Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`MICHELE ARENA, et al.,
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`Plaintiffs,
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`v.
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`INTUIT INC., et al.,
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`Case No. 19-cv-02546-CRB
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`ORDER DENYING MOTION TO
`COMPEL ARBITRATION
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`Defendants.
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`Andrew Dohrman, Joseph Brougher, and Monica Chandler (collectively, “Plaintiffs”) have
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`brought a putative class action against Intuit Inc., alleging that Intuit fooled a class of consumers
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`into paying for its tax preparation services when they were entitled to use its free filing option.
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`Intuit thinks Plaintiffs are bound by the arbitration agreement in the Intuit Terms of Service for
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`TurboTax Online Tax Preparation Services – Tax Year 2018 (“the Terms”), which Plaintiffs
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`ostensibly agreed to every time they signed in to use Intuit’s tax preparation software. Because
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`the Terms were too inconspicuous to give Plaintiffs constructive notice that they were agreeing to
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`be bound by the arbitration agreement when they signed in to TurboTax, the Court finds that
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`Plaintiffs did not agree to the arbitration provision. The Court therefore need not decide whether
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`questions of arbitrability or claims for equitable relief were delegated to the arbitrator. The
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`Motion to Compel Arbitration is denied, and so is Intuit’s request for a stay pending its appeal to
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`the Ninth Circuit.
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`I.
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`BACKGROUND
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`Intuit owns TurboTax, an online tax preparation service. Compl. (dkt. 1) ¶ 1. In 2002,
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`Intuit and other tax preparation services entered an agreement with the Internal Revenue Service to
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`Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 2 of 10
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`provide low-income taxpayers and active military members the option to file their taxes for free.
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`Id. ¶¶ 15–17, 20. But, Plaintiffs allege, Intuit violated that agreement by misleadingly channeling
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`such taxpayers to its paid services instead. Id. ¶ 2. According to the Complaint, Intuit lured
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`consumers in with promises of free filing, only to direct them to paid offerings while hiding the
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`actual free filing option. Id. ¶ 3–4.
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`From January to March 2019, consumers accessing TurboTax Online as returning users
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`would have seen this sign-in page:
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`Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 4 of 10
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`Sun Decl. (dkt. 97-2) ¶ 5. The parties do not dispute that each of the Plaintiffs would have seen
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`the sign-in page depicted above, or a substantially similar version.1 Mot. (dkt. 97) at 2–3, 5–6;
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`Opp’n (dkt. 112) at 2; see also Davis Decl. (dkt. 97-1) ¶ 7.
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`The phrase “TurboTax Terms of Use” is a hyperlink to the Terms. Sun Decl. ¶ 6. A
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`consumer who clicked on the link and read the Terms would have eventually arrived at the
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`following arbitration provision:
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`14. DISPUTES. ANY DISPUTE OR CLAIM RELATING IN ANY
`WAY TO THE SERVICES OR THIS AGREEMENT WILL BE
`RESOLVED BY BINDING ARBITRATION, RATHER THAN IN
`COURT, except that you may assert claims in small claims court if
`your claims qualify. The Federal Arbitration Act governs the
`interpretation and enforcement of this provision; the arbitrator shall
`apply California law to all other matters. Notwithstanding anything
`to the contrary, any party to the arbitration may at any time seek
`injunctions or other forms of equitable relief from any court of
`competent jurisdiction. . . Arbitration will be conducted by the
`American Arbitration Association (AAA) before a single AAA
`arbitrator under
`the AAA’s rules, which are available at
`wwww.adr.org or by calling 1-800-778-7879.
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`Sun Decl. Ex. 1 (“Terms”) at 4.
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`Plaintiffs’ suit “seek[s] equitable and injunctive relief on behalf of themselves and all
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`others who are similarly situated.” Opp’n at 1. Intuit has moved to compel arbitration. See
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`generally Mot.
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`II.
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`LEGAL STANDARD
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`The Federal Arbitration Act provides that an agreement to submit commercial disputes to
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`arbitration shall be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or
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`in equity for the revocation of any contract.” 9 U.S.C. § 2. “[P]rivate agreements to arbitrate are
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`enforced according to their terms.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior
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`Univ., 489 U.S. 468, 479 (1989). A party may therefore petition a United States district court “for
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`an order directing that . . . arbitration proceed in the manner provided for in such agreement.” 9
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`U.S.C. § 4. “[A] party cannot be required to submit to arbitration any dispute which he has not
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`1 It appears Dohrmann accessed TurboTax through the “Account Recovery” page. Davis Decl.
`¶ 7a. For purposes of this Order, that page’s relevant features are identical to the standard sign-in
`page. See Sun Decl. ¶ 11.
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`Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 5 of 10
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`agreed so to submit.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648
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`(1986).
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`III. DISCUSSION
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`The dispositive question is whether there was a valid agreement to arbitrate. If Plaintiffs
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`did not assent to the Terms, they cannot be bound by the arbitration provision contained therein.
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`“In determining whether a valid arbitration agreement exists, federal courts apply ordinary state-
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`law principles that govern the formation of contracts.” Nguyen v. Barnes & Noble Inc., 763 F.3d
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`1171, 1175 (9th Cir. 2014) (internal quotation marks and citations omitted). The parties agree that
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`California law governs here. Mot. at 7; Opp’n at 3. Under California contract law, a valid
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`agreement requires the parties’ “mutual manifestation of assent” to be bound by the terms of the
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`contract. Nguyen, 763 F.3d at 1175 (internal alterations omitted). “[A]n offeree, knowing that an
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`offer has been made to him but not knowing all of its terms, may be held to have accepted, by his
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`conduct, whatever terms the offer contains.” Windsor Mills, Inc. v. Collins & Aikman Corp., 101
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`Cal. Rptr. 347, 350 (Cal. Ct. App. 1972). However, an offeree cannot be bound by the terms of a
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`contract if he “does not know that a proposal has been made to him.” Id. at 351. These basic
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`principles apply to contracting on the Internet. Nguyen, 763 F.3d at 1175.
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`Courts have categorized the various contracts of adhesion employed by online service
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`providers like Intuit. “‘Clickwrap’ (or ‘click-through’) agreements require website users to click
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`on an ‘I agree’ box after being presented with a list of terms and conditions of use.” Colgate v.
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`JUUL Labs, Inc., 402 F. Supp. 3d 728, 763 (N.D. Cal. 2019). “‘Browsewrap’ agreements exist
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`where a website’s terms and conditions of use are generally posted on the website via a hyperlink
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`at the bottom of the screen.” Id. Intuit employs a more recent innovation somewhere between
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`these two classic forms of Internet contracting. “‘Sign-in wrap’ agreements are those in which a
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`user signs up to use an internet product or service, and the signup screen states that acceptance of a
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`separate agreement is required before the use can access the service.” Id.
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`Sign-in wrap agreements are valid and enforceable when “the existence of the terms was
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`reasonably communicated to the user.” Id. at 764. In other words, if Plaintiffs “were on inquiry
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`Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 6 of 10
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`notice of the arbitration provision by virtue of the hyperlink to the [Terms] on the sign-[in] page
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`and manifested their assent to the agreement by clicking ‘sign-[in],’” then there was a valid
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`arbitration agreement. Id. The notice Intuit provided on its sign-in page (and Account Recovery
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`page) does not meet this standard.2
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`To Intuit’s credit, the hyperlink to the Terms appeared immediately under the sign-in
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`button, every time consumers signed in. See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 401
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`(E.D.N.Y. 2015) (noting that sign-in wrap agreements are more likely to be upheld “where the
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`hyperlinked ‘terms and conditions’ is next to the only button that will allow the user to continue
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`use of the website” and where the “user . . . was presented with hyperlinks to the ‘terms of use’ on
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`subsequent visits,” and collecting cases). It also weighs in Intuit’s favor that the sign-in page
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`featured an explicit statement that signing in constituted assent to the Terms. Cf. Applebaum v.
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`Lyft, Inc., 263 F. Supp. 3d 454, 467 (S.D.N.Y. 2017) (“Beyond the coloring, there were no
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`familiar indicia to inform consumers that there was in fact a hyperlink that should be clicked and
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`that a contract should be reviewed, such as words to that effect.”).
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`But this leaves the crucial question of whether “the hyperlinked text was itself reasonably
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`conspicuous.” See Meyer v. Uber Tech., Inc., 868 F.3d 66, 79 (2d Cir. 2017). To make this
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`determination, courts consider factors such as color, size, and font. See, e.g. Selden v. Airbnb,
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`Inc., No. 16-cv-00933 (CRC), 2016 WL 6476934, at *5 (D.D.C. Nov. 1, 2016). Many courts have
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`concluded that hyperlinks are sufficiently conspicuous when they are blue and underlined.
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`Cullinane v. Uber Techs., Inc., 893 F.3d 53, 63 (1st Cir. 2018) (noting that hyperlinks “are
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`commonly blue and underlined” and collecting cases (internal quotation marks omitted)). In
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`contrast, when “the hyperlink [was] wholly indistinguishable from the surrounding text” courts
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`have found that users did not receive adequate notice of the agreement it led to, because “[u]sers
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`cannot be reasonably expected to click on every word of the sentence in case one of them is
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`actually a link.” Juul Labs, 402 F. Supp. 3d at 765.
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`2 The only Plaintiffs who accessed TurboTax through the mobile app have since been voluntarily
`dismissed. Notice of Voluntary Dismissal (dkt. 110); see also Davis Decl. ¶ 7(b), (c). The Court
`therefore does not address whether mobile app users had constructive notice of the arbitration
`provision.
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`TurboTax falls short of the gold standard. Its hyperlinks were blue, but not underlined.3
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`See Sun Decl. ¶¶ 5, 11. Other courts have rejected the use of color alone to identify a Terms of
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`Service hyperlink. See Juul Labs, 402 F. Supp. 3d at at 765–66 (“I am not convinced that the
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`mere change in color of the hyperlinks, without more, is enough.”); Applebaum, 263 F. Supp. 3d
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`at 467 (“Courts have required more than mere coloring to indicate the existence of a hyperlink to a
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`contract.”).
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`Intuit argues those cases are distinguishable. Reply (dkt. 120) at 4–5. It points out that in
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`Juul, other hyperlinks on the same page were “bolded, underlined, and . . . in a larger font size
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`than the hyperlink at issue.” Juul Labs, 402 F. Supp. 3d at 766. And in Applebaum, there was no
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`statement on the sign-in page “that there was in fact a hyperlink that should be clicked and that a
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`contract should be reviewed.” 263 F. Supp. 3d at 467. However, the Court finds that there are
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`three additional factors in this case, besides Intuit’s reliance on color alone to identify the crucial
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`hyperlinks, that demonstrate the lack of adequate notice.
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`First, both the notice and the hyperlinks therein are in the lightest font on the entire sign-in
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`screen (the same is true of the Account Recovery page). See Sun Decl. ¶¶ 5, 11. The Court finds
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`that a reasonable consumer would be less likely to notice text in a significantly fainter font than
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`other text on the same page. This conclusion is supported by the expert opinion of Dr. Harry
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`Brignull, a PhD in Cognitive Science. See Brignull Decl. (dkt. 112-1) ¶ 1. Dr. Brignull confirms
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`the common-sense conclusion that because “Intuit chose to use a lighter shade of gray for the text
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`associated with the terms and conditions,” making that notice “less prominent” “[o]n the page’s
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`white background.”4 Id. ¶ 10.
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`3 At oral argument, Intuit argued that the relevant hyperlinks were sufficiently conspicuous
`because they were both blue and italicized. But italicization did nothing to identify the hyperlinks
`as such, because the surrounding text was italicized as well. See Sun Decl. ¶¶ 5, 11. And if
`anything, it appears that italicization would make the notice less conspicuous to the average
`consumer.
`4 Intuit objects that Dr. Brignull’s opinion is inapposite, because he criticizes Intuit for failing to
`“require a user to scroll-through and then click a separate box indicating agreement.” Reply
`(dkt. 120) at 7. Intuit points out that “as countless cases in the Ninth Circuit have held,
`Mr. Brignull’s suggestion is simply not the law.” Id. Be that as it may, the Court finds Dr.
`Brignull’s other conclusions and critiques useful in evaluating whether Intuit gave users sufficient
`notice of the arbitration agreement. Intuit claims Dr. Brignull’s declaration is “unprecedented”
`because similar evidence has not been presented to other courts evaluating similar online contracts
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`Second, the notice on Intuit’s sign-in and Account Recovery pages contains multiple,
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`confusingly similar hyperlinks. The notice on both pages purports to warn users that clicking
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`“Sign In” or “Continue” would bind them to “the Turbo Terms of Use, Turbo Tax Terms of Use.”
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`See Sun Decl. ¶¶ 5, 11. “Turbo Terms of Use” and “Turbo Tax Terms of Use” are two separate
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`hyperlinks to two different agreements. Only the latter contained the arbitration agreement Intuit
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`is seeking to enforce by way of the instant motion. Brignull Decl. ¶ 23. A reasonable user might
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`well find this arrangement confounding. He or she might not realize the notice contained a second
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`hyperlink. Once again, Dr. Brignull confirms this common-sense conclusion. Id. ¶ 23–24.
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`Intuit argues that there is no evidence any user clicked on the “Turbo Terms of Use” and
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`mistakenly believed they had read all binding legal terms. Reply at 8. But the point is that the
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`confusing presence of two nearly-identically named hyperlinks might have prevented a user from
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`realizing the second hyperlink existed at all, regardless of whether they clicked on the first one.
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`For the same reason, it does not help Intuit that an arbitration agreement governing use of a
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`different product appeared in the terms that the first hyperlink led to. See Intuit Letter (dkt. 133).
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`And even if Plaintiffs had clicked on the “Turbo Terms” and read them, Intuit does not explain
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`why the arbitration provision in that agreement equates to notice of a totally separate agreement
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`with an arbitration provision applicable to a different product.
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`Finally, the Court finds it relevant that less than 0.55% of users logging into TurboTax’s
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`website between January 1 and April 30, 2019, actually clicked on the hyperlink to the Terms.
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`See Girard Decl. Ex. 1 (dkt. 112-6) Ex. A. The fact that so few users actually clicked on the
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`hyperlink supports the inference that many of them did not notice it. Intuit points out that users
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`may accept terms they have not read, so long as they have adequate notice of them. Reply at 6–7.
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`True enough. See Nguyen, 763 F.3d at 1179 (“[F]ailure to read a contract before agreeing to its
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`terms does not relieve a party of its obligations under the contract.”). But because this evidence
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`suggests users were not on notice of the Terms, it is nonetheless relevant.
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`The parties raise a few additional arguments, none of which are particularly helpful.
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`of adhesion. Novelty alone is no reason to disregard evidence, and Intuit identifies no Federal
`Rule of Evidence rendering Dr. Brignull’s declaration inadmissible.
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`Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 9 of 10
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`Plaintiffs cite statistics about the number of TurboTax users who actually click on the Terms,
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`Opp’n at 7, but as Intuit points out, the question is not whether users read the Terms, but whether
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`they received adequate notice of them,
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`Intuit makes two additional arguments that must be addressed.
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`First, Intuit states that its arbitration provision “has been uniformly upheld by courts.”
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`Reply at i. But neither of the two decisions it cites analyze whether TurboTax users received
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`sufficient notice of the Terms to be bound by them. See generally Diaz v. Intuit, Inc., No. 5:15-
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`cv-01778-EJD, 2017 WL 4355075 (N.D. Cal. Sept. 29, 2017); Reply Ex. A (dkt. 120-1) (Macklin
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`v. Intuit, Inc., No. 2019-1-CV-347208 (Santa Clara Sup. Ct. Cal. Nov. 1, 2019). Since those
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`courts apparently had no occasion to assess whether users had received adequate notice of the
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`Terms, the Court is not persuaded by their conclusion that the plaintiffs agreed to the arbitration
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`provision.
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`Second, Intuit claims that Plaintiffs admitted their assent to the Terms in their Complaint,
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`where they allege they were “required to accept [the TERMS] to use the services.” Mot. at 8
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`(citing Compl. ¶ 108). The Second Circuit has rejected a virtually identical argument, reasoning
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`that a similar allegation was “not obviously a concession in that it makes no reference to . . .
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`knowledge.” Meyer, 868 F.3d at 77. It also noted that (as in this case) the plaintiff had
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`“volunteered to amend his complaint on the record to delete the allegation at issue” and had
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`“attested that . . . he was not aware of the Terms of Service.” Id.; see also Opp’n at 10.
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`Because Plaintiffs did not receive adequate notice of Intuit’s Terms, they never agreed to
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`the Terms, and cannot be bound by the arbitration provision contained therein. The Court
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`therefore need not decide the scope of that arbitration provision, including whether it applies to
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`questions of arbitrability or claims for equitable relief.
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`IV. CONCLUSION
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`For the foregoing reasons, the motion to compel arbitration is denied. Intuit indicated at
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`oral argument that if its motion was denied, it would request a stay pending appeal. In the Ninth
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`Circuit, a district court has discretion to decide whether to stay an action pending appeal from an
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`Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 10 of 10
`Case 3:19-cv-02546-CRB Document 141 Filed 03/12/20 Page 10 of 10
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`NorthernDistrictofCalifornia
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`AWN
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`order refusing to compel arbitration. Britton v. Co-op Banking 9113., 916 F.2d 1405, 1412 (9th
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`Cir. 1990).
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`Intuit’s request is granted in part and denied in part. The action is stayed pending appeal,
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`except for Plaintiffs’ claims for injunctive and other equitable relief. It appears that this Court will
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`ultimately have to consider Plaintiffs’ claims for equitable relief even if Intuit prevails on appeal.
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`The arbitration provision provides that “[n]otwithstanding anything to the contrary, any party to
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`the arbitration may at any time seek injunctions or other forms of equitable relief from any court
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`of competent jurisdiction.” Terms at 4. Even assuming, without deciding, that Intuit is correct
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`that this exception only applies if “Plaintiffs .
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`.
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`. arbitrate first,” then seek equitable relief in court,
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`Plaintiffs indicated at oral argument that that is exactly what they would do if their claims are
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`compelled to arbitration. Mot. at 14—17. Intuit concedes that in that event the Court may well be
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`required to evaluate the appropriateness of injunctive or other equitable relief.
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`I_d. at 17
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`(acknowledging that Intuit’s construction of the exception for equitable relief “could ultimately
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`include some future relief from this Court”);w Comedy Club, Inc. v. Improv W. Assocs.,
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`553 F.3d 1277, 1286 (9th Cir. 2009) (concluding that a near-identical provision “lets the parties
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`pursue equitable remedies in courts in aid of the arbitration”). It would be senseless to delay
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`resolution of issues which will eventually appear before the Court regardless of the outcome of
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`any appeal.
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`This is particularly true given the practical realities of this litigation. Tax season is well
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`under way, making Plaintiffs’ request for injunctive relief time sensitive. It is therefore wiser to
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`continue working to resolve those issues relevant to Plaintiffs’ claims for injunctive and other
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`equitable relief, even while the appeal is pending.
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`The Parties are directed to file a proposed briefing schedule for Plaintiffs’ motion for class
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`certification, partial summary adjudication, and final injunctive relief, by Tuesday, March 17,
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`2020, at 5:00 PM.
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`IT IS SO ORDERED.
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`Dated: March 12, 2020
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`¢
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`CHARLES R. BREYER
`United States District Judge
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`10
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`UnitedStatesDistrictCourt
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