[00:00:07] Speaker 03: Good morning. [00:00:07] Speaker 03: May it please the court, I'm Dominic Trey, and I represent the appellant Just Answer. [00:00:11] Speaker 03: I will try to save three minutes for rebuttal. [00:00:15] Speaker 03: This case is about reasonable internet users and the holistic standard for agreeing to website terms and conditions. [00:00:22] Speaker 03: Reasonable internet users would know that the payment pages in this case include assent to Just Answer's terms and conditions. [00:00:30] Speaker 03: Yet take a look at the two payment pages on page 18 of the opening brief. [00:00:35] Speaker 03: The district court found one of those enforceable and the other one not. [00:00:39] Speaker 04: Can you just distinguish between which one was which? [00:00:42] Speaker 03: Well, Your Honor, that's more or less my point. [00:00:45] Speaker 03: If you showed those two pages. [00:00:46] Speaker 04: I don't have your brief. [00:00:48] Speaker 03: I don't have your brief in front of me. [00:00:50] Speaker 04: I've got the names of the plaintiffs. [00:00:51] Speaker 03: Great. [00:00:52] Speaker 04: So if you can pull that. [00:00:53] Speaker 03: Pettit, which is ER 118, if you're looking at the excerpts. [00:00:57] Speaker 03: I'm not looking at the excerpts. [00:00:59] Speaker 04: Pettit's pretty easy. [00:01:00] Speaker 04: Pettit says, by clicking Confirm Now. [00:01:03] Speaker 04: That's what the other ones don't say. [00:01:05] Speaker 04: Correct. [00:01:06] Speaker 04: Now, your point's well taken, which is I don't know that that makes any sense. [00:01:11] Speaker 04: But we said in Berman, you need by clicking. [00:01:15] Speaker 04: So I don't think the district court made a mistake there. [00:01:18] Speaker 03: So I don't think the court said you need by clicking or that you need any element. [00:01:23] Speaker 03: It's a holistic standard. [00:01:25] Speaker 03: That's been the case for, you know, Oberstein, Berman. [00:01:28] Speaker 04: Well, I mean, Berman said you have to explicitly be advised. [00:01:32] Speaker 04: In the second prong, [00:01:34] Speaker 04: You have to explicitly be advised that the act of clicking will constitute a set and I think the district courts reading that statement to say. [00:01:42] Speaker 04: I agree look. [00:01:45] Speaker 04: Bear in mind, I agree with your underlying position. [00:01:48] Speaker 04: I just don't think we can go there under Berman, because if it just says, I agree, that doesn't necessarily explicitly advise that when you click on it. [00:01:57] Speaker 03: Well, Your Honor, then let me give you some solace in the form of key bot, which post-dates the decision below. [00:02:03] Speaker 03: And so the district court didn't have the benefit of that. [00:02:06] Speaker 03: For those who are looking at the opening brief, that website's on page 27. [00:02:09] Speaker 03: It does not have the by-clicking language. [00:02:12] Speaker 03: And can you give me the plaintiff? [00:02:14] Speaker 03: Keybaugh. [00:02:15] Speaker 04: No, no, no, no. [00:02:16] Speaker 04: I'm sorry. [00:02:17] Speaker 00: We're putting it in this case, not the other case. [00:02:20] Speaker 04: You're talking about the agreement in Keybaugh. [00:02:23] Speaker 03: This court's precedent in Keybaugh answers the question about whether by clicking is a magic word's hard and fast requirement. [00:02:29] Speaker 03: It is not. [00:02:29] Speaker 03: So which plaintiffs in this case, Godin, Faust, and McDowell are the three that are depicted on page 18, where I raise the question and I think it answers itself. [00:02:43] Speaker 03: If you show those different web pages to reasonable internet users and ask them which was enforced and which one wasn't, they won't be able to know. [00:02:52] Speaker 03: Because the holistic standard makes clear. [00:02:55] Speaker 04: Well, let's back up. [00:02:56] Speaker 04: Because unfortunately, you're not arguing on a blank slate. [00:02:59] Speaker 04: You've got the seller's opinion from the California Court of Appeals. [00:03:03] Speaker 04: As I read Davis, Davis seems exactly like Sellers. [00:03:08] Speaker 04: And Sellers was addressing your client, right? [00:03:13] Speaker 03: Yes. [00:03:13] Speaker 03: Yeah. [00:03:14] Speaker 03: So Davis is the one plaintiff who saw a payment page that's similar to Sellers. [00:03:21] Speaker 03: Right. [00:03:21] Speaker 03: Now, Sellers doesn't apply here because Sellers is an automatic renewal law precedent. [00:03:27] Speaker 00: Well, aren't the parties here all raising ARL claims? [00:03:31] Speaker 00: I thought they were all. [00:03:32] Speaker 00: And the district or the parties agreed that California law applied. [00:03:38] Speaker 00: So if we apply Sellers to all of the claimants here, all of the petitioners here, then that says there wasn't enough. [00:03:50] Speaker 03: That gets right to the nub of the sellers question, Your Honor, but there are a couple of points to bear in mind. [00:03:56] Speaker 03: One, only Godin is a California resident. [00:03:59] Speaker 00: But does that matter? [00:03:59] Speaker 00: Because you all agreed that California law applies. [00:04:02] Speaker 03: And then two, on page 12 is the court's statement where it says, all parties agree that California contract formation law applies. [00:04:11] Speaker 03: because the law is materially the same in New York, Florida, North Carolina, and California. [00:04:17] Speaker 03: That cannot be talking about the ARL. [00:04:20] Speaker 03: That is talking about standard contract formation because those other states have their own ARLs. [00:04:27] Speaker 03: And Davis, Your Honor points to Davis as the one who's like the seller's website. [00:04:33] Speaker 03: Davis is from North Carolina. [00:04:34] Speaker 03: North Carolina has an automatic renewal law which is pled in the complaint [00:04:39] Speaker 03: And it does, for example, it differs substantively from California's. [00:04:42] Speaker 04: So, Council, I guess, I keep coming back because I agree with you. [00:04:47] Speaker 04: I think Sellers framed this up incorrectly, but it framed it up under California law. [00:04:55] Speaker 04: It seemed to extend it beyond the argument that you're making, which I'm sympathetic to, and just say, no, rightly or wrongly, this is how a contract is formed. [00:05:05] Speaker 03: I don't think Sellers says that, but the good news is there's subsequent precedent. [00:05:09] Speaker 03: BD versus Blizzard, which I had the privilege of arguing in the California Court of Appeal, limited its application. [00:05:15] Speaker 03: This court then picked that up in Kebaugh. [00:05:18] Speaker 03: I'll give you the citation. [00:05:21] Speaker 03: BD clarified the extent of Sellers, and here's Kebaugh at pages 10, 18 through 19. [00:05:27] Speaker 03: Quote, the foremost consideration in Sellers was the clear and conspicuous notice requirement of the ARL, which is inapplicable here. [00:05:34] Speaker 03: It is inapplicable here as well. [00:05:36] Speaker 00: Right, but did the parties agree that it was applicable? [00:05:38] Speaker 00: I mean, the parties agreed that California contract formation law applies. [00:05:42] Speaker 03: The standard contract formation law, Your Honor, that's absolutely right. [00:05:44] Speaker 03: They couldn't possibly agree that substantive provisions like the ARL applied, because these other states where plaintiffs, specifically Davis, which is all the action around Sellers concerns Davis, [00:05:55] Speaker 03: Davis is the only one who saw something that's factually similar to Sellers. [00:05:59] Speaker 01: So why is Davis, the payments page of Davis, that Davis saw, why is that conspicuous? [00:06:06] Speaker 03: Oh, so yeah, if we get past the California heightened standard for the ARL, that page actually includes the by-clicking language that the court was asking about earlier. [00:06:17] Speaker 04: Yeah, but hold on, back up. [00:06:19] Speaker 04: You have to have a magnifying glass in order to see it. [00:06:21] Speaker 04: I mean, I think you're mixing up the prongs, because the by-clicking goes to the second prong. [00:06:27] Speaker 03: It does work for both, I think. [00:06:28] Speaker 04: Well, not really. [00:06:30] Speaker 04: I mean, the second prong is all about explicitly advised that clicking will do this. [00:06:35] Speaker 04: You may satisfy that, but if you can't read it, then that goes to the conspicuous prong. [00:06:40] Speaker 04: And I don't see any difference. [00:06:42] Speaker 04: Davis doesn't seem to be your strongest. [00:06:44] Speaker 03: No, certainly not. [00:06:45] Speaker 03: And in fact, the fact that we're talking about Davis is great news for me, because the other ones are all so straightforward. [00:06:50] Speaker 04: No, I, well, you choose to argue how you want. [00:06:54] Speaker 04: But I guess the question is maybe it would be better, assuming we thought Davis did fall within Sellers, whatever the rule is Sellers, however far it should go, Nelson. [00:07:05] Speaker 03: Nelson is Keevaugh. [00:07:07] Speaker 03: The page in Nelson is Keevaugh. [00:07:09] Speaker 03: Because why? [00:07:10] Speaker 03: because of the placement of the notice beneath the action button. [00:07:21] Speaker 04: You've got language between the button. [00:07:25] Speaker 04: That's the hard thing. [00:07:26] Speaker 04: The other ones you don't have this try seven days and it kicks it down to the bottom. [00:07:31] Speaker 04: I don't know if that matters, but that seemed to matter in sellers. [00:07:35] Speaker 03: Again, Sellers is doing a different statute, Your Honor. [00:07:37] Speaker 03: If the court were, let me just close the loop on Sellers. [00:07:40] Speaker 04: But you want us not to apply Sellers, and that's a hard argument. [00:07:44] Speaker 03: No, respectfully, I don't think that's true. [00:07:46] Speaker 00: Sellers doesn't focus solely on the ARL. [00:07:49] Speaker 00: It does in certain places and other places. [00:07:51] Speaker 00: It's talking about general rules and contract formations. [00:07:57] Speaker 03: So we're here on a motion to compel arbitration. [00:07:59] Speaker 03: So the only provision [00:08:01] Speaker 03: in the terms and conditions at issue is the arbitration provision, not the automatic renewal. [00:08:06] Speaker 00: It doesn't matter, because if there's no contract, then we don't get to the arbitration clause. [00:08:11] Speaker 03: No, Your Honor. [00:08:12] Speaker 03: And this is a point where my friends on the other side are very tactful. [00:08:16] Speaker 03: If there was a rule in California that said we won't enforce an arbitration provision unless there's this heightened standard met, it runs straight into preemption. [00:08:28] Speaker 00: I mean, we have cases that say, if the contract is informed, then we don't look at the arbitration clause because there's no contract. [00:08:42] Speaker 00: So sellers seem to be pointed at, is there a contract or no contract? [00:08:49] Speaker 03: That's not right. [00:08:50] Speaker 03: What Seller says is you can't enter an automatic renewal provision without these various heightened standards. [00:08:56] Speaker 04: But it ultimately said there wasn't a contract. [00:08:59] Speaker 03: It couldn't be saying that without running into federal preemption. [00:09:03] Speaker 04: I think I'm agreeing with you, but that's what it says. [00:09:07] Speaker 04: I think Sellers is just wrong. [00:09:09] Speaker 04: I think it's wrong. [00:09:11] Speaker 04: But we don't get a second guess whether the state law misread the law or not. [00:09:18] Speaker 04: We have to take it. [00:09:20] Speaker 03: That's not true when there's a constitutional avoidance question, first of all. [00:09:23] Speaker 03: Secondly, BD and Kibah get you out of that bind because Kibah also involves- By the way, I don't think it would be preempted. [00:09:30] Speaker 04: I mean, whatever Sellers is doing, it's talking about contract formation. [00:09:35] Speaker 04: Right. [00:09:35] Speaker 04: So that's not preempted. [00:09:36] Speaker 03: That point is- And what the parties here stipulate to is [00:09:39] Speaker 03: claim vanilla contract formation, because as I pointed out, the language at ER12, where the court says that, is in the context of an agreement that the law is substantively the same. [00:09:52] Speaker 03: It's just not true for the heightened notice requirement under California ARL. [00:09:56] Speaker 03: That can't be what the court is talking about. [00:09:59] Speaker 01: The phrase terms of service needs to be conspicuous in the first part of the general test that we look at. [00:10:06] Speaker 01: So if you're looking at Nelson, [00:10:09] Speaker 01: How is it, what's the argument that that's conspicuous? [00:10:14] Speaker 03: Yes, so the terms of services, title capitalized, underlined, in close proximity to the action button, on a page where you enter your credit card information, anybody who shops on the internet, and here the Second Circuit's decision in Meijer versus Uber is relevant, where they talk about the reasonable user, the reasonable internet consumer, it's not someone making their first purchase on the internet, it's somebody who does this regularly, who understands how these websites work. [00:10:40] Speaker 03: Here you have, considering just Nelson now, here you have a website that points out, for $5 you get your answer, that's a seven-day trial, then it renews, [00:10:52] Speaker 03: the Start My Trial, by clicking Start My Trial, all of this is very obvious to a normal, reasonable internet user. [00:10:59] Speaker 03: And in fact, I hardly even need to make the point because in the court's decision in Keebaugh, which again, intervenes between the district court's decision here and this one. [00:11:08] Speaker 00: Which is sort of irrelevant because we're bound by sellers. [00:11:11] Speaker 00: I mean, sellers is exactly the same as they're very close to them. [00:11:16] Speaker 00: That's Davis. [00:11:17] Speaker 03: Sellers is Davis, yes. [00:11:20] Speaker 00: But also very similar to Nelson. [00:11:24] Speaker 00: Both say start my trial, both say try seven days for five dollars, both have the tiny type that says by clicking. [00:11:31] Speaker 00: I mean they're very similar. [00:11:33] Speaker 00: I understand the desire to make small distinctions, but [00:11:38] Speaker 03: Well, unfortunately, I mean, that's the nature of the holistic test. [00:11:40] Speaker 03: And the holistic test in this case. [00:11:42] Speaker 03: They're very similar. [00:11:43] Speaker 03: Parts of them are similar, Your Honor. [00:11:45] Speaker 03: Parts are different. [00:11:46] Speaker 03: And they have to be considered in total. [00:11:50] Speaker 03: A reasonable user would definitely recognize them. [00:11:53] Speaker 01: The district court said that the Guden payment page and the Nelson payment page were essentially identical. [00:12:01] Speaker 01: And he said they both fail. [00:12:04] Speaker 01: But if you look at Guden, however you say the name. [00:12:08] Speaker 01: I'm not sure. [00:12:11] Speaker 01: It is different than Nelson. [00:12:14] Speaker 03: Oh, Godenfoust and McDowell, I think, are layups, especially in light of the decision on Pettit. [00:12:19] Speaker 03: And this court's intervening. [00:12:20] Speaker 04: Nothing's a layup in this area, counsel. [00:12:22] Speaker 03: Well, if Pettit was right and the other side hasn't appealed, hasn't cross-appealed Pettit. [00:12:26] Speaker 04: I know. [00:12:27] Speaker 03: Those are indistinguishable. [00:12:28] Speaker 03: In fact, I dare say. [00:12:30] Speaker 01: You know, here, what I found interesting, in fact, I kind of chuckled when I saw it, is the check mark is already, the blue little box is already checked. [00:12:37] Speaker 01: The check mark is one of the. [00:12:39] Speaker 01: But what is, I mean. [00:12:40] Speaker 01: The check mark is the reason I think those are even easier. [00:12:41] Speaker 01: I don't consider myself a very sophisticated [00:12:44] Speaker 01: Internet shopper or anything, but you know [00:12:48] Speaker 03: Oh, so that is actually, that's a feature, not a bug. [00:12:52] Speaker 03: The check mark is, in fact, that would even satisfy the ARL. [00:12:56] Speaker 03: Highlights it. [00:12:56] Speaker 03: Because it calls your eye to that. [00:12:58] Speaker 03: Uncheck it if you look at it. [00:13:00] Speaker 03: No, and that's important. [00:13:01] Speaker 03: No, no, that's important because the thing you can do is either click the action button or not. [00:13:07] Speaker 03: It's not an option to opt out of the terms and conditions. [00:13:10] Speaker 03: You are either buying the thing or you're not. [00:13:12] Speaker 04: No, look, I'm sensitive to what you say. [00:13:14] Speaker 04: So help me understand because, [00:13:17] Speaker 04: I was trying to make sense of how the district court distinguished Pettit as well, and it seems to me that the district court, right or wrong, said Pettit has, by clicking, I agree. [00:13:28] Speaker 04: So it seemed to say that that was conspicuous enough. [00:13:33] Speaker 04: Well, it clearly was conspicuous enough, or it wouldn't have bound her to it. [00:13:36] Speaker 04: And to your point, I don't understand the difference. [00:13:40] Speaker 04: And I guess we'll ask opposing counsel. [00:13:42] Speaker 04: What's the difference between the conspicuousness between Pettit, McDowell, Faust? [00:13:47] Speaker 03: Your guess is as good as mine, especially in light of Chebop. [00:13:51] Speaker 00: Pettit is not an appeal. [00:13:52] Speaker 03: Pettit is not cross-appealed, correct. [00:13:54] Speaker 00: OK. [00:13:55] Speaker 00: Do you want to save some time? [00:13:56] Speaker 03: Yes, thank you. [00:13:57] Speaker 03: OK, of course. [00:14:02] Speaker 02: may please the court mark segment for the planets and let me jump right in first off sellers is clearly on point legally we put it out in our brief the many reasons why that was true and their reply brief really doesn't rejoin any of that um... sellers itself explicitly said it wasn't limited to that this court has applied it since then in cases that do not apply the automatic renewal law like berman and overstein those cases wasn't even uh... wasn't even so let let's accept that that's true uh... [00:14:27] Speaker 04: Nelson, the only one that seems to fall directly under Sellers is Davis. [00:14:32] Speaker 02: I would say Nelson too, Nelson and Davis. [00:14:34] Speaker 04: Nelson might, I mean, but this is the problem. [00:14:37] Speaker 04: I mean, we're looking at these and we're like, well, here's differences. [00:14:43] Speaker 04: But okay, so let's say Nelson falls within it. [00:14:46] Speaker 04: Godun, Faust, and McDowell don't seem to fall within Sellers. [00:14:53] Speaker 02: I agree that they won't fall directly into it, which is why the district court didn't even claim that, right? [00:14:59] Speaker 02: It applied. [00:14:59] Speaker 04: Well, I thought it did claim Goodon fell within Sellers. [00:15:02] Speaker 02: No, it claimed and properly noted that Davis and Nelson were directly controlled by Sellers. [00:15:06] Speaker 02: But about the other three, it cited Sellers, but it applied mostly and relied on Berman and Oberstein. [00:15:13] Speaker 04: So is it true that Berman, I mean, because if you go that route, then the only difference between Pettit, which I understand is not on appeal here, [00:15:22] Speaker 04: But Pettit said, by clicking, you confirm this. [00:15:26] Speaker 04: And the other said, I agree. [00:15:27] Speaker 02: No, no. [00:15:27] Speaker 02: Three differences. [00:15:28] Speaker 02: There's that one, and that's key. [00:15:30] Speaker 02: The other one the court relied on a lot, which they downplayed to an incredible degree, is the blue link. [00:15:34] Speaker 02: Look at Pettit. [00:15:35] Speaker 02: Pettit, there's a link that's blue, and it pops right out. [00:15:38] Speaker 02: So I got to be honest. [00:15:41] Speaker 04: I think the law is crazy if we say you have to have it in a blue link, or it's not concise. [00:15:44] Speaker 04: It doesn't have to be blue. [00:15:45] Speaker 04: It could be green. [00:15:45] Speaker 04: It could be contrasting. [00:15:46] Speaker 04: No. [00:15:46] Speaker 04: I think any color. [00:15:47] Speaker 04: I don't understand that argument. [00:15:50] Speaker 04: I don't understand that argument, and I don't even think that that's where I'm worried. [00:15:53] Speaker 04: I mean, I agree that the district court said that, but that's almost where I'm tempted to clean up the district court a little bit, because that can't be the law. [00:16:02] Speaker 02: I think all the cases have held that contrast is key. [00:16:06] Speaker 02: I'm not saying it's dispositive, and neither did the court below. [00:16:08] Speaker 02: If the court wants to highlight and reiterate and make clear that contrast is key and that blue font isn't required or not even green and that it's holistic, I think the court can do that. [00:16:17] Speaker 02: I don't think that changes the result here. [00:16:20] Speaker 02: I'm a little bit younger. [00:16:21] Speaker 02: I consider myself. [00:16:22] Speaker 02: I do consider myself. [00:16:23] Speaker 02: Okay. [00:16:23] Speaker 02: Okay. [00:16:24] Speaker 04: So let's take out the hype. [00:16:25] Speaker 04: So you said there were three there was by clicking this you agree. [00:16:28] Speaker 04: Well, by clicking versus I agree. [00:16:30] Speaker 04: There's the color of the hyperlink. [00:16:33] Speaker 04: What's the third. [00:16:34] Speaker 02: So the third is something that I respectfully I believe just answered mistakes, which is the context so [00:16:39] Speaker 02: The courts have held that the context of the transaction matters, and specifically whether it's a one-off or whether it's a repeat business. [00:16:44] Speaker 02: Now, Just Answer says continuously in its brief that this was a repeat business case. [00:16:48] Speaker 02: That is flatly false. [00:16:49] Speaker 02: As this court held in Oberstein, which Judge Akuta was on that panel, you can read that. [00:16:54] Speaker 02: This court looks at sellers and says, OK, let's look at sellers. [00:16:58] Speaker 02: In that case, they paid $5 to get an answer to a question and sign up for a free trial, but they didn't think that they were signing up for an automatic renewal. [00:17:04] Speaker 02: That is, in fact, why they sued in the first place. [00:17:07] Speaker 02: And so Oberstein characterizes what happened in sellers and what happened here as a one-off. [00:17:13] Speaker 02: And that's exactly what happened. [00:17:14] Speaker 02: The entire reason my clients were suing is because they got hoodwinked when they signed up for something, and then it was... But how can that be true? [00:17:22] Speaker 04: McDowell says, [00:17:23] Speaker 04: I understand this membership renews automatically. [00:17:26] Speaker 04: I'm not as familiar with what the other ones say. [00:17:29] Speaker 04: Faust says, I understand this membership renews automatically. [00:17:32] Speaker 04: Goodwin says, I understand this membership renews automatically. [00:17:35] Speaker 04: And we'll continue until cancel. [00:17:37] Speaker 00: And they all made ARL claims. [00:17:40] Speaker 00: And so one question is, Sellers says, well, for an ARL claim or contract that includes a renewal provision, [00:17:47] Speaker 00: There is heightened conspicuousness that's beyond cosmology, clear and conspicuous. [00:17:54] Speaker 00: Opposing counsel says it was only focusing on sellers and California elements applied to the other pages. [00:18:09] Speaker 00: What is correct? [00:18:10] Speaker 00: Are we banned by Sellers because the parties agree California law applied? [00:18:16] Speaker 00: Or has California apply only not ARL claims? [00:18:20] Speaker 02: No, I mean Sellers itself was not limited to the ARL. [00:18:22] Speaker 02: It specifically said we're applying the general federal law. [00:18:26] Speaker 02: The other cases that have applied Sellers have not. [00:18:28] Speaker 02: Oh, wait, wait, wait. [00:18:29] Speaker 02: General federal law. [00:18:29] Speaker 02: I'm sorry. [00:18:30] Speaker 00: Yeah, because it's state contract law. [00:18:31] Speaker 02: Sellers was applying California law, of course, and defining as a matter of California state law when a contract was formed, which creates no [00:18:37] Speaker 02: issues or preemption or anything else because it's just a matter of California law and it controls and it says in California a contract was formed when these things happened. [00:18:45] Speaker 02: What I'm saying is that Sellers itself specifically did not limit itself to just cases where there was an ARL and then this court has applied Sellers many times since and even in Blizzard and in Keybaugh and those other cases, this court still applied Sellers. [00:18:58] Speaker 02: It just distinguished it based on the context. [00:19:00] Speaker 02: It never said that Sellers, no one has said that Sellers only applies in cases where there's an ARL. [00:19:05] Speaker 02: Second, the California people here did make ARL claims. [00:19:09] Speaker 02: Third, the non-California people here also made their state law equivalence of ARL, because this entire case is about people getting hoodwinked to signing up on automatic renewal. [00:19:17] Speaker 04: So here's where opposing counsel sits. [00:19:20] Speaker 04: So with due respect to your three distinguishing factors, the only one that really has a lot of resonance to me is the difference between by clicking versus I agree. [00:19:32] Speaker 04: opposing counsel says berman did not require that as a as a as a dispositive distinction what's your response i agree that nothing is positive and so i i i don't think that is a dispositive distinction well then if you're if that's correct and i disagree on two of the three factors don't i have to remand it back to the district court and say you can't rely on [00:19:57] Speaker 04: blue versus black hyperlinks, you've got to look at, you know, make a decision, or maybe not even remand it, just say, by clicking versus I agree just isn't a difference. [00:20:11] Speaker 02: Well, I mean, respectfully, I do think that, of course, I think that the by clicking you agree is a distinguishing factor. [00:20:18] Speaker 04: Why? [00:20:18] Speaker 04: Why? [00:20:18] Speaker 04: Help me understand that. [00:20:19] Speaker 02: For the reasons that your honor mentioned in opposing counsel's argument, and the fact that the button itself says confirm now as opposed to start my trial. [00:20:29] Speaker 04: How does that make any sense? [00:20:30] Speaker 04: If I'm reading this, take this out of the internet context. [00:20:35] Speaker 04: You hand me a contract. [00:20:36] Speaker 04: The contract says I agree that I'm bound by the terms and conditions and I sign it. [00:20:42] Speaker 04: No one would question whether I signed a con, whether I'm bound by that agreement, but somehow we want these magic words that say, oh, by signing this, I'm now confirming that I agree. [00:20:55] Speaker 04: that doesn't make any sense in a written contract environment. [00:20:59] Speaker 04: And our cases consistently say there's no differences between, we're just applying contract formation, but we're not. [00:21:06] Speaker 04: We are applying, I mean, tell me where, in any contract formation case outside of the internet, we have a rule, as is explained in Berman, that says you have to be explicitly advised that the act of clicking will constitute assent. [00:21:23] Speaker 02: I mean, Your Honor, sitting here right now, I cannot think of any case. [00:21:26] Speaker 04: That's because it doesn't exist. [00:21:28] Speaker 04: Isn't the act of clicking sort of like signing? [00:21:32] Speaker 02: Well, right. [00:21:32] Speaker 02: I mean, honestly, and this is what Oberstein mentioned, just make this a click wrap. [00:21:35] Speaker 01: It's not hard. [00:21:35] Speaker 01: It's just like signing. [00:21:36] Speaker 01: Right. [00:21:36] Speaker 01: And it becomes significant for the individual. [00:21:39] Speaker 02: And that's one of the points here that Oberstein made at length, which is it's not difficult for defendants to figure this out. [00:21:44] Speaker 02: Just make it a click wrap. [00:21:45] Speaker 02: Like, without boxes, just have them click on it. [00:21:47] Speaker 01: You said there were three points. [00:21:49] Speaker 01: The third one that you had alluded to within the contextual argument or the contextual part of the analysis was the continuing nature. [00:21:59] Speaker 01: When I looked at Pettit, Pettit said, and to be charged the one-time join fee and monthly membership fee above today and each month until I cancel. [00:22:15] Speaker 01: Then if you go back and you take a look at McDowell, McDowell says, I understand this membership renews automatically and will continue until I cancel. [00:22:27] Speaker 02: Well, there was a free membership in Sellers as well. [00:22:29] Speaker 01: What I'm just saying, but what's the membership? [00:22:31] Speaker 02: So I would urge your honor, there's about four paragraphs in Oberstein that talks about Sellers. [00:22:37] Speaker 02: And it discusses what Sellers means. [00:22:39] Speaker 02: And the context in Sellers was paying $5, you get a question answered, there's a free trial. [00:22:43] Speaker 02: What you didn't know was that there was going to be this thing that comes back that ought to renews you and pays. [00:22:47] Speaker 02: And what Oberstein says is that's different than Oberstein. [00:22:51] Speaker 02: Oberstein was a guy signing up for Live Nation to buy tickets for events. [00:22:54] Speaker 02: And he was going to buy those for years and years, right? [00:22:56] Speaker 02: The person in just answer in Sellers, yes, they signed up for a trial that they thought was a free trial. [00:23:01] Speaker 02: And Sellers context is here. [00:23:02] Speaker 02: So I would urge the court simply to apply, just look at the four paragraphs in Oberstein that applied Sellers and discuss the nature of the transaction. [00:23:09] Speaker 02: It's the same exact nature here. [00:23:11] Speaker 02: So that's the difference. [00:23:12] Speaker 02: I'm not saying there's no trial here. [00:23:14] Speaker 02: I'm saying there's a difference between a free trial and this automatic renewal. [00:23:18] Speaker 01: The second thing I would mention is- No, I'm just saying that I think that, I guess I didn't make it clear, but I think that [00:23:24] Speaker 01: The distinction between Pettit and Faust and McDowell that I just pointed out is significant. [00:23:30] Speaker 02: Well, sorry, and I realize that my reaction made it seem like I was disagreeing. [00:23:34] Speaker 02: I was describing why I think that the context here matters, and it's like sellers. [00:23:41] Speaker 02: But yes, I agree with Your Honor that there is a distinction between Pettit and those plans based on what Your Honor has said. [00:23:46] Speaker 00: Well, don't they all say that they continue automatically? [00:23:49] Speaker 00: I mean, in the little tiny type. [00:23:51] Speaker 00: But they all say that it will continue automatically. [00:23:54] Speaker 02: I don't believe Davis and Nelson. [00:23:56] Speaker 02: Well, Davis and Nelson says try seven days for $5. [00:24:00] Speaker 02: It's hard to read. [00:24:02] Speaker 02: Try seven days for $5, and then cancel any time. [00:24:06] Speaker 02: So even the ones that are covered by sellers, talk about a trial. [00:24:08] Speaker 02: The button says start my trial. [00:24:11] Speaker 02: It says try seven days, then only $46 a month. [00:24:14] Speaker 02: All of these things are about strikes. [00:24:16] Speaker 00: Which is what sellers ask, too. [00:24:17] Speaker 00: Then $28 a month. [00:24:19] Speaker 02: Right, and what Your Honor said, I mean, Judge Boggs wrote the opinion, but what Your Honor said in Oberstein was that that was confusing and that that was not an ongoing relationship because they thought they were signing up for this free trial with one question answered and not this automatic renewal. [00:24:33] Speaker 02: That's why they sued was because when they found out that they were getting charged. [00:24:37] Speaker 02: I would also just note that if you want proof positive about how much Sellers is on point here, one of the plaintiffs that sued actually had her claims dismissed because they were covered by the settlement. [00:24:45] Speaker 02: And the only reason [00:24:46] Speaker 02: The only reason the other plaintiffs didn't was because they weren't covered by the seller's class action settlement. [00:24:51] Speaker 04: So by giving you that, again, you've already conceded that Sellers only controls Davis and Nelson. [00:24:57] Speaker 04: So we can't, and we, I mean, we still have to grapple with Godin, Faust, and McDowell, and we can't get out of them on Sellers, as I understand it. [00:25:07] Speaker 04: Is that right? [00:25:09] Speaker 02: I agree that sellers does not control. [00:25:11] Speaker 02: It does not dictate the result. [00:25:12] Speaker 02: I think that you have to balance all of these things. [00:25:14] Speaker 02: And with all due respect, I think that the color is one thing that matters. [00:25:17] Speaker 02: I'm not saying that it's dispositive. [00:25:19] Speaker 02: I'm just saying that I don't think you can discard that and then say the only difference is this one thing. [00:25:23] Speaker 02: I think when you look at the sum total of the things, that that Pettit is different than the other plaintiffs for the reason the district court mentioned. [00:25:30] Speaker 04: Well, the only thing I can see when the difference is [00:25:33] Speaker 02: by clicking versus I agree. [00:25:36] Speaker 02: Your Honor, all the cases talk about not necessarily the color, it's got a contrast. [00:25:41] Speaker 02: But Pettit didn't have a different color, did it? [00:25:43] Speaker 02: Yes, blue. [00:25:44] Speaker 02: That was the one thing that the court looked at. [00:25:48] Speaker 02: The two main things that the district court looked at were the blue color. [00:25:53] Speaker 04: I don't know. [00:25:53] Speaker 04: I don't get it. [00:25:55] Speaker 04: Because if you handed me a document to sign, [00:25:59] Speaker 02: You don't have to have it in blue. [00:26:01] Speaker 02: But this is online. [00:26:02] Speaker 02: Your Honor, with all due respect, this is not a case where I'm handing you a piece of paper contract. [00:26:07] Speaker 02: These are consumers online who are looking. [00:26:09] Speaker 02: And when you look online, it doesn't have to be blue. [00:26:11] Speaker 02: I've been using the internet since 1994. [00:26:13] Speaker 02: I think of Lynx as some sort of contrasting color, pink, purple. [00:26:16] Speaker 02: It was green in Patrick. [00:26:18] Speaker 02: In Oberstein, it was some other color. [00:26:20] Speaker 04: Interesting to do, but my sense is you don't have contrasting colors in the majority of these. [00:26:25] Speaker 02: But I could be wrong. [00:26:28] Speaker 02: If so, I don't know why. [00:26:29] Speaker 02: I think most links tend to be contrasting color. [00:26:32] Speaker 02: And the point is this court has held multiple, multiple times that something contrasting matters because it pops out. [00:26:40] Speaker 02: Your Honor as the judge, I'm just saying I would balance all of them. [00:26:42] Speaker 02: And I think that that blue contrasting color does make a difference in context with everything else. [00:26:46] Speaker 02: I'm not saying that [00:26:49] Speaker 02: that it's a dispositive factor. [00:26:51] Speaker 02: And again, as this court said in Oberstein, and as the court emphasized in Berman and Sellers mentioned, the defendant has the duty or has the burden. [00:26:58] Speaker 02: They're the ones that are making these websites. [00:27:00] Speaker 02: Is it really so much to ask just to have them make it that conspicuous? [00:27:04] Speaker 02: I mean, it's not difficult. [00:27:05] Speaker 02: Or just make it a- If they made it too conspicuous, people wouldn't click. [00:27:08] Speaker 02: Let's face it. [00:27:11] Speaker 02: Yeah, I mean do you think I don't want to pay $48 a month for an online service? [00:27:14] Speaker 01: Nobody would click that. [00:27:15] Speaker 01: Anybody in their right mind wouldn't click that. [00:27:16] Speaker 02: Right, and that's why we have these automatic new laws. [00:27:18] Speaker 01: Why make it large? [00:27:20] Speaker 01: Why make it bold? [00:27:21] Speaker 01: Why do that? [00:27:22] Speaker 01: Because people won't click. [00:27:23] Speaker 04: Well, but just to be clear, we're talking about contract formation here. [00:27:28] Speaker 04: There's a separate issue. [00:27:29] Speaker 04: I mean, you're saying, oh, I don't want to pay monthly, but I mean, I think we all know this. [00:27:34] Speaker 04: I mean, any astute consumer knows that when you sign up for a free trial, [00:27:38] Speaker 04: It's not free. [00:27:39] Speaker 04: You better check your credit card statement in 30 days. [00:27:43] Speaker 02: And I didn't mean to conflate that. [00:27:44] Speaker 02: And some astute consumers, my mother would disagree with that. [00:27:48] Speaker 02: Yeah, fair enough. [00:27:50] Speaker 00: But are we bound by sellers? [00:27:53] Speaker 00: So reasonably conspicuous, we look at our federal cases, sellers clearly conspicuous at a higher standard. [00:28:01] Speaker 00: And what are we bound by? [00:28:03] Speaker 02: I mean, the standard is applying California state law of contract formation, which is announced by Sellers, which is the conspicuous and then unambiguous manifestation of assent. [00:28:14] Speaker 02: And that has been applied by this court in at least five cases since then. [00:28:18] Speaker 02: And so this court is bound by California law. [00:28:21] Speaker 02: I mean, with all due respect, if a California court stands up and says internet contracts are not formed [00:28:27] Speaker 02: unless some crazy thing. [00:28:28] Speaker 02: I mean, that's the law, and federalism demands that this court apply that. [00:28:32] Speaker 02: So, just my other final point, you know, it's only by accident that these other planets weren't even covered by the Sutherland settlement, because the Sutherland class action settlement was limited to California residents who signed up before the end of 2022. [00:28:45] Speaker 02: So, for example, Davis and Nelson, they would have been, but they're not California residents, and the other California residents here weren't within the time period. [00:28:52] Speaker 02: And so, frankly, I mean, the only reason we're here is because it's the same case redux. [00:28:55] Speaker 02: It's just that the settlement didn't cover all those people. [00:28:58] Speaker 02: Again, Your Honor, I'm happy to answer any further questions. [00:29:03] Speaker 02: I would just urge the Court to, again, apply that holistic analysis that we've always agreed with. [00:29:07] Speaker 02: The opposing counsel is accused, on my side, of not believing that. [00:29:10] Speaker 02: We wholeheartedly believe in that. [00:29:12] Speaker 02: I would urge the Court to do that. [00:29:13] Speaker 02: If the Court wants to emphasize and clear up that contrast is not the most dispositive factor or not the most important [00:29:21] Speaker 02: I wouldn't be opposed to that, but I think that the result wouldn't change here, and it certainly won't change for any of those planets, the two at least, that were covered by cellars. [00:29:30] Speaker 00: You're out of time, thank you. [00:29:39] Speaker 03: I'll make a quick few points on rebuttal. [00:29:42] Speaker 03: First, on sellers. [00:29:44] Speaker 03: My friend on the other side points out that they invoke other states' laws for those plaintiffs. [00:29:47] Speaker 03: That's exactly right. [00:29:49] Speaker 03: North Carolina, for example, where Davis lives, has material differences. [00:29:52] Speaker 03: That legislature has chosen a different law. [00:29:55] Speaker 03: For automatic, we certainly did. [00:29:58] Speaker 03: For automatic renewal. [00:29:58] Speaker 03: For example, in North Carolina, there's no private right of action. [00:30:01] Speaker 03: There is a good face defense. [00:30:03] Speaker 04: Are you talking about automatic renewal? [00:30:04] Speaker 03: Automatic renewal. [00:30:05] Speaker 04: Or contract? [00:30:06] Speaker 04: Because all we're dealing with is contract form. [00:30:08] Speaker 03: Exactly. [00:30:09] Speaker 03: This is a mill run contract. [00:30:10] Speaker 03: That's what the parties agreed was substantially equivalent. [00:30:13] Speaker 00: I thought the parties all agree that California law applies. [00:30:16] Speaker 00: Is that wrong? [00:30:17] Speaker 03: It's ER 12, Judge. [00:30:19] Speaker 03: They say that they agree because it is materially identical, and that is not true for the automatic renewal provisions. [00:30:26] Speaker 03: Now, when they are in arbitration, [00:30:30] Speaker 03: The Californians can argue, and he points out they're not covered by the settlement in Sellers because they're not Californians. [00:30:37] Speaker 03: Exactly, that's exactly right. [00:30:39] Speaker 03: The Californians in arbitration can say, we were entitled to this heightened notice that we didn't get, and we'll deal with that in arbitration. [00:30:46] Speaker 03: Second, the other side relies on blue quite a bit. [00:30:51] Speaker 03: I'll just point to reply brief note one and key bar, both of which reject the blue thing. [00:30:57] Speaker 03: And then finally, as to Oberstein, [00:31:00] Speaker 03: In that case, the court found that the agreement was enforceable, so talking about the recurring nature was unnecessary. [00:31:07] Speaker 03: I don't want to criticize Judge Buggs, but talking about the recurring nature was unnecessary. [00:31:10] Speaker 03: Nothing is more recurring than a $46 a month charge. [00:31:14] Speaker 03: With that, we urge the court to reverse. [00:31:16] Speaker 00: We thank both sides for their argument. [00:31:19] Speaker 00: The case of Goodman v. Jones-Hands is submitted.