[00:00:01] Speaker 05: Good morning, Your Honors. [00:00:03] Speaker 05: My name is Chris Karagouzov. [00:00:04] Speaker 05: I'm at the law firm of Dorsey and Whitney. [00:00:07] Speaker 05: We represent the Appellant Phonicity Corporation in this case. [00:00:11] Speaker 05: With me at counsel table is my colleague, Moral Shoey. [00:00:15] Speaker 05: I'm going to try to adhere to your advice with respect to timing. [00:00:22] Speaker 05: I'm also going to try to reserve a little bit of time for rebuttal. [00:00:25] Speaker 05: Very well. [00:00:27] Speaker 05: The primary question at issue in this arbitration is whether the timing, the content, and the nature of Finnicity's disclosure of its terms and conditions on its disclosure page were sufficiently conspicuous to put the plaintiff on inquiry notice that with respect to sharing her bank account data with every dollar, which is the app that she was using, she would be bound to terms with Finnicity. [00:00:51] Speaker 05: That's the central question. [00:00:53] Speaker 05: The court in Burman [00:00:54] Speaker 05: said that to answer the question of whether a disclosure was sufficiently conspicuous, so as to put somebody on inquiry notice, there are two relevant issues that have to be examined. [00:01:06] Speaker 05: And you examine them together, not in isolation. [00:01:10] Speaker 05: The first is whether the visual elements of the notice of the terms are clear, sufficiently conspicuous, and the content of the transaction. [00:01:19] Speaker 05: And to the other, do those make it sufficiently conspicuous? [00:01:22] Speaker 05: There's a second prong in Berman that requires the consumer to also take some action, like clicking a button or checking a box to manifest a scent. [00:01:31] Speaker 05: I don't believe that's genuinely an issue here. [00:01:33] Speaker 05: The focus of the court's decision below was really on the conspicuousness issue. [00:01:40] Speaker 05: The visual elements to support a finding of conspicuousness, which is the first prong, under this court's precedence, Oberstein [00:01:48] Speaker 05: running warehouse, Patrick Case, and keep out. [00:01:51] Speaker 00: Mr. Kirghizov, I guess we're talking about a lot of Ninth Circuit cases, and we've even framed this as a question of Ninth Circuit cases going all the way back. [00:02:01] Speaker 00: This is a question of California law. [00:02:06] Speaker 00: Where do you see the state of the doctrine from the California courts right now in these questions? [00:02:13] Speaker 05: The California, what the federal courts have been doing is interpreting California law. [00:02:19] Speaker 05: And if I look at Keebaugh, for example, and Patrick, which are the most recent cases interpreting California law, both of which were decided after the district court's decision in this case, the most salient aspects of that decision, at least as pertinent to this appeal, really have to do with the issue of context, [00:02:43] Speaker 05: And in particular, what the district court did in making its decision was to not consider the transactional context and the visual elements together. [00:02:57] Speaker 05: What it did is it thought that California law required it to look at the transactional context first. [00:03:04] Speaker 05: And if it didn't think that the transactional context supported it under California law, [00:03:09] Speaker 05: then it would not really consider the visual elements in totality. [00:03:15] Speaker 00: Why doesn't the context cut against you, given the most recent California state law guidance we have on massage envy? [00:03:25] Speaker 05: Yeah, a couple of reasons, Your Honor. [00:03:29] Speaker 05: Let's just separate the two issues. [00:03:31] Speaker 05: I'll do massage envy in a moment, but first in terms of context. [00:03:34] Speaker 05: The central question here really is whether a consumer, an online user, is most apt to take notice of terms and conditions at the time at which they are presented with the action that is going to cause them to have to agree to those terms and conditions. [00:03:54] Speaker 05: So here, for example in this case, [00:03:57] Speaker 05: plaintiff signs up for an app called Every Dollar. [00:04:01] Speaker 05: They sign up for that app whenever they sign up for it. [00:04:04] Speaker 05: It could be weeks before they then actually use the service. [00:04:09] Speaker 05: finicity service which is bank connectivity and it's at that point that the disclosure is made and that is contextually the most relevant time at which to do it because that is the time at which you are availing yourself of the service that really requires you to manifest dissent. [00:04:30] Speaker 05: You could bury it [00:04:31] Speaker 05: in the terms and conditions with every dollar. [00:04:34] Speaker 05: But a plaintiff weeks before, whenever they happen to view those terms and conditions, if at all, is not going to pay attention to it in the same way that they are if they are confronted with those terms and conditions. [00:04:44] Speaker 05: at the time of actual use. [00:04:46] Speaker 00: Well, I take your point as to the when, but what about the who? [00:04:51] Speaker 00: Yes, I understand. [00:04:51] Speaker 00: I mean, the disclosure here says, share your PNC bank data. [00:04:57] Speaker 00: We use Finicity, a MasterCard company. [00:05:00] Speaker 00: It might be ambiguous about whether we is every dollar or [00:05:07] Speaker 05: The user or PNC Your honor this is a and I will I will like to address your point in massage envy first But since you've talked about the notice well part of in part of massage envy is that who question I absolutely understand first if you look I agree with I agree that of course the Disclosure says what it says what it says however very clearly is and you'll notice that it's full of branding by MasterCard the sort of iconic [00:05:34] Speaker 00: MasterCard logo because the problem is the colors run together here with PNC, right? [00:05:39] Speaker 05: No, not really. [00:05:39] Speaker 05: I mean the coloring the coloring for MasterCard is distinct But let's see what it says. [00:05:46] Speaker 05: It says by pressing next I agree to finicity a MasterCard company's terms and conditions and privacy policy. [00:05:53] Speaker 05: That's what it says and [00:05:55] Speaker 05: And with respect to massage envy, I would really encourage the court to take a very hard look at the facts in massage envy because the notion that it really turns on, you know, the who in terms of the third party is very narrow in my view because what that case really focused on was whether the consent or whether there was an agreement between the franchisor [00:06:24] Speaker 05: and the plaintiff in a circumstance where the notice itself telling folks whether to sort of move on to the consent button if they were interested in learning more really was in reference to a general consent and as was described in that notice and that general consent any user who was looking at it would have interpreted it to be between in that case the customer [00:06:50] Speaker 05: and the franchisee, the massage and relocation to which the customer went. [00:06:56] Speaker 05: It wasn't until you clicked into that general consent, and I think as the court held, [00:07:03] Speaker 05: many folks would not because they would think that it was circumscribed by the description of what the general consent would contain, what you would be looking at if you clicked into it. [00:07:13] Speaker 05: It was only if you clicked into that, that then you would see a separate click wrap with terms and conditions as it related to an agreement between the plaintiff and the franchisor. [00:07:24] Speaker 05: That is a very different scenario. [00:07:26] Speaker 05: It is, as the court noted, there was subterfuge there. [00:07:31] Speaker 05: It was hidden. [00:07:32] Speaker 05: It's not so much. [00:07:33] Speaker 05: It is true that that happened to be a third party. [00:07:36] Speaker 05: But what the context was was that it was very hidden. [00:07:41] Speaker 05: Here, it is not hidden. [00:07:43] Speaker 05: It is being presented at the point at which you are going to use the service. [00:07:47] Speaker 05: And also consider that, in that case, both the context, that was really about whether somebody who claimed that they were a victim of a sexual assault was going to be forced to arbitrate with a party with whom she had no relationship and was not disclosed to her in a disclosure page. [00:08:02] Speaker 05: And again, the context, the subterfuge that the court felt that was engaged in. [00:08:07] Speaker 05: Also, the pressure that the plaintiff felt, because the plaintiff was basically given an iPad before she was going to go get her massage, and there were endless number of pages that she was sort of pressured to scroll through. [00:08:19] Speaker 05: So I would really encourage the court to take a very hard look at the facts in massage envy. [00:08:24] Speaker 05: It's not because it was a third party. [00:08:28] Speaker 05: It was because of the subterfuge that was engaged, and it was because of the description of the disclosure page, which was very different than the disclosure page that's at issue here. [00:08:40] Speaker 05: If I may turn back for a moment, just, and I'll go very quickly now, to the visual elements. [00:08:45] Speaker 05: The visual elements of the page, and I'm not gonna spend time on it, are clear. [00:08:49] Speaker 05: The disclosure's not cluttered. [00:08:51] Speaker 05: It's in close proximity to the action button, by which a user indicates assent to the terms. [00:08:57] Speaker 05: The disclosure uses different color text for the hyperlinks. [00:09:01] Speaker 05: And with respect to color, I want to be clear what the Selden Court said, which is it doesn't turn on what particular color is used, what color on the color wheel is used. [00:09:09] Speaker 05: What matters is if I'm looking at this disclosure, do I, in the totality of the circumstances, understand what is going on? [00:09:16] Speaker 05: And here, in this 51-page, uncluttered disclosure, it is hard for me to imagine that somebody who actually takes the time to look, and of course, many of us do not, that is the reality, but this is inquiry notice, if somebody takes the time to look, they should understand that there are finicities, terms, and conditions, that they have the option to review them, and that by clicking the next button, they're consented to them. [00:09:42] Speaker 02: kind of a step-back question. [00:09:43] Speaker 02: What I mean is that when judges are asked to look at this question about whether the visual notice was sufficient or not, you know, when you look at a copy, I'm sorry, let's say at a trademark case, you have expert testimony to talk about, well, how this color is like that color or how this diagram is like this or like that. [00:10:01] Speaker 02: It seems like in these cases, we just, we're the judge and the jury. [00:10:07] Speaker 05: You're correct, Your Honor. [00:10:09] Speaker 05: If you look at all of the cases in which this, [00:10:12] Speaker 05: arises, particularly when you're talking about enforcement of an arbitration provision. [00:10:16] Speaker 05: There's no expert testimony. [00:10:17] Speaker 05: You haven't gotten to that stage yet. [00:10:19] Speaker 05: And it's not required, because essentially, there is a body of jurisprudence now that talks about what kinds of visual elements matter and what kind of transactional context matters. [00:10:32] Speaker 05: And here, if you're looking at the totality of that, it supports a finding of conspicuousness. [00:10:39] Speaker 02: I guess I understand your argument there. [00:10:42] Speaker 02: I'm just wondering, is there any authority that says that at this stage, the trial court would actually bring in a jury or some sort of factual finder? [00:10:51] Speaker 02: Or is it reviewed for clear error, or is it just straight de novo review? [00:10:54] Speaker 02: It's straight de novo review. [00:10:56] Speaker 05: And all of the decisions, it's straight de novo review. [00:10:58] Speaker 05: That's what I found. [00:10:59] Speaker 02: I was just, anyway. [00:11:00] Speaker 02: It is. [00:11:00] Speaker 05: It's straight de novo review. [00:11:01] Speaker 05: It's up to the court. [00:11:03] Speaker 05: Just looking at the visual elements, moving on from the visual elements to the transactional context, what happened in the lower court is that it interpreted sellers to mean that for notice to be conspicuous, Finicity had to engage plaintiff on the Every Dollar app. [00:11:22] Speaker 05: when she first signed up for the account. [00:11:24] Speaker 05: And that was the same mistake that the lower court made in Keybaugh, and that this court reversed. [00:11:30] Speaker 05: Here, it would not, as I said, have been more conspicuous to embed Finnicity's terms or to identify Finnicity when the plaintiff signed up for every dollar. [00:11:39] Speaker 05: It is much more conspicuous to do it at the time that they were about to avail themselves [00:11:43] Speaker 05: of the bank connectivity services that require assent to Finnicity's terms and conditions. [00:11:49] Speaker 05: And by the way, many people who use the Every Dollar Act will not do that, in other words, will not use the services that require consent, because there are lots of services of Finnicity that the Every Dollar Act provides. [00:12:02] Speaker 05: Second, the district court failed to consider the full context of the transaction because it ignored the repeated disclosures of the city's involvement. [00:12:11] Speaker 05: The court said the plaintiff was expecting to enter into another set of terms with a different entity. [00:12:16] Speaker 05: It wasn't expecting that. [00:12:17] Speaker 05: plaintiff could have had that belief, that's possible, but that necessarily changed once disclosure page appeared and finicity was identified to the plaintiff. [00:12:28] Speaker 05: And the transactional context legal standard asks whether the circumstances made it reasonable to expect that the typical consumer in this type of transaction contemplates entering into a continuing forward-looking relationship. [00:12:42] Speaker 05: That's this. [00:12:43] Speaker 05: The transaction here is the sharing of bank account information with every dollar. [00:12:48] Speaker 05: The timing of the notice was the most conspicuous possible because it happened right before the bank information was to be shared. [00:12:55] Speaker 05: The disclosure page makes it very clear that the user is dealing with finicity. [00:12:59] Speaker 05: A reasonable consumer is much more likely to be on the lookout for terms and conditions when they're about to share their personal bank information. [00:13:08] Speaker 05: The title, three of the four sentences on the disclosure page mention the user's financial data. [00:13:15] Speaker 05: The disclosure page is titled, share your bank data. [00:13:18] Speaker 05: The first sentence has finicity, a master card company. [00:13:22] Speaker 05: This transaction is in fact much more consequential [00:13:25] Speaker 05: than creating an online account or making a purchase online. [00:13:29] Speaker 05: The plaintiff purchased every dollar premium services for a year and was linking her bank account information in connection with those ongoing services. [00:13:38] Speaker 05: So clearly there was a kind of continuing relationship that parties would be on the lookout for when they consider that when you look at the transactional context here. [00:13:46] Speaker 05: And third, and we've already discussed this, the district court in our view misapplied clearly distinguishable cases. [00:13:53] Speaker 05: I talked about massage envy earlier and some of the distinctions there, and we lay them out more fulsomely in the papers. [00:14:00] Speaker 05: But let's think about it this way. [00:14:04] Speaker 05: The district court thought that the fact that massage envy involved a click wrap agreement, well, then if that involved a click wrap agreement, then this one certainly can't be more conspicuous because it's a sign-in wrap agreement. [00:14:16] Speaker 05: That's not how this works. [00:14:18] Speaker 05: A click wrap agreement embedded within a separate click wrap agreement with a different party is not more conspicuous because it's a click wrap agreement. [00:14:27] Speaker 05: There are lots of cases in this court in which click wrap agreements have been upheld or not. [00:14:34] Speaker 05: Sign in wrap agreements have been upheld or not. [00:14:37] Speaker 05: It's not the function, it's not the label of the agreement. [00:14:40] Speaker 05: It's really, again, whether it's conspicuous. [00:14:42] Speaker 05: And lastly, and perhaps I think most importantly, [00:14:45] Speaker 05: the court aired when it treated the transaction context analysis as dispositive of the first prong of the Berman test regarding conspicuousness. [00:14:54] Speaker 05: Again, for the reasons I've just explained and are more fully set forth in our papers, [00:14:58] Speaker 05: the transaction context supports a finding of conspicuousness. [00:15:02] Speaker 05: But regardless, Kebaugh and Patrick, which again, the district court didn't have the benefit of when it issued its decision, made clear that the court has to consider the transactional context and the visual elements together. [00:15:18] Speaker 05: And just lastly, because I know I'm running out of time, [00:15:21] Speaker 05: I'd like you to just think about the policy considerations for one moment here, because it would mean that any company that necessarily operates in the background of consumer transactions would have to use a click wrap agreement as the court suggested during oral argument. [00:15:37] Speaker 05: And there are a couple of problems with that. [00:15:39] Speaker 05: One, it's not the law. [00:15:41] Speaker 05: Berman says courts have to focus on the conspicuousness of the notice, not the label of the online agreement. [00:15:47] Speaker 05: And again, consider massage envy. [00:15:50] Speaker 05: That was a click wrap, but it was not enforceable. [00:15:53] Speaker 05: Keyball was a sign-in wrap agreement. [00:15:55] Speaker 05: That was enforceable. [00:15:57] Speaker 05: So you have to consider the context. [00:15:58] Speaker 05: If the court doesn't uphold it, it's going to invite new lines of inquiry into the level of involvement of third parties that would be far more complicated and far more difficult to resolve than just analyzing the visual elements of the notice in the transactional context. [00:16:15] Speaker 05: Your Honor indicated before, [00:16:16] Speaker 05: Gee, we need an expert. [00:16:17] Speaker 05: How are we going to do this? [00:16:18] Speaker 05: Or is it just de novo? [00:16:19] Speaker 05: Is that what we do? [00:16:20] Speaker 05: That is. [00:16:21] Speaker 05: Imagine how much more difficult it would be if you also had to start analyzing the level of connectedness with the third party. [00:16:29] Speaker 02: All right. [00:16:29] Speaker 02: We're over. [00:16:30] Speaker 02: I'll give you one minute for rebuttal. [00:16:32] Speaker 02: Thank you. [00:16:32] Speaker 02: I appreciate it. [00:16:33] Speaker 02: But thank you for your argument. [00:16:34] Speaker 02: Thanks very much. [00:16:45] Speaker 03: Good morning, Your Honours. [00:16:46] Speaker 03: May it please the Court, Stefan Vigdanovic, appearing on behalf of Plaintiff Apoli, Caitlin Lawrence. [00:16:54] Speaker 03: This is not your typical sign-and-wrap case. [00:16:58] Speaker 03: This is a signed-up, paid-for, back-behind-the-pay wall, clicking next to retrieve a service I'd already paid for, wrapped case. [00:17:09] Speaker 03: Judge Johnstone, as you mentioned, this case turns on California law and the cases that have addressed similar contextual circumstances are all in accord. [00:17:21] Speaker 03: Involving click wrap agreements with various colored hyperlinks, they noted that [00:17:29] Speaker 03: Those terms were not reasonably conspicuous. [00:17:31] Speaker 04: So I understand your argument that, you know, you already entered into an agreement, and so, you know, clicking on this later, there's no consideration. [00:17:42] Speaker 04: But it's your position that you could never, once you've entered into agreement, have or is your position that you could, but this is not sufficient. [00:17:53] Speaker 04: And if it's the latter, what would be an example of something that would work? [00:17:58] Speaker 03: Thank you, Your Honor. [00:18:00] Speaker 03: No, our position is not any kind of bright line rule that there can't ever be a potential circumstance where there's... You've already entered into a contract and later on you click and agree to some terms. [00:18:12] Speaker 03: Correct. [00:18:12] Speaker 03: There's an infinite number of ways providers can design their websites. [00:18:17] Speaker 04: So what would be something that would work in your view? [00:18:23] Speaker 03: It's hard to say. [00:18:24] Speaker 03: I don't think that's necessarily a question that the court needs to decide today. [00:18:29] Speaker 03: But there's a lot of stronger forms of notice, like a scroll wrap agreement where you actually have all the terms in a pop-up and you have to scroll down to the bottom, click I agree. [00:18:44] Speaker 00: Mr. Bogdanovich, I guess [00:18:46] Speaker 00: I think your friend suggests that one way to comply with this would be to bury the agreement with Vinicity in the agreement with the Every Dollar app. [00:18:57] Speaker 00: How does that make it more conspicuous that you're entering into an arbitration agreement with the third party? [00:19:03] Speaker 03: I think that particular scenario is a little bit different. [00:19:09] Speaker 03: I think there the timing is better, although I think the disclosure might be worse. [00:19:13] Speaker 03: Because if you include it on the Every Dollar Sign Up page, within a second step, that would be less conspicuous than even the disclosure that we have here, where they have the hyperlinks [00:19:32] Speaker 03: the hyperlink to Finnicity's terms on the page. [00:19:34] Speaker 03: I think you could disclose it on the Every Dollar sign up page where it says by signing up you agree to Ramsey Solutions terms of use and also Finnicity's terms of use if you use the Bank Connectivity Service. [00:19:53] Speaker 03: But again, what we're not advocating here for necessarily is a bright line rule, while there might be some utility in announcing one for website designers. [00:20:07] Speaker 03: Well, I think this court can rest its decision on the fact that in Sellers, in MassageMV, and in Herzog, [00:20:16] Speaker 03: You had click wrap agreements, you had different colored hyperlinks, and that was not reasonably conspicuous. [00:20:24] Speaker 03: And so comparing the visual elements of those cases to this case, you can find that the terms here didn't pass muster. [00:20:41] Speaker 03: Another kind of one of the points that my friends on the other side mentioned is it could be weeks later that you would even try to connect your bank account after you signed up for the every dollar app. [00:20:56] Speaker 03: I actually think that undermines their argument. [00:20:59] Speaker 03: Judge Owens [00:21:01] Speaker 03: I know this court looked at kind of a similar case in Stover versus Experian, where a user had used the Experian service years later. [00:21:14] Speaker 03: And in that case, it also involved a hybrid wrap agreement. [00:21:20] Speaker 03: And the court noted that the relevant inquiry here is whether or not the parties are agreeing to the same thing in the same sense. [00:21:30] Speaker 03: And so even though the user had logged in later, the terms were not the same. [00:21:37] Speaker 03: The terms had changed. [00:21:39] Speaker 03: And the court noted that it actually needs to be the change. [00:21:46] Speaker 03: The notice turns on whether or not the consumer knows that there's necessarily a change in the terms. [00:21:52] Speaker 03: So again, here, when we look at how does a consumer interact with the terms, [00:21:59] Speaker 03: with Finnicity's terms, I should say. [00:22:02] Speaker 03: They've already signed up for an EveryDollar account. [00:22:06] Speaker 03: They've given over their debit card information to pay for an account, to sign up for a subscription. [00:22:13] Speaker 03: Now they're just simply seeking to access the service that they've been paying for. [00:22:20] Speaker 03: And they come up on a screen after they've clicked PNC, [00:22:25] Speaker 03: And the title of the page says share your PNC bank data. [00:22:30] Speaker 03: As Judge Johnstone noted, there's a lot of questions here as to what exactly is the party agreeing to? [00:22:39] Speaker 03: Are they agreeing to [00:22:40] Speaker 03: PNC? [00:22:41] Speaker 03: Are they agreeing to every dollar? [00:22:42] Speaker 03: Are they agreeing to finicity? [00:22:44] Speaker 03: And so in that kind of a context, any kind of disclosure, the website provider needs to go above and beyond to make it much more conspicuous. [00:22:59] Speaker 03: So again, I'd note that this case is probably most factually similar to the California Court of Appeals cases I mentioned. [00:23:10] Speaker 03: I'd also note this isn't necessarily a peculiar issue of California law. [00:23:15] Speaker 03: I do think it's consistent with the Ninth Circuit's precedent. [00:23:20] Speaker 03: In Lee v. Tellius, this court decided almost a decade before that [00:23:28] Speaker 03: under similar factual circumstances that where a user was accessing a background check report that they'd already paid for, the court expressed a lot of skepticism as to whether or not they can objectively manifest dissent. [00:23:47] Speaker 03: to another third party's terms and conditions when they clicked a yes and show my report button. [00:23:56] Speaker 03: Because again, there was another third party involved. [00:23:59] Speaker 03: It was after the consumer had already paid for the product and the court noted that even the exceptionally cautious consumer [00:24:11] Speaker 03: that is on the lookout for any kind of differences might not necessarily catch that. [00:24:18] Speaker 00: Mr. Bogdanovich, I guess I have a slightly different question that colors our approach to the facts here, and it was prompted by Judge Owens' lines of questioning to your friend. [00:24:31] Speaker 00: The district court in analyzing whether there was, right, we have these questions about, these seem to be essentially kind of questions of fact [00:24:41] Speaker 00: and maybe expert testimony he could help with. [00:24:44] Speaker 00: The district court, I believe, thought it was applying a kind of summary judgment standard that had been dictated by section four of the FAA, which talks about a summary trial, and I think is reflected in at least some of our cases, though not those at issue here, the Hanson case, for example. [00:25:10] Speaker 00: If that's the case, why aren't you asking us to review this instead of de novo, review the factual underpinnings in the light most favorable to the non-moving party? [00:25:22] Speaker 00: What is the right standard of review here? [00:25:25] Speaker 03: Well, I believe under this court's prior precedence, it would be de novo. [00:25:32] Speaker 00: Well, de novo as we've said that, but I can't tell whether when we've said that we're talking about the legal conclusions rather than the factual underpinnings, which again, I think we've clearly said section four requires us to treat as a motion for under summary judgment standards. [00:25:50] Speaker 03: I think that's an interesting question. [00:25:52] Speaker 03: Perhaps if there was a closer call, maybe it would rise to the level of necessarily a jury question. [00:26:02] Speaker 03: I do think the summary judgment standard seems appropriate. [00:26:07] Speaker 03: In Hanson, that also involved a hybrid wrap agreement. [00:26:16] Speaker 03: that would be similar to what we have here. [00:26:19] Speaker 03: However, again, looking at prior precedents under California law, I think in those cases, the visual elements were better than they were here. [00:26:29] Speaker 03: And so I think just as a matter of law, [00:26:34] Speaker 03: The textual notice was not reasonably conspicuous and so the court can make that determination for itself as the district court did below. [00:26:44] Speaker 03: In other cases, perhaps the court could reach a different conclusion. [00:26:56] Speaker 03: The last thing I just wanted to know, again, in terms of context, I think this case, if we were to translate it to the modern day world, I think it's very similar to purchasing a burger at Burger King. [00:27:11] Speaker 03: You go to the cashier, you give them your credit card, you pay for the burger and then you're waiting to receive the burger. [00:27:23] Speaker 03: They call your number, you pick up the burger and on the wrapper of the burger it says by unwrapping this burger you agree to the [00:27:32] Speaker 03: Companies terms and conditions. [00:27:34] Speaker 03: I think in a circumstance like that most folks would say They're not on the lookout for any kinds of terms and conditions on the wrapper What they're on the lookout for is just the burger so that they can enjoy it and I think every customer of every dollar use the financial transfer services of finicity and [00:27:57] Speaker 03: We don't know. [00:27:58] Speaker 03: It's not necessarily in the record. [00:28:01] Speaker 00: Why isn't it appropriate for every dollar and finicity to tailor its entry into this additional agreement only to those customers who are going to use it? [00:28:16] Speaker 03: I think it's because Finicity is the one that's seeking to impose the contract of adhesion, so they're in a better position to make sure that there's a meeting of the minds here. [00:28:35] Speaker 03: Even in terms of that particular context, they have a business relationship with every dollar and so they can contract with them and help work in the [00:28:58] Speaker 03: essentially help them design the sign-up page to make sure that consumers are adequately informed. [00:29:10] Speaker 03: Unless the panel has any further questions. [00:29:14] Speaker 01: All right. [00:29:15] Speaker 01: Thank you, Council. [00:29:15] Speaker 01: Thank you. [00:29:17] Speaker 01: One minute. [00:29:22] Speaker 05: I just want to address two things very quickly. [00:29:24] Speaker 05: One, with respect to the argument that, well, they've already paid for a service, so why should they be asked to consent to anything? [00:29:31] Speaker 05: First of all, we do that all the time in everyday life. [00:29:33] Speaker 05: You get terms and conditions updated all the time for things they've already paid for, and if you don't agree to them, you're not going to be able to use them. [00:29:40] Speaker 05: Anyone who owns an iPhone knows that. [00:29:41] Speaker 05: Secondly, if we don't want, if folks don't want to accept Finnicity's terms, she could have A, just used other premium access services, or she could have canceled her subscription. [00:29:54] Speaker 05: Her purchase didn't force her to accept Finnicity's terms, and a case on point for this is McDaniel, where somebody had purchased through the Amazon app a subscription to HBO Max, and then they had to agree to HBO Max terms and conditions, [00:30:10] Speaker 05: the court there said is a plaintiff had the option to reject the terms and cancel the subscription and that's something that could have easily happened here and lastly with respect to the notion that folks are confused or whatever I really think again if you look at the notice that infantilizes consumers this is not a difficult notice to read when it says [00:30:30] Speaker 05: Click next, you're agreeing to master cards, terms, and conditions. [00:30:33] Speaker 05: That's what it says. [00:30:34] Speaker 05: And I think we need to stop infantilizing consumers by pretending that language that is clear is not clear. [00:30:41] Speaker 02: Thank you, Your Honor. [00:30:41] Speaker 02: Thank you, Counsel. [00:30:42] Speaker 02: Thanks to both of you for your briefing and argument in this case. [00:30:44] Speaker 02: Very helpful. [00:30:45] Speaker 02: This matter is submitted.