A November 4, 2025, ruling in Brooks v. WarnerMedia Direct, LLC, offers a clear reminder for organizations that changes to terms of service, especially those impacting where consumer disputes are heard, can have direct operational consequences. For WarnerMedia, the parent company of HBO Max, the result is a split process in which consumer privacy claims might proceed in two different arbitral forums, based on whether individual users can be shown to have agreed to updated terms of use regarding arbitration.
Factual Summary
The plaintiffs are former subscribers of HBO Max, a subscription-based streaming platform. The plaintiffs brought claims under the federal Video Privacy Protection Act, alleging that HBO Max improperly shared video-watching histories with third parties.
From its launch through late 2022, HBO Max’s terms of use required mandatory arbitration of nearly all disputes before the American Arbitration Association (AAA). Each plaintiff assented to those terms when subscribing to the streaming service. On December 20, 2022, WarnerMedia updated its terms to designate National Arbitration and Mediation (NAM) as the arbitral forum for all subscriber disputes, superseding AAA. Notices regarding this change were delivered to subscribers by email and via in-app pop-ups. WarnerMedia specified that continued use or access after notice would be deemed assent to the new terms.
In May 2023, HBO Max rebranded as “Max” and its updated terms continued to require NAM arbitration. Customers had to agree to these terms by clicking “Start Streaming” before accessing the Max platform. In January 2023, plaintiffs’ counsel sent letters attempting to reject the December 2022 terms and served Notices of Dispute consistent with the prior AAA agreement. WarnerMedia responded that it had delisted its AAA clause and would not register the clause again.
Plaintiffs and WarnerMedia both agreed that arbitration was the appropriate dispute resolution forum. However, the plaintiffs asserted that arbitration should be governed by the AAA and WarnerMedia held that it should be governed by NAM. The question turned on whether each subscriber had assented to be bound by the updated NAM agreement or remained covered by the prior AAA agreement.
The Court’s Analysis
WarnerMedia demonstrated that three users agreed to the updated terms by their conduct after notice. This included streaming HBO Max content, maintaining monthly subscriptions via third parties like T-Mobile and Hulu, and clicking an in-app assent button before starting streaming. For these plaintiffs, the court compelled arbitration in NAM, the forum specified in the revised contract. For the two other plaintiffs, the record showed that neither individual took any action after receiving notice that would constitute acceptance of the NAM agreement. Specifically, their subscriptions had expired before the updated terms came into effect, and discovery produced no evidence that either subscriber used HBO Max after the changes or streamed content as an authorized user on another account. Merely accessing the platform to review the new terms or sending a letter purporting to reject the new agreement was not enough to demonstrate assent under the court’s analysis. Without any post-notice activity(such as logging in, streaming, maintaining an active subscription, or clicking to agree to the new terms) there was no unambiguous manifestation of consent. Therefore, the court held that these users remained subject only to their original AAA agreement. The court stayed the underlying case pending arbitration.
Takeaways
For organizations, this opinion imparts several lessons:
- Contract amendments about dispute resolution must include clear notice and mechanisms to record user assent. If consumer claims arise, a company needs to show who received updated terms and how users agreed, either by their actions or explicit acknowledgment.
- Where notice and assent cannot be clearly shown, organizations risk managing disputes across multiple forums under different versions of their own agreements. This can mean higher costs, operational inefficiencies, and increased litigation risks.
- Detailed business records showing user activity and consent events may be critical data points in establishing who is bound to new terms. Gaps or inconsistencies may leave some claims governed by older contracts.
Companies should review their processes for contract updates and the evidence they keep for user notice and assent. Patchwork dispute resolution is a burden and failing to manage assent with care could mean organizations face disputes in reruns across multiple arbitral stages.
