NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN BOSHEARS, on behalf of himself 

and all others similarly situated, 

Plaintiff-Appellee, 

 v. 

PEOPLECONNECT, INC., 

Defendant-Appellant.

No. 22-35262 

D.C. No. 2:21-cv-01222-MJP 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted July 13, 2023

San Francisco, California

Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.

Defendant-Appellant PeopleConnect, Inc., appeals the district court’s denial 

of its motion to compel arbitration against Plaintiff-Appellee John Boshears. We 

have jurisdiction. 9 U.S.C. § 16(a). We vacate the district court’s order denying the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 3 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

motion to compel arbitration and remand with instructions for the district court to 

allow arbitration-related discovery to proceed.1

For the same reasons articulated in Knapke v. PeopleConnect, 38 F.4th 824, 

832–33 (9th Cir. 2022), we conclude that the district court abused its discretion in 

denying PeopleConnect’s motion to compel arbitration without first allowing for 

arbitration-related discovery, see Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th

Cir. 1999) (explaining that the denial of arbitration-related discovery is reviewed for 

abuse of discretion). Rather than restate the reasoning of Knapke here, we direct the 

district court to apply its holding on remand.

Boshears’s attempts to distinguish Knapke are unpersuasive. Boshears claims 

“[t]he record shows” that Benjamin Osborn did not know Boshears “in 2019 and did 

not begin representing him until 2021.” There is no evidence in the record supporting 

this proposition, and the district court erred in concluding otherwise. Boshears 

further represents that some of Osborn’s earlier member accounts on 

Classmates.com were purely for Osborn’s personal use. Again, that is not a fact in 

evidence.2 Finally, Boshears claims—and the district court concluded—that Osborn 

1 We address the parties’ arguments regarding the Communications Decency 

Act, 47 U.S.C. § 230, in an opinion filed concurrently with this memorandum 

disposition. 

2 We note that Osborn submitted a declaration in support of his opposition to 

PeopleConnect’s motion to compel arbitration. In that declaration, Osborn did not 
3 

validly opted out on his behalf. But Osborn’s opt-out notice was plainly ineffective 

as to Boshears because it did not include Boshears’s signature, name, address, e-mail 

address, or phone number. Accordingly, Knapke is indistinguishable.

We provide some guidance for proceedings on remand. First, the district court 

is instructed to apply Washington contract and agency law. See Knapke, 38 F.4th at 

832. If PeopleConnect can prove that Osborn became Boshears’s agent before

Osborn created one or more of the member accounts, see id. at 832–33; Riss v. Angel, 

934 P.2d 669, 683 (Wash. 1997) (requiring that the ratifiable act have been “done or 

professedly done on” behalf of the principal (citation omitted)), and if it can prove 

that Boshears knowingly accepted a benefit from, failed to repudiate, or exhibited 

conducting adopting that or those member account(s), see Hoglund v. Meeks, 170 

P.3d 37, 46 n.7 (Wash. Ct. App. 2007), Boshears may be bound by Osborn’s 

agreement to arbitrate.

Second, and in a similar vein, Knapke explained how an attorney should fulfill 

his Rule 11 obligations, see Fed. R. Civ. P. 11, without binding his client to 

PeopleConnect’s arbitration clause. 38 F.4th at 836. We clarified that to avoid the 

arbitration requirement of the Terms of Service (“TOS”), an attorney should create 

an account on behalf of a client and then opt out of arbitration on that client’s behalf. 

specify when he met Boshears or for what purpose his first five accounts were used. 

Even had Osborn’s declaration included such information, discovery might reveal 

otherwise.
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Id. Osborn’s personal accounts (if any) are therefore irrelevant. Knapke requires the 

district court to examine the relationship between Boshears and any given member 

account created or used by Osborn on Boshears’s behalf.

Third, the Terms of Service (“TOS”) also contain two provisions related to 

the required timing of the opt-out notice. 

If opting out for yourself, this notice must be sent within 

thirty (30) days of your first use of the Services . . . .

If opting out as an agent for another user, this notice must 

be sent within (30) [sic] days of that other user’s first use 

of the Services . . . .

Citing the first provision above, PeopleConnect argues that Osborn’s opt-out notice 

was untimely because Osborn did not opt out within thirty days of Osborn’s first 

use. But that provision applies only if Osborn is opting out on his own behalf. Thus, 

it does not inform whether he timely opted out on Boshears’s behalf. We urged the 

parties to address the second provision above at oral argument, see Dkt. No. 50, but 

neither party did so in a meaningful manner. Thus, we do not address the proper 

interpretation of the second timing provision because the parties do not address it

and because it is unnecessary to the disposition of this appeal.

Fourth, PeopleConnect contends that Boshears is bound by the arbitration 

clause because Osborn violated the TOS in creating an account on his behalf. In 

making this argument, PeopleConnect cites the TOS’s “Community Standards,” 

which prohibit members from creating multiple memberships, impersonating others, 
5 

or registering on behalf of others. But a violation of the Community Standards 

merely allows PeopleConnect to take actions “such as issuing warnings, removing 

the Content, or suspending or terminating accounts.” It does not allow 

PeopleConnect unilaterally to bind a third party to an arbitration clause. Thus, 

Osborn’s alleged breach does not automatically bind Boshears to the provisions of 

the TOS.

Finally, PeopleConnect claims that it should be allowed to conduct discovery 

on whether Osborn acted with the implied actual authority of Boshears in agreeing 

to the TOS. We do not order such discovery on appeal in the first instance because 

PeopleConnect did not raise this theory before the district court. See El Paso City v. 

Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000). On remand, the district 

court may allow such discovery, in its discretion.

For the foregoing reasons, we vacate the district court’s order denying 

PeopleConnect’s motion to compel arbitration, and remand with instructions for 

arbitration-related discovery to proceed. Each party shall bear its own costs on 

appeal. See Fed. R. App. P. 39(a)(4); Ninth Cir. Gen. Order 4.5(e).

DISMISSED IN PART, VACATED IN PART, AND REMANDED.