Thursday, March 5, 2026
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Claims Linking Tracking Apps to Stalking Head to Arbitration
Ninth Circuit Says Judge Erred in Finding That Two Putative Class Plaintiffs, Who Had Used Defendants’ Services to Check if Trackers Had Been Planted, Had Not Agreed to New Terms Based on Email Blast to Users
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has held that two plaintiffs in a putative class under California law against a Silicon Valley maker of devices to help users locate their tagged belongings through Bluetooth technology— which the complaint alleges facilitates the stalking of women—had assented to an arbitration agreement included in an emailed notice of updated terms of use.
In Tuesday’s memorandum opinion, the court found that the blast email by defendant Tile, Inc. put the plaintiffs on notice of the arbitration terms and that they unambiguously manifested assent through their continued use of the app.
Circuit Court Judges Ronald M. Gould, Jacqueline H. Nguyen, and Mark J. Bennett signed the decision which reverses an order largely denying the defendant’s motion to compel arbitration. In December 2024, District Court Judge Rita F. Lin of the Northern District of California declared:
“Tile presents no evidence that Plaintiffs had actual knowledge of the [updated] Terms. Nor has Tile met its burden to show that Plaintiffs were on inquiry notice…based on its email. Even assuming Tile’s email provided reasonably conspicuous notice…, there is insufficient evidence that Plaintiffs unambiguously manifested assent….Courts have declined to adopt a…rule finding that inquiry notice is satisfied ‘[where] a defendant sends an email giving notice…and a plaintiff continues to use the…service.’….But that is what Tile essentially urges here.”
Operative Complaint
In the operative putative class action complaint, filed in April 2024, a California resident identified only as Jane Doe and three other women, including Canadian citizen Melissa Broad, asserted claims against Tile, its parent company Life360 Inc., and Amazon.com Inc., which partnered with the company in 2021 to enlarge users’ tracking network by tying into the Bluetooth signals of the retail giant’s wildly popular Echo smart speaker devices.
They alleged that third parties used Tile trackers without their permission to stalk their locations and claimed:
“From the moment of the Tile tracker’s release, Tile marketed its product…for the purpose of tracking people—particularly women. The platforms on which the company advertised included pornographic websites, where visitors would leave disturbing comments about using the trackers to find and stalk women. When marketing consultants brought this to the attention of Tile’s leadership, the company’s executives mocked the findings and fiercely admonished female employees who expressed concern about this advertising strategy.”
Asserting that the company waited nine years before implementing a safety feature allowing users to scan for unwanted trackers on their belongings, they continued:
“Worse still, shortly after the introduction of those safety features, the company released a mechanism by which Tile owners could disable the features, thereby intentionally thwarting any recourse or protection a potential victim might have.”
Motion to Compel
After the defendants moved to compel arbitration as to Doe and Broad based on the terms of service associated with their Tile accounts, Lin found that they were not bound by the arbitration agreement contained in updated conditions emailed to all users in October 2023, which provided that “[i]f you continue to use any of [Tile’s] apps…on or after [Nov.] 26, 2023, you are agreeing to the [Terms].” Both women assert that they did not see the email.
Instead, she considered the language of the earlier versions in effect when Doe and Broad signed up with Tile. Lin found that those terms and conditions, unlike the October 2023 ones, left open the possibility that a court could decide arbitrability and, as such, “it is for the Court to resolve…enforceability.” Considering that question, she remarked:
“Just as a customer would not waive their right to bring suit over being hit by…[a] delivery truck because they happened to have an Amazon account with an arbitration provision, Plaintiffs did not waive their right to sue Tile over a third party’s separate use of Tile products….”
She added:
“The main thrust of Plaintiffs’ complaint concerns their stalkers’ Tile accounts…The motion to compel arbitration is denied as to those claims. Plaintiffs do…bring some claims based on their own Tile accounts, such as…Broad’s claim [that] her own Tile tracker was used to stalk her. The motion to compel arbitration is granted as to those claims based on Plaintiffs’ own Tile accounts, and those claims are stayed pending arbitration.”
Two other putative representative plaintiffs had never signed up with the company and allege that Tile trackers were placed on their belongings without their knowledge. Last August, Lin dismissed the other plaintiffs’ causes of action as time-barred and agreed to stay the non-arbitrable claims pending arbitration.
Bound by New Terms
Disagreeing with Lin’s conclusion that Doe and Broad were not bound by the October 2023 terms and conditions, Gould, Nguyen, and Bennett noted that “the parties do not dispute that the Oct. 2023 Terms delegated arbitrability” and that “if the Oct. 2023 Terms govern, the district court erred by not sending Appellees’ claims to arbitration.”
Saying that, under California law applicable to online contracts, they pointed out that an enforceable contract will be found based on inquiry notice if the company provides reasonably conspicuous notice of the terms and the customer takes some action that unambiguously manifests her assent to those conditions.
Finding that the emailed notice of the updated terms placed Broad and Doe on inquiry notice, they opined that “each Appellee provided an email address during registration, and should have expected to receive…updates” and that the design of the message included a hyperlink to the new conditions in “bold, blue text which contrasted against the white background.”
In a footnote, the jurists added:
“Appellees argue that precedents concerning contract formation on websites do not apply because the Oct. 2023 Notice was sent by mass email….[B]oth website-based and email offers of contract formation take place ‘online.’…Thus, the case law on web-based contracting applies. In applying our test for inquiry notice under California law, however, we are attuned to the factual differences between website-based and email offers which may affect the application of the inquiry notice factors.”
Manifested Assent
As to whether the plaintiffs unambiguously manifested assent to the October 2023 terms, they opined:
“Doe unambiguously manifested assent to the Oct. 2023 Terms by downloading the Tile App in March 2024 and using the Scan and Secure feature in attempting to locate her alleged stalker’s Tile Tracker….
“Broad also unambiguously manifested assent to the Oct. 2023 Terms by using the Tile App in January 2024 and periodically opening the Tile App to check location-sharing settings….”
They continued:
“Under the Oct. 2023 Terms, the parties agreed to arbitrate ‘all Disputes’ (except certain small and equitable claims), ‘includ[ing] all threshold issue[s] of arbitrability.’…Thus, by agreeing to the Oct. 2023 Terms, the parties agreed to arbitrate all issues.”
Based on this finding, the judges declared:
“We therefore reverse and remand with instructions to enforce the parties’ arbitration agreement contained in the Oct. 2023 Terms. On remand, the district court shall grant Appellants’ motion to compel arbitration against Appellees and leave all issues, including arbitrability and scope, to an arbitrator.”
The case is Ireland-Gordy v. Tile Inc., 25-403.
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