Courts continue to be very specific about the requirements for eliciting assent to online arbitration agreements. Last week, the Ninth Circuit, in Morrison v. Yippee Entertainment, Inc., No. 25-7161, refused to enforce an online arbitration agreement, because it found the following user flow insufficient to manifest assent:

The Ninth Circuit took issue with the fact that the notice said “By clicking below” instead of “By clicking Start subscription.” Because there were six clickable items “below” the advisal (hyperlinks to Terms of Service, Cookies Policy, Privacy Policy, and farther down, hyperlinks to Google's terms of service and privacy policy), there was “no explicit indication [as to] which of these clickable items ‘below’ manifests assent to arbitrate.” According to the Ninth Circuit, users were not explicitly advised that the act of clicking the “Start Subscription” button would constitute asset to Yippee's Terms of Service and the arbitration agreement contained therein.  

The takeaway is that companies need to specifically name the action button that will indicate assent to online terms. Phrases like “clicking below” will not cut it--especially where there are multiple things “below” that are clickable.