants moved to compel arbitration, arguing 

that plaintiffs’ use of the websites signified their agreement 

to the mandatory arbitration provision found in the 

hyperlinked terms and conditions. The district court rejected 

this argument, and so do we. Plaintiffs did not 

unambiguously manifest their assent to the terms and 

conditions when navigating through the websites, and as a 

result they never entered into a binding agreement to 

arbitrate their dispute. We therefore affirm the district 

court’s order denying defendants’ motion to compel 

arbitration.

I

Defendant Fluent, Inc. is a digital marketing company 

that generates leads for its clients by collecting information 

about consumers who visit Fluent’s websites. Fluent’s 

websites offer rewards like gift cards and free product 

samples as an enticement to get consumers to provide their 

contact information and answer survey questions. Fluent 

then uses the information it collects in targeted marketing 

campaigns conducted on behalf of its clients.
6 BERMAN V. FREEDOM FINANCIAL NETWORK

The plaintiffs involved in this appeal, Stephanie 

Hernandez and Erica Russell, each visited a website 

operated by Fluent. The two websites differed in certain 

respects, but as described below, both contained a set of 

hyperlinked terms and conditions that included a mandatory 

arbitration provision, the enforceability of which is the 

principal issue raised on appeal.

According to Fluent’s records, Hernandez visited the 

Fluent website www.getsamplesonlinenow.com from a 

desktop computer. Because Hernandez had visited a Fluent 

website before and had previously entered some of her 

contact information, the webpage she saw stated, in large 

orange letters across the top of the page, “Welcome back, 

stephanie!” See Appendix A.1

 In the middle of the screen, 

the webpage proclaimed, “Getting Free Stuff Has Never 

Been Easier!” and included brightly colored graphics. In 

between those two lines of text appeared a box that stated at 

the top, “Confirm your ZIP Code Below,” followed 

immediately by a pre-populated text box displaying the zip 

code 93930. Below that, the page displayed a large green 

button inviting Hernandez to confirm the accuracy of the zip 

code so that she could proceed to the next page in the website 

flow. The text inside the button stated, in easy-to-read white 

letters, “This is correct, Continue! >>.” Clicking on this 

button led to the next page, which asked Hernandez to 

1 Appendix A is a recreation of the key webpage that defendants 

contend Hernandez saw when she visited Fluent’s website. For purposes 

of this opinion, we will assume that the recreations produced by 

defendants accurately depict the relevant webpages viewed by each 

plaintiff, although plaintiffs contested that fact below. Given our 

disposition, we need not address the district court’s alternative holding 

that material disputes of fact exist as to the accuracy and completeness 

of defendants’ webpage recreations.
BERMAN V. FREEDOM FINANCIAL NETWORK 7

provide personal information in order to obtain free product 

samples and promotional deals.

Between the comparatively large box displaying the zip 

code and the large green “continue” button were two lines of 

text in a tiny gray font, which stated: “I understand and agree 

to the Terms & Conditions which includes mandatory 

arbitration and Privacy Policy.” The underlined phrases 

“Terms & Conditions” and “Privacy Policy” were 

hyperlinks, but they appeared in the same gray font as the 

rest of the sentence, rather than in blue, the color typically 

used to signify the presence of a hyperlink. If Hernandez 

had seen the “Terms & Conditions” hyperlink and clicked 

on it, she would have been taken to a separate webpage 

displaying a lengthy set of legal provisions, one of which 

stated that any disputes related to telemarketing calls or text 

messages received from Fluent or its marketing partners 

would have to be resolved through arbitration.

According to Fluent’s records, Russell visited a different 

Fluent website, www.retailproductzone.com, using a mobile 

phone. The key webpage she viewed while registering to 

receive a free gift card stated at the top, “Shipping 

Information Required,” and below that, “Complete your 

shipping information to continue towards your reward.” See

Appendix B. What followed were several fields requiring 

Russell to input her name, address, telephone number, and 

date of birth. Below a line instructing the user to “Select 

Gender,” two buttons appeared side by side marked “Male” 

and “Female.” Below that was a large green button with text 

that stated, in easy-to-read white letters, “Continue >>.” 

Russell had to click on the “continue” button to proceed to 

the next page in the website flow.

As with the webpage Hernandez viewed, sandwiched 

between the buttons allowing Russell to select her gender 
8 BERMAN V. FREEDOM FINANCIAL NETWORK

and the large green “continue” button were the same two 

lines of text in tiny gray font stating, “I understand and agree 

to the Terms & Conditions which includes mandatory 

arbitration and Privacy Policy.” The hyperlinks were 

underlined but again appeared in the same gray font as the 

rest of the sentence. The “Terms & Conditions” contained a 

mandatory arbitration provision similar to the one described 

above.

Fluent and defendant Lead Science, LLC used the 

contact information provided by consumers like Hernandez 

and Russell to conduct a telemarketing campaign on behalf 

of defendants Freedom Financial Network, LLC and 

Freedom Debt Relief, LLC (collectively, Freedom). As part 

of the campaign, Fluent and Lead Science allegedly placed 

unsolicited telephone calls and text messages to hundreds of 

thousands of consumers, including Hernandez and Russell, 

marketing Freedom’s debt-relief services.

Plaintiffs filed this putative class action on behalf of 

consumers who received unwanted calls or text messages 

from defendants during the telemarketing campaign 

conducted on Freedom’s behalf. They allege that the calls 

and text messages were made or sent without their consent 

and therefore violated the Telephone Consumer Protection 

Act (TCPA), 47 U.S.C. § 227 et seq.

Defendants moved to compel arbitration, arguing that, 

by clicking on the “continue” buttons, Hernandez and 

Russell had agreed to the hyperlinked terms and conditions, 

including the mandatory arbitration provision. The district 

court denied defendants’ motion. The court concluded that 

the content and design of the webpages did not 

conspicuously indicate to users that, by clicking on the 

“continue” button, they were agreeing to Fluent’s terms and 

conditions.
BERMAN V. FREEDOM FINANCIAL NETWORK 9

Shortly after the district court denied defendants’ motion 

to compel arbitration, defendants filed a motion for 

reconsideration. They asserted that testimony given by 

plaintiffs in depositions taken two months earlier was 

material to the motion to compel. The district court denied 

the reconsideration motion, concluding that defendants had 

failed to act with reasonable diligence in producing the new 

evidence and, alternatively, that plaintiffs’ deposition 

testimony was not materially different from the facts the 

district court had previously considered.

On appeal, defendants challenge the denial of both 

motions. We review de novo the denial of a motion to 

compel arbitration, while underlying factual findings are 

reviewed for clear error. Nguyen, 763 F.3d at 1175. We 

review the denial of a motion for reconsideration for abuse 

of discretion. Kona Enterprises, Inc. v. Estate of Bishop, 229 

F.3d 877, 883 (9th Cir. 2000).

II

The Federal Arbitration Act (FAA) requires district 

courts to compel arbitration of claims covered by an 

enforceable arbitration agreement. 9 U.S.C. § 3. The FAA 

limits the court’s role to “determining whether a valid 

arbitration agreement exists and, if so, whether the 

agreement encompasses the dispute at issue.” Lifescan, Inc. 

v. Premier Diabetic Services, Inc., 363 F.3d 1010, 1012 (9th 

Cir. 2004). Plaintiffs do not contest that the arbitration 

provision in the websites’ terms and conditions encompasses 
10 BERMAN V. FREEDOM FINANCIAL NETWORK

their TCPA claims. Thus, the only issue we must resolve is 

whether an agreement to arbitrate was validly formed.2

In determining whether the parties have agreed to 

arbitrate a particular dispute, federal courts apply state-law 

principles of contract formation. See First Options of 

Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Here, 

the parties agree that either New York or California law 

governs. “New York and California apply ‘substantially 

similar rules for determining whether the parties have 

mutually assented to a contract term.’” Meyer v. Uber 

Technologies, Inc., 868 F.3d 66, 74 (2d Cir. 2017) (quoting 

Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d Cir. 

2012)). As in Nguyen, we need not decide which State’s law 

governs “because both California and New York law dictate 

the same outcome.” 763 F.3d at 1175.

To form a contract under New York or California law, 

the parties must manifest their mutual assent to the terms of 

the agreement. See id. (applying New York law); Specht v. 

Netscape Communications Corp., 306 F.3d 17, 29 (2d Cir. 

2002) (applying California law). Parties traditionally 

manifest assent by written or spoken word, but they can also 

do so through conduct. Specht, 306 F.3d at 29. However, 

“[t]he conduct of a party is not effective as a manifestation 

of his assent unless he intends to engage in the conduct and 

knows or has reason to know that the other party may infer 

2 While plaintiffs do not dispute that the arbitration provision is 

broad enough to cover their claims, they do contend that even if the 

provision is enforceable, it cannot be enforced by Freedom and Lead 

Science as they were not signatories to any agreement. Because we 

affirm the district court’s denial of the motion to compel arbitration on 

other grounds, we need not decide whether Freedom and Lead Science 

could compel arbitration in this case.
BERMAN V. FREEDOM FINANCIAL NETWORK 11

from his conduct that he assents.” Restatement (Second) of 

Contracts § 19(2) (1981).

These elemental principles of contract formation apply 

with equal force to contracts formed online. Thus, if a 

website offers contractual terms to those who use the site, 

and a user engages in conduct that manifests her acceptance 

of those terms, an enforceable agreement can be formed.

The most straightforward application of these principles 

in the online world involves so-called “clickwrap” 

agreements, in which a website presents users with specified 

contractual terms on a pop-up screen and users must check a 

box explicitly stating “I agree” in order to proceed. See 

Nguyen, 763 F.3d at 1175–76. In that scenario, the consumer 

has received notice of the terms being offered and, in the 

words of the Restatement, “knows or has reason to know that 

the other party may infer from his conduct that he assents” 

to those terms. Restatement (Second) of Contracts § 19(2). 

As a result, courts have routinely found clickwrap 

agreements enforceable. See Meyer, 868 F.3d at 75.

At the other end of the spectrum are so-called 

“browsewrap” agreements, in which a website offers terms 

that are disclosed only through a hyperlink and the user 

supposedly manifests assent to those terms simply by 

continuing to use the website. See Nguyen, 763 F.3d at 1176. 

Courts are more reluctant to enforce browsewrap agreements 

because consumers are frequently left unaware that 

contractual terms were even offered, much less that 

continued use of the website will be deemed to manifest 

acceptance of those terms. Id. at 1178 (noting “courts’ 

traditional reluctance to enforce browsewrap agreements 

against individual consumers”).
12 BERMAN V. FREEDOM FINANCIAL NETWORK

To avoid the unfairness of enforcing contractual terms 

that consumers never intended to accept, courts confronted 

with online agreements such as those at issue here have 

devised rules to determine whether meaningful assent has 

been given. Unless the website operator can show that a 

consumer has actual knowledge of the agreement, an 

enforceable contract will be found based on an inquiry notice 

theory only if: (1) the website provides reasonably 

conspicuous notice of the terms to which the consumer will 

be bound; and (2) the consumer takes some action, such as 

clicking a button or checking a box, that unambiguously 

manifests his or her assent to those terms. See Meyer, 

868 F.3d at 75; Nguyen, 763 F.3d at 1173 (refusing to 

enforce an arbitration provision to which the consumer “did 

not unambiguously manifest assent”). As the Second Circuit 

has explained, “[r]easonably conspicuous notice of the 

existence of contract terms and unambiguous manifestation 

of assent to those terms by consumers are essential if 

electronic bargaining is to have integrity and credibility.” 

Specht, 306 F.3d at 35.

Defendants did not contend, in their motion to compel 

arbitration, that plaintiffs had actual knowledge of an 

agreement to arbitrate. And, as explained below, defendants 

failed to show that either of the conditions necessary for 

finding an enforceable agreement based on inquiry notice 

were satisfied.

Reasonably conspicuous notice. The webpages 

reproduced in Appendix A and Appendix B did not provide 

reasonably conspicuous notice of the terms and conditions 

for two reasons. First, to be conspicuous in this context, a 

notice must be displayed in a font size and format such that 

the court can fairly assume that a reasonably prudent Internet 

user would have seen it. See id. at 30; Nguyen, 763 F.3d 
BERMAN V. FREEDOM FINANCIAL NETWORK 13

at 1177. The text disclosing the existence of the terms and 

conditions on these websites is the antithesis of conspicuous. 

It is printed in a tiny gray font considerably smaller than the 

font used in the surrounding website elements, and indeed in 

a font so small that it is barely legible to the naked eye. The 

comparatively larger font used in all of the surrounding text 

naturally directs the user’s attention everywhere else. And 

the textual notice is further deemphasized by the overall 

design of the webpage, in which other visual elements draw 

the user’s attention away from the barely readable critical 

text. Far from meeting the requirement that a webpage must 

take steps “to capture the user’s attention and secure her 

assent,” the design and content of these webpages draw the 

user’s attention away from the most important part of the 

page. Nguyen, 763 F.3d at 1178 n.1.

Website users are entitled to assume that important 

provisions—such as those that disclose the existence of 

proposed contractual terms—will be prominently displayed, 

not buried in fine print. Because “online providers have 

complete control over the design of their websites,” Sellers 

v. JustAnswer LLC, 289 Cal. Rptr. 3d 1, 16 (Ct. App. 2021), 

“the onus must be on website owners to put users on notice 

of the terms to which they wish to bind consumers,” Nguyen,

763 F.3d at 1179. The designer of the webpages at issue here 

did not take that obligation to heart.

Second, while it is permissible to disclose terms and 

conditions through a hyperlink, the fact that a hyperlink is 

present must be readily apparent. Simply underscoring 

words or phrases, as in the webpages at issue here, will often 

be insufficient to alert a reasonably prudent user that a 

clickable link exists. See Sellers, 289 Cal. Rptr. 3d at 29. 

Because our inquiry notice standard demands 

conspicuousness tailored to the reasonably prudent Internet 
14 BERMAN V. FREEDOM FINANCIAL NETWORK

user, not to the expert user, the design of the hyperlinks must 

put such a user on notice of their existence. Nguyen, 

763 F.3d at 1177, 1179.

A web designer must do more than simply underscore 

the hyperlinked text in order to ensure that it is sufficiently 

“set apart” from the surrounding text. Sellers, 289 Cal. Rptr. 

3d at 29. Customary design elements denoting the existence 

of a hyperlink include the use of a contrasting font color 

(typically blue) and the use of all capital letters, both of 

which can alert a user that the particular text differs from 

other plain text in that it provides a clickable pathway to 

another webpage. See id. (finding “Terms of Service” 

insufficiently conspicuous because it did not use all capital 

letters or contrasting font color). Consumers cannot be 

required to hover their mouse over otherwise plain-looking 

text or aimlessly click on words on a page in an effort to 

“ferret out hyperlinks.” Nguyen, 763 F.3d at 1179. The 

failure to clearly denote the hyperlinks here fails our 

conspicuousness test. Cf. Meyer, 868 F.3d at 78–79 (finding 

hyperlinks reasonably conspicuous because they were both 

in blue and underlined).

Unambiguous manifestation of assent. In using the 

websites, Hernandez and Russell did not take any action that 

unambiguously manifested their assent to be bound by the 

terms and conditions. Defendants rely on plaintiffs’ act of 

clicking on the large green “continue” buttons as 

manifestation of their assent, but merely clicking on a button 

on a webpage, viewed in the abstract, does not signify a 

user’s agreement to anything. A user’s click of a button can 

be construed as an unambiguous manifestation of assent only 

if the user is explicitly advised that the act of clicking will 

constitute assent to the terms and conditions of an 

agreement. See Specht, 306 F.3d at 29–30. The presence of 
BERMAN V. FREEDOM FINANCIAL NETWORK 15

“an explicit textual notice that continued use will act as a 

manifestation of the user’s intent to be bound” is critical to 

the enforceability of any browsewrap-type agreement. 

Nguyen, 763 F.3d at 1177.

The webpages here did provide advisals concerning the 

terms and conditions in proximity to the “continue” buttons. 

On the webpage Russell visited, the notice appeared directly 

above the button, and on the webpage Hernandez visited it 

appeared above the button separated by several intervening 

lines of text. But “even close proximity of the hyperlink to 

relevant buttons users must click on—without more—is 

insufficient to give rise to constructive notice.” Id. at 1179.

Rather, the notice must explicitly notify a user of the 

legal significance of the action she must take to enter into a 

contractual agreement. The notice did not do so here. Both 

webpages stated, “I understand and agree to the Terms & 

Conditions,” but they did not indicate to the user what action 

would constitute assent to those terms and conditions. 

Likewise, the text of the button itself gave no indication that 

it would bind plaintiffs to a set of terms and conditions. This 

notice defect could easily have been remedied by including 

language such as, “By clicking the Continue >> button, you 

agree to the Terms & Conditions.” See, e.g., Meyer, 

868 F.3d at 78–80 (concluding that an enforceable 

agreement was formed where the mobile app explicitly 

warned, “By creating an Uber account, you agree to the 

TERMS OF SERVICE & PRIVACY POLICY”).

Defendants assert that the presence of the phrase “which 

includes mandatory arbitration” in the textual notice 

distinguishes the webpages at issue here from those rejected 

by other courts. This argument is unavailing, as it fails to 

appreciate the key issue in this appeal. The question before 

us is not whether Hernandez and Russell may have been 
16 BERMAN V. FREEDOM FINANCIAL NETWORK

aware of the mandatory arbitration provision in particular, 

but rather whether they can be deemed to have manifested 

assent to any of the terms and conditions in the first place. 

Because the textual notice was not conspicuous and did not 

explicitly inform Hernandez and Russell that by clicking on 

the “continue” button they would be bound by the terms and 

conditions, the presence of the words “which includes 

mandatory arbitration” in the notice is of no relevance to the 

outcome of this appeal.

We conclude that the design and content of the webpages 

Hernandez and Russell visited did not adequately call to 

their attention either the existence of the terms and 

conditions or the fact that, by clicking on the “continue” 

button, they were agreeing to be bound by those terms. The 

district court properly denied defendants’ motion to compel 

arbitration because an enforceable agreement to arbitrate 

was never formed.

III

Following the district court’s denial of their motion to 

compel arbitration, defendants filed a motion for 

reconsideration, asserting that testimony from the 

depositions they took of Russell and Hernandez two months 

prior to the court’s ruling was material to resolution of the 

motion to compel. The district court denied the 

reconsideration motion because defendants failed to act with 

reasonable diligence and, alternatively, because plaintiffs’ 

deposition testimony was not materially different from the 

facts the court had already considered. Because we agree 

with the court’s first rationale, we need not address the 

second.
BERMAN V. FREEDOM FINANCIAL NETWORK 17

A district court may, in its discretion, reconsider an 

interlocutory order denying a motion to compel arbitration. 

See Fed. R. Civ. P. 60(b); N.D. Cal. Civ. L.R. 7-9. However, 

reconsideration of such an order is an “extraordinary 

remedy, to be used sparingly in the interests of finality and 

conservation of judicial resources.” Kona Enterprises, 

229 F.3d at 890. Reconsideration motions may not be used 

to raise new arguments or introduce new evidence if, with 

reasonable diligence, the arguments and evidence could have 

been presented during consideration of the original ruling. 

Id.

As the district court explained, had defendants acted with 

reasonable diligence, plaintiffs’ deposition testimony could 

have been presented to the court in connection with the 

motion to compel arbitration. Defendants could have 

deposed plaintiffs before filing the motion or before the 

close of briefing on the motion. During that period, the 

district court granted each extension of the briefing and 

discovery schedules the parties requested. Moreover, 

defendants could have submitted plaintiffs’ deposition 

testimony at any point during the two-month period between 

the taking of the depositions and issuance of the court’s order 

denying the motion to compel. Instead, defendants waited 

until after the court had issued its ruling to present the 

deposition testimony in support of their new theory that 

plaintiffs had actual knowledge of the hyperlinked terms and 

conditions. The district court did not abuse its discretion in 

concluding that defendants’ “tactical decision not to submit 

the deposition testimony until after their motion was denied” 

failed to provide any basis for seeking reconsideration of the 

court’s earlier ruling.

* * *
18 BERMAN V. FREEDOM FINANCIAL NETWORK

We affirm the district court’s denial of defendants’ 

motion to compel arbitration and their motion for 

reconsideration.

AFFIRMED.
BERMAN V. FREEDOM FINANCIAL NETWORK 19

Appendix A
20 BERMAN V. FREEDOM FINANCIAL NETWORK

Appendix B
BERMAN V. FREEDOM FINANCIAL NETWORK 21

BAKER, Judge, concurring:

I join Parts I and III of Judge Watford’s opinion for the 

Court. Although my colleagues and I reach the same 

destination, I would take a different route, one that first 

walks through the applicable choice-of-law analysis and 

then, based on that analysis, relies more on recent decisions 

of the California Court of Appeal. Those decisions establish 

that the websites here contain “sign-in wrap” agreements, 

which—as this case illustrates—tempt fate under California 

law.

I

“In determining the validity of an agreement to arbitrate, 

federal courts should apply ordinary state-law principles that 

govern the formation of contracts.” Pokorny v. Quixtar, Inc., 

601 F.3d 987, 994 (9th Cir. 2010) (cleaned up and quoting 

Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 

782 (9th Cir. 2002)). The first issue here is what body of state 

law governs whether the parties agreed to arbitration. The 

parties agree that California and New York are the options 

and further agree that there is no material difference between 

the applicable law of those jurisdictions. But when asked at 

argument which state’s law would apply if forced to choose, 

plaintiffs asserted California and defendants asserted New 

York. My colleagues decline to decide this issue because, 

like the parties, they conclude that both California and New 

York law dictate the same outcome. Ante at 10 (citing 

Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 

2014)).

I am not sure this is correct at the margins in this 

evolving and fact-bound area. I also think that due respect 

for state courts should lead us to begin by identifying the 

relevant jurisdiction and then determining its law as 
22 BERMAN V. FREEDOM FINANCIAL NETWORK

enunciated by those courts. Cf. 19 Wright & Miller, Federal 

Practice and Procedure § 4507 (3d ed. 2021) (“Because of 

the important federalism concerns implicated in the 

application of state law by the federal courts, the accurate 

ascertainment of that law is extremely important.”). We are 

messengers, not catalysts, of state law.

A

“Before a federal court may apply state-law principles to 

determine the validity of an arbitration agreement, it must 

determine which state’s laws to apply.” Pokorny, 601 F.3d 

at 994. If we were sitting in diversity, it is long-settled that 

we would apply the choice-of-law rules of the forum 

statute—here, California—to resolve whether the parties 

agreed to arbitrate their dispute. See, e.g., Patton v. Cox, 

276 F.3d 493, 495 (9th Cir. 2002) (“When a federal court sits 

in diversity, it must look to the forum state’s choice of law 

rules to determine the controlling substantive law.”).

But because we exercise our federal-question 

jurisdiction here,1 the selection of choice-of-law principles 

is not so straightforward. “[T]here is some inconsistency” in 

our circuit precedent “as to whether federal courts [in 

federal-question cases] should apply federal common law 

choice-of-law principles or the choice-of-law principles of 

the forum state when the particular issue is governed by 

substantive state law.” Setty v. Shrinivas Sugandhalaya LLP, 

986 F.3d 1139, 1148 (9th Cir.) (Bea, J., dissenting), 

1 Plaintiffs brought this suit under the Telephone Consumer 

Protection Act (TCPA), 47 U.S.C. § 227. It permits concurrent federal 

and state court jurisdiction over private-party claims such as those 

brought by plaintiffs here. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 

368, 379–87 (2012).
BERMAN V. FREEDOM FINANCIAL NETWORK 23

withdrawn on denial of reh’g en banc, 998 F.3d 897 (9th Cir. 

2021).

“For bankruptcy cases founded on federal question 

jurisdiction, we have opted to use federal choice-of-law rules 

to determine which state law to apply to pendent state 

claims.” Id. (citing In re Lindsay, 59 F.3d 942, 948 (9th Cir. 

1995)). And in some federal-question contexts outside of 

bankruptcy, we have applied federal choice-of-law rules to 

state-law issues. See, e.g., Huynh v. Chase Manhattan Bank, 

465 F.3d 992, 997 (9th Cir. 2006) (characterizing circuit 

precedent as standing for the general proposition that “where 

jurisdiction is not premised on diversity of citizenship, 

federal common law governs” and applying that law to 

determine which state’s limitations period to use).

But in other federal-question contexts, “when the 

particular issue is ultimately determined by state rather than 

federal law . . . , the Ninth Circuit and the lower courts have 

sometimes applied the forum state’s choice-of-law rule.” 

Setty, 986 F.3d at 1149 (Bea, J., dissenting) (citing SEC v. 

Elmas Trading Corp., 683 F. Supp. 743, 748 (D. Nev. 1987), 

aff’d w/o opinion, 865 F.2d 265 (9th Cir. 1988), and Paracor 

Fin., Inc. v. Gen. Elec. Cap. Corp., 96 F.3d 1151, 1164 (9th 

Cir. 1996)). Paracor involved supplemental state-law 

claims, and later in Pokorny (which, as here, was a federalquestion case) we followed Paracor in applying forum state 

choice-of-law rules to the state-law question of whether the 

parties agreed to arbitrate their dispute. See Pokorny, 

601 F.3d at 994.

I think analysis of the Supreme Court’s decisions 

resolves our intra-circuit conflict and favors applying forum 

state choice-of-law rules to state-law issues arising in 

federal-question cases, at least where Congress has vested 

concurrent jurisdiction in state and federal courts. In 
24 BERMAN V. FREEDOM FINANCIAL NETWORK

enacting federal law, “Congress acts . . . against the 

background of the total corpus juris of the states . . . .” 

Atherton v. FDIC, 519 U.S. 213, 218 (1997) (ellipses in 

original) (cleaned up and quoting Wallis v. Pan Am. 

Petroleum Corp., 384 U.S. 63, 68 (1966)). “Thus, normally, 

when courts decide to fashion rules of federal common law, 

‘the guiding principle is that a significant conflict between 

some federal policy or interest and the use of state law . . .

must first be specifically shown.” Id. (ellipsis in original) 

(quoting Wallis, 384 U.S. at 68); see also O’Melveny & 

Myers v. FDIC, 512 U.S. 79, 87 (1994) (“Cases in which 

judicial creation of a special federal rule would be justified” 

are “few and restricted, limited to situations where there is a 

significant conflict between some federal policy or interest 

and the use of state law.”) (cleaned up).

Where, as here, Congress vests concurrent jurisdiction in 

state and federal courts to hear federal causes of action, 

absent any statutory indication to the contrary it implicitly 

authorizes state courts to apply their own choice-of-law rules 

to state-law issues arising in such cases. This implied 

authorization necessarily signifies that federal courts’ 

application of forum state choice-of-law rules to state-law 

issues arising under those same statutes does not conflict 

with any federal policy or interest. Cf. A.I. Trade Fin., Inc. 

v. Petra Int’l Banking Corp., 62 F.3d 1454, 1464 (D.C. Cir. 

1995) (“The Supreme Court has decreed that in the absence 

of federal legislation there shall be what one might call 

‘vertical uniformity’: a suit in federal court shall be handled 

as it would be in the courts of the state where that federal 

court sits.”). For that reason, given the TCPA’s silence on 

the matter we should apply the choice-of-law rules of the 

forum state—here, California—to resolve the state-law issue 

of whether the parties agreed to arbitrate plaintiffs’ federal 

claims. In other words, we should apply the same choice-of-
BERMAN V. FREEDOM FINANCIAL NETWORK 25

law rules that we would apply in a diversity case, or to 

supplemental state-law claims.

B

Under California choice-of-law principles, “when there 

is no advance agreement on applicable law, but the action 

involves the claims of residents from outside California, the 

trial court may analyze the governmental interests of the 

various jurisdictions involved to select the most appropriate 

law.” Wash. Mut. Bank, FA v. Super. Ct., 15 P.3d 1071, 1077 

(Cal. 2001).2 This analysis has three steps.

First, a court will apply California substantive law unless 

the party timely invoking another state’s law “show[s] it 

materially differs from the law of California.” Wash. Mut., 

15 P.3d at 1080. If the states’ laws are identical, the court 

applies California law. Id. Second, if the laws are materially 

2 The California Court of Appeal has held that “notwithstanding the 

application of the governmental interest analysis to other choice-of-law 

issues,” the “choice-of-law rule in Civil Code section 1646 determines 

the law governing the interpretation of a contract.” Frontier Oil Corp. v. 

RLI Ins. Co., 63 Cal. Rptr. 3d 816, 835 (Ct. App. 2007). Section 1646 

provides that “[a] contract is to be interpreted according to the law and 

usage of the place where it is to be performed; or, if it does not indicate 

a place of performance, according to the law and usage of the place 

where it is made.” Cal. Civ. Code § 1646. Because § 1646 presupposes 

the existence of a contract, it is inapplicable to the antecedent question 

of whether the parties formed a valid contract. See Glob. Commodities 

Trading Grp., Inc. v. Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 

1111 (9th Cir. 2020) (“Section 1646 governs only the interpretation of 

contractual terms. . . . [A]ll other issues in a contract dispute, including 

the validity of a contract, are governed by governmental interest 

analysis.”); Miller v. Stults, 300 P.2d 312, 318 (Cal. App. 1956) (stating 

that “[t]he rules stated in” § 1646 and related provisions “govern the 

interpretation of contracts which might otherwise be uncertain, not the 

formation of contracts”).
26 BERMAN V. FREEDOM FINANCIAL NETWORK

different, the court must “determine what interest, if any, 

each state has in having its own law applied to the case.” Id.

Finally, “[o]nly if the trial court determines that the laws are 

materially different and that each state has an interest in 

having its own law applied, thus reflecting an actual conflict, 

must the court take the final step and select the law of the 

state whose interests would be ‘more impaired’ if its law 

were not applied.” Id. at 1081 (emphasis in original).

Here, step one resolves the issue because while 

defendants (if forced to choose) urge us to apply New York’s 

law instead of California’s, they have not met their burden 

of identifying differences in the applicable law of both states. 

We must therefore apply California law.

In so doing, we must apply the law as enunciated by the 

California Supreme Court. Vestar Dev. II, LLC v. Gen. 

Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001). Absent 

any such authority, we “must predict how the highest state 

court would decide the issue using intermediate appellate 

court decisions, decisions from other jurisdictions, statutes, 

treatises, and restatements as guidance.” Id. (quoting Lewis 

v. Tel. Emps. Credit Union, 87 F.3d 1537, 1545 (9th Cir. 

1996)). But “where there is no convincing evidence that the 

state supreme court would decide differently, a federal court 

is obligated to follow the decisions of the state’s 

intermediate appellate courts.” Id. (quoting Lewis, 87 F.3d 

at 1545); see also Hayes v. Cnty. of San Diego, 658 F.3d 867, 

872 (9th Cir. 2011) (same).

As the California Supreme Court has not yet addressed 

internet contract formation, and as I am unaware of any 

evidence suggesting that it would decide these questions any 

differently, I would decide this case based on two relevant 

published decisions of the California Court of Appeal.
BERMAN V. FREEDOM FINANCIAL NETWORK 27

II

The first relevant state court decision is Long v. Provide 

Commerce, Inc., 200 Cal. Rptr. 3d 117 (Ct. App. 2016). In 

that case, a user of ProFlowers.com argued that an 

arbitration provision in a website’s terms and conditions was 

unenforceable for lack of notice.

Long began with first principles. Federal and state 

policies favoring arbitration cannot compel someone to 

arbitrate when he has not agreed to do so, id. at 122 (citing 

Freeman v. State Farm Mut. Auto. Ins. Co., 535 P.2d 341, 

346 (Cal. 1975)), and e-commerce “has not fundamentally 

changed the requirement that mutual manifestation of assent, 

whether by written or spoken word, is the touchstone of 

contract,” id. (cleaned up) (citing Nguyen, 763 F.3d at 1175). 

“California law is clear—an offeree, regardless of apparent 

manifestation of his consent, is not bound by inconspicuous 

contractual provisions of which he was unaware, contained 

in a document whose contractual nature is not obvious.” Id.

(cleaned up).

Long then noted the distinction between

“clickwrap” (or “click-through”) agreements, 

in which website users are required to click 

on an “I agree” box after being presented with 

a list of terms and conditions of use; and 

“browsewrap” agreements, where a website’s 

terms and conditions of use are generally 

posted on the website via a hyperlink at the 

bottom of the screen.

Id. at 123 (quoting Nguyen, 763 F.3d at 1175–76). “[A]bsent 

actual notice, ‘the validity of a browsewrap agreement turns 

on whether the website puts a reasonably prudent user on 
28 BERMAN V. FREEDOM FINANCIAL NETWORK

inquiry notice of the terms of the contract.” Id. (cleaned up) 

(quoting Nguyen, 763 F.3d at 1177).

Long involved a browsewrap agreement where the 

website’s hyperlinked terms of use were buried at the bottom 

of the relevant webpages and confirming emails. The court 

noted that “what sort of Web site design elements would be 

necessary or sufficient to deem a browsewrap agreement 

valid in the absence of actual notice” was an issue of first 

impression under California law, and accordingly said it 

would be “largely guided” by the reasoning in Nguyen and 

Specht v. Netscape Communications Corp., 306 F.3d 17 (2d 

Cir. 2002). Id. at 124. Applying these decisions, Long held 

that the website’s hyperlinks to the terms of use—“their 

placement, color, size, and other qualities relative to the 

ProFlowers.com Web site’s overall design—[were] simply 

too inconspicuous” to put reasonably prudent users on 

inquiry notice. Id. at 125–26.

“While the lack of conspicuousness” of the terms of use 

resolved the case, id. at 126, Long went further and approved 

Nguyen’s conclusion that if browsewrap is to be enforceable, 

“a textual notice should be required to advise consumers that 

continued use of a Web site will constitute the consumer’s 

agreement to be bound by the Web site’s terms of use.” Id.

at 126 (citing Nguyen, 763 F.3d at 1178–79). The court 

reasoned that merely placing a hyperlink in a “prominent or 

conspicuous place” is not enough because “the phrase ‘terms 

of use’ may have no meaning or a different meaning to a 

large segment of the Internet-using public.” Id. at 126–27. 

Long thereby endorsed “the bright line rule established by 

Nguyen” as to textual notice, which “is necessary to ensure 

that Internet consumers are on inquiry notice of a 

browsewrap agreement’s terms, regardless of each 

consumer’s degree of technological savvy.” Id. at 127. Thus, 
BERMAN V. FREEDOM FINANCIAL NETWORK 29

“[o]nline retailers would be well-advised to include a 

conspicuous textual notice with their terms of use hyperlinks 

going forward.” Id.

A recent California Court of Appeal decision builds on 

Long and further develops state law in this area. In Sellers v. 

JustAnswer LLC, 289 Cal. Rptr. 3d 1 (Ct. App. 2021),3

petition for review filed, No. S273056 (Cal. Feb. 8, 2022), 

the court—drawing on a scholarly opinion by Judge 

Weinstein, see Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 

394–401 (E.D.N.Y. 2015)—helpfully classifies internet 

contract formation “by the way in which the user purportedly 

gives [her] assent to be bound by the associated terms: 

browsewraps, clickwraps, scrollwraps, and sign-in wraps.” 

Sellers, 289 Cal. Rptr. 3d at 15. Those four ways are as 

follows:

A “browsewrap” agreement is one in which 

an internet user accepts a website’s terms of 

use merely by browsing the site. A 

“clickwrap” agreement is one in which an 

internet user accepts a website’s terms of use 

by clicking an ‘I agree’ or ‘I accept’ button, 

with a link to the agreement readily available. 

A “scrollwrap” agreement is like a 

“clickwrap,” but the user is presented with 

the agreement and must physically scroll to 

3 The Court of Appeal issued Sellers after we heard argument in this 

case. It “involved a $5 ‘trial’ that automatically enrolled allegedly 

unwitting consumers in a more expensive recurring monthly 

membership.” Id. at 5. The California Automatic Renewal Law, Cal. 

Bus. & Prof. Code §§ 17,600 et seq., therefore applied and the court 

applied statutory standards. See 289 Cal. Rptr. 3d at 26–28. The court, 

however, also applied Long and the relevant federal cases addressing the 

sufficiency of inquiry notice. See id. at 28–30.
30 BERMAN V. FREEDOM FINANCIAL NETWORK

the bottom of it to find the “I agree” or “I 

accept” button. “Sign-in wrap” agreements 

are those in which a user signs up to use an 

internet product or service, and the sign-up 

screen states that acceptance of a separate 

agreement is required before the user can 

access the service. While a link to the 

separate agreement is provided, users are not 

required to indicate that they have read the 

agreement’s terms before signing up.

Id. (cleaned up).

Using these criteria, Sellers classified the website before 

it as “a sign-in wrap agreement.” Id. at 16. The website

purportedly notif[ied] consumers of the 

existence of a separate, hyperlinked webpage 

containing contractual terms, along with a 

textual notice that they agree to the terms by 

clicking the “Start my trial” button. While a 

hyperlink to the separate agreement was 

provided, the consumer was not required to 

click the hyperlink or otherwise read the 

terms to proceed, and was not required to 

affirmatively indicate that [he had] read the 

agreement’s terms before signing up.

Id. at 17 (cleaned up).

Sellers then “set some basic guideposts as to the 

enforceability” of the four types of internet contract 

formation. Id. at 20. First, the court expressly stated what 

Long implied—“On one end of the spectrum, a browsewrap 

agreement like the one at issue in Long . . . is not sufficient 

to bind the consumer.” Id. “Toward the other end of the 
BERMAN V. FREEDOM FINANCIAL NETWORK 31

spectrum, clickwrap agreements . . . are generally 

considered enforceable.” Id. at 20–21. “Scrollwrap 

agreements go one step further and place the contractual 

terms directly in front of the user . . . . [T]here should be little 

doubt scrollwrap agreements are enforceable under 

California law because the consumer is given the contract, a 

sufficient circumstance to place the consumer on inquiry 

notice of the contractual terms.” Id. at 21.

That left sign-in wrap, which Sellers described as 

“fall[ing] somewhere in the middle of the two extremes of 

browsewrap and scrollwrap agreements.” Id. The court 

explained that although sign-in wrap displays a textual 

notice that the user will be bound by the site’s terms, unlike 

scrollwrap it does not require the user to scroll through the 

terms before clicking “I agree” or the like. And unlike 

clickwrap, it does not require a user to click “I agree” or the 

like to accept the site’s hyperlinked terms and conditions. Id.

“Instead, the consumer is purportedly bound by clicking 

some other button that [he] would otherwise need to click to

continue with [his] transaction or [his] use of the website—

most frequently, a button that allows the consumer to ‘sign 

in’ or ‘sign up’ for an account.” Id. (emphasis in original). 

Sellers doubted whether most consumers know that clicking 

that “some other button” constitutes agreeing to contract 

terms, and the court therefore concluded that “the existence 

of a contract ‘turns on whether a reasonably prudent offeree 

would be on inquiry notice of the terms at issue.’ ” Id.

(quoting Selden v. Airbnb, Inc., No. 16-CV-00933 (CRC), 

2016 WL 6476934, at *4 (D.D.C. Nov. 1, 2016)). “ ‘There 

is nothing automatically offensive about such agreements, as 

long as the layout and language of the site give the user 

reasonable notice that a click will manifest assent to an

agreement.’ ” Id. (emphasis and alterations in original) 
32 BERMAN V. FREEDOM FINANCIAL NETWORK

(quoting Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 

2017)).

Sellers outlined two other considerations bearing on the 

validity of sign-in wrap agreements. First, “the full context 

of the transaction is critical to determining whether a given 

textual notice is sufficient to put an internet consumer on 

inquiry notice of contractual terms.” Id. at 26. Specifically, 

in transactions involving “a consumer signing up for an 

ongoing account,” id. at 21 (emphasis added), “it is 

reasonable to expect that the typical consumer in that type of 

transaction contemplates entering into a continuing, 

forward-looking relationship,” id. In contrast, where the 

“transaction is one in which the typical consumer would not 

expect to enter into an ongoing contractual relationship,” the 

consumer would be “less likely to be looking for” 

contractual terms. Id. at 25. In short, websites inviting oneoff transactions will be held to higher standards than those 

proposing continuing associations, as the “transactional 

context . . . is key to determining the expectations of a 

typical consumer.” Id. at 29–30.

Second, as “not all internet users are alike,” id. at 24, “the 

onus must be on website owners to put users on notice of the 

terms to which they wish to bind consumers . . . .

[C]onsumers cannot be expected to ferret out hyperlinks to 

terms and conditions to which they have no reason to suspect 

they will be bound.” Id. at 25.

Sellers then applied these principles, beginning with the 

transaction’s context. Website users were not asked to “sign 

up” for an account but were invited to “ ‘start a trial’ to 

determine whether they wanted to use the service at all and 

were not likely expecting that their ‘trial’ would be governed 

by approximately 26 pages of contractual terms.” Id. at 29 

(cleaned up). Thus, this was “not a situation in which ‘the 
BERMAN V. FREEDOM FINANCIAL NETWORK 33

registration process clearly contemplated some sort of 

continuing relationship that would require some terms and 

conditions.’ ” Id. (cleaned up and quoting Meyer, 868 F.3d 

at 80). In the latter case, users might be on the lookout for 

“small text outside the payment box or at the bottom of the 

screen linking them to 26 pages of contractual terms.” Id.

Sellers also stated that “[a]bsent such scrutiny, it is not 

likely a typical consumer would notice the relatively 

inconspicuous notice of contractual terms that would govern 

[her] use of the” website at issue:

[T]he notice appears in extremely small print, 

outside the white box containing the payment 

fields where the consumer’s attention would 

necessarily be focused. Although the text of 

the notice appears in white against a dark 

background, the font is so small that the 

contrast is not sufficient to make the text 

apparent. Further, the hyperlink to the terms 

of service is underlined, but it is not set apart 

in any other way that may draw the attention 

of the consumer, such as with blue text or 

capital letters.

Id. (footnote reference omitted). The court clarified that it 

“consider[ed] the size of the textual notice in relation to the 

other text on the screen.” Id. at 29 n.10.

“Considering all of these factors together,” Sellers held 

that the website’s notice was not “sufficiently conspicuous 

to put Plaintiffs on inquiry notice that they would be bound 

by the terms of service by proceeding with their trial.” Id. 

The website’s designer “chose to use a textual notice 

attached to a hyperlink as opposed to a pure clickwrap or 

scrollwrap form, and then chose to display that notice in 
34 BERMAN V. FREEDOM FINANCIAL NETWORK

extremely small print and not immediately adjacent to the 

‘Start my trial’ button. By doing so, JustAnswer ran the risk 

of a court concluding, as we do here, that the notice was not 

sufficiently conspicuous.” Id. at 30.

The court warned website owners that “particularly 

where, as here, the consumer is not likely expecting to be 

bound by such terms,” id. (emphasis added), “text that is just 

slightly smaller, or slightly further away from the box or 

button the consumer must click on must, at some point, 

exceed the limits of what constitutes adequate notice.” Id. 

“The onus is on” website owners “to provide adequate notice 

of contractual terms.” Id.

* * *

Long and Sellers teach that, pending further word from 

the California appellate courts, browsewrap agreements are 

unenforceable per se; sign-in wrap agreements are in a gray 

zone; and clickwrap and scrollwrap agreements are 

presumptively enforceable. And in the gray zone of sign-in 

wrap agreements, enforceability requires conspicuous 

textual notice that completing a transaction or registration 

signifies consent to the site’s terms and conditions. Whether 

such notice is sufficiently conspicuous will turn on the 

transactional context, the notice’s size relative to other text 

on the site, the notice’s proximity to the relevant button or 

box the user must click to complete the transaction or 

register for the service, and whether the notice’s hyperlinks 

are readily identifiable. A court must “[c]onsider[ ] all of 

these factors” together. Sellers, 289 Cal. Rptr. 3d at 29.4

4 Given the present state of California law, website designers who 

knowingly choose sign-in wrap—to say nothing of browsewrap—over 
BERMAN V. FREEDOM FINANCIAL NETWORK 35

III

Under Sellers’s classification scheme, there is no 

contention that the websites here operate as scrollwrap or 

clickwrap. Defendants also do not argue that merely 

accessing the websites constitutes agreement to the terms of 

use, so their sites do not use browsewrap. Instead, defendants 

argue that their sites’ terms and conditions, including 

mandatory arbitration, are enforceable because of the sites’ 

notices that consumers agree to those provisions. These sites 

therefore employ sign-in wrap under Sellers.

A

To determine whether the sign-in wrap agreements here 

are sufficiently conspicuous, Sellers requires that we first 

consider the context—whether reasonably prudent users 

would understand defendants’ websites to invite one-off 

transactions or continued dealings of some kind. As in 

Sellers, defendants’ websites—whatever else their 

hyperlinked terms and conditions may say—do not clearly 

propose forward-looking relations such as memberships or 

subscriptions. See, e.g., Appendix B, ante (requesting that 

the website user “complete your shipping information to 

continue towards your reward,” a $100 Target gift card). 

That in turn means that the conspicuousness of these sites’ 

textual notices must undergo the most rigorous scrutiny, 

because a reasonably prudent user would not have been on 

the lookout for fine print.

clickwrap and scrollwrap designs practically invite litigation over the 

enforceability of their sites’ terms and conditions, as the fact-intensive 

inquiry over what “makes a given textual notice sufficiently conspicuous 

. . . invariably lends itself to a more subjective than objective analysis 

. . . .” Id. at 23.
36 BERMAN V. FREEDOM FINANCIAL NETWORK

Also as in Sellers, the notices here appeared in 

“extremely small print” in comparison to “the other text on 

the screen.” 289 Cal. Rptr. 3d at 29 & n.10. But in Sellers, 

the notice was “outside the white box containing the 

payment fields where the consumer’s attention would 

necessarily be focused.” Id. at 29. In one of the sites here, 

the notice was in the same white box and immediately above 

the “Continue” button. See Appendix B, ante. In the other 

site, the notice was also in the same box, but not immediately 

adjacent to the “This is correct, Continue!” button. See

Appendix A, ante.

Moreover, in Sellers “the font [was] so small that the 

contrast [was] not sufficient to make the text apparent. 

Further, the hyperlink to the terms of service [was] 

underlined, but it [was] not set apart in any other way that 

may [have] draw[n] the attention of the consumer, such as 

with blue text or capital letters.” 289 Cal. Rptr. 3d at 29.

Here, the very small text is nonetheless apparent, and the 

underscored hyperlinks are capitalized, though in title case, 

not all caps.5

Although the notices here are relatively more 

conspicuous than the one at issue in Sellers—to say nothing 

5 Sellers does not explain whether its reference to “capital letters” in 

hyperlinks refers to title case or all caps. See 289 Cal. Rptr. 3d at 29

(stating that an underscored hyperlink was insufficiently conspicuous in 

part because it was not “set apart in any other way that may draw the 

attention of the consumer, such as with blue text or capital letters”). We 

can infer that Sellers meant all caps because the court also found the 

hyperlinks in the website’s mobile device version insufficiently 

conspicuous, in part because the underscored and title case hyperlinks 

did not “otherwise draw the user’s attention in any way.” See id.; see also 

id. at 8 (quoting the mobile device hyperlinks as “Terms of Service” and 

“Privacy Policy”).
BERMAN V. FREEDOM FINANCIAL NETWORK 37

of Long, where the terms of use were buried at the bottom of 

the relevant webpages—I agree with my colleagues that 

these notices are still insufficiently conspicuous. Under 

Sellers, we must hold defendants to the most exacting 

standard because the transactions at issue were one-off, and 

for that reason the much smaller size of the notices compared 

to the surrounding text independently suffices to find the 

notices insufficiently conspicuous. As my colleagues 

correctly observe, “[t]he comparatively larger font used in 

all of the surrounding text naturally directs the user’s 

attention everywhere else.” Ante at 13. The comparative size 

of the text is critical because it suggests the designer’s intent 

to minimize the user’s attention to the terms and conditions. 

In this case involving one-off transactions, reasonably 

prudent users of defendants’ sites are unlikely to be on the 

lookout for fine print.6

Moreover, at least on the page Hernandez allegedly 

viewed, ante at Appendix A, an intervening graphical 

element (an “I agree” button through which a user consents 

to receiving daily emails) is confusingly placed so that a user 

who does notice the reference to the terms and conditions 

might think it necessary to click “I agree” before continuing 

with the transaction. On the page Hernandez allegedly 

viewed the crucial text is, to use the Sellers court’s 

formulation, “not immediately adjacent to” the button the 

user must click to proceed with the transaction. This is an 

6 On the other hand, if defendants’ websites invited ongoing 

dealings, Sellers suggests that reasonably prudent users would expect 

there to be terms and conditions or fine print. It therefore follows in such 

cases that a textual notice could be somewhat smaller than adjoining text 

or the relevant button, provided (as discussed below) the notice is 

immediately adjacent to the relevant button or box. But see above note 4.
38 BERMAN V. FREEDOM FINANCIAL NETWORK

independent reason to find the notice in the website 

identified as Appendix A insufficiently conspicuous.

B

As discussed above, Long endorsed Nguyen’s conclusion 

that “a textual notice” is “required to advise consumers that 

continued use of a Web site will constitute the consumer’s 

agreement to be bound by the Web site’s terms of use.” 

200 Cal. Rptr. 3d at 126 (citing Nguyen, 763 F.3d at 1178–

79); see also Sellers, 289 Cal. Rptr. 3d at 25 (observing that 

website owners must “eliminate any uncertainty as to the 

consumer’s notice of contractual terms and assent to those 

very terms”) (emphasis added). To that end, Sellers explains 

that the defining feature of sign-in wrap is that “the sign-up 

screen states that acceptance of a separate agreement is 

required before the user can access the service.” Id. at 15.

Sellers does not explain what form that statement must 

take, but Nguyen noted that the hyperlink’s mere proximity 

to the relevant button is not enough without “something 

more to capture the user’s attention and secure her consent” 

like a text warning that stated, “By clicking and making a 

request to Activate, you agree to the terms and conditions 

. . . .” 763 F.3d at 1179 n.1 (emphasis added). That is a useful 

example for sign-in wrap agreements because Sellers

requires that the user’s action of accessing the service or 

completing the transaction be linked to acceptance of the 

site’s terms and conditions.

Thus, I agree with my colleagues that, for an otherwise 

conspicuous notice to be effective, it must be unambiguously 

tied to some act of the website user that manifests assent to 

the site’s terms and conditions. Here, neither notice passes 

that test. They only imply—rather than explicitly state—that 

consumers signify such assent by clicking the greenish 
BERMAN V. FREEDOM FINANCIAL NETWORK 39

button with the word “Continue.” Neither one says, for 

example, “By clicking CONTINUE, I agree to the Terms & 

Conditions which includes mandatory arbitration and 

Privacy Policy,” or even “By continuing with this 

transaction, I agree . . .” See Beland v. Expedia, Inc., No. 

C086061, 2021 WL 3046742, at **6–7 (Cal. App. July 20, 

2021) (in unpublished decision7 finding sign-in wrap8

enforceable, twice noting the inclusion of the words “[b]y 

selecting to complete this booking” in the relevant notice). 

Under Long and Sellers, the sign-in wrap agreements here 

are not enforceable because even apart from their 

insufficient conspicuousness, the relevant notices do not 

expressly advise users that clicking “Continue” signifies 

assent to the sites’ arbitration provisions and other terms and 

conditions. Such express warnings are necessary to 

“eliminate any uncertainty as to the consumer’s . . . assent to 

those very terms.” Sellers, 289 Cal. Rptr. 3d at 25.

* * *

7 “[W]e may consider unpublished state decisions, even though such 

opinions have no precedential value.” Emps. Ins. of Wausau v. Granite 

State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003). Unlike published 

decisions of the Court of Appeal, however, “we are not bound by them.” 

Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935, 942 n.4 (9th Cir. 

1997).

8 The Beland court characterized the design at issue as “more like a 

browsewrap agreement.” 2021 WL 3046742, at *6. But the court only 

identified browsewrap and clickwrap as possible choices. Id. Viewed 

through the prism of Sellers—and Berkson, which the Beland court also 

cited—the design is more accurately classified as sign-in wrap because 

the Expedia screen notified the user that proceeding with booking also 

constituted consent to the hyperlinked terms and conditions. See id.

at *14 (screenshot).
40 BERMAN V. FREEDOM FINANCIAL NETWORK

For the foregoing reasons, I concur in affirming the 

decision below.