Hi, CIPAWorld! Kelly Sandberg here, with a case on how website’s arbitration agreements should provide reasonably conspicuous notice to its users in order to be enforceable.
In the case of Sam Cacas v. Redfin Corporation, the United States District Court for the Northern District of California granted defendant Redfin’s motion to compel arbitration based on the conspicuity of Redfin’s notice of their arbitration agreement and undisputed evidence of an account substantially matching Plaintiff’s information. Sam Cacas v. Redfin Corporation, No. 26-cv-04566-MMC, 2026 WL 2200413 (N.D. Cal., July 30, 2026).
Redfin owns and operates the website http://www.redfin.com, displaying property listings. Plaintiff Sam Cacas alleged that when users visited Redfin’s website, several trackers and cookies were then installed on the website visitor’s internet browsers for Redfin to collect that user’s identifying information, and other data points that would reveal the users’ behavior and activity on the website. Cacas alleged that when he visited the website in March of 2026 to view a property, he was subjected to these trackers and cookies that resulted in unwanted and intrusive communications by would-be advertisers.
Under the Federal Arbitration Act, contractual arbitrations agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The court applied the case of Chiron Corp. v. Ortho Diagnostic Sys. Inc. regarding their limitations under the act and noted that they were “limited to determining (1) whether a valid agreement to arbitrate exists, and if it does, (2) whether the agreement encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys. Inc. 207 f.3D 1126, 1130 (9th Cir. 2000).
The court agreed with Redfin in contending that a valid arbitration agreement existed between the parties by their provision of the arbitration clause contained in the “Terms of Use” on the Redfin website. The “Terms of Use” provided in part: “[Y]ou and the Redfin Companies agree that any Claim between you and any Redfin Company or Redfin Companies will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding.” The court agreed with Redfin that the arbitration agreement existed between Cacas and Redfin because Cacas was a Redfin accountholder who had agreed to individual arbitration pursuant to Redfin’s Terms of Use when creating an account.
Further, the court applied state-law contract formation principles under California law in determining the arbitration agreements enforcement. “‘Unless the website operator can show that a consumer has actual knowledge of the agreement,’ however, ‘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 consumers takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.” Berman v. Freedom Fin. Network, LLC 30 F.4th 849, 855-56 (9th Cir. 2022).
Redfin contended that Cacas’s affirmative consent occurred at the time of his Redfin account creation and by signing into his account. However, Cacas disagreed, providing that he lacked reasonably conspicuous notice of the terms.
The court applied the case of Keebaugh v. Warner Bros Entertainment Inc., in order to determine the required level of conspicuity. “To be conspicuous, 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.” Keebaugh v. Warner Bros Entertainment Inc., 100 F.4th 1005, 1013-14 (9th Cir. 2024). “While terms may be disclosed through hyperlinks, the presence of a hyperlink must be readily apparent.” Id.
The court determined that Redfin’s textual notice disclosing the existence of their “Terms of Use” was reasonably conspicuous based on the “Terms of Use” being hyperlinked in blue, bolded text underneath a “Continue” button on a pop-up window that appears after website users are required to click “Join /Sign in” to access Redfin’s website.
Cacas further contended that even assuming reasonably conspicuous notice was provided, Redfin had failed to meet their burden of proof by not producing click logs, sign-up logs, login audit trails, IP address or further data. However, Cacas cited no authority suggesting Redfin was required to do so and the court found to the contrary instead. The court followed the ruling in Maus v. Hyundai Motor America, where the court granted a motion to compel arbitration when plaintiff “[did] not introduce any competing evidence or even directly deny that he completed the [account] enrollment form.” Maus v. Hyundai Motor America, 2026 WL 974512, at *3 (N.D. Cal. April 10, 2026).
Redfin’s business records also reflected a website account registered in the name of ‘S Carcas,’ which was associated with a phone number in the San Francisco Bay Area and an email address including the name ‘sam’ in the username. Because the undisputed evidence of the creation of a Redfin account substantially matched Plaintiff Sam Cacas’s first name, last name, and geographic region, the court found that Redfin had met their burden in proving Cacas’s agreement to arbitrate.
The important takeaway here is that companies must ensure their arbitration clauses are reasonably conspicuous to their website users in order to meet primary enforcement requirements.