Kasper v. NFHS Network, LLC

Background

Steven Kasper filed a proposed class action against NFHS Network, LLC, alleging that NFHS unlawfully disclosed information about his personal video-viewing habits and activities to third parties, including Meta Platforms Inc. The claims arise under the federal Video Privacy Protection Act, California Civil Code § 1799.3, and California’s Unfair Competition Law.

NFHS moved to compel arbitration. The court granted the motion, ordered Kasper’s claims to arbitration, and stayed the case pending completion of the arbitration.

Arbitration Agreement

The court found that NFHS and Kasper formed an arbitration agreement in 2016, when Kasper created a free account on NFHS’s website. The sign-up process provided reasonably noticeable access to NFHS’s terms of use and required Kasper to take an action showing agreement by clicking an acceptance box. The court rejected Kasper’s arguments that the wording of the acceptance box was insufficient or that the agreement did not identify the parties clearly.

The 2014 terms stated that they governed use of the NFHS website and service, including use when a user did not have an active paid subscription. The court therefore found that Kasper remained subject to the terms during periods when his paid subscription had lapsed.

The terms were updated in 2018, 2022, and 2024. The court found that Kasper accepted each updated version by continuing to use NFHS’s service, including during periods when he had active paid subscriptions. Each updated version contained a materially similar arbitration clause and referred to the American Arbitration Association’s Commercial Arbitration Rules.

Delegation and Opt-Out Issues

The court held that the reference to the American Arbitration Association’s rules was clear and unmistakable evidence that the parties agreed to let the arbitrator decide questions about whether disputes are subject to arbitration. The court rejected Kasper’s arguments that the delegation provision was unconscionable, including his argument that it applied unevenly. The court found that the provision applied equally to Kasper and NFHS.

Because Kasper’s challenges to the delegation provision failed, the court held that the arbitrator should decide his remaining unconscionability challenges to the arbitration agreement as a whole.

The court also found that Kasper did not properly opt out. Filing a complaint in federal court and a case in state court did not satisfy the 2024 terms’ stated opt-out requirements. The court noted that a September 11, 2024, opt-out letter could not defeat NFHS’s motion because NFHS filed that motion on August 23, 2024. The court further noted that the 2024 terms did not define the opt-out period and that Kasper might have an argument concerning disputes arising after September 11, 2024, but that issue was not relevant to the disputes covered by NFHS’s motion.

Disposition

The court granted NFHS’s motion to compel arbitration, ordered Kasper’s claims to arbitration under the parties’ agreement, and stayed the action until the arbitration is completed. The opinion did not decide the merits of Kasper’s privacy or unfair-competition claims.