Purchase First, TOS Presentation Second = TOS Fail–Seneca v. Homeaglow

This case involves the Homeaglow/Dazzle Cleaning services. The plaintiffs claim that purchasing the defendant’s initial loss leader offering caused the plaintiffs to subscribe to a hidden monthly recurring charge. Invoking the arbitration clause in the TOS, the defendant sought to send the lawsuit to arbitration. No dice.

Here is one of the screens consumers purportedly navigated:

This looks like a standard “sign-in-wrap.” It surely could be improved, but I’ve seen worse. The district court said “There are elements of both [clickwrap and sign-in-wrap] here.” 🙄 If there’s no second click, it’s not a clickwrap, period.

The district court didn’t like the fact that the action button said “I agree, get clean,” because the “get clean” part of that action might have misled “unsavvy consumers” to misunderstand that they were also assenting to the TOS. 🙄 The district court also noted that this screen appeared after the consumer had already made their initial purchase, so it’s a post-transaction process, which raises consideration issues.

The Ninth Circuit’s memo opinion doesn’t include any screenshots, so the opinion isn’t very enlightening.

The panel has a problem with the timing of the TOS formation process:

When a consumer inputs their payment information on the “Checkout” page of Homeaglow’s website and clicks “Purchase & Schedule”—notably the only time consumers are asked to provide payment information or told they are purchasing something—consumers have not been shown or asked to assent to any terms and conditions regarding arbitration…It is only after a consumer has purchased their voucher and is prompted to schedule a cleaning service that the consumer is presented with a separate hyperlink to a “Terms & Conditions” webpage that contains arbitration and class waiver provisions. The consumer is asked to click an “I Agree, Get Clean!” button that serves a dual purpose: to agree to the scheduled cleaning, and to bind the consumer to a different set of terms and conditions that include class waiver and arbitration provisions

The panel also agrees with the district court that the TOS presentation/call-to-action was too inconspicuous. I don’t agree with this. It could be better (and should have been), but I think this is a typical sign-in-wrap presentation that has been routinely upheld.

This is another example where courts will be quite unforgiving about any idiosyncracies in the TOS formation process. Homeaglow could have avoided these problems so easily. Play stupid TOS games, win stupid TOS prizes.

Case Citation: Seneca v. Homeaglow, Inc., No. 24-887 (9th Cir. March 19, 2025). The 2024 district court opinion.