A federal appeals court on Wednesday and Thursday refused to send two consumer lawsuits to arbitration, ruling that the websites of LendingTree and the streaming company Yippee Entertainment hadn’t done enough to bind customers to the arbitration clauses in their terms of service.
Separate panels of the U.S. Court of Appeals for the Ninth Circuit issued the decisions. One keeps a privacy class action against Yippee in federal court. The other lets data breach claims against LendingTree and its subsidiary QuoteWizard go forward in the multidistrict litigation over the hacking of the cloud provider Snowflake.
Both panels reviewed the sign-up screens closely, Eric Goldman, a law professor who writes the Technology & Marketing Law Blog, said in a post headlined “Clickwrap or It’s Crap”. Businesses, he wrote, had “been warned about this risk (many times).”
The Yippee ruling, Morrison v. Yippee Entertainment, No. 25-7161, came down on Thursday and turned on two words. Yippee’s page told users they accepted its terms “by clicking below.” The panel, relying on its own earlier decision in Godun, said that wasn’t specific enough.
“There were six clickable items ‘below’ that advisal,” the judges wrote. They listed links to Yippee’s terms of service, cookie policy and privacy policy, then the “Start Subscription” button and, beneath it, links to Google’s terms and privacy policy. “There is no explicit indication which of these clickable items ‘below’ manifests assent to arbitrate.”
It was the case’s second trip to the appeals court. Brittany Morrison says Yippee shared her personally identifiable information with a third party after she subscribed, in violation of the Video Privacy Protection Act. In August 2025, Judges Nguyen, Forrest and VanDyke reversed a lower court and found the notice reasonably conspicuous, with the terms link sitting directly above the subscribe button in blue text on a white background, according to their memorandum. That ruling didn’t decide whether Ms. Morrison had actually agreed to the terms.
On remand, the district court said she hadn’t. None of the judges on the first panel sat on the second, and the new panel affirmed.
Mr. Goldman called the result “pretty harsh.” Yippee could easily have pointed users to the button itself, he wrote, and added: “did consumers not understand what was going to happen when they clicked on the ‘start subscription’ button?” In his view, Godun had encouraged “formalistic pixel-policing” of terms with even small flaws. The complete turnover on the panel, he wrote, “probably also didn’t help.”
Wednesday’s decision, Nader v. LendingTree, No. 25-7045, got the court’s caption wrong: it names the litigation for “Snowlake.” The ruling held that neither LendingTree’s site nor QuoteWizard’s “provide[d] reasonably conspicuous notice” of the terms of use.
The panel agreed with the trial judge that font size, clutter and layout all worked against the companies. Both sites printed their terms in a font “considerably smaller than the font used in the surrounding website elements,” the judges wrote, quoting the circuit’s Berman decision. The QuoteWizard form made users scroll past “Good News! We’ve Found Matches For You!” and a bright green “Get My Quotes” box. LendingTree put its Terms of Use link well below a “View Your Rates” button, among other links that drew the eye away.
Mr. Goldman, who took the screenshots from the companies’ appellate brief because the opinion didn’t show them, said the QuoteWizard placement was “definitely suboptimal.” LendingTree was another matter. Its page covered so few topics that “there is so much text below the action button that it’s impossible to miss, despite the many flaws in its presentation,” he wrote. He called the panel’s reading of that page “quite ungenerous.”
The plaintiffs include Antoun Nader, who brought the original suit against LendingTree and Snowflake. A federal judge in Montana, where the Snowflake cases are consolidated, refused to compel arbitration in October 2025, Bloomberg Law reported. LendingTree was one of “as many as” 165 companies and organizations caught up in the Snowflake breach, along with Ticketmaster and the Los Angeles Unified School District, according to the complaint.
The appeals court didn’t rule on whether LendingTree or QuoteWizard bear any responsibility for the breach. With both appeals lost, the two cases go back to the trial courts.