[00:00:18] Speaker 01:
The next case up for argument is Alcacar versus Bumble.

[00:01:24] Speaker 01:
All right, we're joined by a very special delegation from Ukraine.

[00:01:29] Speaker 01:
Judges Bres, Bennett, and I welcome you.

[00:01:41] Speaker 03:
Good morning, your honors.

[00:01:42] Speaker 03:
May it please the court.

[00:01:43] Speaker 03:
My name is Daniel Rosenblatt.

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I represent the plaintiff appellant, Harsh Al-Qutqar.

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And I should mention that this is my first time before this court, so I apologize to the delegation from Ukraine, but have some patience.

[00:01:58] Speaker 01:
And I'd like to reserve- Well, your first time, I'm sure you did extra preparation, so we look forward to your argument.

[00:02:04] Speaker 01:
Welcome.

[00:02:04] Speaker 02:
As I tell litigators all the time, the 20th time is no different than the first on anything, Mr. Rosenblatt.

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It's the same level of nerves, so that's fine.

[00:02:13] Speaker 03:
Thank you, Judge Brenner.

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I'd like to reserve four minutes of my time for rebuttal.

[00:02:19] Speaker 01:
I'll try to help you out, but keep your eye on the clock as well.

[00:02:23] Speaker 03:
Your Honors, the primary issue in this case is whether an arbitration agreement was formed in the first place.

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And specifically, this appeal turns on the factual question of whether plaintiff clicked an I agree button on his phone and thereby consented to arbitration.

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The district court aired in two respects that I'd like to address today.

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First, the evidence before the district court was so clearly in favor of plaintiff that even under the summary judgment standard, no reasonable jury could find that he clicked the I agree button.

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Accordingly, plaintiff seeks reversal of the order compelling him to arbitration.

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Second, even if this court declines to reverse the order, at a minimum, there's a genuine dispute over whether plaintiff clicked the I agree button.

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And under section four of the FAA,

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he's entitled to a jury trial on that issue.

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So the alternative relief that plaintiff seeks is to vacate the district court's order, compelling him to arbitration, and remand this case for a jury trial on the issue of whether or not he clicked the I agree button.

[00:03:27] Speaker 01:
There's one area that I want you to address in the district court's analysis.

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The district court said first, unique credentials were used to access the app, right?

[00:03:37] Speaker 01:
You don't dispute that.

[00:03:39] Speaker 03:
Well, actually, it's important to clarify that plaintiff alleges in his declaration that he had to use his unique credentials to register for a Bumble account in 2016.

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But after that date, he never again had to enter any unique password or user name to open the app, to sign into the app, or to use the app.

[00:04:04] Speaker 00:
All right.

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Is that because his credentials were saved at his election?

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He doesn't know why he's not Bumble, but I believe that that's what Bumble hasn't indicated clearly whether or not that users were required to enter their unique credentials.

[00:04:22] Speaker 01:
So the initial creation of the account is done by unique password.

[00:04:27] Speaker 03:
I believe so, Your Honor.

[00:04:29] Speaker 01:
And then moving on to the district court's second point, and I'm not sure what your response is.

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This is what I'm really interested in.

[00:04:36] Speaker 01:
The court relied on a chain of inferences to say that he must have seen the blocker card because somebody, presumably the plaintiff, basically went on to engage in activity that you wouldn't be able to engage in had you not gotten past the blocker card.

[00:04:55] Speaker 01:
How do you respond to that?

[00:04:57] Speaker 03:
One more point on the if I may on the unique credentials that issue comes up under when the court is trying to authenticate either an electronic record or an electronic signature and Just like if somebody comes to court with a signature on a paper contract.

[00:05:15] Speaker 03:
There's authentication of that signature here We don't even reach the issue of authentication Because Bumble did not produce any record of plaintiff actually clicking the I agree button

[00:05:26] Speaker 03:
Right, but that's the question is whether it needed to do that, right?

[00:05:32] Speaker 03:
Well, we would note that every single case that's cited in all of the briefing, the defendants always produce either an electronic record or an electronic signature.

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And in fact, when Bumble first moved to compel arbitration, it stated that it did have records of when users clicked the blocker card.

[00:05:51] Speaker 01:
All right, get to my question.

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I want to make sure that I get your answer before your time runs out.

[00:05:56] Speaker 03:
And the question was, yes, it affects because Bumble does not have an electronic record of him actually clicking the blocker card, it is relying on an inference.

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And that inference, your honor, is flawed.

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Allow me to demonstrate this.

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According to Bumble, after it implemented the arbitration clause in January 2021, every user who opened the app for the first time would have to click it in order to continue using the Bumble app.

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So according to Bumble, because Plaintiff had some activity, he must have clicked the blocker card.

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But consider this.

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When a user is presented with the blocker card, that user has two options.

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They can agree to the terms and click the button, or they can close the app and not agree to the terms.

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But what happens when a user who did not agree opens the app for a second time?

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how would Bumble software know to show the blocker card again?

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Unless Bumble kept records of which users clicked the blocker card and which users did not, the software would have no way of distinguishing who agreed to arbitration and who did not.

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And this is precisely why, in its second declaration, Bumble submitted a

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stated that it merely had indicators of whether certain, not all, whether certain users clicked the blocker card.

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In your honors, this is a fatal- So let me make sure, slow down a second.

[00:07:31] Speaker 01:
Let me make sure I understand what it is that you're saying.

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If you close the app and you open it again, you can actually engage in activity without clicking a cent in the blocker card.

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That's your position.

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So you're challenging the accuracy of the Wong Declaration?

[00:07:47] Speaker 03:
Absolutely, Your Honor.

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That is a logical conclusion.

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Now, plaintiff never viewed the blocker card in the first place.

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But what we're saying is even taking Bumble's theory as true, it's impossible that they could actually know who clicked the blocker card and who did not.

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For example, if Bumble has no records of who clicked the blocker card and who did not, how would the software know who to prevent from using the app and who to allow to use the app?

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The answer is simple.

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Bumble has no way of knowing.

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It's clear that the blocker card doesn't work the way that Bumble intended, and this is corroborated by five other Bumble users who submitted sworn testimony saying that they were able to use the Bumble app without ever having clicked the blocker card.

[00:08:34] Speaker 00:
Just going back to the face of the declarations that Bumble put forward, what do you contend is

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is insufficient there, because as I understand it, their argument backed by code and other things is to say, we set this up so that if you opened it up again and you then accessed it after a certain date, you had to have clicked through that.

[00:08:55] Speaker 00:
We don't have a piece of code that tells us you did click through it, but the fact that you got to the other side shows that you went through that process.

[00:09:03] Speaker 03:
Your Honor, it's correct that the only code that defendant was able to produce

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was plaintiff's activity on the app.

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And I would urge the court to review that metadata for itself.

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It's in the record at 4ER567, because all it shows is five lines of metadata.

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And it just shows that a user ID that purportedly belongs to plaintiff

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had some activity on the app.

[00:09:30] Speaker 02:
But activity- Did not those internal records show that the login credentials were unique to Acura and were used in March of 2021?

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Wasn't that presented as the evidence in the case?

[00:09:41] Speaker 03:
Yes, Your Honor.

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We have to distinguish between used and entered.

[00:09:44] Speaker 02:
But the evidence was produced that was entered in March of 21, that the block record was in effect at that time, correct?

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Bumble alleges that it was used, but again, distinguishing between used and entered.

[00:09:54] Speaker 02:
Well, it alleges they produced evidence to the effect that it was used and entered in March of 2021, correct?

[00:10:00] Speaker 03:
Yes, but used is different from entering.

[00:10:02] Speaker 02:
I understand the distinction you're seeking to draw.

[00:10:04] Speaker 02:
I understand.

[00:10:04] Speaker 02:
Yeah.

[00:10:04] Speaker 03:
And so, yes, any time anybody's using the Bumble app, they are using the credentials that are tied to their account.

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But Bumble never alleges that any user was required to enter credentials before signing in and clicking the blocker card.

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And the distinction between

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entering credentials and the fact that somebody's account is tied to credentials is an important distinction.

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Because if they don't have to enter unique credentials, then there's no way of confirming who actually clicked the blocker card.

[00:10:34] Speaker 00:
But again, that goes to a- I mean, there's not evidence, you haven't put forward evidence that somebody else clicked the blocker card.

[00:10:40] Speaker 00:
Somebody using his account did.

[00:10:42] Speaker 00:
I mean, there's a suggestion that maybe he left his phone around and somebody else might have done it, but there's really no concrete representation about that.

[00:10:51] Speaker 03:
The plaintiff does not know why the blocker card was never displayed on his phone and why he was able to continue using the app.

[00:10:58] Speaker 03:
He's looked at the allegations, but it's Bumble's burden to actually prove that the blocker card was clicked.

[00:11:05] Speaker 01:
And this is the only case... Right, and they put that in in the form of the Wong Declaration.

[00:11:09] Speaker 01:
I'm looking now at ER-597.

[00:11:12] Speaker 01:
lines 18 through 22, plaintiff would not have been able to access and be active on his bumble app on those particular dates unless he accepted the blocker card.

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Moreover, he would not have been able to purchase.

[00:11:26] Speaker 01:
So I guess my question is, what evidence was put into the record to create now a triable question on whether he

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He had activity, right?

[00:11:38] Speaker 01:
In order to get to that activity, he had to click I accept.

[00:11:41] Speaker 01:
That's the evidence they put forward.

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And I started the hearing by acknowledging these are a chain of inferences because they didn't put in the actual record, but they did put in the underlying metadata.

[00:11:53] Speaker 01:
They put in an expert declaration explaining how it works.

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and according to their declaration, you can't get to the activity that he engaged in without going past the blocker card.

[00:12:05] Speaker 01:
Now, had you put in declarations saying, well, I picked up from somebody else saying I picked up his phone, I regularly use it, I play with his Bumble account, that might be a different record, but we don't have that in this case.

[00:12:17] Speaker 03:
The evidence that plaintiffs submitted was a sworn declaration where he unequivocally denied that he ever clicked the blocker card, and in addition,

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he submitted the sworn testimony of five other users, three of whom specifically tested the inference that Bumble is making.

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And what they found was that just like Plaintiff, they were able to use the Bumble app without ever viewing or clicking the blocker card.

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In other words, they demonstrated that the blocker card doesn't function

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as Bumble claims.

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Now going to Bumble's evidence, Bumble has no record of the blocker card, and they did not submit any metadata showing that the blocker card was displayed.

[00:12:56] Speaker 03:
They didn't submit any metadata showing that the blocker card was submitted.

[00:13:00] Speaker 03:
They didn't submit or produce the source code to show that it actually functions the way they say it does, nor did they even submit the testimony of a witness who reviewed the source code.

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So Bumble, the

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The declaration of Christian Wong fails to lay any foundation for those statements.

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In short, Bumble is asking this court to fill all of the evidentiary gaps with an assumption.

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That assumption is the blocker card works because we say it does.

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But that assumption is not just unsupported without any evidence, because this is the only case where the defendant is unable to produce an electronic record.

[00:13:39] Speaker 03:
Evidence or that assumption is contradicted by the sworn testimony of plaintiff and five other Bumble users.

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I'd like to reserve the rest of my time for rebuttal.

[00:13:50] Speaker 01:
All right.

[00:13:50] Speaker 01:
Thank you, counsel.

[00:14:00] Speaker 04:
Good morning, Your Honours.

[00:14:01] Speaker 04:
Kyle Wong on behalf of the Appellees.

[00:14:06] Speaker 04:
The plaintiff has just articulated, I think, a pretty radical

[00:14:09] Speaker 04:
and upending view of summary judgment in a motion to compel arbitration context.

[00:14:17] Speaker 04:
He is essentially contending that when, as your honors have already noted, the defendant has put in affidavits or declarations that establish certain electronic facts and records.

[00:14:29] Speaker 01:
Well, he does raise a reasonable authentication issue.

[00:14:32] Speaker 01:
Does Bumble not keep these records?

[00:14:35] Speaker 04:
Your Honor, they keep a record of the blocker card being shown.

[00:14:41] Speaker 04:
They do not have a record of the blocker card being clicked on to say I accept.

[00:14:47] Speaker 04:
But I don't think electronic signatures are not required.

[00:14:50] Speaker 01:
So they don't keep the records of the user's acceptance, or they do keep it but just can't find the one in the case here?

[00:14:58] Speaker 04:
They do not keep records of the click on the I accept button.

[00:15:04] Speaker 02:
What evidence is kept with respect to the Alcatraz electronic signature, for example, there's record as to that that was introduced, correct?

[00:15:11] Speaker 04:
There's a record of him No, your honor.

[00:15:13] Speaker 04:
There's a record of his unique credentials.

[00:15:15] Speaker 04:
Those are the Facebook credentials when he signed in as Judge breast noted cogently when you create an account

[00:15:23] Speaker 04:
You can create an account using a unique username and password that you create just for Bumble.

[00:15:28] Speaker 04:
Or you can also use your unique usernames and passwords from other internet platforms to be your unique username and password for the Bumble app.

[00:15:41] Speaker 04:
Mr. Alcacar chose to use his unique Facebook username and password for his Bumble account.

[00:15:49] Speaker 04:
And whether or not he had to

[00:15:52] Speaker 04:
enter it in to open the Bumble app.

[00:15:55] Speaker 04:
He certainly had to have at least been logged into Facebook and to have entered in his unique credentials to then have Facebook verify that he is the user that he purports to be and then that verification is passed on to Bumble to allow him to use the app.

[00:16:13] Speaker 04:
So, and I think one thing that should be clear is that Mr. Alka-Kar actually submits a screenshot of the

[00:16:21] Speaker 04:
sign in page as he saw it, as he purports to have seen it in March of 2021.

[00:16:26] Speaker 04:
That's ER 301.

[00:16:28] Speaker 04:
If your honors look at that document, it makes very clear that he was not logged in to his Bumble account at the time, because very prominently in the middle of that screenshot, it says, you last logged in using your Facebook account, indicating that he was not logged in and that he had to log back into his account to access the app.

[00:16:49] Speaker 04:
And below that

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line you see continue with Facebook.

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That allows you to click on that button and you either already are logged into Facebook having used your unique password and user ID, or you have to enter in your actual Facebook information at that juncture.

[00:17:09] Speaker 04:
And I would note that Bumble doesn't just keep records of the unique credentials, it also keeps records of a device ID,

[00:17:17] Speaker 04:
and a user ID, both of which are unique.

[00:17:20] Speaker 01:
I guess I find it a bit surprising that

[00:17:24] Speaker 01:
You hear as the party advancing the application of the arbitration clause to put in all the metadata, all of the other information and not the actual page where he ascended.

[00:17:38] Speaker 01:
So what do we do with the fact that he put in the declaration because we're now relying on a chain of inferences which I think the district court really well laid out.

[00:17:49] Speaker 01:
What do we do with the fact that he's now trying to counter

[00:17:52] Speaker 01:
inferences with his own declaration and the other declarations as well.

[00:17:57] Speaker 01:
And his declaration says he never assented, never clicked on the I agree button, and if he had, he would remember, and then he put in these other declarations of other users.

[00:18:08] Speaker 01:
What do we do with that fact?

[00:18:10] Speaker 04:
Sure.

[00:18:10] Speaker 04:
Well, first of all, I think the blocker card is the same.

[00:18:14] Speaker 04:
The blocker card and the I accept button appear on the same screen.

[00:18:17] Speaker 04:
It's not that Bumble does not have a record of the page in which he clicked I accept on.

[00:18:22] Speaker 04:
It does have a record of it being shown.

[00:18:25] Speaker 04:
So the blocker card has a statement that says to use Bumble, you must agree to our terms.

[00:18:30] Speaker 04:
And it noted that there was an arbitration clause.

[00:18:32] Speaker 04:
It was a very succinct four-sentence notice that was prominent.

[00:18:36] Speaker 04:
It was in legible font.

[00:18:38] Speaker 01:
That's not an issue.

[00:18:40] Speaker 01:
The issue is whether he had sent it.

[00:18:42] Speaker 04:
Right, but I was just letting your honor know that Bumble does have a record of showing the blocker card which includes the I accept button to Mr. Althakar.

[00:18:50] Speaker 01:
I understand that.

[00:18:51] Speaker 01:
The question really is the assent.

[00:18:53] Speaker 01:
So now we have a chain of inferences that he must have assented because he engaged in activity that you wouldn't be able to engage in, per your evidence and the Wong declaration in particular,

[00:19:05] Speaker 01:
if he hadn't gotten past the blocker card, right?

[00:19:08] Speaker 01:
Correct.

[00:19:09] Speaker 01:
So to counter the chain of inferences, he put forward his own declaration and these other declarations that he referenced earlier in his argument.

[00:19:17] Speaker 01:
What do we do with those declarations?

[00:19:19] Speaker 04:
Well, first, his declaration is conclusory and says only that he denies seeing the blocker card.

[00:19:27] Speaker 04:
And then he says, kind of muddying the waters of whether or not it's a denial or just a failure to recall, he says then that he

[00:19:35] Speaker 04:
If he had been presented with a blocker card, he believes he would have recalled that, which under Ninth Circuit precedent is insufficient to create a tribal issue of fact.

[00:19:46] Speaker 04:
Now, I think when you look at the other cases in which a bear

[00:19:51] Speaker 04:
First, there is no case where a bare denial of seeing an agreement and notice of an arbitration agreement and assent is sufficient to negate that consent.

[00:20:05] Speaker 04:
I think he's actually a pretty radical proposition if you pause to think about it.

[00:20:09] Speaker 04:
If a person can just come in and say, I never saw the terms of service, I never saw the I accept button, I never clicked on that, then you're going to open the floodgates to

[00:20:20] Speaker 04:
arbitration agreements in the electronic context being contested merely because the plaintiff has stated that he did not see the click button, the I agree button, didn't see the notice, no matter how much evidence you've put in of electronic records that demonstrate that it was the case.

[00:20:40] Speaker 01:
And even if we think that that's a bit thin, is it bolstered by these other declarations or do they suffer from the same deficiencies?

[00:20:46] Speaker 04:
Well, I think first with his declaration also, and I will get to your question, Your Honor.

[00:20:50] Speaker 04:
He knew the exact date and time that Bumble alleged the blocker card was shown to him.

[00:20:56] Speaker 04:
It's March 4, 2021 at 2.27 p.m.

[00:20:59] Speaker 04:
Pacific time.

[00:21:01] Speaker 04:
He could have gone back to his records to say, I was on a plane, I was scuba diving, I was in the hospital, or this person had access to my phone at that time and that person saw the blocker card.

[00:21:12] Speaker 04:
He did not put in any of that evidence.

[00:21:15] Speaker 04:
his declaration in and of itself is too thin to give credence to move to a tribal issue a fact.

[00:21:22] Speaker 04:
Now as to the other five, I wanted to address your honor's question.

[00:21:27] Speaker 04:
Three of them merely say, to the best of my recollection, I don't recall seeing the blocker card.

[00:21:31] Speaker 04:
That, again, is not sufficient under Ninth Circuit precedent to create a tribal issue of fact.

[00:21:37] Speaker 04:
Those individuals merely say it's just the best of the revolution.

[00:21:40] Speaker 04:
They don't recall.

[00:21:43] Speaker 04:
The other two didn't open their apps until almost a year or actually more than a year after March 4th, 2021.

[00:21:55] Speaker 04:
Their experiences with the app 14, 16 months later is

[00:22:01] Speaker 04:
immaterial and irrelevant to whether or not Mr. Alcacar saw the blocker card on March 4th, 2021.

[00:22:10] Speaker 04:
And again, we have an electronic record of which the plaintiff has not been able to say was altered.

[00:22:17] Speaker 04:
He doesn't explain how it got into Bumble's records.

[00:22:21] Speaker 04:
He didn't seek the code at the trial court level.

[00:22:27] Speaker 04:
He didn't seek any discovery on that.

[00:22:28] Speaker 04:
But what we have put forward is two engineers who are familiar in their jobs with Bumble's records, how they're stored, how they're kept, how they're created, and they reviewed those records and produced records showing that the blocker card was in place at the time of March 4th, 2021.

[00:22:47] Speaker 04:
They also put in

[00:22:49] Speaker 04:
that they had searched for his device ID and user ID to find his individual records within Bumble's app and found that the blocker card had in fact been shown to him.

[00:23:02] Speaker 04:
So again, I think it's a very radical proposition that the plaintiff is pushing here, which is the notion that you can just get five random Bumble users who, you know, either based on pure recollection or opening an electronic app

[00:23:19] Speaker 04:
a year later to say that a certain thing did not occur on March 4, 2021.

[00:23:25] Speaker 04:
And then plaintiffs just bear assertion that he did not see it when he logged in.

[00:23:32] Speaker 00:
I guess the plaintiffs with respect to Wong would say, I think, that it shows that this blocker card was in place, but it doesn't necessarily show that the blocker card was

[00:23:43] Speaker 00:
was the metadata doesn't show that it was put to Alcudcar specifically, but I take it you disagree with that?

[00:23:49] Speaker 04:
Yes, Your Honor.

[00:23:50] Speaker 04:
That's how we know it was at 2.27 PM, and so it was individual to his record.

[00:23:55] Speaker 04:
If you look at that piece of metadata, it does have his unique user ID and his, I believe, device ID.

[00:24:01] Speaker 04:
So those do connect that individual record with Mr. Alcudcar.

[00:24:07] Speaker 04:
And also, I just wanted to respond to one thing that opposing counsel had noted.

[00:24:13] Speaker 04:
Nowhere in the record is this notion that you can open and reopen the Bumble app, first open it, not click on the blocker card, close the app and reopen it, and suddenly the blocker card disappears.

[00:24:25] Speaker 04:
That's not something he's contended that Mr. Alcacar did.

[00:24:28] Speaker 04:
As I think you noted when you pressed him a little bit on it, he hesitated because that's nowhere in the record, and it's not a fact that your honor should rest on it.

[00:24:38] Speaker 04:
It's not also how I believe the blocker card worked.

[00:24:45] Speaker 04:
So I just wanted to reiterate that Mr. Christian Wong, the Christian Wong declaration makes clear that in reviewing Bumble's records, including code, that you could not, as Judge Nguyen noted, you could not swipe on profiles, you could not

[00:25:14] Speaker 04:
upload photos, you could not do any activity on the application without having clicked the blocker card.

[00:25:21] Speaker 04:
Notably, Mr. Alcacar does not contest that he was the individual who used the app on March 4th, 2021.

[00:25:31] Speaker 04:
He never contests or denies that he was the one that uploaded photos or swiped on profiles.

[00:25:37] Speaker 04:
So he does not contest that evidentiary record.

[00:25:41] Speaker 04:
And then lastly, I would note that while we do not have the electronic signature, there is no case law that says that absent electronic signature you cannot enforce an arbitration agreement.

[00:25:52] Speaker 04:
In fact, California law is very clear that you can accept contracts in a myriad of ways, including by conduct.

[00:25:59] Speaker 04:
If you note that the blocker card itself does say by using our services, you must agree to our terms,

[00:26:07] Speaker 04:
I think that was sufficient notice to him that if he continued to use it, including by clicking on the blocker card, that his conduct would be conducive to consent.

[00:26:20] Speaker 04:
If Your Honours don't have any other questions, I can rest.

[00:26:42] Speaker 03:
Your Honors, I'd just like to address a couple points, the first being the evidence that Bumble submitted.

[00:26:48] Speaker 03:
Bumble did not produce a record of the blocker card being shown on plaintiff's device.

[00:26:54] Speaker 03:
If they have that record, it was not produced.

[00:26:56] Speaker 03:
And one of the questions is, why not?

[00:26:58] Speaker 03:
And paragraph 17 of the Wong Declaration makes very clear that the metadata is simply a record of plaintiff's activity.

[00:27:05] Speaker 03:
He doesn't say what that activity is, and it clearly was not plaintiff clicking the blocker card.

[00:27:11] Speaker 03:
Importantly, neither Wong nor Cheena, the two engineers referenced by Mr. Wong in this courtroom, neither of them allege that they reviewed the source code, which is the only thing that could support this untested inference.

[00:27:28] Speaker 03:
Bumble is concerned that a threadbare denial would be sufficient to create a tribal issue and that this would lead to a parade of terribles with plaintiffs just essentially

[00:27:40] Speaker 03:
lying about whether or not they clicked a button.

[00:27:43] Speaker 03:
But this case is not just a threadbare denial.

[00:27:47] Speaker 03:
He explains why he would have remembered it, because the dates didn't match up.

[00:27:51] Speaker 03:
And in addition, we have three other Bumble users who specifically tested the inference, which Bumble provides no evidence for.

[00:28:01] Speaker 03:
And those three users did not testify based on the recollection.

[00:28:08] Speaker 03:
They testified that they actually opened the app and they checked to see if the blocker card worked as Bumble said it would.

[00:28:17] Speaker 03:
And importantly, Bumble itself admitted that it made no changes to the blocker card software between January 2021 and May or in June 2022.

[00:28:30] Speaker 03:
And so the other Bumble users experience within that timeframe is indeed probative

[00:28:37] Speaker 03:
of what plaintiff would have experienced in March of 2021.

[00:28:40] Speaker 03:
And so the most likely explanation for why the other Bumble users never saw the blocker card is the same explanation as to why the plaintiff never saw the blocker card.

[00:28:51] Speaker 03:
It's because the blocker card doesn't work as Bumble says it does.

[00:28:55] Speaker 03:
But rather than draw a reasonable inference that's supported by the evidence, the district court erred

[00:29:02] Speaker 03:
and did exactly the opposite.

[00:29:04] Speaker 03:
The district court discounted these other sworn declarations as saying it was only probative of what would have occurred in May 2022, and it was not probative of what plaintiffs experienced in March 2021.

[00:29:18] Speaker 03:
And that contradicts the evidence that Bumble submitted.

[00:29:22] Speaker 03:
Bumble stated that there were no changes to the blocker card technology between January of 2021 and June of 2022.

[00:29:31] Speaker 03:
So that inference is not only unsupported, the court committed a legal error by viewing the facts in the light most favorable to Bumble.

[00:29:41] Speaker 03:
If the court has any other questions.

[00:29:43] Speaker 01:
It doesn't appear that we do.

[00:29:45] Speaker 01:
Nicely done, counsel.

[00:29:48] Speaker 03:
Thank you.

[00:29:49] Speaker 01:
The matter is submitted.