Dorothy Atkins reported for Law360 on last week’s Ninth Circuit oral argument in Dohrmann v. Intuit, Inc., an appeal from the denial of a motion to compel arbitration (Arena v. Intuit Inc. (N.D. Cal. 2020) __ F.Supp.3d __ [2020 WL 1189849]). During the hearing (video here), one judge suggested that the case should be referred to the California Supreme Court for a decision of the state law issue involved (see here).
The case is a putative class action alleging that Intuit fooled a class of consumers into paying for its tax preparation services when they were entitled to use its free filing option. The issue on appeal is whether an arbitration agreement was binding when it appeared in terms of service that the plaintiffs agreed to every time they signed in to use Intuit’s tax preparation software. The district court ruled that the terms were too inconspicuous to give constructive notice of an agreement to arbitrate.
Rule 8.548 allows the Ninth Circuit and certain other courts to ask the Supreme Court to answer questions of California law. (See here and here.) The Supreme Court usually, but not always, agrees to help out when asked. In fact, the court answered a Ninth Circuit question just yesterday.
