A recent Ninth Circuit decision, Rushing v. Williams-Sonoma, Inc., 2026 WL 2731408 (9th Cir. Sept. 16, 2026), confirms that defendants seeking to compel arbitration based on internet contracts must do more than submit exemplar screenshots of webpages containing arbitration-related disclosures. Rather, to meet their evidentiary burden, defendants must tie that visual evidence to the specific users at issue—showing that the webpages actually appeared as depicted in the exemplars at the time those users accessed them.
In Rushing, the plaintiffs brought a putative class action alleging false advertising related to the thread count of defendants’ bedding products. After the district court certified a class of California consumers, the defendants moved to compel arbitration of claims by class members who had purportedly agreed to defendants’ arbitration agreement. In support, defendants submitted declarations and accompanying exemplar screenshots of checkout and account sign-up processes on their webpages that contained language disclosing that taking some action on the page constituted agreement to defendants’ terms and conditions, which included an arbitration agreement.
The district court denied the motion on two independent grounds. First, it held that defendants’ exemplar screenshots were insufficient to show how the webpages’ design elements and disclosure language actually appeared when class members accessed the pages. Second, the district court held that even if the screenshots could be considered sufficient, the design of the webpages did not make a consumer’s agreement to the terms and conditions “visually conspicuous” to support a finding of inquiry notice.
The Ninth Circuit affirmed, finding the “‘failure of proof’ identified by the district court is fatal to [defendants’] appeal,” without reaching the issue of visual conspicuousness. The Ninth Circuit’s analysis hinged on the fact that defendants’ exemplar screenshots were untethered to the class members’ experiences accessing the webpages. The Ninth Circuit explained that the screenshots “only reflect what the webpages looked like at a particular moment in time” but defendants’ own witness admitted that the “visual elements” of the webpages “may have changed over time.”
As a result, defendants’ evidence did not establish “for what specific time periods those exemplars would have accurately reflected the visual designs of the webpage, or which individual class members would have accessed the pages when they looked like the exemplars.” Indeed, the Ninth Circuit noted that defendants had failed to show any class members actually accessed the pages as reflected by the screenshots, and therefore, failed to meet their evidentiary burden.
For defendants seeking to enforce internet-based arbitration agreements in class actions, Rushing underscores the importance of maintaining comprehensive, time-stamped records of webpages across platforms and time periods. Exemplar screenshots, without evidence tying them to the actual experiences of specific class members during the relevant timeframes, may not be enough to meet the evidentiary burden of proving the existence of an arbitration agreement by a preponderance of the evidence.
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