The Cookie Banner Is Now a Contract: Drafting Consent Flows That Compel Arbitration

Joshua M. Stein, Partner | Boies Schiller Flexner LLP

Joshua M. Stein is a partner in the San Francisco office of Boies Schiller Flexner LLP, where he first-chairs technology and platform litigation. His practice spans artificial intelligence, copyright, trademarks and trade secrets, commercial disputes, appellate matters, crisis management, and international arbitration. He is a member of the firm’s teams litigating the AI copyright cases against Meta and OpenAI, has led litigation against Meta over Instagram addiction, and serves as hiring partner for the San Francisco office.

• Education & Credentials

Joshua earned his J.D., cum laude, from Yale Law School, where he served as Articles Editor of the Yale Journal of Law and the Humanities and as Faculty Diversity Co-Chair of the Latino Law Students Association. He holds a Ph.D. in U.S. History from the University of California, Los Angeles, and a B.A., cum laude, in History and English from Yale University. He is admitted to practice in California and clerked for the Hon. Ferdinand F. Fernandez of the U.S. Court of Appeals for the Ninth Circuit.

• Recognition & Leadership

Joshua has been named among the Lawdragon 500 Leading Plaintiff Financial Lawyers. He serves as hiring partner for Boies Schiller Flexner’s San Francisco office, where he recruits and mentors the firm’s litigation talent, and he was recently appointed by the U.S. Court of Appeals for the Ninth Circuit to represent an immigration client on appeal.

• Professional Involvement

Joshua is a member of the Hispanic National Bar Association. A dual citizen of the United States and Ecuador who is fluent in Spanish, he handles cross-border matters and appears in international forums, including service on the team litigating a landmark case against FIFA before a human rights tribunal on behalf of women footballers seeking equal treatment, and work on a crisis team addressing a diplomatic dispute between sovereigns. Before entering practice, he taught U.S. history at Yale, UCLA, CUNY, and The New School, and his published work on legal history, criminal justice, and constitutional law has been frequently cited.

• Experience

Joshua’s representative matters include the AI copyright actions against Meta and OpenAI; litigation against Meta concerning Instagram addiction; a copyright defense victory for Warner Bros. in the California Court of Appeal concerning the film The Judge; the defense of Giphy in an intellectual property dispute; offensive discovery in the Waymo v. Uber trade secrets case; preparation for oral argument before the U.S. Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com; defense preparation in a New York Martin Act suit; and Ninth Circuit post-arbitration litigation, a Bivens claim, and a discrimination suit against a university system. In-house, he served as litigation counsel at Twitter, where he oversaw the company’s successful certiorari petition in Taamneh v. Twitter before the U.S. Supreme Court, and as Director of Litigation and Operations at Clipboard Health, where he managed class actions, investigations, and crisis response.

SESSION 1 – Drafting the Cookie Banner That Forms a Binding Contract | 2:30pm – 3:30pm

This session examines how cookie banners are being deployed as contract-formation mechanisms that bind users to arbitration clauses and class-action waivers, drawing on the 2025–2026 wave of Ninth Circuit and district court decisions. Attorneys will learn the two-part conspicuous-notice/unambiguous-assent test, the specific visual and UX design elements courts have accepted or rejected, and the dual-use tension between privacy-consent compliance and enforceable contract formation. By the end of this session, attendees will be able to evaluate an existing cookie banner for enforceability risk and apply a case-law-derived drafting checklist to banners intended to compel arbitration.

BREAK | 3:30pm – 3:40pm

SESSION 2 – Auditing Consent Flows and Rethinking the Consumer Arbitration Clause | 3:40pm – 4:40pm

This session equips attorneys to conduct a structured audit of existing consent flows and arbitration clauses considering the 2024–2025 circuit split on sign-in wrap enforceability, emerging unconscionability doctrine targeting mass-arbitration management provisions, and revised AAA and JAMS procedural rules effective May 2025. Attorneys will learn a concrete checklist for evaluating visual conspicuousness, assent mechanisms, and arbitration clause architecture across jurisdictions. By the end of the session, attendees will be able to identify high-risk consent-flow elements, remediate deficient arbitration clauses, and select an arbitration forum with full awareness of the cost and procedural consequences of that choice.