The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 LADONNA LOMELI and JOHN Case No.: 25cv422-LL-AHG
FRANKLIN JR.,
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ORDER GRANTING MOTION TO
Plaintiffs,
13 COMPEL ARBITRATION AND
v. STAYING ACTION [18]
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UNITED PARCEL SERVICE
15 ORDER DENYING EX PARTE
COMPANY, a foreign corporation
REQUEST FOR ORAL ARGUMENT
16 authorized to do business and doing
[24]
business in California,
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Defendant.
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Before the Court is Defendant United Parcel Service Company’s (“UPS”) Motion to
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Compel Arbitration (“Motion”). Dkt. 18. Plaintiffs Ladonna Lomeli and John Franklin Jr.
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opposed the Motion [Dkt. 22] and Defendant replied [Dkt. 23]. The Court finds this matter
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suitable for determination on the papers and without oral argument pursuant to Civil Local
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Rule 7.1 and therefore DENIES Plaintiffs’ Ex Parte Request for Oral Argument [Dkt. 24].
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For the reasons below, the Court OVERRULES the parties’ evidentiary objections,
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GRANTS Defendant’s Motion to Compel Arbitration, and STAYS this action pending the
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completion of arbitration proceedings.
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/ / /
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1 I. BACKGROUND
2 Plaintiffs are a couple that runs an online marketplace. Declaration of Caitlin
3 Sinclaire Blythe (“Blythe Decl.”) ¶ 5, Dkt. 18-1. On February 26, 2025, Plaintiffs brought
4 this putative class action on behalf of consumers who purchased a UPS shipping label from
5 a third-party retailer from January 1, 2015 to present. Compl. ¶¶ 1, 14, Dkt. 1. Plaintiffs
6 allege that UPS “has engaged in a practice of intentionally overcharging third party retailers
7 for packages . . . by adding surcharges that should never have been charged.” Id. ¶ 4.
8 Plaintiffs assert five causes of action: 1) conversion, 2) unjust enrichment, 3) quasi-
9 contract, 4) money had and received, and 5) a violation of California Unfair Competition
10 Law. Id. ¶¶ 21–46.
11 In response, UPS moved to compel arbitration, asserting that Plaintiffs agreed to
12 arbitrate their claims when they purchased UPS shipping labels from third-party retailers.
13 Mot. 7–8. According to UPS, Plaintiffs purchased UPS shipping labels from PayPal, Pirate
14 Ship, and ShipStation on at least four occasions in October 2021 (Pirate Ship), June 2024
15 (Pirate Ship), January 2023 (ShipStation), and September 2023 (PayPal). Id. at 9–11.
16 A. Pirate Ship
17 1. October 2021
18 On October 5, 2021, Plaintiff Franklin purchased a UPS label through Pirate Ship.
19 See Declaration of Janese Coleman (“Coleman Decl.”) ¶ 9, Dkt. 18-3; Declaration of John
20 Franklin Jr. (“Franklin Decl.”) ¶¶ 9, 11, Dkt. 22-1. In October 2021, when a customer tried
21 to purchase a UPS shipping label through Pirate Ship, they were presented with a pop-up
22 screen that stated in part: “To proceed, just agree to and accept the Terms and Conditions,
23 UPS List of Prohibited Articles, and UPS Technology Agreement.” Coleman Decl. ¶ 29.
24 The three documents were shown in blue bold font to indicate they were hyperlinked. Id.
25 ¶ 30. On the right bottom corner was a large green button with the text “Accept & Buy
26 Label” Id. Below is screenshot of the pop-up screen that was presented to Pirate Ship
27 customers in October 2021:
28
1
2 You’re buying your first UPS label! B
5
7
8
g ||/d. According to UPS, it was not possible to purchase a UPS label through Pirate Ship
10 || without clicking the green “Accept & Buy Label” button. /d. 4 21, 29.
11 All three hyperlinked documents in the pop-up screen (“Terms and Conditions,”
12 ||“UPS Prohibited Articles,” and “UPS Technology Agreement”) incorporated “UPS
13 || Tariff/Terms and Conditions of Service” and included hyperlinks to the document on the
14 || UPS website. See Coleman Decl. {J 22, 29, 31-35; Ex. H at 62, Ex. I at 67, Ex. J at 71. If
15 || UPS updated the “UPS/Tariff Terms and Conditions of Service,” Pirate Ship required its
16 ||accountholders to click through the same process before shipping another UPS package.
17 19 23, 29.
18 Section 54 of UPS Tariff/Terms and Conditions of Service set out “Claims and Legal
19 || Actions: Individual Binding Arbitration of Claims,” which stated in relevant part:
20 Claimant and UPS agree that, except for disputes that qualify for
state courts of limited jurisdiction (such as small claims, justice
21 of the peace, magistrate court, and similar courts with monetary
29 limits of less than $30,000 on their jurisdictions over civil
disputes), any controversy or claim, whether at law or equity,
23 arising out of or related to the provision of services by UPS,
24 regardless of the date of accrual of such dispute, shall be resolved
in its entirety by individual (not class-wide nor collective)
25 binding arbitration.
76 || Id. 44 14, 15, Ex. B at 27-28.
/
28
YQ
1 2. June 2024
2 On June 19, 2024, Plaintiff Lomeli purchased a UPS shipping label through Pirate
3 || Ship. Coleman Decl. { 6; Declaration of Ladonna Lomeli (“Lomeli Decl.”) §] 3. Similar to
4 process described above for October 2021, when a customer tried to purchase a UPS
5 || shipping label through Pirate Ship in June 2024, they were presented with a pop-up screen
6 || which stated in part: “By checking this box, I accept and agree to the UPS Terms and
7 || Conditions and the UPS Technology Agreement, and I will not ship any items in violation
8 || of the UPS List of Prohibited and Restricted Items for Shipping.” Coleman Decl. □ 20. The
9 three documents were shown in bold blue font to indicate they were hyperlinked. /d. To
10 || proceed, customers had to check the box next to the statement and click on the large green
11 ||} button that said “Accept & Buy Label.” /d. § 19. Below is a screenshot of the pop-up screen
12 || that was presented to Pirate Ship customers in June 2024:
13
14 You’re buying your first UPS label! “a
15 You can schedule picks onthe Ship pgeor op UPS packages off toe 8500 lctions,
16 that offer UPS services.
Reidugigentied al amccdaay terineccint
18 Prohibited and Restricted Items for Shipping,
19
21
22 20. According to UPS, it was not possible to purchase a UPS label through Pirate Ship
23 || without checking the box and clicking the green button. /d. ¥ 21. In addition, customers
24 || were required to enter the address the package was being shipped to and from, the weight
25 dimensions of the package, and enter payment information to create a UPS shipping
26 || label through Pirate Ship. /d. 7 19
27 All three hyperlinked documents in the pop-up screen incorporated “UPS
28 || Tariff/Terms and Conditions of Service” and included hyperlinks to the document on the
1 website, which included a similar arbitration provision as the 2021 version. See □□□
2 || 13, 15, 26-28, Ex. A at 19, Ex. E at 43, Ex. F at 50, Ex. Gat 55.
3 B. Ship Station
4 Plaintiff Lomeli opened an account! with ShipStation on January 31, 2023 and
5 || purchased UPS labels through ShipStation. Declaration of Darryl Barber (“Barber Decl.’’)
6 19, Dkt. 18-2. In January 2023, when a customer tried to purchase a UPS shipping label
7 ||through ShipStation, they were presented with a pop-up screen that stated: “To start
8 shipping with UPS, you must first agree to the following” and provided hyperlinks to (1)
9 ||} UPS Promotional Rates Agreement, (2) UPS Technology Agreement, and (3) List of
10 || Prohibited Articles. Barber Decl. § 20. To proceed, ShipStation customers were required
11 the green button that said, “I Agree.” Jd. Below is a screenshot of a pop-up screen
12 || that was presented to ShipStation customers in January 2023:
1 3 Adda Stamps.com Account
14 Promotional Rates and Technology Agreements
17
18
19
20
21
9 121. According to UPS, it was not possible to purchase a UPS label through ShipStation
93 || without clicking the green “I Agree” button. /d. 4 22.
24
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26 ' While Plaintiff Lomeli denies opening a ShipStation account on January 31, 2023 or
shipping packages on any ShipStation account (“Lomeli Decl.” J 7-8), her response to
27 || UPS’ interrogatory no. 10 states that she “shipped some products” for Riteway North
28 America, the business that is associated with the account that was opened on January 31,
2023. See Blythe Decl. Ex. 5 at 28; Barber Decl. { 19.
1 All three documents in the pop-up screen incorporated “UPS Tariff/Terms and
2 || Conditions of Service” and included hyperlinks to the document on the UPS website, which
3 included an arbitration provision. See Barber Decl. 4] 23, 25-27, Ex. AA at 13, Ex.
4 || BB at 19, Ex. CC at 23, Ex. EE at 44.
5 C. PayPal
6 Plaintiff Franklin created an account with PayPal on September 18, 2023 and
7 purchased UPS labels through PayPal. See Barber Decl. § 6; Franklin Decl. J 8. To
8 ||purchase a UPS shipping label through PayPal, PayPal customers had to enter their
9 || shipping location, select their shipping preferences, and agree to UPS’ contractual terms
10 conditions. Barber Decl. 7. Specifically, PayPal presented a pop-up screen with
11 || hyperlinks to (1) UPS Promotional Rates Agreement, (2) UPS Technology Agreement, and
12 ||(3) UPS List of Prohibited Articles, among other things. /d. 4 8. To proceed, PayPal
13 ||}customers were required to click a dark blue button that said, “Agree and Start Shipping.”
14 || /d. 4 7. Below is a screenshot of a pop-up screen presented to PayPal customers as of
15 || September 2023:
16
Carrier and Partner
18 Terms
19 Qo Q-
21
22 eee
UPS Ust of Prohibited Articies
Express Terma and Conditions
07
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1 Id. ¶ 8. According to UPS, it was not possible to set up an account for shipping with UPS
2 through PayPal without clicking the blue “Agree and Start Shipping” button. Id. ¶ 9.
3 All three documents in the pop-up screen incorporated “UPS Tariff/Terms and
4 Conditions of Service” and included hyperlinks to the document on the UPS website, which
5 included an arbitration provision. See Barber Decl. ¶¶ 11–17, AA at 12, BB at 19, CC at
6 23, DD at 34.
7 II. LEGAL STANDARD
8 The Federal Arbitration Act (“FAA”) provides that arbitration agreements generally
9 “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
10 equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA establishes a general
11 “liberal federal policy favoring arbitration.” AT&T Mobility LLC v. Concepcion, 563 U.S.
12 333, 339 (2011) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
13 1, 24 (1983)). “By its terms, the [FAA] leaves no place for the exercise of discretion by a
14 district court, but instead mandates that district courts shall direct the parties to proceed to
15 arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter
16 Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (citing 9 U.S.C. §§ 3, 4).
17 “Generally, in deciding whether to compel arbitration, a court must determine two
18 ‘gateway’ issues: (1) whether there is an agreement to arbitrate between the parties; and
19 (2) whether the agreement covers the dispute.” Brennan v. Opus Bank, 796 F.3d 1125,
20 1130 (9th Cir. 2015) (citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84
21 (2002)); see also Ashbey v. Archstone Prop. Mgmt., Inc., 785 F.3d 1320, 1323 (9th Cir.
22 2015) (“A party seeking to compel arbitration has the burden under the FAA to show (1)
23 the existence of a valid, written agreement to arbitrate; and, if it exists, (2) that the
24 agreement to arbitrate encompasses the dispute at issue.”) (quoting Cox v. Ocean View
25 Hotel Corp., 533 F.3d 1114, 1119 (9th Cir. 2008)).
26 The party seeking to compel arbitration bears the burden of proving the existence of an
27 arbitration agreement by “a preponderance of evidence.” Johnson v. Walmart Inc., 57 F.4th
28 677, 681 (9th Cir. 2023).
1 III. DISCUSSION
2 A. Evidentiary Objections
3 1. Plaintiffs’ Objections
4 Plaintiffs object to declarations of Darryl Barber and Janese Coleman [Dkts. 18-2,
5 18-3] Defendant submitted in support of its Motion to Compel Arbitration. See generally
6 Opp’n ¶¶ 1–15. Essentially, Plaintiffs argue that the screenshots and documents included
7 in the declarations were either incomplete or inaccurate. Id.
8 For example, Plaintiffs object to Exhibit J from Coleman’s declaration, asserting that
9 the webpage is from Wayback Machine and not from the UPS website as Coleman claims.
10 Opp’n ¶ 4. However, upon close inspection, it is evident that Wayback Machine is an
11 internet archive tool that displayed the webpage from the UPS website
12 (https://www.ups.com/us/en/help-center/shipping-support/prohibited-items.page) as it
13 existed in or around September 2021. Coleman Decl. Ex. J at 71.
14 Moreover, “[o]n a motion to compel arbitration . . . the Court ‘does not focus on the
15 admissibility of the evidence’s form,’ so long as the contents are capable of presentation in
16 an admissible form at trial.” Lomeli v. Midland Funding, LLC, No. 19-CV-01141-LHK,
17 2019 WL 4695279, at *7 (N.D. Cal. Sept. 26, 2019) (quoting McKee v. Audible, Inc., No.
18 CV 17-1941-GW(EX), 2017 WL 7388530, at *4 (C.D. Cal. Oct. 26, 2017)). Objections to
19 documentary evidence “on the basis of a failure to comply with the technicalities of
20 authentication requirements or the best evidence rule are, therefore, inappropriate.” McKee,
21 2017 WL 7388530, at *4 (overruling objections to printouts of website flows in the
22 supporting declaration); Cordas v. Uber Techs., Inc., 228 F. Supp. 3d 985, 989 (N.D. Cal.
23 2017) (overruling objections to screenshots of defendant’s sign-up and registration
24 process). Plaintiffs do not otherwise argue that any of the evidence could not be produced
25 in a proper format at trial. Therefore, Plaintiffs’ objections to the documentary evidence
26 are overruled.
27 Further, Plaintiffs’ hearsay objections lack merit because Barber and Coleman have
28 personal knowledge. See Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th
1 Cir. 1990) (declarants’ personal knowledge and competence to testify are reasonably
2 inferred from their positions”); Mitchell v. Ecolab, Inc., No. 1:22-CV-01088-EPG, 2023
3 WL 2666391, at *4 (E.D. Cal. Mar. 28, 2023) (declaration “based on [declarant’s] own
4 knowledge, her review of business records, and on her position as a Human Resources
5 Representative II, which makes her familiar with [defendant’s] practices with respect to
6 employee agreements . . . lays a proper foundation and establishes her personal knowledge
7 as to her declaration and the attached exhibits [i.e., arbitration agreements]”). Barber is the
8 Senior Manager of Corporate Marketing for the Digital Access Program and is familiar
9 with the onboarding process for PayPal and ShipStation. Barber Decl. ¶ 1. Coleman is a
10 Marketing Director and is familiar with the onboarding process for Pirate Ship. Coleman
11 Decl. ¶ 1. Thus, the Court finds that their declarations are based on their personal
12 knowledge. Additionally, Plaintiffs do not otherwise claim that such testimonies would be
13 inadmissible at trial. Therefore, Plaintiffs’ hearsay objections are overruled.
14 Accordingly, the Court OVERRULES Plaintiffs’ objections.
15 2. Defendant’s Objections
16 In its reply, Defendant submitted objections to Plaintiffs’ declarations that were filed
17 in support of Plaintiffs’ Opposition. See Dkt. 23-4. The Court does not rely on the parts of
18 the declarations to which Defendant objects. Therefore, Defendant’s objections are
19 OVERRULED as moot.
20 Accordingly, the Court OVERRULES parties’ evidentiary objections.
21 B. Motion to Compel Arbitration
22 1. Agreement to Arbitrate
23 The Federal Arbitration Act (FAA) requires courts to compel arbitration of claims
24 covered by an enforceable arbitration agreement. 9 U.S.C. § 3. The FAA limits the courts’
25 role to “determining whether a valid arbitration agreement exists and, if so, whether the
26 agreement encompasses the dispute at issue.” Lifescan, Inc. v. Premier Diabetic Servs.,
27 Inc., 363 F.3d 1010, 1012 (9th Cir. 2004).
28 / / /
1 a. Contract Formation
2 Plaintiffs and UPS dispute over whether they agreed to arbitrate Plaintiffs’ claims.
3 “In determining whether the parties have agreed to arbitrate a particular dispute, federal
4 courts apply state-law principles of contract formation.” Berman v. Freedom Fin. Network,
5 LLC, 30 F.4th 849, 855 (9th Cir. 2022). The parties agree that California law governs the
6 issue. See Mot. at 18; Opp’n at 22. “To form a contract under California [] law, there must
7 be actual or constructive notice of the agreement and the parties must manifest mutual
8 assent.” Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 512–13 (9th Cir. 2023).
9 “Parties traditionally manifest assent by written or spoken word, but they can also
10 do so through conduct.” Berman, 30 F.4th at 855 (citation omitted). “However, ‘the
11 conduct of a party is not effective as a manifestation of his assent unless he intends to
12 engage in the conduct and knows or has reason to know that the other party may infer from
13 his conduct that he assents.’” Id. (quoting Restatement (Second) of Contracts § 19(2)
14 (1981)). “These elemental principles of contract formation apply with equal force to
15 contracts formed online.” Berman, 30 F.4th at 855–56. “Thus, if a website offers
16 contractual terms to those who use the site, and a user engages in conduct that manifests
17 her acceptance of those terms, an enforceable agreement can be formed.” Id. at 856.
18 As relevant here, a clickwrap, or click-through, agreement is formed when “an
19 internet user accepts a website’s terms of use by clicking an ‘I agree’ or ‘I accept’ button,
20 with a link to the agreement readily available.” Sellers v. JustAnswer LLC, 73 Cal. App.
21 5th 444, 463 (2021). Courts generally find clickwrap agreements to be enforceable because
22 “the consumer has received notice of the terms being offered and . . . ‘knows or has reason
23 to know that the other party may infer from his conduct that he assents’ to those terms.”
24 Berman, 30 F.4th at 856. Accordingly, an enforceable agreement may be found online
25 where “(1) the website provides reasonably conspicuous notice of the terms to which the
26 consumer will be bound; and (2) the consumer takes some action, such as clicking a button
27 or checking a box, that unambiguously manifests his or her assent to those terms.’” Id.
28 / / /
1 b. Reasonably Conspicuous Notice
2 The first step of the analysis “has two aspects: the visual design of the webpages and
3 the context of the transaction.” Godun v. JustAnswer LLC, 135 F.4th 699, 709 (9th Cir.
4 2025). Both aspects “should be considered together.” Chabolla v. ClassPass Inc., 129 F.4th
5 1147, 1155 (9th Cir. 2025)
6 i. Visual Aspect of the Website
7 First, courts consider the visual design of the webpages, such as “the size, color,
8 contrast, and location of any text notices; the obviousness of any hyperlinks; and overall
9 screen clutter.” Ortiz v. Univ. Credit Union, No. 25-2207, 2025 WL 3765497, at *1 (9th
10 Cir. Dec. 30, 2025) (citing B.D. v. Blizzard Ent., Inc., 76 Cal. App. 5th 931, 947 (2022)).
11 While terms may be disclosed through hyperlinks, the presence of a hyperlink “must be
12 readily apparent” to alert a “reasonably prudent Internet user.” Berman, 30 F.4th at 857.
13 Here, before they could purchase a UPS label from the third-party retailers, Plaintiffs
14 were presented with a pop-up screen that presented the three agreements: UPS Terms and
15 Conditions, UPS Prohibited Articles, and UPS Technology Agreement in bright blue font
16 that not only denoted the existence of hyperlinks but also clearly distinguished the text
17 from the white background. See e.g., Oberstein, 60 F.4th at 516 (finding that the websites
18 provided reasonably conspicuous notice of the terms because the terms were in “bright blue
19 font, distinguishing it from the surrounding text”). The hyperlinks were also located in the
20 center of the pop-up screens, making them easy for the users to notice, rather than burying
21 them on the bottom of the webpage or placing them outside of the natural flow of actions.
22 Below or above the hyperlinks, Plaintiffs were advised that by taking a specific
23 action, such as by checking a box or clicking a button, they agreed to be bound by the terms
24 and conditions in the hyperlinks (e.g., “By checking this box, I accept and agree to the . . .
25 .”; “By proceeding, you agree to the above terms and conditions.”). Below the phrases were
26 action buttons users needed to click to advance to the next page (e.g., “Accept & Buy
27 Label”; “I Agree”; “Agree and Start Shipping”). In other words, the hyperlinks, advisal,
28 and the action buttons were within “the natural visual path of completing the [purchase]
1 process.” Morrison v. Yippee Ent., Inc., No. 24-7235, 2025 WL 2389424, at *1 (9th Cir.
2 Aug. 18, 2025) (reversing district court’s order and finding reasonably conspicuous notice
3 where the hyperlink was located directly above the action button and next to the warning
4 language); see also Dohrmann v. Intuit, Inc., 823 F. App’x. 482, 484 (9th Cir.
5 2020) (finding that the webpage provided sufficient notice because the relevant warning
6 language and hyperlink to the terms and conditions “were located directly below the sign-
7 in button”). The action buttons were also in bright green or blue against a white
8 background, distinguishing the button from the rest of the screen and making it easily
9 noticeable.
10 The visual aspects of these pop-up screen were vastly different from those rejected
11 in the cases Plaintiffs rely on. See e.g., Godun, 135 F.4th at 711–12 (finding “the color of
12 the advisal text blends into the background” “hard to read” and “would not expect a
13 reasonable internet user’s attention to be drawn to it”); Chabolla, 129 F.4th at 1156–57
14 (terms of use was “written in small gray font against a white background” and was placed
15 “outside of the user’s natural flow”); Weeks v. Interactive Life Forms, LLC, 100 Cal. App.
16 5th 1077, 1087 (2024) (terms of use “at the very bottom of the page [of a browsewrap] in
17 a much smaller typeface, in gray text against a black background . . . sandwiched between
18 similar links for the ‘sitemap’ and ‘privacy policy’”); Berman, 30 F.4th at 856 (hyperlinked
19 terms and conditions were “printed in a tiny gray font considerably smaller than the font
20 used in the surrounding website elements, and indeed in front so small that it [was] barely
21 legible to the naked eye.”); Sellers, LLC, 73 Cal. App. 5th at 479 (the textual notice was
22 “below the white payment box, outside the user’s primary area of focus, and not in ‘visual
23 proximity to the request for consent’”).
24 Moreover, the overall design of the pop-up screen was “uncluttered,” and the entire
25 pop-up screen was “visible at once [that] the user does not need to scroll beyond what is
26 immediately visible to find notice.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 78 (2d Cir.
27 2017) (holding that the design of the screen and language used rendered the notice provided
28 “reasonable as matter of California law”).
1 Plaintiffs claim that they never saw “any hyperlinks referencing UPS terms and
2 conditions nor any other UPS documents” (Franklin Decl. ¶ 5, Dkt. 22-1; Lomeli Decl. ¶
3 15, Dkt. 22-3) or that they “never knew that [the UPS terms] existed” (Franklin Decl. ¶ 7;
4 see also Lomeli Decl. ¶ 15 (“never seen or read” the terms)). However, courts analyze
5 “whether the website puts a reasonably prudent user on inquiry notice of the terms of the
6 contract.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014) (emphasis
7 added). Thus, it does not matter that Plaintiffs did not see or read the terms if the court
8 finds that a reasonably prudent user would have done so. In fact, the California Supreme
9 Court has explicitly stated that “[a]n arbitration clause within a contract may be binding on
10 a party even if the party never actually read the clause.” Pinnacle Museum Tower Assn v.
11 Pinnacle Mkt. Dev. (US), LLC, 55 Cal. 4th 223, 236 (2012). Therefore, Plaintiffs’ argument
12 lacks merit. Accordingly, the Court finds that the visual aspects of the pop-up screen
13 provided reasonably conspicuous notice of the three agreements.
14 ii. Context of the Transaction
15 Next, courts consider whether the nature of an agreement may anticipate “some sort
16 of continuing relationship . . . that would require some terms and conditions[.]” Sellers v.
17 JustAnswer LLC, 73 Cal. App. 5th at 477; see Keebaugh v. Warner Bros. Ent. Inc., 100
18 F.4th 1005, 1018 (9th Cir. 2024). Following California case law, the Ninth Circuit
19 considers, for example, “(1) whether the transaction contemplates a continuing relationship
20 by creating an account requiring a full registration process; (2) whether the user is entering
21 a free trial; (3) whether a user enters credit card information; and (4) whether the user has
22 downloaded an app on their phone (suggesting consistent accessibility).” Godun, 135 F.4th
23 at 710 (quotations and citations omitted).
24 The transaction here is most analogous to the one found in Oberstein, where the
25 Ninth Circuit found that the transaction required “a full registration process” and therefore
26 “reflected the contemplation of ‘some sort of continuing relationship’ that would have put
27 users on notice for a link to the terms of that continuing relationship.” Oberstein, 60 F.4th
28 at 517. Similarly, the third-party websites required a full registration process before
1 customers could purchase UPS labels. For example, to create a UPS shipping label through
2 Pirate Ship, the customers had to enter the address the package was being shipped to and
3 from, the weight and dimensions of the package, and the payment information. Coleman
4 Decl. ¶ 19. Given the full registration process, reasonably prudent users would have likely
5 anticipated some sort of continuing relationship.
6 Accordingly, the Court finds that the pop-up screen provided reasonably
7 conspicuous notice of the three agreements.
8 c. Manifestation of Assent
9 For the second step of the analysis, the Court considers whether Plaintiffs took any
10 action that “unambiguously manifest[ed] his or her assent” to the proposed contractual
11 terms. Keebaugh, 100 F.4th at 1018. “A user’s click of a button can be construed as an
12 unambiguous manifestation of assent only if the user is explicitly advised that the act of
13 clicking will constitute assent to the terms and conditions of an agreement.” Berman, 30
14 F.4th at 857. “[T]he notice must explicitly notify a user of the legal significance of the
15 action she must take to enter into a contractual agreement.” Id. at 858; see also Nguyen,
16 763 F.3d at 1176 (“Courts have also been more willing to find the requisite notice for
17 constructive assent . . . where the user is required to affirmatively acknowledge the
18 agreement before proceeding with use of the website.”)
19 Here, the pop-up screen clearly stated that Plaintiffs were agreeing to the terms in
20 the three documents by clicking on the action buttons:
21 • “To proceed, just agree to and accept the Terms and Conditions, UPS Prohibited
22 Articles and UPS Technology Agreement.” Coleman Decl. ¶ 30.
23 • “To proceed, please accept the terms below. [¶] By checking this box, I accept
24 and agree to . . . .” Id. ¶ 20.
25 • “To start shipping with UPS, you must first agree to the following . . . .” Barber
26 Decl. ¶ 21.
27 • “By proceeding, you agree to the above terms and conditions.” Id. ¶ 8.
28
1 Thus, the pop-up screen contained “explicit textual notice that continued use will act
2 as a manifestation of the user’s intent to be bound.” Nguyen, 763 F.3d at 1177.
3 Nevertheless, Plaintiffs claim they never did “anything that would indicate that [they
4 were] agreeing to be bound by the UPS terms and conditions.” Franklin Decl. ¶ 6; Lomeli
5 Decl. ¶ 14. However, “[m]utual assent is determined under an objective standard applied
6 to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of
7 their words and acts, and not their unexpressed intentions or understandings.” Sellers, 73
8 Cal. App. 5th at 460; see also Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir.
9 2014) (courts evaluate “whether the outward manifestations of consent would lead a
10 reasonable person to believe the offeree has assented to the agreement.”). Thus, their
11 subjective beliefs that they were not agreeing to be bound by UPS’ terms and conditions
12 when purchasing the UPS labels are immaterial.
13 Moreover, Plaintiffs do not dispute that they opened accounts with these third-party
14 retailers and purchased UPS labels through them. See Franklin Decl. ¶¶ 3, 11; Lomeli Decl.
15 ¶¶ 13, 14. By opening an account and going through the online process to purchase UPS
16 labels, Plaintiffs unambiguously manifested assent to the three agreements and the
17 incorporated arbitration provision. See e.g., Oberstein, 60 F.4th at 517 (“[T]he notices at
18 issue explicitly alert the user that by creating an account, signing in, or purchasing a ticket,
19 and proceeding to the next page, the user ‘agrees to our Terms of Use.’ ... [T]hat is all that
20 is required.” (citation omitted)); Ortiz, 2025 WL 3765497, at *3 (reversing district court’s
21 order denying motion to compel arbitration and finding that “[u]nlike the ‘Continue’ button
22 in Berman, [defendant’s] ‘Agree’ button itself informed users like [plaintiff] that they were
23 ‘Agreeing’ to the Member Agreement just acknowledged.”).
24 Accordingly, the Court finds that Plaintiffs and UPS entered into a valid, enforceable
25 arbitration agreement.
26 d. Defenses
27 Under the FAA, a court may declare an arbitration agreement unenforceable “upon
28 such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2,
1 and may invalidate an arbitration agreement by “generally applicable contract defenses,
2 such as fraud, duress, or unconscionability.” Concepcion, 563 U.S. at 339 (citation
3 omitted). The Court finds that none of the defense apply here.
4 i. Parties to the Agreement
5 Plaintiffs first claim that the UPS agreements2 do not apply to them because they are
6 between UPS and the third-party retailers. Opp’n 13–14. However, UPS Tariff/Terms and
7 Conditions of Service defines “Claimant” as “any person asserting . . . any claim for
8 damages, refunds, credits . . . arising out of or related to the provision of services by UPS.”
9 Barber Decl. Ex. DD at 32, Ex. EE at 42; Coleman Decl. Ex. A at 18, Ex. B at 26. Since
10 Plaintiffs are seeking damages for alleged overcharges related to UPS’ delivery service
11 (Dkt. 1 ¶¶ 2-5, 31), Plaintiffs fall squarely within this definition. Therefore, Plaintiffs are
12 parties to the arbitration agreement.
13 ii. Whether the Agreement is Illusory or Unconscionable
14 Next, Plaintiffs contend that the UPS Terms and Conditions is illusory or, in the
15 alternative, procedurally and substantively unconscionable, and therefore any arbitration
16 provision incorporated by that agreement is unenforceable.3 Opp’n 14–16. Specifically,
17 Plaintiffs takes issue with the clause: “UPS may . . . in its sole and unlimited discretion,
18
19
20
21 2 Plaintiffs’ argument also lacks merit as the Technology Agreement, for instance, clearly
distinguishes customers like Plaintiffs from a third party retailer. Specifically, the
22
Technology Agreement defines “Service Provider” as “a third party engaged by a UPS
23 customer to assist such UPS customer in managing its shipping activity with the UPS
Parties . . . ” while “You” is defined as “an individual.” Suppl. Coleman Decl. Ex. L at 4,
24
Ex. M at 65.
25 3 The Court rejects Defendants’ argument that enforceability of a contract is for the
arbitrator to resolve (Reply 7–8). The arbitration provision clearly states that “All issues
26
are for the arbitrator to decide, except that issues relating to the scope, application, and
27 enforceability of the arbitration provision . . . are all issues for a court to decide.” Coleman
Decl. Ex. A at 19; see also id. Ex. B at 28; Barber Decl. Ex. EE at 44.
28
1 terminate, modify, suspend or discontinue all or part of the services, rates, or this
2 agreement.” Opp’n 19.
3 First, “it has long been the rule [in California] that a provision in an agreement
4 permitting one party to modify contract terms does not, standing alone, render a contract
5 illusory” because of the “implied covenant of good faith and fair dealing” implicit in every
6 contract.” Serpa v. Cal. Sur. Investigations, Inc., 215 Cal. App. 4th 695, 706 (2013); see
7 also Harris v. TAP Worldwide, LLC, 248 Cal. App. 4th 373, 389 (2016).
8 Second, the arbitration provision in UPS Tariff/Terms and Conditions of Service
9 does not contain a similar clause. Thus, even if the Court finds the UPS Terms and
10 Conditions to be unconscionable, such clause does not automatically make the whole
11 agreement or the arbitration provision, set forth in a separate agreement, unconscionable.
12 See Tompkins v. 23andMe, Inc., 840 F.3d 1016, 1033 (9th Cir. 2016) (“Although we have
13 held that a unilateral modification provision itself may be unconscionable, see Ingle v.
14 Circuit City Stores, Inc., 328 F.3d 1165, 1179 (9th Cir. 2003), we have not held that such
15 an unconscionable provision makes the arbitration provision or the contract as a whole
16 unenforceable.”). Thus, Plaintiffs’ reliance on Ingle is misplaced as the Ninth Circuit in
17 Ingle found the arbitration agreement enforceable based on multiple one-sided provisions
18 (328 F.3d at 1180); it did not hold that a single unconscionable provision renders the entire
19 agreement unenforceable.
20 Moreover, the party claiming unconscionability bears the burden of proof.
21 Tompkins, 840 F.3d at 1023. While Plaintiffs cite to a number of cases from outside this
22 circuit, none applies California law. See Opp’n 15–16. Plaintiffs have failed to demonstrate
23 that the arbitration provision here is unconscionable. Therefore, Plaintiffs have not carried
24 their burden. Accordingly, the Court finds that the arbitration provision is enforceable.
25 2. Scope of the Arbitration
26 Once it is established that a valid, enforceable arbitration agreement exists, courts
27 must consider whether the dispute falls within the scope of the arbitration agreement. Here,
28 the arbitration provision states in relevant part:
1 Claimant and UPS agree that . . . any controversy or claim,
whether at law or equity, arising out of or related to the provision
2
of services by UPS, regardless of the date of accrual of such
3 dispute, shall be resolved in its entirety by individual (not class-
wide or collective) binding arbitration.
4
5 Barber Decl. Ex. DD at 34, Ex. EE at 44; Coleman Decl. Ex. A at 19, Ex. B at 27–28.
6 Again, given that Plaintiffs seek damages for alleged overcharges related to Defendant’s
7 delivery service (Compl. ¶¶ 2-5, 31), Plaintiffs’ claims seem to fall squarely within the
8 scope of the arbitration provision.
9 Citing two out-of-circuit cases, Plaintiffs contend that “intentional theft . . . through
10 an illegal surcharge scheme has nothing whatsoever to do with the provision of services by
11 UPS.” Opp’n 17. However, both cases are easily distinguishable. First, Sivak v. United
12 Parcel Services Company, 28 F.Supp.3d 701 (E.D. Mich. 2014) does not involve a motion
13 to compel arbitration. While Solo v. UPS, 947 F.3d 968 (6th Cir. 2020) deals with a motion
14 to compel arbitration, the Sixth Circuit affirmed district court’s order denying the motion
15 because the newer version of the arbitration agreement that defendant attempted to invoke
16 was not in the contract that was in effect during the relevant class period. 947 F.3d at 973–
17 74. Moreover, the Sixth Circuit found that defendant had waived its right to arbitrate. Id.
18 at 974.
19 Accordingly, Plaintiffs’ claims against Defendant are within the scope of the parties’
20 arbitration agreement.
21 IV. CONCLUSION
22 Accordingly, the Court GRANTS Defendant’s Motion to Compel Arbitration and
23 STAYS the action pending resolution of arbitration. See Mot. at 31 (“Upon compelling
24 arbitration, the Court should stay this action, consistent with Section 3 of the FAA.”); Smith
25 v. Spizzirri, 601 U.S. 472, 478 (2024) (“When a district court finds that a lawsuit involves
26 an arbitrable dispute, and a party requests a stay pending arbitration,” the Federal
27 Arbitration Act “compels the court to stay the proceeding.”). The parties shall file a joint
28
| status report every six months (on March 10 and September 10 of each year) and within
2 || one week of the arbitration action’s conclusion.
3 IT IS SO ORDERED.
4 Dated: September 11, 2026 NO
5 Je J
6 Honorable Linda Lopez
5 United States District Judge
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