Ninth Circuit: Email TOS Updates Can Bind Users Via Continued App Use

A Pivotal Ruling on Digital Contracting

The United States Court of Appeals for the Ninth Circuit has issued a significant memorandum opinion that clarifies the rules for updating online terms of service. In Ireland-Gordy v. Tile, Inc., the court reversed a district court decision, holding that Tile, Inc. provided sufficient notice of updated terms via email. Critically, the court found that users' subsequent continued use of the Tile application constituted unambiguous assent to those new terms.

This case originated from a putative class action alleging that third-party stalkers misused Tile Trackers to track plaintiffs without consent. The plaintiffs, Melissa Broad and Jane Doe, had agreed to earlier versions of Tile's Terms of Service. The core legal dispute centered on whether they were bound by a later update—the October 2023 Terms—which contained a clear delegation of arbitrability.

The Mechanics of 'Inquiry Notice' Under California Law

Applying California contract law, the Ninth Circuit conducted a detailed "fact-intensive analysis" to determine if the plaintiffs received "inquiry notice" of the updated terms. The test evaluates three cumulative factors: the context of the transaction, the design and content of the notice, and other notices given to users.

The court found the context favored Tile. As registered users who provided an email address, plaintiffs should have expected relevant updates there. The design and content of the October 2023 email also supported notice. The email had a clear subject line ("Updated Terms of Service and Privacy Policy") and presented a hyperlink to the new terms in bold, blue, contrasting text.

However, the court noted Tile could have done more, such as using a clickwrap pop-up upon a user's next app login. This lack of additional, in-app notice weighed against a finding of inquiry notice. Nonetheless, the first two factors were strong enough for the court to conclude that inquiry notice was established.

Manifesting Assent Through Conduct

Establishing notice was only half the battle. Tile also had to demonstrate mutual assent. The court held that under an "objective-reasonableness standard," both plaintiffs unambiguously manifested assent through their conduct after the notice was sent.

Jane Doe downloaded the Tile App in March 2024 to use a specific feature after the update period. Melissa Broad accessed the app in January 2024 and periodically opened it thereafter, with Tile's records showing use as late as April 2024. The court ruled that a reasonable service provider would interpret such continued use after inquiry notice as assent to the updated terms.

The email explicitly stated, "If you continue to use any of our apps... on or after November 26, 2023, you are agreeing to the new Terms." The plaintiffs' actions objectively signaled agreement, rendering their "unexpressed intentions or understandings" irrelevant.

Implications for Arbitration and Class Actions

The practical consequence of this finding is substantial. The October 2023 Terms contained a "clear and unmistakable" delegation clause, agreeing to arbitrate "all threshold issue[s] of arbitrability." Because the updated terms governed, the court reversed the district court's order and remanded with instructions to grant Tile's motion to compel arbitration.

All issues, including the scope of the arbitration agreement and the unconscionability arguments the lower court had begun to analyze, must now be decided by an arbitrator. This shields Tile from immediate class action litigation in court, moving the dispute into a private, bilateral arbitration forum.

Broader Legal and Compliance Landscape

This ruling arrives amidst a complex and evolving landscape for consumer digital contracts and privacy litigation. Other sources highlight increasing regulatory scrutiny and legal risk.

• Rising Class Actions: As noted by Bloomberg Law, consumer class actions are expected to rise due to new state and federal laws, making rulings on arbitration clauses increasingly critical for companies.
• Privacy Scrutiny: The investigation into Ray-Ban Meta glasses in the UK, where 7 million units sold in 2025 face claims over data handling by contractors, underscores the heightened focus on wearable tech privacy and marketing claims.
• Telecom Regulations: Ongoing ambiguity around the Telephone Consumer Protection Act (TCPA), including whether text messages qualify as "calls," creates compliance complexity for companies using SMS communications.

These parallel developments show that companies face legal pressure on multiple fronts: contract formation, data privacy, and marketing practices.

Strategic Takeaways for Businesses

The Ninth Circuit's decision provides a potential roadmap for companies seeking to update their terms, but it is not a blanket endorsement of email-only updates. The court explicitly stated it does "not hold that notice by mass email establishes inquiry notice in every case."

For robust compliance, companies should consider a multi-channel approach. Sending a clear, well-designed email with a prominent link to new terms is a strong first step, as validated here. However, coupling that with an unavoidable in-app clickwrap mechanism upon a user's next login remains the gold standard and addresses the court's noted weakness in Tile's process.

This layered strategy mitigates risk and provides clearer evidence of assent. As the legal environment grows more challenging, with increased class actions and regulatory probes, having ironclad contract formation processes is not just a legal technicality—it's a core business defense.

The ruling ultimately reinforces a fundamental principle of digital law: continued use of a service after clear notice of new terms will often be construed as consent. Both businesses drafting those terms and consumers using the services must navigate this reality.