Another TOS Formation Fails–Carruth v. Big Little Feelings

September 13, 2025 · by · in E-Commerce, Licensing/Contracts, Privacy/Security

This is a Meta Pixels case. The plaintiff alleged VPPA violations. 🙄 The defense sought to send the case to arbitration per its TOS. The court disagrees.

The Mobile Interface

In its moving papers, the defense provided the following screengrab as evidence of its TOS formation process:

WTF??? Why did the defense present only this screengrab excerpt? Why not show the entire screen? The excerpt leaves open key questions, like where on the page was this located and how prominent it was in context.

The plaintiff offered their own screenshots. Allegedly, this is the above-the-fold depiction:

In this screenshot, the action button is visible but the call-to-action is not. If this screenshot is accurate, it demostrates why you should NEVER put the call-to-action below the action button–if the consumer can take action without seeing the call-to-action, then the action doesn’t reflect assent to the TOS.

The plaintiff then shows what happened when they scrolled down:

This resembles the defendant’s screengrab excerpt, but notice how the call-to-action appears to be in a smaller font and aligns differently than the depiction in the defense’s excerpt. The court says it doesn’t consider the plaintiff’s screenshots, but I think they raise important questions that were likely on the court’s mind.

The court correctly labels the defendant’s TOS formation process a sign-in-wrap (ugh) and applies the Chabolla framework.

Transaction Context. This is an ongoing subscription, which points towards consumers expecting TOSes to govern that relationship. Cite to Ghazizadeh v. Coursera.

Visual Design. Nevertheless,

  • the call-to-action font is smaller than the action button font
  • the call-to-action is in black text on grey background
  • the TOS link language is in same font color as the call-to-action. Underlining and capitalized initials aren’t enough to signal the link
  • the call-to-action is “sandwiched” between the action button and the bottom of the screengrab (this is due to the defense’s cropping of the excerpt)

The court concludes the call-to-action wasn’t reasonably conspicuous. No TOS formation.

I made some new TOS formation memes for my class emphasizing that TOS formation needs two clicks, not one. Here is one of the memes, stating Goldman’s Third Law of TOS Formation:

The Confirmatory Email

After a consumer placed the online order, the defendant sent two confirmatory emails that cross-referenced the TOS:

Despite the call-to-action in the emails, the court rejects TOS formation this way too. The court says the “defendant has failed to offer any evidence that any part of the email that it asserts was sent to plaintiff contains a hyperlink to the purported arbitration agreement.” Cite to Plata v. Lands End.

Huh? I guess the court is saying that the defendant’s declaration never expressly says that the emails’ references to “terms of service” actually link to the “terms of service,” even though that seems pretty obviously the case….? If I’m right, that’s a pretty raw deal for the defense (but also one that maybe the defense team could have easily avoided?) If it’s some other reason, I don’t understand the differences between the “terms of service” and the “arbitration agreement.”

Either way, it’s clear that this court held all inferences strictly against the defendant. Caveat drafter. #ClickwrapOrItsCrap

Case Citation: Carruth v. KD Creatives, Inc., 2025 WL 2623291 (E.D. Cal. Sept. 11, 2025)

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