Morrison Law Journal
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The Morrison Law Journal
December 2021
Volume XVI, Edition 12

When "Affirmative Consent" Is Required: Court Of Appeal Rules That Terms And
Conditions On A Consumer Website Requiring Arbitration Failed To Meet The Consent
Mandated by the California Automatic Renewal Law

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

As has been reported in The Morrison Law Journal, the Courts have recently showed reluctance in enforcing arbitration agreements unless the party resisting arbitration has given affirmative and knowing consent. In a case involving consumer transactions over the internet, the Court of Appeal in Sellers v. JustAnswer, LLC (2021) Westlaw 6144075 ("the Sellers case") ruled that a consumer internet company could not enforce an arbitration provision involving disputes between internet customers who had been charged a onetime fee of $5.00, and were automatically enrolled in a costlier monthly membership.

The Sellers case concerns the website "JustAnswer." The JustAnswer website offers the consumer the ability to submit a single question to an "expert" for a onetime fee of $5.00, and then automatically enrolls the consumer in a more costly monthly membership. The Sellers case concerned two consumer transactions where consumers purchased a onetime $5.00 question from the JustAnswer website. Both consumers were then automatically enrolled in a monthly membership. After disputes arose, the internet company refunded all fees except for the onetime $5.00 fee charged to the two consumers. The two consumers then filed a class action lawsuit.

Central to this article is the Petition to Compel Arbitration which was filed by JustAnswer. The Trial Court rejected the Petition to Compel Arbitration and JustAnswer appealed. In the Court of Appeal ruling, the Court of Appeal addressed, in a case of first impression, whether, and under what circumstances a "sign and wrap" agreement can manifest assent as required under California law, and the ARL (automatic renewal law). In a lengthy Opinion, the Court of Appeal noted that there were numerous pages on the JustAnswer website that a consumer is to navigate, some of which had terms which were in different fonts. Based on the website, the Court concluded that the wrap agreement was not enforceable – insofar as the obligation to arbitrate - because the textual notices on the JustAnswer screens – which had different fonts - were not sufficiently conspicuous in order to bind Plaintiffs to the arbitration provision.

The Sellers case will result in greater disclosure requirements for internet companies in enforcing arbitration agreements. However, the Sellers case could also have greater impact in that internet transmitted agreements, such as in the employment context, are also being utilized. The moral is that the arbitration notice be conspicuous – and in a font which is commensurate with other terms and conditions in the agreement.


About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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