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Ninth Circuit Affirms Denials of Arbitration in Yippee Video-Privacy and Snowflake Breach Suits

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Why it matters

The Ninth Circuit issued two unpublished rulings a day apart, both upholding lower-court refusals to force consumers into arbitration in privacy class actions. In Morrison v. Yippee Entertainment, the plaintiff alleged the company shared data about her video viewing with a third party for advertising without her consent. The panel found the arbitration terms on the sign-up page were too small and buried under six clickable items, so no user could tell which click signaled agreement. The second ruling addressed a notice deficiency in the Snowflake data breach multidistrict litigation. Because both decisions are unpublished, they do not bind other courts.

The court applied California contract law. Under that test, an arbitration clause in online terms is enforceable only if the website gives reasonably conspicuous notice of the terms and the consumer takes an action, such as clicking a button or checking a box, that unambiguously shows assent. The standard traces to Berman v. Freedom Financial Network LLC, where the California Supreme Court held that a motion to compel arbitration should be denied when the plaintiff alleged he never saw the notice. The Ninth Circuit applied similar reasoning in Norcia v. Samsung Telecommunications America, holding that a consumer was not bound by an arbitration clause in a brochure inside a product box because nothing on the box drew attention to it.

The rulings are part of a steady run of Ninth Circuit arbitration decisions in 2026. In January, the court affirmed denial of an employer's motion to compel arbitration in Avery v. TEKsystems. In September, it refused to compel arbitration in a class action against Roblox. Days before the Yippee and Snowflake rulings, a separate Rugs.com decision affirmed denial of arbitration under the same assent principles, applied to browsewrap terms. Commentators describe that ruling as a routine application of existing law, and they read the Yippee and Snowflake decisions as reinforcing settled precedent.

Companies using online sign-up flows should treat these rulings as a practical warning. Consumer privacy class actions keep multiplying, with new claims targeting chatbots, session replay tools, and third-party tracking technologies. Arbitration agreements and class action waivers remain major strategic tools for defendants in these cases, so counsel should audit how arbitration terms are presented, confirm that each click or checkbox clearly signals assent, and check whether the disclosure is conspicuous enough to survive a challenge under Berman and Norcia.

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