Charissa Keebaugh v. Warner Bros. Entertainment Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHARISSA KEEBAUGH; No. 22-55982
STEPHANIE NEVEU; HEATHER
MERCIERI; SOPHIA NICHOLSON; D.C. No.
P.W., by and through his Guardian 2:22-cv-01272-
JOIE WEIHER; on behalf of MEMF-AGR
themselves and all others similarly
situated,
OPINION
Plaintiffs-Appellees,

v.

WARNER BROS.
ENTERTAINMENT INC., a
Delaware corporation,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Maame Ewusi-Mensah Frimpong, District Judge, Presiding

Argued and Submitted January 12, 2024
Pasadena, California

Filed April 26, 2024
2 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

Before: Richard C. Tallman and Mark J. Bennett, Circuit
Judges, and Robert S. Lasnik, * District Judge.

Opinion by Judge Bennett

SUMMARY **

Arbitration

The panel reversed the district court’s order denying
Warner Bros. Entertainment Inc.’s motion to compel
arbitration pursuant to the Terms of Service in a mobile
application Game of Thrones: Conquest (“GOTC”).
Plaintiffs filed a putative class action against Warner
Bros. alleging false and misleading advertising within
GOTC. Warner Bros. moved to compel arbitration of all
claims, which the district court denied because Warner Bros.
failed to provide reasonably conspicuous notice of its Terms
of Service.
The GOTC has a “sign-in wrap agreement” where users
are required to advance through a sign-in screen which states
“By tapping ‘Play,’ I agree to the Terms of Service.” Under
California law, a sign-in wrap agreement may be an
enforceable contract based on inquiry notice if the website
provides reasonably conspicuous notice of the terms, and the

*
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 3

consumer takes some action that unambiguously manifests
assent to those terms. Berman v. Freedom Fin. Network,
LLC, 30 F.4th 849 (9th Cir. 2022).
The panel held that the district court erred in finding that
Warner Bros. failed to provide reasonably conspicuous
notice. The district court focused almost exclusively on
whether the context of the transaction put Plaintiffs on notice
that they were agreeing to the Terms of Service. To the
extent that the district court treated this factor as dispositive,
that holding was erroneous. A court must look to both “the
context of the transaction” and the “placement of the notice”
when conducting a Berman review. Warner Bros. succeeded
on both counts. The GOTC satisfied the context-of-the-
transaction test from Sellers v. JustAnswer LLC, 289 Cal.
Rptr. 3d 1, 15 (Cal. Ct. App. 2021), and the notice was
conspicuous and put the reasonable user on notice that they
were agreeing to be bound by the Terms of Service.
The panel rejected Plaintiffs’ argument that the
arbitration agreement was rendered unconscionable by its
ban on public injunctive relief. The panel held that the
Terms of Service impermissibly foreclosed the opportunity
to seek public injunctive relief in any forum, and this
provision thus violated the McGill rule and was
unenforceable in California. But unenforceable is not the
same as unconscionable. The panel concluded that the
unenforceability of the waiver of one’s right to seek public
injunctive relief did not make either this provision or by
extension the arbitration agreement unconscionable or
otherwise unenforceable.
4 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

COUNSEL

Raphael Janove (argued), Janove PLLC, New York, New
York; Karl S. Kronenberger, Kronenberger Rosenfeld LLP,
San Francisco, California; Alison Borochoff-Porte and
Adam Pollock, Pollock Cohen LLP, New York, New York;
Jay Kumar, Jay Kumar Law, Chicago, Illinois; Liana R.
Vitale, San Luis Obispo, California; for Plaintiffs-Appellees.
Christopher Chorba (argued), Jeremy S. Smith, Patrick J.
Fuster, and Adrienne M. Liu, Gibson Dunn & Crutcher LLP,
Los Angeles, California, for Defendant-Appellant.
Glenn A. Danas and Katelyn M. Leeviraphan, Clarkson Law
Firm PC, Malibu, California; for Amici Curiae Dr. Colin
Gray, Dr. Woodrow Hartzog, J,D., and Johanna Gunawan,
M.S..
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 5

OPINION

BENNETT, Circuit Judge:

Plaintiffs are a group of individuals, including a minor,
who filed a putative class action against Defendant Warner
Bros. Entertainment, Inc (“Warner Bros.”) for its alleged
misrepresentations related to the mobile application (“app”),
Game of Thrones: Conquest (“GOTC”). Warner Bros.
moved to compel arbitration pursuant to the GOTC Terms
of Service, which users agree to by tapping a “Play” button
located on the app’s sign-in screen. The district court found
the notice of the Terms of Service was insufficiently
conspicuous to bind users to them, and accordingly denied
Warner Bros.’ motion to compel arbitration. Warner Bros.
now appeals, asserting that the district court’s determination
was erroneous. We agree and reverse and remand. We also
address one other issue fully briefed by the parties: whether
the arbitration agreement’s bar on public injunctive relief
renders the agreement and/or its arbitration provision
substantively unconscionable or otherwise unenforceable.
We hold that it does not.
Background
Users can download GOTC through the Apple App Store
or Google Play Store. GOTC involves developing a castle,
raising dragons, and defending against invasions by other
players. Players can expedite their game progression by
purchasing in-app resources, such as gold, building
materials, and dragon food. When opening the app for the
first time, users see a starting screen. While the background
artwork has varied, GOTC has historically used one of the
following sign-in screen layouts:
6 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

2019 Version
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 7

2020 Version
8 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

The 2019 Version appeared until December 2019 and
was then replaced by the 2020 Version. 1 Below the Play
button, the app informs users that by pressing the Play
button, they agree to the Terms of Service (also known as
Terms of Use depending on the app version). Below this are
two distinct interactable boxes—one, labeled “Privacy
Policy,” which hyperlinks players to a separate “Privacy
Policy” when pressed, and the second, labeled “Terms of
Service,” which hyperlinks players to the full text of the
Terms of Service when pressed. Users cannot access the
game until they press the Play button. But, users do not have
to individually view or accept the Privacy Policy or Terms
of Service before pressing Play.
The first paragraph of the Terms of Service for the 2019
Version reads:

PLEASE READ THESE TERMS OF USE
(“Terms,” “Terms of Use,” or “Agreement”)
CAREFULLY—THEY AFFECT YOUR
LEGAL RIGHTS AND OBLIGATIONS,
AND INCLUDE WAIVERS OF RIGHTS,
LIMITATIONS OF LIABILITY, AND
YOUR INDEMNITY TO US. THESE
TERMS ALSO REQUIRE THE USE OF
ARBITRATION ON AN INDIVIDUAL
BASIS TO RESOLVE DISPUTES,

1
The sign-in screen has since changed, but this dispute arises solely from
action taken under either the 2019 Version or the 2020 Version.
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 9

WAIVING YOUR RIGHT TO A JURY
TRIAL AND CLASS ACTION RELIEF.

Paragraph 16 of the 2019 Terms of Service explains the
arbitration agreement:

With the exception of class actions, small
claims court filings, or actions for
preliminary injunctive relief (as further
discussed below), any other dispute of any
kind between you and Warner arising under
this Agreement or in connection with your
use of the Service (“Dispute(s)”), if
unresolved through the informal process
outlined above, will be resolved by binding
arbitration . . . .

The 2019 Terms of Service also contain a Class Action
Waiver in which the user and Warner Bros. agree that
“disputes will be resolved on an individual basis and that any
claims brought under these terms of use or in connection
with the service must be brought in the parties’ individual
capacities, and not as a plaintiff or class member in any
putative class, collective, or representative proceeding.” The
2020 Terms of Service contain similar provisions.
In February 2022, Plaintiffs Charissa Keebaugh,
Stephanie Neveu, and Heather Mercieri filed a putative class
action against Warner Bros. alleging false and misleading
advertising within GOTC. In May 2022, the original
Plaintiffs and new Plaintiffs Sophia Nicholson and P.W.,
who is a minor, filed the First Amended Complaint.
Plaintiffs allege nine causes of action including fraud,
negligent misrepresentation, declaratory judgment, and
10 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

violations of: (1) California’s Unfair Competition Law, Cal.
Bus. & Prof. Code § 17200, et seq.; (2) California’s False
Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq.;
(3) California’s Consumers Legal Remedies Act, Cal. Civ.
Code § 1750, et seq.; (4) New Hampshire’s Regulation of
Business Practices for Consumer Protection Act;
(5) Washington’s Consumer Protection Act, Wash. Rev.
Code § 19.86.020; and (6) N.Y. Gen. Bus. Law §§ 349, 350.
Warner Bros. moved to compel arbitration of all claims
pursuant to the GOTC Terms of Service. The district court
denied the motion, concluding that “[a] valid arbitration
agreement does not exist between the parties” because
Warner Bros. had failed to provide reasonably conspicuous
notice of its Terms of Service. Keebaugh v. Warner Bros.
Ent. Inc., No. 2:22-cv-01272-MEMF (AGR), 2022 WL
7610032, at *5 (C.D. Cal. Oct. 13, 2022). Warner Bros.
timely appealed.
Warner Bros. argues the district court erred in its denial
of their motion to compel arbitration as there was
conspicuous notice and the district court failed to apply
recent and controlling Ninth Circuit precedent in making its
“no conspicuous notice” determination. Plaintiffs respond
that the district court correctly applied California law for
evaluating conspicuous notice and that Plaintiffs did not
unambiguously manifest consent to be bound by the Terms
of Service. Plaintiffs also argue that even if the district court
erred, we should still affirm the denial of the motion to
compel arbitration because the terms are unconscionable.
Plaintiffs also ask us to find that the minor plaintiff may
disaffirm the agreement, and that any claims for public
injunctive relief should be determined by the district court
and not in arbitration.
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 11

We find that because the notice provided by Warner
Bros. is sufficiently conspicuous, a valid arbitration
agreement exists between Warner Bros. and the non-minor
Plaintiffs. 2 We decline to address Plaintiffs’ arguments
regarding the minor Plaintiff’s ability to disaffirm the
agreement and their arguments relating to unconscionability.
But we reach and reject Plaintiffs’ claims that the arbitration
agreement’s bar on public injunctive relief renders the
agreement and/or its arbitration provision substantively
unconscionable or otherwise unenforceable. Thus, we
reverse and remand this matter for further proceedings.

2
We leave Plaintiffs’ additional claims to the district court to decide in
the first instance. We also leave to the district court any determination
of whether Plaintiffs can raise new arguments related to the arbitration
agreement or whether they are limited to the arguments already raised.
We note, however, that while “courts may resolve challenges directed
specifically to the validity of the arbitration provision itself,” if that
challenge fails, “the court must send to the arbitrator any other
challenges, including challenges to the validity of the contract as a
whole.” Caremark, LLC v. Chickasaw Nation, 43 F.4th 1021, 1029 (9th
Cir. 2022) (quotations omitted). This is particularly true when, as here,
the arbitration provision delegates to the arbitrator gateway questions of
arbitrability, such as whether the agreement covers the claim at issue or
whether the arbitration provision is enforceable. Rent-A-Center, W., Inc.
v. Jackson, 561 U.S. 63, 68–69 (2010). “Under Rent-A-Center, a valid—
i.e., enforceable—delegation clause commits to the arbitrator nearly all
challenges to an arbitration provision.” Caremark, 43 F.4th at 1029. We
recently recognized that “[c]ourts have found that parties clearly
delegated arbitrability where they incorporated an arbitrator’s arbitration
rules in the agreement.” Patrick v. Running Warehouse, LLC, 93 F.4th
468, 480 (9th Cir. 2024). The arbitration agreement here expressly
incorporates the Consumer Arbitration Rules of the American
Arbitration Association. The court in Patrick held that the
“[i]ncorporation of the [AAA] arbitration rules constitutes clear and
unmistakable evidence that the parties agree to arbitrate arbitrability.”
Id. at 481.
12 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

Jurisdiction & Standards of Review
We have jurisdiction under 9 U.S.C. § 16(a)(1)(B). The
Federal Arbitration Act (“FAA”) requires us to compel
arbitration of claims covered by an enforceable arbitration
agreement. 9 U.S.C. § 3. “In determining whether the
parties have agreed to arbitrate a particular dispute, federal
courts apply state-law principles of contract formation.”
Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 855
(9th Cir. 2022) (citing First Options of Chi. Inc. v. Kaplan,
514 U.S. 938, 944 (1995)).
The party seeking to compel arbitration “bears the
burden of proving the existence of an agreement to arbitrate
by a preponderance of the evidence.” Johnson v. Walmart
Inc., 57 F.4th 677, 681 (9th Cir. 2023). If the court finds a
valid arbitration agreement exists, “the court must order the
parties to proceed to arbitration in accordance with the terms
of the agreement.” Oberstein v. Live Nation Ent., Inc., 60
F.4th 505, 510 (9th Cir. 2023). “We review de novo a
district court’s decision to . . . deny a motion to compel
arbitration.” Holley-Gallegly v. TA Operating, LLC, 74
F.4th 997, 1000 (9th Cir. 2023).
Discussion
I. The district court erred in finding that Warner Bros.
failed to provide reasonably conspicuous notice.
To form a contract under California law, there “must be
actual or constructive notice of the agreement and the parties
must manifest mutual assent.” 3 Oberstein, 60 F.4th at 512–

3
The district court applied California law to evaluate whether a valid
agreement existed between the parties. Keebaugh, 2022 WL 7610032,
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 13

13. Parties may manifest assent through their conduct,
“[h]owever, ‘[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 from his conduct that he assents.” Berman, 30
F.4th at 855 (second alteration in original) (quoting
Restatement (Second) of Contracts § 19(2) (1981)).
In California, internet contracts are classified “by the
way in which the user purportedly gives their assent to be
bound by the associated terms: browsewraps, clickwraps,
scrollwraps, and sign-in wraps.” Sellers v. JustAnswer LLC,
289 Cal. Rptr. 3d 1, 15 (Cal. Ct. App. 2021). The first, a
browsewrap agreement, is “one in which an internet user
accepts a website’s terms of use merely by browsing the
site.” Id. Courts have consistently held this type of
agreement to be unenforceable, as individuals do not have
inquiry notice. See Nguyen v. Barnes & Noble Inc., 763 F.3d
1171, 1178–79 (9th Cir. 2014).
The second form, a clickwrap agreement, requires users
to click on an “I agree” box after being presented with a list
of terms and conditions of use. See id. at 15, 20–21. Courts
have “routinely found clickwrap agreements enforceable.”
Berman, 30 F.4th at 856 (citing Meyer v. Uber Techs. Inc.,
868 F.3d 66, 75 (2d Cir. 2017)). The agreement with the
strongest notice is the scrollwrap agreement, where the user
must scroll through all the Terms of Service before they can
click the mandatory “I agree” box. Sellers, 289 Cal. Rptr.
3d at 15.

at *4–5. Neither party has argued that the application of any other law
is appropriate to determine contract formation or that the district court
erred in applying California law. Because the parties agree, we evaluate
the existence of an agreement between them under California law.
14 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

While GOTC requires individual users to press a “Play”
button before they can access the game, it does not require
users to review the Terms of Service and confirm their assent
prior to accessing the game as would be the case with a
scrollwrap or clickwrap agreement. Instead, users are
required to advance through a sign-in screen which states
“By tapping ‘Play,’ I agree to the Terms of Service.”
Therefore, this is a sign-in wrap agreement. See id.
Under California law, a sign-in wrap agreement may be
an enforceable contract based on inquiry notice 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.” Berman, 30 F.4th at 856 (applying identical New
York and California law as both dictated the same outcome).
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.” Id.
While terms may be disclosed through hyperlinks, the
presence of a hyperlink “must be readily apparent,” and
“[s]imply underscoring words or phrases . . . will often be
insufficient to alert a reasonably prudent user that a clickable
link exists.” Id. at 857 (citing Sellers, 289 Cal. Rptr. at 29).
The district court held there was no mutual assent
because Warner Bros. “failed to meet its burden to establish
that it provided reasonably conspicuous notice of the [Terms
of Service] on its Opening Screen.” Keebaugh, 2022 WL
7610032, at *7. While the district court recognized that
“several federal district courts have focused on factors such
as font size and graphic layout to determine whether a user
would be on inquiry notice . . . . the Sellers Court observed
that the consideration of such subjective criteria, alone, has
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 15

led to inconsistent decisions.” Id. at *6. Rather than
analyzing the visual aspects of the notice, the district court
focused almost exclusively on “the context of the transaction
between Warner Bros. and GOTC players,” and concluded
that, because the user did not contemplate “some sort of
continuing relationship . . . that would require some terms
and conditions,” notice was insufficient. Id. (ellipsis in
original) (internal quotation omitted).
Neither party disputes any facts related to the notice—
only whether the district court correctly applied existing law
to evaluate the conspicuousness of Warner Bros.’ notice.
“[W]here the authenticity of screenshots is not subject to
factual dispute, courts may decide the issue [of constructive
notice] as a pure question of law.” Oberstein, 60 F.4th at
518 (internal quotation marks omitted).
a. Evolution of Conspicuous Notice Precedent
In Nguyen, we articulated a bright-line rule for
browsewrap agreements:

where a website makes its terms of use
available via a conspicuous hyperlink on
every page of the website but otherwise
provides no notice to users nor prompts them
to take any affirmative action to demonstrate
assent, even close proximity of the hyperlink
to relevant buttons users must click on—
without more—is insufficient to give rise to
constructive notice.

763 F.3d at 1178–79
Two years later, the California Court of Appeal affirmed
the denial of a petition to compel arbitration on the grounds
16 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

that the Terms of Use were “too inconspicuous to impose
constructive knowledge” on the plaintiffs. Long v. Provide
Com., Inc., 200 Cal. Rptr. 3d 117, 120 (Cal. Ct. App. 2016). 4
Citing Nguyen, the Long court rejected the website
provider’s argument that the hyperlink was sufficiently
conspicuous to put a reasonable user on notice because it was
“immediately visible on the checkout flow, viewable
without scrolling, and located next to several fields that the
website user [was] required to fill out and the buttons he
must click to complete an order.” Id. at 125. The Long court
found that “merely displaying a hyperlink in a prominent or
conspicuous place . . . without notifying consumers that the
linked page contains binding contractual terms” may dilute
the phrase “terms of use” to “have no meaning or a different
meaning to a large segment of the Internet-using public.” Id.
at 126–27.
No California appellate court had directly addressed the
validity of sign-in wrap agreements until Sellers, 289 Cal.
Rptr. 3d 1. The website at issue in Sellers, JustAnswers,
allowed users to ask questions directly to trained
professionals, such as doctors, lawyers, or veterinarians. Id.
at 5–6. In small print, the website provided “Unlimited
conversations with doctors—try 7 days for just $5. Then

4
The California Supreme Court has not addressed the formation of
online agreements. “[A] federal court sitting in diversity must follow an
intermediate state court decision unless other persuasive authority
convinces the federal court that the state supreme court would decide
otherwise.” Richardson v. United States, 841 F.2d 993, 996 (9th Cir.
1988) (citing West v. Am. Tel. & Tel. Co., 311 U.S. 223 (1940)). Neither
party has suggested the relevant California Courts of Appeal decisions
are wrong, rather they disagree as to their meaning. Neither party asks
us to do more than follow and apply the relevant decisions from the
Courts of Appeal. Those decisions, as well as existing Ninth Circuit
precedent applying those decisions, are controlling.
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 17

$46/month. Cancel anytime.” Id. at 7. Below that text
appeared a white box in which users could enter their credit
card information and email address. Id. Finally, below that
box, “in very small print,” there was an advisement that
“[b]y clicking ‘Start my trial’ you indicate that you agree to
the terms of service and are 13+ years old.” Id. The phrase
“terms of service” was hyperlinked to another webpage with
26 pages of terms, including a binding arbitration clause and
a class action waiver. Id.
Plaintiffs filed a class action lawsuit claiming that
JustAnswer violated California’s Automatic Renewal Law
(ARL), which “makes it unlawful for a business to enroll a
customer in an automatic renewal or continuous service
agreement without presenting the service terms to the
customer in a ‘clear and conspicuous manner before the
subscription or purchasing agreement is fulfilled and in
visual proximity . . . to the request for consent to the offer.’”
Id. at 11 (quoting Cal. Bus. & Prof. Code § 17602(a)(1)).
The ARL defines “clear and conspicuous” to mean “in larger
type than the surrounding text, or in contrasting type, font,
or color to the surrounding text of the same size, or set off
from the surrounding text of the same size by symbols or
other marks, in a manner that clearly calls attention to the
language.” Cal. Bus. & Prof. Code § 17601(c).
The Sellers court declined to compel arbitration because
the “textual notices on the JustAnswer website were
insufficiently conspicuous to bind plaintiffs to the terms of
service. Sellers, 289 Cal. Rptr. 3d at 31–32 (emphasis
added). The court explained “the existence of a contract
turns on whether a reasonably prudent offeree would be on
inquiry notice of the terms at issue.” Id. at 21 (internal
quotations omitted). To determine whether notice is
sufficient under the ARL for sign-in wrap agreements, “the
18 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

full context of the transaction is critical,” because
transactions in which “a consumer [is] signing up for an
ongoing account,” makes it “reasonable to expect that the
typical consumer in that type of transaction contemplates
entering into a continuing, forward-looking relationship.”
Id. at 22, 26. The court noted that unless the user was
particularly savvy, it was unlikely they would recognize the
notice statement, which appeared “in extremely small print,
outside the white box containing the payment fields where
the consumer’s attention would necessarily be focused,”
and, although the terms were hyperlinked and underlined,
they were not “set apart in any other way that may draw the
attention of the consumer, such as with blue text or capital
letters.” Id. at 29 (footnote omitted).
The California Court of Appeal clarified the extent of
Sellers in B.D. v. Blizzard Entertainment, Inc., 292 Cal. Rptr.
3d 47 (Cal. Ct. App. 2022). There, a minor and his father
sued a video game developer alleging violations of
California’s Unfair Competition Law. Id. at 51. The
developer moved to compel arbitration based on various
iterations of its online End User License Agreement
(“EULA”). Id. at 52. The EULA was presented to users “in
an online pop-up window that contained the entire
agreement within a scrollable text box” and informed users
that they “may not use Blizzard’s service if they do not agree
to all of the terms in the license agreement,” and they
“should read the section of the license agreement ‘below’
titled ‘dispute resolution’ because it contains an arbitration
agreement and class action waiver that affect users’ legal
rights.” Id. at 52–53.
Finding the EULA constituted a sign-in wrap agreement,
the court reversed the denial of Blizzard’s motion to compel
arbitration. Id. at 71. The court noted the first step was to
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 19

evaluate “the full context of the transaction.” Id. at 64
(quoting Sellers, 289 Cal. Rptr. 3d at 26). The minor, B.D.,
“purchased Loot Boxes for $10 in a game he had previously
purchased for $40,” and “accessed Blizzard’s online
platform to interact with other players in a videogame . . . he
spent approximately 50 hours playing . . . over the course of
approximately two years.” Id. (second ellipses in original)
(internal quotations omitted). Those circumstances made it
reasonable to expect that the typical consumer “in that type
of transaction contemplates entering into a continuing,
forward-looking relationship.” Id. (quoting Sellers, 289 Cal.
Rptr. 3d at 22).
Blizzard’s notice did “not suffer from the same
infirmities as the notice provided by the defendant in
Sellers,” and, unlike in Sellers, “Blizzard’s notice [was] not
subject to the ARL’s specific conspicuousness criteria.” Id.
at 67 (emphasis added). Blizzard’s notice was “not in
extremely small print, lacking contrast, or outside the area
where the consumer’s attention would necessarily be
focused,” and it “did not rely on a visually nondescript
hyperlink.” Id. (internal quotations, alterations, and citations
omitted).
As explained in Blizzard, when evaluating sign-in wrap
agreements, Sellers requires courts to “first evaluate ‘the full
context of the transaction,’” and consider whether “‘that type
of transaction contemplates entering into a continuing,
forward-looking relationship’ governed by terms and
conditions.” Id. at 64 (quoting Sellers, 289 Cal. Rptr. 3d at
22, 26).
We have decided two cases regarding online contracts
since Blizzard. In Berman, we evaluated two websites and
determined the website provider’s notice was insufficiently
20 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

conspicuous to bind a consumer to the hyperlinked terms and
conditions on each. 30 F.4th at 856–57. The first website
had large orange letters across the top of the page welcoming
back the user who had visited the page. Id. at 853.
Additionally:

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 [the user] 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 [the user] to 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
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 21

than in blue, the color typically used to
signify the presence of a hyperlink.

Id. at 853–54.
The second website

stated at the top, “Shipping Information
Required,” and below that, “Complete your
shipping information to continue towards
your reward.” What followed were several
fields requiring [the user] 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 >>.”
[The user] had to click on the “continue”
button to proceed to the next page in the
website flow.
As with the [first website,] sandwiched
between the buttons allowing Russell to
select her gender 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.

Id. at 854 (citation omitted). In evaluating the websites, we
articulated a two-part test and held that, absent a showing of
22 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

actual knowledge, an enforceable online agreement based on
inquiry notice may be found 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.” Id. at 856.
Then, in Oberstein, we affirmed compelled arbitration
when a website “[a]t three independent stages—when
creating an account, signing into an account, and completing
a purchase—. . . presented [users] with a confirmation button
above which text informs the user that, by clicking on this
button, ‘you agree to our Terms of Use.’” 60 F.4th at 515.
We “analyze[d] mutual assent under an objective-
reasonableness standard.” Id. at 513 (citing Berman, 30
F.4th at 856–58) (explaining that the court in Berman was
“conducting a fact-intensive inquiry to determine whether a
non-clickwrap agreement met an objective standard of
mutual assent”). Because users were presented with the
phrase “you agree to our Terms of Use” three times, the
Terms of Use were hyperlinked and written in a bright blue
font, that distinguished them from the surrounding text, and
the text was in close proximity to the operative buttons the
users needed to press to advance throughout the website, we
found the notice was reasonably conspicuous. Id. at 515–16.
b. The district court erred both in failing to address
the visual elements of GOTC’s sign-in screen and
in finding a lack of an ongoing relationship.
The district court focused almost exclusively on whether
“the context of the transaction” put the Plaintiffs on notice
that they were agreeing to the Terms of Service. Keebaugh,
2022 WL 7610032, at *6. The district court explained it
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 23

must “consider whether the Opening Screen provided notice
in the context of the transaction between Warner Bros. and
GOTC players,” including whether the “registration process
clearly contemplated some sort of continuing relationship.”
Id. (internal quotations omitted). Because users could play
GOTC without first creating an account, the district court
concluded the app did not involve the “sort of continuing
relationship . . . that would require some terms and
conditions.” Id. (internal quotations omitted). The district
court distinguished Blizzard because GOTC users “did not
have to create an account with Warner Bros.” Id. at *7.
Warner Bros. argues on appeal that the district court erred in
finding Sellers required a formal sign-up process, and the
“foremost” consideration in Sellers was the “clear and
conspicuous notice” requirement of the ARL, which is
inapplicable here. 5 We agree.
In Oberstein, we explained that Sellers considered both
“the context of the transaction and the placement of the
notice,” 60 F.4th at 516 (internal quotations omitted), and
Blizzard clarified that “the transactional context is an
important factor to consider and is key to determining the
expectations of a typical consumer,” 292 Cal. Rptr. 3d at 61
(internal quotations omitted). Therefore, the context of the
transaction is a non-dispositive factor under California law,
used to evaluate whether a website’s notice is sufficiently
conspicuous. Courts must still evaluate the visual aspects of
the notice under the two-part test we articulated in Berman.
See Oberstein, 60 F.4th at 516; Patrick, 93 F.4th at 477.

5
Although they use similar language, the “clear and conspicuous notice”
requirement of California’s ARL is different and distinct from the
requirement that sign-in wrap agreements provide “reasonably
conspicuous notice of the terms.” Berman, 30 F.4th at 856.
24 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

The context-of-the-transaction test in Sellers was
required in evaluating a claim under California’s ARL,
because “the Legislature has acknowledged that consumers
are often enrolled in automatic renewal membership
programs without their knowledge or consent, and has
therefore set forth specifically defined statutory notice
requirements pertaining to the enrollment of consumers in
such programs.” Sellers, 289 Cal. Rptr. 3d at 26 (emphasis
added). The Sellers court then focused its context analysis
under the heading that the textual notice of contractual terms
that limit “the Consumer’s Ability to Address Alleged ARL
Violations Must Be Considered in the Context of the ARL.”
Id. But Plaintiffs have not brought a claim under the ARL
against Warner Bros.
“First and foremost, the Sellers court found that in the
context of a transaction governed by the ARL, the sign-in
wrap notices ‘were not sufficiently conspicuous to bind’ the
plaintiffs because the notices were ‘significantly less
conspicuous than the statutory notice requirements
governing [the plaintiffs’] underlying [ARL] claims.”
Blizzard, 292 Cal. Rptr. 3d at 62 (alterations in original)
(internal citations omitted). Sellers’s focus on the
transactional context is “an important factor to consider and
is key to determining the expectations of a typical
consumer.” Id. at 61 (emphasis added) (internal quotation
omitted). To the extent the district court treated this factor
as dispositive, that holding was erroneous.
The two cases decided by this court after Sellers both
grouped context together with the traditional inquiry related
to the visuals involved with the notice, such as font size, text
placement, and overall screen design. In Berman, our
contextual analysis was limited to only the visual elements.
30 F.4th at 856 (“First, to be conspicuous in this context, a
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 25

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.”). In Oberstein, we first analyzed
the visual elements and separately advised that “in contrast
with the noncommittal free trial offered in Sellers, the
context of this transaction, requiring a full registration
process, reflected the contemplation of some sort of
continuing relationship that would have put users on notice
for a link to the terms of that continuing relationship.” 60
F.4th at 517 (internal quotation omitted).
c. GOTC provides reasonably conspicuous notice.
As explained above, we must look to both “the context
of the transaction” and the “placement of the notice” when
conducting review under Berman. Here, Warner Bros.
succeeds on both accounts.
i. The context of the transaction is sufficient.
Unlike Blizzard, users of GOTC neither purchase the
game in the first instance, nor do they have to sign up for an
account with Warner Bros. before playing GOTC. But users
are notified prior to downloading the game that the app
offers in-app purchases, and playing a mobile game with
potentially unlimited in-app purchases is unlike buying two
tablet devices (Nguyen), purchasing a single flower
arrangement (Long), or signing up for a $5 trial (Sellers).
There is no time limit imposed by Warner Bros. on how long
the user may access the game.
The nature of downloading a mobile game to one’s
phone is different than simply accessing a website. When
downloading an app to one’s own device, the prudent
internet user necessarily anticipates ongoing access to that
app at the user’s discretion—at least until the user deletes the
26 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

app, conditions imposed on the use of the app change, or the
user decides to simply stop playing the game. An app is
different from a typical one-and-done interaction between
the user and a traditional website—the app’s presence on the
phone until deleted carries the connotation that the user will
also have ongoing access to that app unless something
material changes. And that would seem to be of even greater
force as to a game app, where the entire point of the
download is to have continued access to play the game.
For that reason, smartphone users need not establish an
account with each individual app for the context to reflect an
ongoing relationship. No reasonably prudent internet user—
one who is likely often exposed to similar online
agreements—would consider downloading and playing a
potentially endless mobile game to be equivalent to an
insular and discrete one-time transaction. These users know
that, like many games on the various app stores, GOTC
players can continue to play for a long time.
Users are also made aware via the download screen on
the various app marketplaces that GOTC contains in-app
purchases, and the users would understand that their use of
an app that allows for in-app purchases would be governed
by some terms of use. As in Blizzard where the continuing
relationship was based on purchasing the $40 game and
spending $10 on in-game purchases, 292 Cal. Rptr. 3d at 64,
GOTC allows users to purchase in-app advantages and time-
saving resources to utilize in the game. Users who download
a game without a trial period, and especially those who
intend to spend money within the game as in Blizzard, likely
expect (and reasonable prudent users should expect) their
access to the game to be continual. Thus, GOTC satisfies
the context-of-the-transaction test from Sellers.
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 27

ii. The visual placement of the notice is clear.
The sign-in screens for GOTC also satisfy the visual
requirements to provide conspicuous notice that “a
reasonably prudent Internet user would have seen.” Berman,
30 F.4th at 856. Directly beneath the operative Play button
is the following: “By tapping ‘Play’ I agree to the Terms of
Service” or “By tapping ‘Play’ I accept the Terms of Use and
acknowledge the Privacy Policy,” depending on the app’s
version. The design elements use “a contrasting font color”
making the notice legible on the dark background. Id. at 857.
As in Oberstein, the notice here “is conspicuously displayed
directly . . . below the action button,” the statement “clearly
denotes that continued use” will constitute acceptance of the
Terms of Service, and the link to the Terms of Service “is
conspicuously distinguished from the surrounding text,” by
a contrasting white font and emphasized through white
borders outlining the hyperlinks. 60 F.4th at 516 (internal
quotation omitted). Unlike the notices at issue in Berman,
the sign-in screen here lacks clutter and uses “[c]ustomary
design elements denoting the existence of a hyperlink.” 30
F.4th at 857. The notice is conspicuous and puts the
reasonable user on notice that they are agreeing to be bound
by the Terms of Service. 6

6
Plaintiffs argue they did not unambiguously manifest their consent to
be bound by the Terms of Service, because of a typographical error on
the sign-in screen. The district court also took issue with the 2020
Version’s usage of “Terms of Use” while linking to the “Terms of
Service.” Keebaugh, 2022 WL 7610032, at *7. But mutual assent is
based on “the reasonable meaning” of the parties’ words. Long, 200 Cal.
Rptr. 3d at 122. “Reasonable meaning” considers “the context or the
surrounding circumstances and the conduct of the parties.” H.S. Crocker
Co. v. McFaddin, 307 P.2d 429, 433 (Cal. Ct. App. 1957). Given the
28 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

II. Alleged unconscionability of the arbitration terms
and P.W.’s ability to disaffirm.
Plaintiffs argue that if we were to reverse the district
court’s arbitration decision, we “should exercise [our]
equitable discretion” to decide whether Plaintiffs must
arbitrate their claims for public injunctive relief and whether
the Warner Bros.’ Terms of Service are unconscionable
(including because the terms allegedly purport to require
arbitration of public injunction claims). Plaintiffs similarly
argue we should decide whether P.W.’s claims can be
arbitrated given his age. These issues were all raised below,
but the district court declined to reach them after finding no
agreement existed between the parties. Both parties briefed
these issues on appeal. 7 With one exception, we decline to

prevalence of Terms of Use and Terms of Service in modern society and
the frequency they are presented to users, it is clear from the context what
was meant by “Terms of Use” and the “obvious typographical error[]
clearly cannot be the basis for invalidating an agreement to arbitrate.”
Viamontes v. Adriana’s Ins. Servs., Inc., No. B253407, 2016 WL
826148, at *2 n.1 (Cal. Ct. App. Mar. 3, 2016); see Emps. Ins. of Wausau
v. Granite State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003) (“[W]e
may consider unpublished state decisions, even though such opinions
have no precedential value”).
7
At oral argument, both parties were asked whether we should address
the remaining issues as pure legal questions or leave them to the district
court to consider in the first instance. Warner Bros.’ counsel replied that
“the more efficient way would be to remand and have the district court
consider those [arguments] in the first instance.” Oral Arg. at 3:36–3:41.
Counsel also noted that, as Plaintiffs have pointed out, “the Terms of
Service have since changed since the 2018 Terms that were before this
court, so that is one reason why we believe the more efficient course
would be to remand, so that there would be a more fully developed
record.” Oral Arg. at 3:55–4:07. Plaintiffs partially reversed their
original position and stated, “because of the change in the Terms of Use
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 29

reach these issues, and we leave them for the district court to
address for the first time on remand. We do choose to reach
the claim regarding public injunctive relief, as it is likely to
arise again, and it is “[a] purely legal issue . . . for which the
factual record is so fully developed as to render any further
development irrelevant.” Planned Parenthood of Greater
Wash. & N. Idaho v. U.S. Dep’t of Health & Hum. Servs.,
946 F.3d 1100, 1111 (9th Cir. 2020).
In part, Plaintiffs argue here that the Terms of Service
are substantively unconscionable because the arbitration
agreement contains a “purported ban on public injunctive
relief” which they say violates California law and McGill v.
Citibank, N.A., 393 P.3d 85 (Cal. 2017). The Terms of
Service restrict the available remedies an arbitrator may
award to the scope “necessary to provide relief warranted by
that party’s individual claim.” As part of this restriction, the
Terms of Service provide that the parties “may bring claims
against the other only in your . . . individual capacity, and
not as a plaintiff or class member in any purported class,
representative, or private attorney general proceeding.” Put
succinctly, the Terms of Service require disputes to go to
arbitration, thus barring consideration of a public injunctive
claim in court, while also limiting the arbitrator’s ability to
award remedies to only “that party’s individual claim.”
In California, contractual provisions waiving the right to
seek public injunctive relief in any forum are unenforceable.
McGill, 393 P.3d at 87. We have held that this McGill rule
does not violate the FAA. Blair v. Rent-A-Ctr., Inc., 928
F.3d 819, 828–31 (9th Cir. 2019). “Contracts permitting

during the appeal and we have some disputes about what they mean and
whether they would apply to the class, as to the unconscionability issue,
that would be appropriate for remand.” Oral Arg. at 9:56–10:08.
30 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

public injunctive relief in some fora but not others do not
violate McGill.” Patrick, 93 F.4th at 478. “To implicate
McGill, the arbitration provision must also prohibit the
arbitrator from awarding relief that would affect those other
than plaintiff.” Id. (internal quotations and alterations
omitted). Given that Warner Bros.’ Terms of Service require
arbitration of all claims and limit the arbitrator’s ability to
award relief “only in favor of the individual party seeking
relief,” the Terms of Service impermissibly foreclose the
opportunity to seek public injunctive relief in any forum.
The provision thus violates the McGill rule and is
unenforceable in California.
But unenforceable is not the same as unconscionable;
even if it were, it would not necessarily require voiding the
entire arbitration provision as unconscionable. Under
California law, “the doctrine of unconscionability has both a
procedural and a substantive element, the former focusing
on oppression or surprise due to unequal bargaining power,
the latter on overly harsh or one-sided results.” Baltazar v.
Forever 21, Inc., 367 P.3d 6, 11 (Cal. 2016) (internal
quotations omitted). They “must both be present in order for
a court to exercise its discretion to refuse to enforce a
contract or clause . . . [, b]ut they need not be present in the
same degree.” Id. (internal quotations omitted). Courts
evaluate unconscionability along “a sliding scale” under
which “the more substantively oppressive the contract term,
the less evidence of procedural unconscionability is required
to come to the conclusion that the term is unenforceable, and
vice versa.” Id. (internal quotations omitted).
Although Plaintiffs argue the Terms of Service are
procedurally unconscionable for various reasons, we leave
that determination to the district court. As to the arbitration
agreement’s bar on public injunctive relief, Plaintiffs only
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 31

allege it renders the agreement substantively
unconscionable. Courts in California have used various
standards for determining when an agreement is
substantively unconscionable such as where the agreement
is “overly harsh,” “unduly oppressive,” “unreasonably
favorable,” or “shock[s] the conscience.” Sanchez v.
Valencia Holding Co., LLC, 353 P.3d 741, 748 (Cal. 2015)
(internal quotations omitted). The “central idea” is that the
“unconscionability doctrine is concerned not with a simple
old-fashioned bad bargain, but with terms that are
unreasonably favorable to the more powerful party.”
Baltazar, 367 P.3d at 11 (internal quotations and citations
omitted).
No aspect of the individualized relief provision so
“shocks the conscience” that it rises to the level of
substantive unconscionability. Even though the
individualized relief provision is invalid under McGill, the
provision does not render the agreement unconscionable as
it can still be applied to the waiver of other representative,
collective, or class action claims. We addressed a similar
issue in the context of a claim brought under California’s
Private Attorneys General Act (PAGA). See Poublon v.
C.H. Robinson Co., 846 F.3d 1251, 1264 (9th Cir. 2017).
The plaintiff had entered into an arbitration agreement with
defendants for any claims arising out of her employment. Id.
at 1257. The defendants moved to compel arbitration, which
the district court denied after finding the arbitration
agreement was substantively unconscionable. Id. at 1259.
Like McGill’s holding with regards to arbitration agreements
impermissibly prohibiting public injunctive relief, we
recognized the same was true in California for employment
contracts waiving representative claims. Id. at 1263–64.
32 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC.

But we ultimately rejected the claim that because the
waiver portion was unenforceable, the agreement itself was
unconscionable, explaining “[u]nder California law,
contracts can be contrary to public policy but not
unconscionable and vice versa.” Id. at 1264 (internal
quotations and alterations omitted). We held “the
unenforceability of the waiver of a PAGA representative
action does not make this provision substantively
unconscionable.” Id. This was true, because the Supreme
Court had “suggested that arbitration agreements can
generally waive collective, classwide, and representative
claims.” Id. (referring to AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 336 (2011)). Even if the parties
could not “lawfully agree to waive a PAGA representative
action” under California law, “Concepcion weigh[ed]
sharply against holding that the waiver of other
representative, collective or class action claims, as provided
[by the arbitration agreement], is unconscionable.” Id.
Warner Bros.’ terms present a nearly identical scenario.
There is a portion of the Terms of Service, the individualized
relief provision, which California courts have identified as
unenforceable. California has deemed contractual
provisions waiving the right to seek public injunctive relief
“invalid and unenforceable.” McGill, 393 P.3d at 93. But
as in Poublon, the unenforceability of the waiver of one’s
right to seek public injunctive relief does not make either this
provision or by extension the arbitration agreement
unconscionable or otherwise unenforceable . 8

8
We do not reach, and leave to the district court, Plaintiffs’
unconscionability arguments unrelated to public injunction issues, as
well as other arguments made on appeal that were not first addressed by
 KEEBAUGH V. WARNER BROS. ENTERTAINMENT INC. 33

Conclusion
Accordingly, we reverse the denial of Warner Bros.’
motion to compel arbitration. We also reject the Plaintiffs’
argument that the arbitration agreement is rendered
unconscionable by its ban on public injunctive relief.
REVERSED AND REMANDED. 9

the district court. We also leave to the district court any determination
as to whether Plaintiffs can raise new arguments related to the arbitration
agreement.
9
We award Warner Bros. its costs on appeal.