## Facts

- Huuuge, Inc. operated “Huuuge Casino,” a smartphone app that allowed users to play casino-style games using free chips or chips purchased through the app.
- The app’s Terms of Use included a binding arbitration clause and a class-action waiver.
- Huuuge did not require users to view, acknowledge, or agree to the Terms when downloading or using the app.
- The Terms could be found only through multi-step paths (e.g., locating a link from the app store listing or finding an option in the app’s settings during gameplay), without clear prompts alerting users that terms existed or that use signified agreement.
- Sean Wilson downloaded the app from Apple’s App Store in early 2017 and used it for over a year.
- In April 2018, Wilson filed a putative class action in the Western District of Washington alleging violations of Washington gambling and consumer-protection laws tied to Huuuge’s sale of in-app chips.
- Huuuge moved to compel arbitration and stay the case under the Federal Arbitration Act (FAA); the district court denied the motion for lack of reasonable notice and assent.

## Issues

1. Under Washington contract law, did downloading and using a mobile app bind a user to an arbitration clause contained in terms that were accessible but not reasonably conspicuous and not affirmatively accepted?
2. Does the FAA require arbitration when state-law contract formation requirements for notice and assent are not satisfied?

## Decision

- The Ninth Circuit affirmed the denial of Huuuge’s motion to compel arbitration and stay proceedings.
- The court held Wilson was not bound by the Terms, including the arbitration clause and class-action waiver, because he lacked both actual and constructive notice and did not unambiguously manifest assent.
- The court held the federal policy favoring arbitration does not permit compelling arbitration absent an enforceable agreement formed under applicable state contract law.

## Legal Principles

- Contract terms are enforceable only if the offeree has actual or constructive notice of the terms and objectively manifests assent.
- Constructive (inquiry) notice for online or app-based terms depends on whether the drafting party provides reasonably conspicuous notice of the terms and whether the user’s conduct would objectively indicate agreement.
- For browsewrap-style presentations (terms available by link without an “I agree”), courts evaluate interface design, placement and clarity of notice, and whether a reasonably prudent user would be alerted that terms exist and that continued use constitutes assent.
- The FAA places arbitration agreements on equal footing with other contracts but does not displace state-law rules governing contract formation; absent mutual assent, arbitration cannot be compelled.

## Conclusion

The court held that an app provider cannot enforce an arbitration clause embedded in obscure, non-conspicuous terms when users are not clearly notified that terms exist or that continued use signifies agreement, and the FAA does not supply consent where no contract to arbitrate was formed under state law.


Wilson v. Huuuge, Inc., 944 F.3d 1212 (9th Cir. 2019)