SEATTLE (LN) — U.S. District Judge James Robart granted FabFitFun Inc.’s motion to compel arbitration in a putative class action alleging deceptive email marketing, ruling that the retailer’s online checkout interfaces provided sufficient notice of its terms of use.

The order, issued May 11, stays the case pending the completion of arbitration. It does not dismiss the consumer protection claims brought by plaintiff Melissa Woytko.

Woytko sued FabFitFun in Snohomish County Superior Court, alleging the retailer violated the Washington Consumer Protection Act and the Washington Commercial Electronic Mail Act by sending emails with misleading subject lines about free gifts. FabFitFun removed the case to federal court after filing its motion to compel arbitration.

FabFitFun argued that Woytko agreed to its Terms of Use and Sale when she created a membership account in July 2019 and reactivated it in October 2020. The company pointed to checkout screens that displayed hyperlinked terms directly above the “ORDER THE BOX” and “REACTIVATE ME” buttons.

Woytko opposed the motion, arguing the notice was not reasonably conspicuous because the hyperlinks lacked contrasting colors, capital letters, or eye-catching fonts. She contended she never provided unambiguous manifest assent to the arbitration agreement.

Robart applied Ninth Circuit standards for “sign-in wrap” agreements, which require reasonably conspicuous notice and unambiguous assent. He rejected Woytko’s argument that the notice was insufficient, noting that the 2019 screen displayed the terms in underlined and bolded font against a light gray background.

“The bolded hyperlinks are distinguished from the surrounding text and light gray background, and other elements on the screen do not obscure the textual notice,” Robart wrote.

He also found that Woytko’s reactivation of her account demonstrated a continuing relationship that put her on notice of the terms. The court noted that four deliveries over the course of a year indicated a relationship beyond a one-time purchase.

Robart further ruled that the arbitration provision clearly and unmistakably delegated the question of arbitrability to an arbitrator, as it incorporated American Arbitration Association rules and granted the arbitrator exclusive authority to resolve disputes about the terms’ enforceability.

The order stays the action pending arbitration completion.