Clickwrap Formed Even When a Consumer Has Limited Time to Act–Washington v. Flixbus

This is a Meta Pixels case involving the bus service Flixbus. Flixbus successfully defends by saying that the plaintiff consented to the disclosures via its TOS.

This is the screenshot in question:

Sorry it’s hard to read, but the gist is that the red box indicates the TOS call-to-action (the text: “I declare to have read the Privacy Policy and I agree to the T&C of Booking and T&C of Carriage”) with links to the TOS and a mandatory second click. The court correctly calls this a “clickwrap.”

The court says that the TOS made adequate disclosures of the pixel’s conduct. “Defendant’s Privacy Policy and Terms and Conditions explicitly notify users of the data practices at issue by disclosing the use of cookies and tracking pixels to track certain data and disclose that data to Defendant’s business partners, including marketing partners.” If the contract is validly formed, the case is over.

The clickwrap is presumptively a valid formation process, but the plaintiff says he didn’t have sufficient time to read the disclosures because “a ten-minute timer begins counting down when a user enters the checkout process, and if the user does not complete their purchase during that time, they must restart the checkout process.”

It’s easy to imagine situations where that timer countdown is artificially pressuring consumers to act. In this case, Flixbus is holding the seat for 10 minutes and therefore may lose other customers trying to buy that seat during the same time. So this isn’t an artificial time constraint.

The plaintiff further argued that it would take more than 10 minutes to read the disclosures. The court responds:

The Court rejects Plaintiff’s contention that users “do not assent” to Defendant’s terms because a user with an average reading speed cannot finish reading the Privacy Policy and Terms and Conditions before the checkout timer elapses. It similarly rejects Plaintiff’s suggestion that the countdown timer imposes undue pressure that negates any consent users do provide via the checkbox. If a user has not completed reviewing Defendant’s terms before ten minutes have elapsed, the user is under no obligation to complete the checkout process. This remains the case even it this means the user’s selected seats may no longer be available after the timer elapses. [cite to the Oberstein v. Live Nation district court ruling] Further, as Defendant notes and Plaintiff acknowledges in his opposition, if users wish to review Defendant’s Privacy Policy and Terms and Conditions outside the checkout process, they may access the policies at any time via hyperlinks at the bottom of Defendant’s website.

Thus, the clickwrap works despite the ticking clock: “Plaintiff was presented with conspicuous hyperlinks to Defendant’s policies during the checkout process, and in order to complete his purchase, Plaintiff was required to affirm that he agreed to be bound by the stated terms.”

Case Citation: Washington v. Flixbus, Inc., 2025 WL 1592961 (S.D. Cal. June 5, 2025)

More Posts on the Pixel Cases

• Meta Pixels Case Dismissed by Second Circuit–Solomon v. Triller
• Leaky TOS Formation = No TOS Formation–Snyder v. G6
• The VPPA May Be a Dinosaur Statute, But It’s Very Much Alive in the Second Circuit–Salazar v. NBA
• Pixel Case Against Google “Jumps the Shark”–Doe I v. Google (Catch Up Post)
• Think You Understand Online Trespass to Chattels Law? Think Again–In re Meta Healthcare Pixels
• More Chaos in the Law of Online Contract Formation
• Privacy Lawsuit Based on Website Tracking by Service Provider Trimmed