KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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SimpliSafe loses motion to compel arbitration because T&C not conspicuous
September 12, 2026
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SimpliSafe loses motion to compel arbitration because T&C not conspicuous
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A recent Ninth Circuit decision involving SimpliSafe is another reminder that a contract provision is only as good as the procedure used to make it part of the contract. The court focused on whether the customer had reasonably conspicuous notice of the terms and whether the customer clearly assented to those terms. That analysis is particularly important when the provision being enforced is an arbitration clause, limitation of liability, indemnity, waiver of jury trial, waiver of subrogation, automatic renewal, or any other clause that a court may view as significant to the customer’s rights.
The lesson is simple: do not hide important contract terms. Do not bury them in small type. Do not place them where the customer’s eye is not directed. Do not rely on a faint hyperlink, a gray disclosure, or a “wrap around” method on a website that assumes the customer has accepted terms and conditions simply because the customer continued to use the site or clicked a button that does not clearly say what legal rights are being accepted.
Kirschenbaum Contracts TM are drafted to avoid that problem. Important provisions are conspicuous. They are not hidden. They are set out in a manner intended to call attention to them. The contracts require initials or signatures at multiple places throughout the agreement so the subscriber is not later heard to say that the provision was overlooked. The provisions use appropriate contrasting font, bold type, capitalization, separate headings, and signature or initial lines where appropriate. That is not window dressing; it is part of contract formation and enforcement.
An arbitration clause should not be treated as boilerplate. If you expect to compel arbitration you must be prepared to show that the subscriber agreed to arbitrate. That means the clause should be easy to find, easy to read, and associated with a clear manifestation of assent. A separate initial line or signature block is far stronger evidence than a claim that the customer was bound by terms available somewhere else on a website.
For online contracting, I have consistently not recommended the wrap around method for execution of contracts or terms and conditions. The terms and conditions are the contract. If the customer is going to be bound, the customer should be required to affirmatively accept them in a way that is clear, conspicuous, and provable. The better practice is click-through assent with a clearly worded acknowledgement immediately next to the action button, a requirement that the customer open or scroll through the agreement, and a separate checkbox or electronic signature confirming acceptance of the contract terms.
Alarm, security, fire, and life safety companies should understand that their contract is not just a sales form. It is risk allocation. It is the document that supports limitation of liability, third-party indemnity, waiver of consequential damages, waiver of jury trial, arbitration, central station provisions, service conditions, monitoring terms, and other essential protections. If those provisions are not presented conspicuously and accepted properly, the company may discover after a loss that the provisions it relied on are not enforceable.
The SimpliSafe decision should be read as a warning. Courts will look at font size, color, placement, proximity to the acceptance button, the surrounding page design, the words used to describe assent, and whether the customer’s required action unmistakably communicates agreement to contract terms. If your electronic system or contract does not make the contract terms conspicuous, and if the customer’s acceptance is ambiguous, you are inviting litigation over formation before you ever get to the merits.
The better practice is to use a contract form that is designed for enforcement from the beginning. Kirschenbaum Contracts TM are prepared with that objective. They require the subscriber’s attention to the provisions that matter. They use conspicuous formatting. They require initials or signatures throughout the agreement. They do not depend on a hidden hyperlink or a passive wrap-around website presentation. If you want your contract enforced, make sure the customer can see it, understand that it is the contract, and clearly agree to it.
The case is below.
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United States Court of Appeals, Ninth Circuit. TRAVIS SCHLUETER-BECKNER; ZACH BABKA, individually and on behalf of all similarly situated individuals, Plaintiffs - Appellees, v. SIMPLISAFE, INC., a Delaware corporation, Defendant - Appellant. No. 25-4933 Filed August 31, 2026Argued and Submitted May 21, 2026 San Francisco, California D.C. No. 3:25-cv-01764-CRB
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding
Before: COLLINS, JOHNSTONE, and DE ALBA, Circuit Judges.
MEMORANDUM*
*1 SimpliSafe, Inc. appeals the district court's order granting only in part its motion to compel arbitration in the diversity action plaintiffs Travis Schlueter-Beckner and Zach Babka (“Plaintiffs”) brought. SimpliSafe seeks to compel arbitration based on the provisions in its Terms of Sale and Terms of Service, which it argues Plaintiffs accepted by purchasing security hardware from SimpliSafe's website and again by enrolling in a trial of SimpliSafe's alarm-monitoring service. We have jurisdiction under 9 U.S.C. § 16(a)(1)(B), and we affirm in part and reverse in part.
1. The parties did not enter into an arbitration agreement by way of a sign-in wrap agreement when Plaintiffs purchased security hardware from SimpliSafe's website because the proposed terms of the agreement were not reasonably conspicuous. To determine whether a website provides reasonably conspicuous notice of terms to which consumers will be bound, courts look at two factors: (1) the visual design of the webpages and (2) the context of the transaction. Sellers, 73 Cal. App. 5th at 472–73, 477–78.
We find that SimpliSafe did not display the disclosure of its Terms of Sale and Terms of Service “in a font size and format such that the court can fairly assume that a reasonably prudent Internet user would have seen it.” See Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 856–57 (9th Cir. 2022). While SimpliSafe correctly observes that the district court focused on the bottom “Place order” button and did not examine the other notice on the right side of the page, this does not warrant reversal. Because the fill-in items that required action and attention from the consumer were all in the left-hand column, the overall design of the page deemphasized the right column and drew focus toward the “Place order” button at the bottom of the left column. See Cruz v. Tapestry, Inc., 113 Cal. App. 5th 943, 954, 957–59 (2025). This emphasis is reinforced by the fact that the preceding “Shipping” webpage in the purchase process similarly placed the fill-in items on the left-hand side, with a similar blue action button at the bottom. Chabolla, 129 F.4th at 1155 (“[T]he ... visual aspects of every page of a multi-page transaction should be considered together.”). Moreover, SimpliSafe presented no evidence to show that Plaintiffs must have used the “Place order” button on the right-hand side or must have read the disclosure on that side to finalize their purchase. Therefore, any insufficiency with the bottom disclosure—which may have been the only disclosure the user saw—would mean SimpliSafe failed to show its webpage provided reasonably conspicuous notice.
We agree with the district court that the bottom disclosure failed to provide reasonably conspicuous notice. The disclosure's placement, font size, and font color drew the user's attention away from the disclosure. There was significant white space between the disclosure and the “Place order” button; the text of the “Place order” button was seemingly twice the size of the disclosure's text; and the “Place order” button contrasted more against the white background than the disclosure's gray text. “Even text that is just slightly smaller, or slightly further away from the box or button the consumer must click on must, at some point, exceed the limits of what constitutes adequate notice.” Sellers, 73 Cal. App. 5th at 481–82.
The other elements on the purchasing webpage, especially the other notice directly above the bottom disclosure, confirm the disclosure's inconspicuousness. Above the bottom disclosure, the purchasing webpage includes a line of text warning users their credit card information would be automatically saved to the account for future use. This warning is in larger font than the disclosure, italicized, and in navy text against the light gray background. As a result of these design choices, the credit card notice contrasts starkly on the page and draws the eye. So, while SimpliSafe utilized design elements to ensure the user saw the warning about retaining credit card information, “they have not done the same to alert a consumer to the Terms of Use.” Cruz, 113 Cal. App. 5th at 959.
Finally, “while it is permissible to disclose terms and conditions through a hyperlink, the fact that a hyperlink is present must be readily apparent.” Berman, 30 F.4th at 857. In other words, underscoring alone will not be sufficient to overcome an otherwise inconspicuous notice. See Sellers, 73 Cal. App. 5th at 481; Keebaugh, 100 F.4th at 1014.
Because the placement, font size, and color all create “an impression of visual discontinuity,” and the visual design does not “capture the user's attention and direct [the user] to the notice,” the notice at issue here cannot be considered reasonably conspicuous. See Godun, 135 F.4th at 713–14.1 Accordingly, we affirm the district court's finding that no agreement was formed when Plaintiffs purchased security hardware from SimpliSafe's website.
2. We also affirm the district court's finding that no agreement was formed when Plaintiffs completed the first two alarm-monitoring trial webforms. The webform disclosure contains two features that defeat an agreement.
First, SimpliSafe presented the proposed terms as “SimpliSafe Terms and Consent to Communicate, for Notifications and Alerts.” The context of the disclosure would lead a reasonable consumer to believe the disclosure only pertained to communications, as the compound phrase appears only on the webforms seeking contact information.
Second, SimpliSafe did not clearly define the action required to accept its proposed terms. “Explicit advisement generally looks like an explanatory clause, usually at the beginning of an advisal—for example: By clicking the Continue >> button, you agree to the Terms & Conditions.” Godun, 135 F.4th at 711 (internal quotation marks omitted). Here, the disclosure stated “[b]y submitting this number” Plaintiffs agreed to the terms, but the action button on the webform only stated “Next.” This mismatch of terms could easily confuse users. Id. (“[A] webpage must explain that certain actions will be understood by the offeror to signal assent to contractual terms.... [a]nd it must identify what, exactly, those actions are.” (second emphasis added)). For instance, a user could reasonably believe that their number was not “submitted” until the user completed the entire sign-up process, not just the individual webforms included in the sign-up process. See Chabolla, 129 F.4th at 1158.
*3 3. The parties agree an arbitration agreement formed with Schleuter-Beckner under the alarm-monitoring Terms of Service webform that was presented only to him. We must determine whether the parties clearly and unmistakably delegated the threshold question of arbitrability. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942–44 (1995). As was done in SimpliSafe's Terms of Service, “incorporation of the AAA rules constitutes clear and unmistakable evidence that contracting parties agreed to arbitrate arbitrability.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). While users were required to take multiple steps to reach it, the path clearly led to the delegation provision, which constitutes “clear and unmistakable” evidence that the parties agreed to delegate the question of arbitrability. Id. Although the district court's delegation finding turned on the parties' sophistication, sophistication is only relevant in this case within the context of Plaintiffs' unconscionability challenge.2 See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1283 (9th Cir. 2006). Because the parties clearly and unmistakably delegated the question of arbitrability, we reverse the district court's denial of the motion to compel arbitration and remand with instructions to compel arbitration of all of Schlueter-Beckner's claims, subject to the arbitrator's resolution of any dispute as the scope of arbitrability.
AFFIRMED in part, REVERSED in part.
All Citations
Not Reported in Fed. Rptr., 2026 WL 2566497
Footnotes
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Assuming arguendo the parties here contemplated a continuous relationship, SimpliSafe was still obligated to provide sufficiently conspicuous notice of terms and conditions. Berman, 30 F.4th at 856. Thus, while courts typically expect a reasonable internet user to be more vigilant in looking for contractual terms in the context of a continuous relationship, the continuous relationship potentially contemplated here cannot overcome the webpage's fatal design flaws. Godun, 135 F.4th at 709–10, 713.
Plaintiffs do not challenge the district court's determination that the arbitration provision was not unconscionable on appeal to this court.
End of Document
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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