Moyer v. Chegg, Inc., No. 4:2022cv09123 - Document 25 (N.D. Cal. 2023)
Court Description: ORDER GRANTING MOTION TO COMPEL ARBITRATION AND STAYING CASE by Judge Jeffrey S. White granting 16 Motion to Compel. (kkp, COURT STAFF) (Filed on 7/25/2023)
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Moyer v. Chegg, Inc. Doc. 25 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 1 of 13 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA United States District Court Northern District of California 11 12 SHERI MOYER, individually and on behalf of all others similarly situated, 14 ORDER GRANTING MOTION TO COMPEL ARBITRATION AND STAYING CASE Plaintiff, 13 Case No. 22-cv-09123-JSW v. Re: Dkt. No. 16 15 16 17 CHEGG, INC., a Delaware corporation; and DOES 1 to 10, inclusive, Defendants. 18 19 Now before the Court for consideration is the motion to compel arbitration filed by Chegg, 20 Inc. (“Chegg”). Having reviewed the parties’ papers, relevant legal authority, and record in this 21 case, the Court hereby GRANTS the motion to compel arbitration and STAYS all further litigation 22 pending the completion of arbitration. 23 BACKGROUND 24 Defendant Chegg is a leading online learning platform that provides students with 25 educational materials, including textbooks for sale or rent. (Dkt. No. 16-2, Declaration of Wentao 26 Xu (“Xu Decl.”) ¶ 2.) Since 2016, to use Chegg’s services, a user must create a Chegg account 27 and agree to Chegg’s Terms of Use (“TOUs”) by clicking the “Create account” button. (Id. ¶¶ 3, 28 4.) Chegg makes its TOUs available to its users on its “Create an account” pop-up screen: Dockets.Justia.com Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 2 of 13 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 (Id. ¶¶ 4, 9.) On this screen, a user must click the “Create account” button to create a Chegg account. 14 (Id. ¶ 9.) Immediately below the “Create account” button is a notice that states: “We respect your 15 privacy. By clicking “Create account” you agree to the Terms of use and Privacy Policy.” (Id.) 16 The notice appears in black font against a white background with the phrases, “Terms of Use” and 17 “Privacy Policy,” appearing in blue, hyperlinked text. (Id. ¶¶ 5, 9.) A user who clicks the 18 hyperlinked TOUs on the “Create an account” pop-up screen is given access to those terms. (Id. ¶ 19 5.) A disclaimer appears in bold and all-caps towards the top of the TOUs that states: 20 “IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE, AS THEY 21 AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.” (Id., Ex. A at 006.) Relevant 22 here is the thirty-first section labeled “Dispute Resolution,” which is also referred to as the 23 “Arbitration Agreement.” The agreement states, in relevant part, that: 24 25 26 27 28 Accordingly, you and Chegg agree that any dispute, claim or controversy between us arising out of or related to the Terms of Use or the breach, termination, enforcement, interpretation or validity thereof, of the Services or your use of the Services (collectively, “Disputes”) will be finally settled by individual binding arbitration in accordance with this “Dispute Resolution” section, and not in a court of law. This “Dispute Resolution” section shall also be referred to as the “Arbitration Agreement.” 2 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 3 of 13 1 United States District Court Northern District of California 2 (Id. at 020.) The first page of Chegg’s TOUs also contains an “ARBITRATION NOTICE.” (Id. at 3 006.) The notice contains a class action waiver in bold and all-caps, stating “YOU AGREE 4 THAT DISPUTES BETWEEN YOU AND CHEGG WILL BE RESOLVED BY BINDING, 5 INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN 6 A CLASS ACTION LAWSUIT OR CLASSWIDE ARBITRATION.” (Id.) 7 Chegg allows users to “opt out of arbitration” by providing written notice to Chegg within 8 30 days of first receiving the TOUs. (Id. at 020.) The “Dispute Resolution” section of the TOUs 9 states, “If you do not provide Chegg with an Arbitration Opt-out Notice within this thirty (30) day 10 period, you will be deemed to have knowingly and intentionally waived your right to litigate any 11 Dispute in court except as expressly set forth with respect to individual actions in small claims 12 courts.” (Id.) 13 The American Arbitration Association’s (“AAA”) rules, including the AAA’s 14 “Commercial Arbitration Rules,” are incorporated into the Arbitration Agreement. (Id. at 021.) 15 Those rules state: the “arbitrator shall have the power to rule on his or her own jurisdiction, 16 including any objections with respect to the existence, scope, validity of the arbitration agreement 17 or to the arbitrability of any claim or counterclaims” and the “arbitrator shall have the power to 18 determine the existence or validity of a contract of which an arbitration clause forms a part.” 19 AAA Commercial Arbitration Rules, R-14(a), (b). The AAA rules are not provided in the 20 arbitration agreement but are accessible on the AAA’s website, www.adr.org. (Id.) 21 On or about August 29, 2022, Plaintiff Sheri Moyer purchased an “e-textbook” from 22 Chegg’s website, www.chegg.com. (Dkt. No. 1, Compl. ¶ 13.) Plaintiff alleges after her “e- 23 textbook” purchase, Chegg enrolled her into an automatic renewal subscription that charged her 24 $19.99 on October 17, 2022. (Id.) Plaintiff alleges she was unknowingly enrolled in Chegg’s “e- 25 textbook” automatic renewal and continuous service offer in violation of California Consumer 26 Legal Remedies Act, California Civil Code section 1750 et seq., and California’s Unfair 27 Competition Law, California Business and Professions Code section 17200, et seq. (Id. ¶¶ 1-4.) 28 Plaintiff brings this case on behalf of herself, and all persons similarly situated. (Id. ¶ 23.) She 3 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 4 of 13 1 seeks certification of the following class, “All persons in the United States who purchased a 2 product or service from Chegg as part of an automatic renewal plan or continuous service offer 3 within the four years prior to the filing of this Complaint.” (Id.) Chegg now moves the Court to compel Plaintiff to arbitrate her claims. The Court will 4 5 address additional facts as necessary in the analysis. 6 7 ANALYSIS A. Pursuant to the Federal Arbitration Act (“FAA”), arbitration agreements “shall be valid, 8 United States District Court Northern District of California 9 Applicable Legal Standard. irrevocable, and enforceable, save upon such grounds that exist at law or in equity for the 10 revocation of any contract.” 9 U.S.C. § 2. A court must “stay judicial proceedings and compel 11 arbitration of claims covered by a written and enforceable arbitration agreement.” Nguyen v. 12 Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014) (citing 9 U.S.C. § 3). “By its terms, the 13 [FAA] leaves no place for the exercise of discretion by a district court[.]” Dean Witter Reynolds, 14 Inc. v. Byrd, 470 U.S. 213, 218 (1985) (citing 9 U.S.C. §§ 3, 4). The FAA reflects a “liberal 15 federal policy favoring arbitration, and the fundamental principle that arbitration is a matter of 16 contract.” AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal quotation 17 marks and citations omitted). A court’s role is thus limited to determining two issues: “whether a 18 valid arbitration agreement exists, and whether the agreement encompasses the disputes at issue.” 19 Nguyen, 763 F.3d at 1175. “If the response is affirmative on both counts, then the [FAA] requires 20 the court to enforce the arbitration agreement in accordance with its terms.” Chiron Corp. v. 21 Ortho Diagnostic Sys., 207 F.3d 1126, 1130 (9th Cir. 2000). Here, the parties do not dispute that Chegg’s arbitration agreement, should it be found 22 23 enforceable, encompasses Plaintiff’s claims. The issue is whether a valid arbitration agreement 24 exists. 25 B. 26 An Arbitration Agreement Exists Between Plaintiff and Chegg. Chegg argues the Court must compel arbitration because the Arbitration Agreement 27 delegates arbitrability disputes to the arbitrator and incorporates the AAA’s Commercial 28 Arbitration Rules. Plaintiff disagrees. She asserts that before the Court can assess whether these 4 United States District Court Northern District of California Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 5 of 13 1 issues were properly delegated, the Court must determine if an arbitration agreement exists. 2 Plaintiff contends no such agreement exists because (1) Chegg did not put Plaintiff on inquiry 3 notice of its Arbitration Agreement and (2) Plaintiff did not unambiguously manifest her assent to 4 arbitration. 5 1. 6 The incorporated AAA Commercial Arbitration Rules state that the “arbitrator shall have The Court Decides Whether an Arbitration Agreement Exists. 7 the power to rule on his or her jurisdiction, including any objections with respect to the existence, 8 scope, or validity of the arbitration agreement[.]” AAA Commercial Arbitration Rules, R-14(a) 9 (emphasis added). The next question is who determines whether an arbitration agreement exists – 10 a court or an arbitrator – when the AAA Commercial Arbitration Rules are incorporated in a 11 delegation provision of the Arbitration Agreement. 12 Generally, parties can agree to arbitrate threshold issues concerning the arbitration 13 agreement because it “is simply an additional, antecedent agreement[.]” Rent-A-Center, West, Inc. 14 v. Jackson, 561 U.S. 63, 70 (2010). However, a court should not “assume that the parties agreed 15 to arbitrate arbitrability unless there is ‘clear and unmistakable’ evidence that they did so.” First 16 Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (alterations omitted) (quoting AT & 17 T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986)). Many courts, though not 18 all, have held that the incorporation of the AAA consumer rules into an agreement is clear and 19 unmistakable evidence of the parties’ intent to arbitrate arbitrability. See, e.g., JPay, Inc. v. Kobel, 20 904 F.3d 923, 936-37 (11th Cir. 2018); Cordas v. Uber Techs., Inc., 228 F. Supp. 3d 985, 992 21 (N.D. Cal. 2017); cf. Brennan v. Opus Bank, F.3d 1125, 1130 (9th Cir. 2015) (holding that 22 incorporation of the AAA rules into an employment contract constituted “clear and unmistakable 23 evidence that contracting parties agreed to arbitrate arbitrability”). 24 While parties can typically delegate threshold issues such as validity and scope, a party 25 who “contests the making of a contract containing an arbitration provision cannot be compelled to 26 arbitrate the threshold issue of the existence of an agreement to arbitrate. Only a court can make 27 that decision.” Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1140-41 28 (9th Cir. 1991) (emphasis in original). Indeed, Section 4 of the FAA mandates a court be satisfied 5 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 6 of 13 1 that an arbitration agreement exists before compelling arbitration. 9 U.S.C. § 4 (“[U]pon being 2 satisfied that the making of the agreement for arbitration . . . is not in issue, the court shall make 3 an order directing the parties to proceed to arbitration in accordance with the terms of the 4 agreement.”). United States District Court Northern District of California 5 Numerous circuit and district courts that have addressed this same threshold issue have 6 reached the same conclusion. See, e.g., MZM Constr. Co., Inc. v. New Jersey Building Laborers 7 Statewide Benefit Funds, 974 F.3d 386, 402 (3d Cir. 2020); In re: Automotive Parts Antitrust 8 Litig., 951 F.3d 377, 385-86 (6th Cir. 2020); Berkeley Cty. Sch. Dist. v. Hub Int’l Ltd., 944 F.3d 9 225, 234 (4th Cir. 2019); Lloyd’s Syndicate 457 v. FloaTEC, LLC., 921 F.3d 508, 514-16 (5th Cir. 10 2019); Nebraska Mach. Co. v. Cargotec Sols., LLC, 762 F.3d 737 & n.2 (8th Cir. 2014); Taboada 11 A. v. AmFirst Ins. Co., No. 3:18-CV-883TSL-RHW, 2019 WL 3604613, at *3 (S.D. Miss. Aug. 6, 12 2019); CCC Info. Servs. Inc. v. Tractable Inc., No. 18-C-7246, 2019 WL 2011092, at *2 (N.D. Ill. 13 May 7, 2019); King v. AxleHire, Inc., No. 18-cv-01621-JD, 2019 WL 1925493, at *2 (N.D. Cal. 14 Apr. 30, 2019); Olivas v. Hertz Corp., No. 17-cv-01083-BAS-NLS, 2018 WL 1306422, at *4-5 15 (S.D. Cal. Mar. 12, 2018). 16 17 The Court thus concludes that it is for a court to decide whether an arbitration agreement exists even where a delegation provision submits this issue to an arbitrator. 18 2. 19 The Court must still determine whether an arbitration agreement exists between Plaintiff An Arbitration Agreement Exists Between Plaintiff and Chegg. 20 and Chegg. As the moving party, Chegg bears the burden of proving an arbitration agreement 21 exists by a preponderance of the evidence. See Norcia v. Samsung Telecomms. Am., LLC, 845 22 F.3d 1279, 1283 (9th Cir. 2017) (quoting Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th 23 Cir. 2014)). To determine whether the parties agreed to arbitrate, the Court applies ordinary state- 24 law principles that govern contract formation. First Options, 514 U.S. at 944. Here, California 25 law governs. To form a contract under California law, “there must be actual or constructive notice 26 of the agreement and the parties must manifest mutual assent.” Oberstein v. Live Nation Ent., 27 Inc., 60 F.4th 505, 512-13 (9th Cir. 2023) (citing Berman v. Freedom Financial Network, LLC, 30 28 F.4th 849, 855 (9th Cir. 2022)). “With the rapid growth of the internet and e-commerce, courts 6 United States District Court Northern District of California Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 7 of 13 1 have been required to apply these traditional contract principles to novel forms of agreement.” Id. 2 at 513; see Berman, 30 F.4th at 855-56 (“[E]lemental principles of contract formation apply with 3 equal force to contracts formed online.”) 4 The most “straightforward application of these principles . . . involves ‘clickwrap’ 5 agreements, in which a website presents users with specified contractual terms on a pop-up screen 6 and users must check a box explicitly stating ‘I agree’ in order to proceed.” See Oberstein, 60 7 F.4th at 513 (quoting Berman, 30 F.4th at 856). “Courts routinely find clickwrap agreements 8 enforceable.” Id. “At the other end of the spectrum are so-called ‘browsewrap’ agreements, in 9 which a website offers terms that are disclosed only though a hyperlink and the user supposedly 10 manifests assent to those terms simply by continuing to use the website.” Id. “Courts are more 11 reluctant to enforce browsewrap agreements because consumers are frequently left unaware that 12 contractual terms were even offered, much less that continued use of the website will be deemed 13 to manifest acceptance of those terms.” Id. “When an online agreement falls between these two 14 extremes, courts analyze mutual assent under an objective-reasonableness standard.” Id. Plaintiff contends the agreement at issue here is a “browsewrap agreement,” in which 15 16 Chegg’s website offers terms that are disclosed only through a hyperlink and require no 17 affirmative action from the website user indicating his or her consent to those terms. The Court 18 disagrees with Plaintiff’s characterization. The manner in which Chegg presents its TOUs on its 19 “Create an account” pop-up screen resembles what courts have termed: “modified” clickwrap 20 agreements.1 Under these agreements, users are notified of the existence of the website’s terms of 21 use and advises a user that by making some type of affirmative act, often by clicking a button, she 22 is agreeing to the terms of service. Meyer v. Uber Techs., Inc., 868 F.3d 66, 75-76 (2d Cir. 2017); 23 Peter v. Doordash, Inc., 445 F. Supp. 3d 580, 585 (N.D. Cal. 2020). Courts have found these 24 types of agreements valid “where the existence of the terms was reasonably communicated to the 25 user.” Meyer, 868 F.3d at 76 (collecting cases); see also Crawford v. Beachbody, LLC, No. 14-cv- 26 1583-GPC(KSC), 2014 WL 6606563, at *3 (S.D. Cal. 2014) (terms were blue and hyperlinked); 27 28 Some courts also refer to these types of agreements as “hybrid design” or “sign-in wrap” agreements. See, e.g., Colgate v. JUUL Labs, Inc., 402 F. Supp. 3d 728, 763 (N.D. Cal. 2019). 7 1 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 8 of 13 1 Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 835 (S.D.N.Y. 2012) (terms were underlined and 2 hyperlinked); Swift v. Zynga Game Network, 805 F. Supp. 2d 904, 911 (N.D. Cal. 2011) (terms 3 were blue and hyperlinked); Cairo, Inc. v. Crossmedia Servs., Inc., No. 04-cv-04825-JW, 2005 4 WL 756610, at *2 (N.D. Cal. Apr. 1, 2005) (terms were underlined and hyperlinked). By contrast, 5 courts are less willing to find a user has constructive notice when the terms are less conspicuous. 6 See, e.g., Oberstein, 60 F.4th at 515. 7 United States District Court Northern District of California 8 a. Constructive Notice. As discussed above, the Court may find an enforceable agreement where “(1) the website 9 provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) 10 the consumer takes some action, such as clicking a button or checking a box, that unambiguously 11 manifests his or her assent to those terms.” Id. (quoting Berman, 30 F.4th at 856). 12 To satisfy the first part of the test, “a notice must be displayed in a font size and format 13 such that the court can fairly assume that a reasonably prudent Internet user would have seen it.” 14 Id. The court examines “conspicuousness and placement of the ‘Terms of Use’ hyperlink, other 15 notices given to users of the terms of use, and the website’s general design” when determining 16 “whether a reasonably prudent user would have inquiry notice of a browsewrap agreement.” Id. 17 (quoting Nguyen, 763 F.3d at 1177). As discussed above, Chegg’s Terms are a “modified” 18 clickwrap agreement, a hybrid between a pure clickwrap agreement and pure browsewrap 19 agreement. 20 Chegg argues Plaintiff received constructive notice of and affirmatively agreed to Chegg’s 21 TOUs when she created a Chegg account. On the “Create an account” screen, a conspicuous 22 notice appears directly beneath the orange “Create account” button that a user must click to create 23 an account on Chegg’s website. (Xu Decl. ¶ 9.) The notice unambiguously states: “By clicking 24 Create account you agree to the Terms of use and Privacy Policy.” The notice appears in black 25 writing against a white background with the phrase, “Terms of use,” in blue, hyperlinked text. 26 Moreover, very minimal text or imagery appears on the same page. (Id.) Based on these facts, the 27 Court finds that a reasonable user would be placed on constructive notice of Chegg’s TOUs. 28 Chegg also submits evidence demonstrating that Plaintiff created a Chegg account on August 28, 8 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 9 of 13 1 2022. (Id. ¶ 11.) Chegg provides an image of the Chegg “Create an account” screen that 2 accurately reflects the “Create an account” screen encountered by Plaintiff when she created an 3 account. (Id. ¶ 9.) The Court concludes that Plaintiff received reasonable notice under these 4 circumstances. See, e.g., Lyles v. Chegg, Inc., No. CV RDB-19-3235, 2020 WL 1985043, at *4 5 (D. Md. Apr. 27, 2020) (concluding that the layout of Chegg’s Sign up page reasonably 6 communicated the Terms of Use). United States District Court Northern District of California 7 Plaintiff nevertheless argues she did not receive notice because Chegg’s TOUs appear at 8 the bottom of the “Create an account” screen, in small font, with nothing to call attention to them. 9 Plaintiff states that the TOUs are simply underscored and insufficient to alert a reasonably prudent 10 user that a clickable link exists. In support of that proposition, Plaintiff cites Berman, 30 F.4th at 11 856, and Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 453 (2021). 12 In Berman, the court found the agreement at issue to be invalid for failing to include 13 features that would alert a reasonable user to its existence. “[T]he [Berman] court emphasized that 14 the text disclosing the existence of the terms was printed in an inconspicuous tiny gray font and 15 found that the mere underlining of hyperlinked terms and conditions was ‘insufficient to alert a 16 reasonably prudent user that a clickable link exists.’” Oberstein, 60 F.4th at 516 (quoting Berman, 17 30 F.4th at 857). The court noted, however, that “[c]ustomary design elements denoting the 18 existence of a hyperlink include the use of a contrasting font color (typically blue) . . . which can 19 alert a user that the particular text differs from other plain text in that it provides a clickable 20 pathway to another webpage.” Berman, 30 F.4th at 857. 21 “In Sellers, a California appellate court similarly found a hybrid agreement invalid because 22 of the enforcing party’s failure to provide reasonably conspicuous notice of the agreement.” 23 Oberstein, 60 F.4th at 516. “There, too, the court emphasized the insufficiency of merely 24 underlining a hyperlink to an agreement, stating that it was ‘not set apart in any other way that 25 may draw the attention of the consumer, such as with blue text or capital letters.’” Id. (quoting 26 Sellers, 73 Cal. App. 5th at 481). “The court also considered ‘the context of the transaction’ and 27 the placement of the notice.” Id. (citing Meyer, 868 F.3d at 80). “Unlike a user who signs up for 28 an account and ‘clearly contemplate[s] some sort of continuing relationship,’ the users of the 9 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 10 of 13 1 website at issue were merely attempting to start a free trial, making it less likely that they would 2 ‘scrutin[ize] the page for small text outside the payment box or at the bottom of the screen linking 3 them to 26 pages of contractual terms.’” Id. United States District Court Northern District of California 4 The principles set out in Berman and Sellers support Chegg’s argument that its “Create an 5 account” pop-up screen contains features sufficient to provide reasonably conspicuous notice of 6 Chegg’s TOUs. In contrast to the agreements invalidated in Berman and Sellers, Chegg’s TOUs 7 were distinguished in bright blue, a clear indication of a hyperlink. The TOUs were also located 8 directly below the “Create account” action button. Also, “in contrast with the noncommittal free 9 trial offered in Sellers,” Plaintiff’s transaction required a full registration process, which reflected 10 the “contemplation of ‘some sort of continuing relationship’ that would have put users on notice 11 for a link to the terms of that continuing relationship.” Oberstein, 60 F.4th at 517 (quoting Sellers, 12 73 Cal. App. 5th at 477). 13 14 15 16 Accordingly, the Court finds Plaintiff here received constructive notice of Chegg’s TOUs, including the arbitration provision, when she created an account in August 2022. b. Unambiguous Manifestation of Assent. Next, this Court must determine whether Plaintiff took some action that unambiguously 17 manifested her assent to the agreement. Plaintiff claims that she did not unambiguously manifest 18 her assent, because she did not create a Chegg account by clicking on the “Create account” button, 19 instead clicking on the Google icon and bypassing the “Create an account” pop-up screen. (Dkt. 20 No. 20-1, Declaration of Sheri Moyer (“Moyer Decl.”) ¶¶ 5, 6.) Plaintiff further claims that she 21 never saw or clicked on the statement containing the TOUs, so therefore had “no knowledge of 22 Chegg’s Terms of Use, nor the arbitration provisions allegedly contained within them.” (Id. ¶ 7.) 23 Plaintiff also claims that when she “placed [her] order on Chegg’s website, [she] did not know that 24 Chegg was trying to get [her] to agree to arbitrate.” (Id. ¶ 8.) 25 Plaintiff’s argument that she did not manifest her assent because she never saw or clicked 26 on the hyperlink containing the TOUs and “did not know that Chegg was trying to get [her] to 27 agree to arbitrate” is a direct contradiction of contract law. “[A] party’s failure to read a contract, 28 or to carefully read a contract, before signing is no defense to the contract’s enforcement.” Desert 10 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 11 of 13 1 Outdoor Advert. v. Superior Court, 196 Cal. App. 4th 866, 872 (2011) (cited with approval in 2 Bulnes v. Suez WTS Servs. USA, Inc., No. 22-CV-1154-BAS-AHG, 2023 WL 3262938, at *13 3 (S.D. Cal. May 4, 2023)). “[C]ourts must presume parties understood the agreements they sign, 4 and that parties intended whatever the agreement objectively provides, whether or not they 5 subjectively did.” Roldan v. Callahan & Blaine, 219 Cal. App. 4th 87, 93 (2013) (cited with 6 approval in Bulnes, 2023 WL 3262938, at *13) 7 Plaintiff also argues that she did not click the “Create account” button, but instead clicked 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 the Google icon, which bypassed the “Create an account” pop-up screen. Chegg contends that 23 even if Plaintiff clicked on the Google icon to create a Chegg account, the pop-up screen continues 24 to display language disclosing the TOUs hyperlinked in blue font. (See Dkt. No. 23-1, Declaration 25 of Wentao Xu in Support of Reply (“Xu Reply Decl.”) ¶ 10.) Chegg proffers evidence that after 26 the Google account information is entered, the user is still required to click on the “Create 27 account” button with the same disclosure, “We respect your privacy. By clicking Create account 28 you agree to the Terms of use and Privacy Policy.” (Id. ¶ 11.) 11 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 12 of 13 1 (Id. ¶ 8.) The declaration of Wentao Xu submitted on reply is evidence that Plaintiff clicked the 2 3 “Create account” button and, indeed, that it would have been impossible for her to create an 4 account without doing so. In his original declaration, Xu also states that “[a]ccording to Chegg’s 5 records, Plaintiff did not use an Apple, Facebook or Google account to create her Chegg account.” 6 (Xu Decl. ¶ 10.) Xu attests that he is responsible for Chegg’s product platform and architecture, 7 including the “Create an account” screen, and is familiar with Chegg’s business records. (Id. ¶ 1.) 8 Plaintiff declared under penalty of perjury that she “never clicked the ‘Create account’” option; 9 instead she clicked on the Google icon, which bypassed the account setup screen. (Moyer Decl. ¶¶ United States District Court Northern District of California 10 5, 6.) 11 A motion to compel arbitration is akin to a motion for summary judgment, because the 12 district court’s order compelling arbitration “is in effect a summary disposition of the issue of 13 whether or not there had been a meeting of the minds on the agreement to arbitrate.” Hansen v. 14 LMB Mortgage Services, Inc., 1 F.4th 667, 670 (9th Cir. 2021) (quoting Par-Knit Mills, Inc. v. 15 Stockbridge Fabrics Co., 636 F.2d 51, 54 n.9 (3d Cir. 1980)). “To prevail under the summary 16 judgment standard, Defendant must show there is no genuine issue as to any material fact 17 regarding formation of the arbitration contract.” Harris v. DoorDash, Inc., No. 21-CV-09445- 18 JSC, 2023 WL 3324688, at *2 (N.D. Cal. May 9, 2023). In Harris, DoorDash provided a 19 screenshot of the company’s sign-up process that showed plaintiff must have clicked “Get Started” 20 to create a DoorDash account and agree to the arbitration clause. The screenshot was provided as 21 evidence in a motion to compel arbitration. The plaintiff argued that he never signed an 22 arbitration. The district court ruled that DoorDash showed there was “no genuine issue as to any 23 material fact regarding formation of the arbitration contract.” 2023 WL 3324688, at *2. 24 Here, based on the evidence submitted, there is no genuine issue of fact concerning 25 Plaintiff’s assent to Chegg’s TOUs. The “Create an account” screenshot submitted by Chegg 26 demonstrates that Plaintiff must have clicked “Create account” even if using the Google icon 27 option. Plaintiff’s sole reliance upon her declaration does not dictate otherwise. 28 The Court concludes Plaintiff received constructive notice of the arbitration agreement and 12 Case 4:22-cv-09123-JSW Document 25 Filed 07/25/23 Page 13 of 13 1 assented to its terms by clicking the “Create account” button when she created her Chegg account. 2 Accordingly, an arbitration agreement exists between Plaintiff and Chegg. 3 CONCLUSION 4 For the reasons stated, the Court GRANTS Chegg’s motion to compel arbitration and 5 STAYS all further litigation pending completion of arbitration. The parties shall file a joint status 6 report every 180 days apprising the Court of the status of the arbitration proceedings, including 7 when the stay may be lifted. The parties shall alert the Court within five court days of the 8 completion of arbitration. 9 10 United States District Court Northern District of California 11 12 IT IS SO ORDERED. Dated: July 25, 2023 ______________________________________ JEFFREY S. WHITE United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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