Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 1 of 20 Page ID #:1383
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`
`
`
`Deputy Clerk:
`Rita Sanchez
`
`Court Reporter:
`Not Reported
`
`Attorneys Present for Plaintiff:
`None Present
`
`Attorneys Present for Defendant:
`None Present
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
`
`
`
`
`
`
`
`Proceedings (In Chambers):
`
`ORDER RE: MOTION TO COMPEL
`ARBITRATION [83]; STAY PENDING
`RESOLUTION OF RING’S MOTION TO
`COMPEL ARBITRATION [112]
`
`
`
`Before the Court are two motions:
`
`The first is Defendant Ring LLC’s (“Ring”) Motion to Compel Arbitration (the
`“Motion”), filed on February 5, 2021. (Docket No. 83). On March 8, 2021, Plaintiffs
`representing the putative class filed an opposition. (Docket No. 89). On March 29,
`2021, Ring filed a reply. (Docket No. 99). On March 24, 2021, Ring filed a
`supplemental opening brief with respect to Plaintiff Catherine Foster, who joined the
`consolidated action on March 23, 2021. (Docket Nos. 95, 96). Plaintiff Foster filed a
`supplemental opposition on March 26, 2021. (Docket No. 97).
`
`The second is Ring’s Motion to Stay Pending Resolution of Ring’s Motion to
`Compel Arbitration (the “Motion to Stay”), filed on June 18, 2021. (Docket No. 112).
`
`The Court has read and considered the papers filed in connection with the
`Motions and held a telephonic hearing on April 12, 2021, pursuant to General Order
`21-03 arising from the COVID-19 pandemic. The Court now rules as follows:
`
`• The Motion is GRANTED in part and DENIED in part. The Purchaser
`Plaintiffs who made a Ring account using the Ring App or Website were
`on inquiry notice of Ring’s Terms of Service. Therefore, the arbitration
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 1
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 2 of 20 Page ID #:1384
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`
`clause with respect to these Plaintiffs is enforceable. Because the Terms
`contained a delegation provision, the Court does not address Plaintiffs’
`arguments that the arbitration clause is unconscionable or otherwise
`unenforceable. However, the Non-Purchaser Plaintiffs are not bound by
`the agreement. They are not “Authorized Users” under the Terms of
`Service and their guardians’ assent to the Terms’ arbitration clause does
`not bind them.
`
`• The Motion to Stay is DENIED as moot.
`
`I.
`
`BACKGROUND
`
`On February 11, 2020, the Court granted the stipulation of various parties to
`consolidate numerous related cases into this putative class action. (Docket No. 19).
`Plaintiffs filed a consolidated First Amended Complaint (“FAC”) on December 17,
`2020. (Docket No. 69).
`
`Ring manufactures and sells home security and smart home devices.
`(Declaration of John Modestine (“Modestine Decl.”) ¶ 3 (Docket No. 83-2)). Such
`devices include video doorbells, security cameras, and alarms (the “Devices”). (Id.).
`Ring also sells a subscription service, known as the Ring Protect Plan, through which
`customers may purchase additional services and benefits related to their devices. (Id.).
`
`The FAC alleges that Ring’s security systems were defectively designed without
`sufficient security protocols, leaving Plaintiffs who used the systems vulnerable to
`cyberattack, identity theft, and physical harm. (FAC ¶¶ 3-8). The FAC also alleges
`that Ring actively shared users’ sensitive personal identifying information with third
`parties without first obtaining users’ authorization or consent, which allowed third
`parties to track and surveil Plaintiffs. (Id. ¶ 9).
`
`Unless otherwise noted, the following details and descriptions represent the
`material features of the packaging, terms, Websites, applications, and clauses at all
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 2
`
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`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 3 of 20 Page ID #:1385
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`times relevant to this action (i.e., from July 2017 to December 2019, when Plaintiffs
`purchased and/or used the Devices).
`
` Date: June 24, 2021
`
`For the purposes of the Motion, the parties distinguish between those Plaintiffs
`who purchased the Ring devices themselves (the “Purchaser Plaintiffs”), and those
`who were allegedly harmed by Ring devices but did not personally purchase them (the
`“Non-Purchaser Plaintiffs,” twelve minor children and an elderly woman who lived in
`a nursing home). (See Motion at 1-2; Opposition at 1 n.1, 4).
`
`The exterior packaging of the Ring video doorbell and camera products stated
`either that “[u]se of the product is subject to your registration with Ring and your
`agreement to the Terms of Service found at www.ring.com” or that “[u]se of the
`product is subject to your registration with Ring and your agreement to the Terms of
`Service found at www.ring.com/terms.” (Modestine Decl. ¶¶ 4-5, Ex. A).
`
`To set up and manage the Device, the user must download the Ring mobile
`application (“Ring App”) and register for a Ring account, either through the Ring App
`or Ring’s Website. (Id. ¶¶ 21-25).
`
`From May 2017 until June 2018, a user was required to check a box during the
`account registration process to indicate agreement to the Terms before moving on to
`the next step of the registration process. (See Appendix (citing id., Ex. L (May 2017-
`Nov. 2017: “I agree to Ring’s Privacy Notice, Terms of Service, and Guidelines for
`Installation and Use.”); id., Ex. M (Nov. 2017-June 2018: “I agree to Ring’s Privacy
`Notice and Terms of Services [sic].”))).
`
`From June 2018 through January 2020, the user was required to create a
`password at the last step of the account registration process, and was notified that by
`completing account registration they agreed to the Terms. (See Appendix (citing id.,
`Exs. N, O (June 2018-May 2019: “By signing up, you agree to our Terms of
`Service”); id., Ex. P (May 2019-Jan. 2020: “By continuing you agree to Ring’s Terms
`of Service.”))). The user was then required to click a button that appeared below the
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 3
`
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`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 4 of 20 Page ID #:1386
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`text notifying the user that by continuing with account registration, the user indicated
`assent to the Terms. (Id.).
`
` Date: June 24, 2021
`
`The user also had the option of registering for a Ring account via Ring’s
`Website. (Modestine Decl. ¶ 24).
`
`From February 2018 until April 2019, the user was required to check a box
`agreeing to the Terms to proceed in creating an account on the Website. (See
`Appendix (citing id., Ex. Q)). From April 2019 through January 2020, the text “[b]y
`continuing you agree to Ring’s Terms of Service” appeared directly above a large
`“Create Account” button. (See Appendix (citing id., Ex. R)).
`
`Plaintiff does not contest that Exhibits L through R are fair and accurate
`depictions of the Ring App and Website on the dates stated above. (See generally
`Opposition).
`
`Since August 18, 2017, all iterations of the Terms included an arbitration clause
`and class waiver. (Modestine Decl. ¶¶ 6-20, Exs. G at 15-19, B at 10-13, C at 11-14, D
`at 11-14, E at 10-13, F at 15-19, H at 11-14, I at 12-14, J at 15-19, K at 12-15). The
`section entitled “Dispute Resolution” states that “[t]he Federal Arbitration Act (the
`‘FAA’) . . . and federal arbitration law apply to this Agreement and govern all
`questions as to whether a dispute is subject to arbitration.” (Id., Ex. G at 16). The
`section further states that the parties “agree that any dispute, controversy, or claim
`arising out of, or relating to your use of the services and products, to this agreement, or
`to the content, any relationship between us and/or any recording on the services and/or
`products shall be resolved only by final and binding, bilateral arbitration.” (Id., Exs. G
`at 16, B at 10-13, C at 11-14, D at 11-14, E at 10-13, F at 15-19, H at 11-14, I at 12-14,
`J at 15-19, K at 12-15).
`
`The Terms also state that “‘[d]isputes’ shall include, but are not limited to, any
`claims or controversies between you and Ring against each other related in any way to
`or arising out of in any way from this Agreement, the Services, the Products, and/or the
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 4
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 5 of 20 Page ID #:1387
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`Content[.]” (Id., Exs. G at 16, B at 11, C at 11, D at 11-12, E at 11, F at 16, H at 12, I
`at 12, J at 16, K at 13).
`
` Date: June 24, 2021
`
`In addition, the Terms provide that “[t]he term ‘you,’ as used in these Terms,
`includes any person or entity who is the owner of the Product and creates an account
`associated with the Product (‘Owner’), as well as any person or entity authorized to
`access or use the Owner’s Products and Services (‘Authorized Users’).” (Id., Exs. G at
`2, B at 1, C at 1, D at 1, E at 1, F at 2, H at 1, I at 1, J at 2, K at 1-2).
`
`Since August 18, 2017, the Terms have also contained a delegation clause
`stating that the arbitrator “shall have exclusive authority to resolve all disputes arising
`out of or relating to the interpretation, applicability, enforceability or formation of
`these Terms, including, but not limited to any claim that all or any part of these Terms
`are void or voidable, or whether a claim is subject to arbitration.” (Id., Ex. G at 18; see
`also id., Exs. C at 13, D at 13, E at 12, F at 18, H at 13, I at 14, J at 18, K at 14).
`
`II. LEGAL STANDARD
`
`The Federal Arbitration Act (“FAA”) “requires federal district courts to stay
`judicial proceedings and compel arbitration of claims covered by a written and
`enforceable arbitration agreement.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171,
`1175 (9th Cir. 2014) (citing 9 U.S.C. § 3). The FAA also “limits the district court’s
`role to determining whether a valid arbitration agreement exists, and whether the
`agreement encompasses the disputes at issue.” Id. (citation omitted). “[E]xcept where
`the parties clearly and unmistakably provide otherwise, it is the court’s duty” — as
`opposed to an arbitrator’s duty — “to interpret the agreement and to determine whether
`the parties intended to arbitrate grievances concerning a particular matter.” SEIU
`Local 121RN v. Los Robles Reg’l Med. Ctr., 976 F.3d 849, 855 (9th Cir. 2020)
`(emphasis in original) (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.
`287, 301 (2010)).
`
`“In determining whether a valid arbitration agreement exists, federal courts
`‘apply ordinary state law principles that govern the formation of contracts.’” Nguyen,
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 5
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 6 of 20 Page ID #:1388
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`763 F.3d at 1175 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944
`(1995)). “Federal courts sitting in diversity look to the law of the forum state — here,
`California — when making choice of law determinations.” Id. (citation omitted).
`
`The party seeking to compel arbitration bears the burden of proving by a
`preponderance of the evidence that an agreement to arbitrate exists. Norcia v.
`Samsung Telecommunications Am., LLC, 845 F.3d 1279, 1283 (9th Cir. 2017).
`
`III. DISCUSSION
`
`Ring argues that, because each Plaintiff purchased a Ring product, created a
`Ring account, and/or used Ring’s services, each Plaintiff also consented to Ring’s
`Terms of Service, which require individual arbitration for all disputes arising out of or
`relating to Ring’s products or services. (Motion at 10-23). Ring contends that all
`Plaintiffs must now be compelled to arbitrate their claims individually pursuant to
`Ring’s Terms of Service. (Id.). The parties agree that California law applies here.
`(See Motion at 10; Opposition at 12).
`
`
`Because Ring makes different arguments with respect to the Purchaser Plaintiffs
`and the Non-Purchaser Plaintiffs, the Court addresses each in turn.
`
`A.
`
`Ring contends that the Purchaser Plaintiffs assented to the arbitration clause in
`the Terms of Service by purchasing and using Ring’s products. (Motion at 10-15).
`Specifically, Ring asserts that each of the Purchaser Plaintiffs was put on constructive
`notice of the arbitration clause by one or more of the following: (1) the Devices’
`packaging; (2) the Ring App or Website when signing up for and creating a Ring
`account; and (3) this litigation. (Motion at 10-15).
`
`There is no evidence that the Purchaser Plaintiffs had actual knowledge of the
`arbitration clause. (See Purchaser Plaintiff Declarations (Docket Nos. 89-1 through 89-
`
`Purchaser Plaintiffs
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 6
`
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`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 7 of 20 Page ID #:1389
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`27)). As a result, the validity of the arbitration clause “turns on whether the
`[packaging, App, or Website] put[] a reasonably prudent user on inquiry notice of the
`terms of the contract.” Nguyen, 763 F.3d at 1177. Whether the mutual assent
`necessary for contract formation exists “is determined under an objective standard
`applied to the outward manifestations or expressions of the parties, i.e., the reasonable
`meaning of their words and acts, and not their unexpressed intentions or
`understandings.” Deleon v. Verizon Wireless, LLC, 207 Cal. App. 4th 800, 813, 143
`Cal. Rptr. 3d 810 (2012). “Although mutual consent is a question of fact, whether a
`certain or undisputed state of facts establishes a contract is a question of law for the
`court.” Id. (internal quotation marks and citations omitted).
`
`
`1.
`
`Creating an account on the Ring App or Website
`
`
`
`Ring asserts that the Purchaser Plaintiffs agreed to the Terms by creating a Ring
`account on the Ring App or Website. (Motion at 12-14). The Court agrees.
`
`“While new commerce on the Internet has exposed courts to many new
`situations, it has not fundamentally changed the principles of contract[,]” including the
`“requirement of mutual manifestation of assent, whether by written or spoken word or
`by conduct[.]” Nguyen, 763 F.3d at 1175 (citations and internal alterations omitted).
`
`Internet users can form contracts online in a variety of different ways, for
`example, by clicking on an “I agree” box after being presented with the website’s list
`of terms and conditions of use (“clickwrap” agreements), by using a website that has
`its terms and conditions of use posted on the website via hyperlink at the bottom of the
`screen (“browsewrap” agreements), or by signing up for a website account or service
`in which the user is told that continued use will act as a manifestation of the user’s
`intent to be bound by various terms (“hybrid design” or “modified clickwrap”
`agreements). Colgate v. JUUL Labs, Inc., 402 F. Supp. 3d 728, 763 (N.D. Cal. 2019).
`
`To determine whether a user has inquiry notice of the contract terms, courts
`assess “the design and content of the website and the agreement’s webpage[,]”
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 7
`
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`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 8 of 20 Page ID #:1390
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`including “the conspicuousness and placement of the ‘Terms of Use’ hyperlink, other
`notices given to users of the terms of use, and the website’s general design.” Nguyen,
`763 F.3d at 1177.
`
`Courts are “more willing to find the requisite notice for constructive assent
`where the browsewrap agreement resembles a clickwrap agreement — that is, where
`the user is required to affirmatively acknowledge the agreement before proceeding
`with use of the website.” Id. at 1176 (citing Zaltz v. JDATE, 952 F. Supp. 2d 439, 451-
`52 (E.D.N.Y. 2013) (enforcing forum selection clause where users had to check box
`confirming they read and agreed to the website’s terms of service to obtain an
`account); Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 838-40 (S.D.N.Y. 2012)
`(enforcing forum selection clause in website’s terms of service where a notice below
`the “Sign Up” button stated, “By clicking Sign Up, you are indicating that you have
`read and agree to the Terms of Service,” and user had clicked “Sign Up”)). Courts
`have also been more amenable to enforcing browsewrap agreements “where the
`website contains an explicit textual notice that continued use will act as a manifestation
`of the user’s intent to be bound[.]” Id. at 1176 (listing cases).
`
`In Dohrmann v. Intuit, a recent unpublished decision, the Ninth Circuit
`considered whether the TurboTax Website provided notice of its terms of use through
`its account sign-in page. 823 F. App’x 482, 484 (9th Cir. 2020) (reversing district
`court’s denial of motion to compel arbitration). To sign into a TurboTax account, the
`user was required to enter her user ID and password, and click a “Sign In” button,
`directly under which the following language appeared: “By clicking Sign In, you
`agree to the Turbo Terms of Use, TurboTax Terms of Use, and have read and
`acknowledged our Privacy Statement.” Id. These terms were light blue hyperlinks
`which, if clicked, directed the user to a new page containing the terms of use in which
`the arbitration clause was located. Id. The Ninth Circuit held that this sign-in page
`provided sufficient notice to a reasonably prudent internet user of its Terms of Use, and
`therefore the arbitration clause, because “[t]he relevant warning language and
`hyperlink to the Terms of Use were conspicuous — they were the only text on the
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 8
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 9 of 20 Page ID #:1391
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`webpage in italics, were located directly below the sign-in button, and the sign-in page
`was relatively uncluttered.” Id.
`
`Similarly, Lee v. Ticketmaster LLC involved a website which, directly below the
`“Sign In” button, displayed the phrase: “By continuing past this page, you agree to our
`Terms of Use.” 817 F. App’x 393, 394 (9th Cir. 2020). In addition, when placing an
`order for tickets, directly above the “Place Order” button, the website displayed the
`phrase: “By clicking ‘Place Order,’ you agree to our Terms of Use.” Id. The phrase
`“Terms of Use” was displayed in blue font and contained a hyperlink to Ticketmaster’s
`Terms. Id. at 394-95. The Lee court reasoned that, because the website required users
`to “affirmatively acknowledge the agreement before proceeding,” and “the website
`contained an explicit textual notice that continued use will act as a manifestation of the
`user’s intent to be bound,” the website provided sufficient notice for constructive
`assent to Ticketmaster’s terms. Id. at 395 (quoting Nguyen, 763 F.3d at 1176-77)
`(internal quotation marks and alterations omitted).
`
`While other persuasive authorities are all over the map in terms of what website
`features are sufficient to provide inquiry notice, it appears that the majority of
`California district courts take the Dohrmann and Lee approach.
`
`These courts hold that a modified or hybrid clickwrap/browsewrap agreement
`constitutes a binding contract where the user is provided with an opportunity to review
`the terms of service in the form of a hyperlink immediately above or below a button
`that must be clicked to affirmatively acknowledge the terms, place an order, or register
`for an account. See, e.g., Swift v. Zynga Game Network, Inc., 805 F. Supp. 2d 904,
`911-12 (N.D. Cal. 2011) (user assented to terms where website provided an
`opportunity to review the terms of service in the form of a hyperlink immediately
`under the “I accept” button, which user clicked); Crawford v. Beachbody, LLC, 2014
`WL 6606563 (S.D. Cal. 2014) (user assented to terms by clicking “PLACE ORDER”
`button appearing immediately below disclaimer informing user that by clicking the
`button, user was agreeing to the site’s terms); Rodriguez v. Experian Serv. Corp., 2015
`WL 12656919, at *2 (C.D. Cal. Oct. 5, 2015) (user assented to terms where the
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 9
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 10 of 20 Page ID
`#:1392
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`“Website contained a hyperlink to the Terms of Use at the bottom of every page and
`included an express disclosure and acknowledgement, which stated ‘By clicking the
`button above . . . you agree to our Terms of Use,’” which were hyperlinked); Graf v.
`Match.com, LLC, CV 15-3911-PA (MRWx), 2015 WL 4263957, at *4 (C.D. Cal. July
`10, 2015) (finding assent to terms where “all users of the Match.com website during
`the relevant time period were required to affirmatively agree to the Terms of Use when
`they clicked on a ‘Continue’ or other similar button on the registration page where it
`was explained that by clicking on that button, the user was affirming that they would
`be bound by the Terms of Use, which were always hyperlinked and available for
`review”); In re Facebook Biometric Info. Priv. Litig., 185 F. Supp. 3d 1155, 1166
`(N.D. Cal. 2016) (user assented to terms by clicking “Sign Up” box with language
`immediately below it stating, “By clicking Sign Up, you are indicating that you have
`read and agree to the Terms of Use and Privacy Policy,” with the terms of use
`hyperlinked); Cordas v. Uber Techs., Inc., 228 F. Supp. 3d 985, 990-91 (N.D. Cal.
`2017) (user assented to terms when he created an account on the Uber app by clicking
`“DONE” above disclaimer: “By creating an Uber account, you agree to the Terms &
`Conditions and Privacy Policy”); Nevarez v. Forty Niners Football Co., LLC, 16-CV-
`07013, 2017 WL 3492110, at *8 (N.D. Cal. Aug. 15, 2017) (user assented to terms in
`purchasing their tickets and parking passes on the Ticketmaster website which included
`a disclaimer below the “Accept and Continue” button stating: “By continuing past this
`past, you agree to our terms of use,” where the terms were hyperlinked and in blue
`text); Maynez v. Walmart, Inc., 479 F. Supp. 3d 890, 895-97 (C.D. Cal. 2020) (user
`assented to terms by clicking “Place Order” button below disclaimer with hyperlinks to
`terms of use: “By clicking Place Order, you agree to Walmart's Updated Privacy
`Policy and Terms of Use”).
`
`At least four versions of Ring’s account sign-up page resemble a clickwrap
`
`agreement in that they required the user to affirmatively acknowledge the agreement
`before the user could create the account. (See Appendix, Modestine Decl., Exs. L, M,
`Q). Ring’s Terms of Service in these four versions of the Ring App and Website are
`even more conspicuous than the terms of use in Dohrmann and Lee because they
`required users to check a box affirmatively indicating that they agreed with Ring’s
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 10
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 11 of 20 Page ID
`#:1393
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`Terms of Service before users could proceed to creating an account. As in Dohrmann
`and Lee, the warning statement also hyperlinked the Terms of Service containing the
`arbitration clause. These four versions of the Ring account signup page provided
`sufficient notice to a reasonably prudent internet user of Ring’s Terms of Service and
`arbitration clause.
`
`Three other versions of the Ring App and Website contain an explicit textual
`
`notice that creating an account will act as a manifestation of the user’s intent to be
`bound by the Terms of Service. (Compare Appendix, Modestine Decl., Exs. N, O, P,
`R) with Arena v. Intuit Inc., 444 F. Supp. 3d 1086, 1088 (N.D. Cal. 2020), rev’d and
`remanded sub nom. Dohrmann, 823 F. App’x 482. These versions of the Ring App
`and Website are arguably more conspicuous than the sign-in page in Dohrmann
`because the pages are less cluttered. In at least in two versions (Exs. P and R), the
`warning text likewise appears directly above or below the create account button, and
`hyperlinks the Terms of Service, as denoted by the blue text. These two versions of
`the App and Website (Exs. P and R) provided sufficient notice to a reasonably prudent
`internet user of Ring’s Terms of Service and arbitration clause.
`
`
`Although the version of the Ring App depicted in Exhibits N and O does not
`hyperlink the Terms in blue text, the warning text appears immediately below where
`the user enters her password, the Terms are underlined, and there are hardly any other
`words on the page. While it is a much closer call, the Court determines that this
`version of the Ring App also provided sufficient constructive notice of the Terms.
`
`Plaintiffs contend that Dohrmann is distinguishable because TurboTax users
`received notice of the terms of use every time they signed in to their accounts, whereas
`here, Ring notified users of the Terms of Service only once at the time of sign up.
`(Opposition at 16-17). The problem with this argument is that the Ninth Circuit’s
`determination in Dohrmann did not turn on the fact that users received notice of the
`terms of use multiple times, but that the location and color of the hyperlinks, as well as
`the uncluttered design of the Website, made the warnings and terms of use sufficiently
`conspicuous.
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 11
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 12 of 20 Page ID
`#:1394
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`
`Accordingly, the Motion with respect to the Purchaser Plaintiffs who made
`accounts on the App or Website is GRANTED.
`
`
`2.
`
`Scope and enforceability of the arbitration clause
`
`
`
`Plaintiffs contend that, even if an arbitration agreement exists, it is
`unconscionable and unenforceable under McGill v. Citibank, N.A., 2 Cal. 5th 945, 216
`Cal. Rptr. 3d 627 (2017). (Opposition at 19-23).
`
`All Purchaser Plaintiffs who created an account after August 18, 2017, are
`subject to the same delegation provision in the Terms, which states that the arbitrator
`“shall have exclusive authority to resolve all disputes arising out of or relating to the
`interpretation, applicability, enforceability or formation of these Terms, including, but
`not limited to any claim that all or any part of these Terms are void or voidable, or
`whether a claim is subject to arbitration.” (Modestine Decl., Ex. C at 13).
`
`
`Because this clause clearly and unmistakably delegates threshold arbitrability
`issues to an arbitrator, including enforceability, the Court may not decide whether the
`arbitration agreement is unconscionable or unenforceable. See Henry Schein, Inc. v.
`Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019) (explaining that, before
`referring a dispute to an arbitrator, a court must first determine whether a valid
`arbitration agreement exists; if the agreement does exist, and “if it delegates the
`arbitrability issue to an arbitrator, the court may not decide the arbitrability issue”).
`
`Plaintiffs assert that many of the Purchaser Plaintiffs created their Ring accounts
`before the delegation provision was added to the Terms, and therefore, those Plaintiffs
`cannot be bound by the provision. (Opposition at 17). Ring admits that Plaintiffs
`Jason Ball, Lue Mayora, and Jerathen and Corrina Tillman created their Ring accounts
`prior to August 18, 2017, the date that the delegation provision was added to the
`Terms. (Reply at 21). However, Ring argues that these Plaintiffs are nonetheless
`bound by the delegation provision because they have continued to use the Devices
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 12
`
`
`

`

`Case 2:19-cv-10899-MWF-RAO Document 113 Filed 06/24/21 Page 13 of 20 Page ID
`#:1395
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: June 24, 2021
`
`
`Case No. CV 19-10899-MWF (RAOx)
`Title:
`In Re: Ring LLC Privacy Litigation
`
`during this litigation, conduct which Ring contends constitutes assent to the current
`Terms and delegation provision. (Reply at 21) (citing Motion at 24 n.18).
`
`The Court agrees with Ring. Courts have held that plaintiffs will be bound by a
`product’s terms of use if they learn of the terms’ existence during pending litigation
`and continue to use the product — “conduct that a reasonable person would understand
`to constitute assent.” Nicosia v. Amazon.com, Inc., 815 F. App’x 612, 614 (2d Cir.
`2020) (citation and internal quotation marks omitted) (holding that the plaintiff
`received notice of the defendant’s conditions of use when the defendant raised the
`conditions’ arbitration clause as a ground for dismissal in the litigation because the
`plaintiff had admitted to making sever