[00:00:00] Speaker 04:
Thank you, Your Honor.

[00:00:02] Speaker 04:
Glenn Zwang for the defendant.

[00:00:05] Speaker 01:
All right.

[00:00:06] Speaker 04:
And appellant.

[00:00:10] Speaker 04:
Where to start?

[00:00:13] Speaker 04:
The court has had its fill this term of internet contract cases, having had two recent ones come up, Shabella and Godin, and before that, Berman and Keebaugh.

[00:00:28] Speaker 04:
The court's seen a lot of these.

[00:00:30] Speaker 04:
And this is what the court I'm sure understands from reading these opinions and probably dealing with these cases yourselves is how factually intent.

[00:00:41] Speaker 04:
These are all factually intensive.

[00:00:43] Speaker 04:
It's all about seeing how these items were presented.

[00:00:50] Speaker 04:
And this case is about whether the agreement was reasonably conspicuous.

[00:00:58] Speaker 04:
Was it reasonably conspicuous?

[00:00:59] Speaker 04:
And there's lots of visual factors that go into that.

[00:01:03] Speaker 04:
The courts talk about, first and foremost, they always talk about font size.

[00:01:08] Speaker 04:
Is this fine print buried somewhere in location?

[00:01:11] Speaker 04:
Is it fine print that they're burying somewhere, or is it

[00:01:15] Speaker 02:
Plain as can be and right there, right next to the click box or... Counsel, would you start with the standard of review because that would, would that not impact how we look at what you're asking us to look at?

[00:01:27] Speaker 04:
The standard of review is de novo.

[00:01:30] Speaker 04:
Court is in the same position as the trial court.

[00:01:34] Speaker 04:
So you have, where's the font?

[00:01:37] Speaker 04:
What is the font?

[00:01:38] Speaker 04:
What does it look like?

[00:01:39] Speaker 04:
You have visuals.

[00:01:41] Speaker 04:
How cluttered, how congested is the page with

[00:01:44] Speaker 04:
advertisements of the product or services.

[00:01:46] Speaker 00:
Can we talk about this specific page?

[00:01:50] Speaker 00:
Sure.

[00:01:50] Speaker 00:
The create account is in all bold, all caps.

[00:01:54] Speaker 00:
Sure.

[00:01:54] Speaker 00:
The no sugar daddies or sugar babies is all bold, all caps.

[00:01:59] Speaker 00:
The service agreement and privacy link not bolded, not all capitalized,

[00:02:05] Speaker 00:
It's underlined, but that's not quite clear that that's a hyperlink.

[00:02:09] Speaker 00:
And that's actually what Mr. Massell says in his declaration.

[00:02:12] Speaker 00:
How do you want to respond to that?

[00:02:15] Speaker 00:
I mean, clearly, successful match could have all bolded and all capitalized service agreement and privacy policy, couldn't they, to make it more conspicuous?

[00:02:25] Speaker 04:
Yes, but perfection is not the standard, Your Honor.

[00:02:28] Speaker 04:
If you look at this page, what makes this page different, then

[00:02:32] Speaker 04:
Every other page that I've seen it's different than Berman or Chibola or Godin.

[00:02:42] Speaker 04:
This is a standalone page.

[00:02:44] Speaker 04:
This is the only purpose of this page is to create an account which has to be done in order and you have to agree to these terms and this privacy policy in order to create an account.

[00:02:58] Speaker 04:
That's the first thing you would notice.

[00:03:00] Speaker 04:
So and there's no hide the ball going on here

[00:03:03] Speaker 04:
The advisal is clear and unambiguous and right there in front of the click box.

[00:03:08] Speaker 04:
And by the way, this is a click wrap agreement.

[00:03:11] Speaker 04:
It has a click box which is unlike any of the cases that I've reviewed that are briefed before the court because none of those courts are click wrap cases.

[00:03:20] Speaker 04:
Those click wrap cases are generally considered safe because you have an unambiguous agreement to the terms and you have an advisal that tells you

[00:03:33] Speaker 04:
This is what you're agreeing to, and you have in the click box, it says agree to the service agreement and privacy policy.

[00:03:42] Speaker 04:
So it's right there in the click box, which is giving information that this is a hyperlink.

[00:03:48] Speaker 00:
But that doesn't require the user to review those terms, does it?

[00:03:52] Speaker 04:
It does.

[00:03:53] Speaker 04:
If you look at the advisal, it says to become one of our members, you need to review

[00:04:04] Speaker 04:
and agree to the terms and conditions of both agreements and check the agree box below.

[00:04:10] Speaker 04:
If you disagree, you will not be given access to the site.

[00:04:15] Speaker 04:
So it's telling them you have to review it, you have to agree to it, and here they are.

[00:04:20] Speaker 00:
But you agree that under Oberstein, just underlining the service agreement and privacy policy alone wouldn't be enough, right?

[00:04:29] Speaker 00:
The district court was right on that.

[00:04:31] Speaker 04:
I'm sorry.

[00:04:32] Speaker 00:
In Oberstein, you had- Well, just the question of just underlining service agreement and privacy policy alone would not be sufficient.

[00:04:42] Speaker 00:
Correct?

[00:04:43] Speaker 04:
It depends on the context.

[00:04:44] Speaker 04:
For example, in Godin, Judge Nelson cites a U.S.

[00:04:53] Speaker 04:
Supreme Court case, which is Reno versus ACLU, where the U.S.

[00:04:58] Speaker 04:
Supreme Court says hyperlinks are

[00:05:01] Speaker 04:
usually either in color or underlined.

[00:05:04] Speaker 04:
So it's not unreasonable to expect a reasonably prudent Internet user to see an underlined term where there's only several, there's four, a total of four underlined terms on this page and they're all links.

[00:05:23] Speaker 04:
Already a member signed in.

[00:05:25] Speaker 04:
That's clearly a link.

[00:05:25] Speaker 00:
But I'm looking at Oberstein, quote, the mere underlining of hyperlink terms and conditions was insufficient to alter a reasonably prudent user that a clickable link exists.

[00:05:35] Speaker 04:
That's, well, in Oberstein.

[00:05:37] Speaker 00:
That's a 2023 Ninth Circuit case, right?

[00:05:40] Speaker 04:
In Oberstein, the court, if memory serves, approved the reasonable conspicuousness of the link.

[00:05:48] Speaker 01:
So counsel, it's not just the underlining we look at.

[00:05:51] Speaker 01:
We look at the entire page to see whether or not.

[00:05:55] Speaker 01:
I think the point was that merely underlining if everything else is obscure doesn't get you there.

[00:06:04] Speaker 01:
But underlining with everything else being reasonably conspicuous could get you there.

[00:06:11] Speaker 01:
Correct.

[00:06:13] Speaker 04:
You have to, in fact, I think

[00:06:16] Speaker 04:
Judge Nelson again just in his Godun opinion said you know at bottom This is a factual investigation of the totality of facts and the court has to consider What at the bottom of the he says at bottom you have to consider What a reasonably prudent internet user would expect and he says and I quote

[00:06:43] Speaker 04:
A healthy dose of common sense goes a long way.

[00:06:48] Speaker 04:
This is simply looking at the entire visual, and virtually every case says you look at the entire visual and analyzes.

[00:06:56] Speaker 04:
Berman, Chipola, Godun, they all analyze the entire visual.

[00:07:01] Speaker 04:
And they say, and they reach their decision based upon what the visual is telling them.

[00:07:06] Speaker 02:
I think you've got a pretty good argument in support of your position, particularly if review is de novo.

[00:07:12] Speaker 02:
But help us to understand, if we were looking at these cases on a continuum, and you were asked to tell us what more could you have done, so we know how far you are on the continuum, would you concede that there's something more you could have done than what we're looking at?

[00:07:27] Speaker 02:
Clearly, I wouldn't be here.

[00:07:30] Speaker 01:
What is it that you could have done that would have prevented your being here?

[00:07:35] Speaker 04:
if a client could have done well we could have had had had obviously there was a lot of care and attention paid to this particular particularly for the sugar daddies and the sugar babies part that was bolded I'm looking at the on the bottom that we have a sign in a privacy safeguard but what could they have done well about

[00:08:04] Speaker 04:
since it's a click wrap and you've got an absolute clear and unambiguous agreement and you've got a very extensive advisal that's telling them they must review and agree or they can't use the site.

[00:08:16] Speaker 01:
You have bolded that the same way that you did.

[00:08:19] Speaker 04:
You could have.

[00:08:20] Speaker 04:
You could have made it bold.

[00:08:21] Speaker 04:
You could have made it different colors.

[00:08:23] Speaker 04:
You could have done a lot of things to draw more attention.

[00:08:27] Speaker 04:
But we're talking about drawing attention to the fact that you have

[00:08:33] Speaker 04:
these two hyperlinks in the click box, right?

[00:08:40] Speaker 04:
And I would argue, Your Honor, that there's a lot of attention that's drawn to it.

[00:08:44] Speaker 04:
First of all, you don't see any advertisements.

[00:08:46] Speaker 04:
You don't see any products advertised.

[00:08:48] Speaker 04:
You don't see any people exercising like you see in these other cases.

[00:08:52] Speaker 04:
You don't see the agreement in a corner somewhere.

[00:08:57] Speaker 04:
What you see, and obviously they paid a great deal of attention to the law,

[00:09:03] Speaker 04:
in creating this, you see a single page which you don't see anywhere else in any of these agreements.

[00:09:08] Speaker 04:
You see a single page dedicated to this purpose.

[00:09:12] Speaker 01:
And did the users have to click on to that to proceed further?

[00:09:17] Speaker 04:
Yes.

[00:09:18] Speaker 04:
You had to check the box that you agreed and then you had to check the continue box.

[00:09:24] Speaker 04:
Continuing without checking the box doesn't get you anywhere.

[00:09:26] Speaker 04:
You don't get into the website.

[00:09:29] Speaker 00:
But they didn't have to click the service agreement or privacy policy.

[00:09:32] Speaker 00:
They could have just agreed to both, right?

[00:09:34] Speaker 04:
Yes, but they agreed to review it.

[00:09:35] Speaker 00:
And let me ask you, this is a little bit difficult because we're just looking at sort of photocopies on briefs.

[00:09:44] Speaker 00:
But the Vassal Declaration says, I just didn't know that there was a hyperlink.

[00:09:48] Speaker 00:
I saw service agreement and privacy policies were underlined, but I just didn't see that it was a hyperlink.

[00:09:54] Speaker 00:
And just looking at it as a photocopy on a

[00:09:57] Speaker 00:
brief, it's hard to tell that that's a hyperlink.

[00:10:00] Speaker 00:
Does that make sense?

[00:10:00] Speaker 00:
It just looks like an underline.

[00:10:01] Speaker 04:
Well, you're seeing what looks like a photocopy on a brief that's a fraction of the size of what a screen would be.

[00:10:10] Speaker 00:
So you're saying the hyperlink was more obvious or more conspicuous if we saw it live or on a screen?

[00:10:17] Speaker 04:
This whole screen page on the paper page

[00:10:26] Speaker 04:
If you expand that out to the entire page, you get what would be a small computer screen as opposed to a large computer screen.

[00:10:34] Speaker 04:
And you can tell that all of this would be very clear and very apparent.

[00:10:40] Speaker 04:
I don't know why it's not a little bit bigger, but it just isn't.

[00:10:47] Speaker 04:
But yes, other than that, other than putting some bells and whistles on the privacy policy

[00:10:56] Speaker 04:
service agreement, which by the way, you know, our U.S.

[00:11:00] Speaker 04:
Supreme Court says underlining is common.

[00:11:05] Speaker 02:
Well, for example, could you have deleted the no sugar daddy's or sugar baby's line because one way of looking at that is that it causes a user to divert attention and it makes it appear that that's what we really care about.

[00:11:19] Speaker 04:
It's the only, it's the only non

[00:11:26] Speaker 04:
It's the only what you might call potential distraction on the page.

[00:11:30] Speaker 04:
And if you look at the, I would ask the court to look at the Keebaugh case where you had, it was, they were providing games, video games.

[00:11:43] Speaker 04:
And most of the screen are these wonderful animations, pictures of what the game has inside, most of it.

[00:11:51] Speaker 04:
And then on the bottom it has the advisor,

[00:11:54] Speaker 04:
And it has not hyperlinks, not colored, but hyperlinks on the bottom.

[00:12:00] Speaker 04:
Not colored.

[00:12:01] Speaker 01:
They're in boxes.

[00:12:02] Speaker 01:
Council, ER-4 shows a sample of the page.

[00:12:07] Speaker 01:
ER-4?

[00:12:08] Speaker 04:
ER-4.

[00:12:11] Speaker 01:
Excerpts of record page 4?

[00:12:13] Speaker 04:
Yes.

[00:12:15] Speaker 01:
Is that a fair representation of how the screen looked?

[00:12:20] Speaker 04:
If you're looking, I don't have that.

[00:12:24] Speaker 04:
In front of me.

[00:12:25] Speaker 01:
I have it's in the district court's order Yeah, yeah, so that's what the district court was looking at the district court was looking at yes So I'm asking you what the district court was looking at is there do you have the record with you?

[00:12:40] Speaker 04:
The only I'm sorry your honor the only difference is do you have the record?

[00:12:44] Speaker 04:
I don't have it with me.

[00:12:45] Speaker 04:
It's not on a computer screen and a computer screen is bigger than a page and

[00:12:51] Speaker 04:
It's a lot bigger than a page.

[00:12:53] Speaker 04:
And if I remember correctly, the size of the computer screen on the court's order was akin to what the size is on this brief.

[00:13:07] Speaker 04:
So what could be done?

[00:13:11] Speaker 04:
Kebaugh had the terms and conditions and the privacy on the bottom of the page in a box.

[00:13:20] Speaker 04:
within the same identical print without underlines and without colors.

[00:13:26] Speaker 04:
And the court said that's reasonably conspicuous.

[00:13:29] Speaker 00:
You would agree that that case says that just accessing a website doesn't create an ongoing relationship, right?

[00:13:36] Speaker 00:
Just accessing a website.

[00:13:37] Speaker 04:
The just answer cases don't necessarily, they said didn't create an ongoing relationship.

[00:13:43] Speaker 04:
This case clearly does.

[00:13:44] Speaker 04:
This is a dating service, an internet dating service where you have to become a member.

[00:13:50] Speaker 04:
And people don't generally just date one person and say I'm done, I'm falling in love and that's it.

[00:13:56] Speaker 04:
Dating services are by nature ongoing and a reasonably prudent internet user is going to expect.

[00:14:02] Speaker 00:
But you would assert that this is more than just accessing a website, right?

[00:14:06] Speaker 00:
Yes.

[00:14:07] Speaker 00:
Okay.

[00:14:08] Speaker 00:
Your position is not that just accessing a website creates an ongoing relationship, right?

[00:14:14] Speaker 00:
Correct.

[00:14:14] Speaker 04:
Okay.

[00:14:15] Speaker 04:
This is an internet dating

[00:14:18] Speaker 04:
website as opposed to a one-off sale of a product or a click here and you'll start your one-week trial with automatic renewals if you don't cancel.

[00:14:31] Speaker 04:
You know, you're talking about something that is designed to be a longer-term proposition where a reasonably prudent Internet user is going to be expecting a contract.

[00:14:47] Speaker 01:
You're almost out of time.

[00:14:49] Speaker 04:
I'm almost out of time.

[00:14:50] Speaker 04:
Whatever I have left, I will reserve for.

[00:14:52] Speaker 01:
All right.

[00:14:53] Speaker 04:
Thank you, counsel.

[00:14:53] Speaker 04:
Thank you, your honor.

[00:15:10] Speaker 03:
Good morning, your honors.

[00:15:12] Speaker 03:
May it please the court?

[00:15:13] Speaker 03:
My name is Jerusalem Belligan.

[00:15:15] Speaker 03:
on behalf of the respondent.

[00:15:20] Speaker 03:
What I wanted to focus my attention on first is reasonable conspicuousness and respond to the millionaire matches contention that there's no rule in our Ninth Circuit precedent that says that the hyperlink needs to be colored.

[00:15:43] Speaker 03:
But there is a rule that was created by Berman that says that simply underscoring words or phrases will be often insufficient to alert a reasonably prudent user that a clickable link exists.

[00:15:58] Speaker 01:
Often, but not always.

[00:16:00] Speaker 01:
We have to look at the entire page to see whether or not it's reasonably conspicuous.

[00:16:06] Speaker 01:
Let me ask you this.

[00:16:08] Speaker 01:
Did your client represent that they did not see the hyperlink at all?

[00:16:14] Speaker 03:
Yes, Your Honor.

[00:16:16] Speaker 03:
He did not know that was a hyperlink.

[00:16:20] Speaker 01:
Did he ever get into the website?

[00:16:22] Speaker 03:
He did get into the website.

[00:16:24] Speaker 01:
How did he get into the website if opposing counsel says you can't get into the website unless you click on the hyperlink?

[00:16:34] Speaker 03:
No, I click on the box.

[00:16:37] Speaker 03:
Which box?

[00:16:38] Speaker 03:
There's a box next to the hyperlink.

[00:16:44] Speaker 00:
But clicking on that box is agreeing to the service agreement and the privacy policy, right?

[00:16:50] Speaker 00:
You can't get to the next page until you assent, right?

[00:16:56] Speaker 00:
I mean, aren't you kind of stuck on this page if you don't agree to that service agreement and privacy policy?

[00:17:01] Speaker 03:
Well, no, Your Honor, because even if he clicks on that box, he still was not given conspicuous notice that the terms service agreement and privacy policy were hyperlinked.

[00:17:14] Speaker 00:
And also, in the two cases that came after... Well, what law says that you have to have the user actually read the agreements?

[00:17:24] Speaker 00:
They can choose not to read it and go ahead and agree to it, which it sounds like what Mr. Mosel did, right?

[00:17:31] Speaker 03:
Well, I think the cases that are on point that discusses that is Chabola and Godoon, which were filed after our answering brief was filed.

[00:17:44] Speaker 03:
But in those cases, they said that the advisory notice or the explanatory paragraph must explicitly inform the user what that user is agreeing to.

[00:17:57] Speaker 03:
And in that case, for example, in

[00:18:00] Speaker 03:
Chabola, the court held that the explanatory or advisory paragraph did not explicitly notify the plaintiff that by clicking on the continue button or redeem button that she would be agreeing to the terms of service.

[00:18:17] Speaker 00:
But it says to become one of our members, you need to review and agree to the terms and conditions of both agreements and check the agree box below.

[00:18:28] Speaker 00:
If you disagree, you will not be given access to the site.

[00:18:33] Speaker 03:
That advisory notice should have said by clicking continue button, I agree to the terms of service.

[00:18:43] Speaker 00:
No, that's not true.

[00:18:43] Speaker 00:
The continue button is separate from the agree to both the service agreement and the privacy policy button.

[00:18:49] Speaker 00:
You have to click both to get to the next page to access the website.

[00:19:03] Speaker 00:
I suspect you also have to click, I'm not a robot.

[00:19:05] Speaker 00:
So you have to click three buttons before you can access the website.

[00:19:10] Speaker 00:
The read of the terms is the service agreement and privacy policy.

[00:19:14] Speaker 00:
You have to say you're not a robot and you have to continue.

[00:19:19] Speaker 03:
But the, the, over the, just the design aspect of the,

[00:19:25] Speaker 03:
of the web page doesn't give the user reasonable conspicuous notice of the privacy policy and the advisory paragraphs or explanatory paragraphs do not state that by clicking the continue button, I am agreeing to the service agreement.

[00:19:41] Speaker 03:
So therefore, there's no manifestation of consent, unambiguous manifestation of consent as set forth in Chabola and Godoun.

[00:19:52] Speaker 03:
In those cases, the court held that

[00:19:55] Speaker 03:
the explanatory paragraphs did not explicitly inform the users that they were agreeing to the terms of service.

[00:20:03] Speaker 01:
But it says exactly that, that you are agreeing to the, you have to read and agree to the terms of service before you become a member.

[00:20:12] Speaker 03:
It says I it says agree but it does not say by clicking on the continue button.

[00:20:18] Speaker 03:
I agree to the service agreement and in go do your honor.

[00:20:21] Speaker 03:
I just want to you know in go do you ask another question.

[00:20:25] Speaker 00:
The district court here while it may be true it.

[00:20:32] Speaker 00:
wasn't in all capitalized, it wasn't bolded, but didn't look at overall screen design, continuing relationship, natural flow, didn't consider the context of the transaction that you have to assent before you can access the website, didn't analyze whether it was cluttered or not.

[00:20:58] Speaker 00:
totality of the circumstances, very fact-intensive inquiry.

[00:21:04] Speaker 00:
And how should we evaluate the lower court order that focused only on the underlying and the lack of bolding and capitalization and didn't take into account these other circumstances?

[00:21:21] Speaker 00:
How are we supposed to think about that?

[00:21:25] Speaker 03:
Well, I think in the beginning,

[00:21:28] Speaker 03:
when asked whether or not what the standard of view review is, it's de novo.

[00:21:33] Speaker 03:
And the court, you know, analyzes this anew.

[00:21:41] Speaker 03:
And I don't, even though the district court didn't analyze the context of the transaction, I think the context of the transaction doesn't

[00:21:56] Speaker 03:
It's more neutral than helping one side or the other.

[00:22:01] Speaker 00:
But is it an error not to consider context of the transaction?

[00:22:04] Speaker 00:
You just conceded that the district court didn't consider it.

[00:22:07] Speaker 00:
Would that be sufficient reason to reverse here?

[00:22:11] Speaker 03:
I don't think so, Your Honor.

[00:22:13] Speaker 00:
Why not?

[00:22:13] Speaker 00:
You just said, and the case law says, we have to consider totality of the circumstances, context of the transaction, all these other things.

[00:22:21] Speaker 03:
Because that was in key ball.

[00:22:23] Speaker 03:
In key ball.

[00:22:25] Speaker 03:
the district court actually took factored in the context of the transaction heavily without even looking at the the reasonable conspicuousness of the web page and in that case the Ninth Circuit reversed the district court for not for focusing too much on the context of the transaction and not looking at the other factor and

[00:22:49] Speaker 03:
And in that case, because it was de novo review, the court considered the context of the transaction.

[00:22:55] Speaker 03:
And because in that case, these were users who were downloading an app on their phone

[00:23:04] Speaker 03:
with unlimited access and unlimited in-app purchases, the court concluded that there was a reasonable expectation that that relationship could have been governed by terms.

[00:23:15] Speaker 03:
And then it went into determining whether or not there was the visual aspects of the web pages was conspicuous or not.

[00:23:26] Speaker 03:
So the fact that the court did not take that into consideration,

[00:23:33] Speaker 03:
I don't think it's it's automatically reversible like that because this is a denial review review.

[00:23:40] Speaker 03:
I'd only add that You know even though This is an online dating site Our client did not there was no subscription required He did not submit his credit card.

[00:23:56] Speaker 03:
He did not pay for a subscription There was no money exchanged

[00:24:01] Speaker 00:
What do you think that's relevant to ongoing relationship?

[00:24:05] Speaker 03:
It's relevant to context of the transaction that he would not have a reasonable expectation to look for terms of service when he's not creating

[00:24:20] Speaker 03:
He didn't apply for or pay for a subscription.

[00:24:25] Speaker 03:
There was no money exchange.

[00:24:27] Speaker 00:
It's a free account.

[00:24:27] Speaker 00:
He created an account and unless you're really lucky, most people don't find their perfect match the first time they access a website, right?

[00:24:35] Speaker 00:
It takes time, potentially.

[00:24:39] Speaker 00:
So he did have an ongoing relationship with MillionaireMatch.com, right?

[00:24:45] Speaker 03:
Wouldn't say ongoing relation.

[00:24:47] Speaker 03:
I don't think he thought it was an ongoing relationship.

[00:24:50] Speaker 01:
What did he think it was?

[00:24:52] Speaker 03:
He thought it was just a free account.

[00:24:56] Speaker 03:
That he periodically looked at, but eventually deleted.

[00:25:02] Speaker 01:
Isn't periodically ongoing?

[00:25:05] Speaker 03:
I'm sorry?

[00:25:06] Speaker 01:
Isn't periodically ongoing?

[00:25:10] Speaker 01:
It's not one time.

[00:25:12] Speaker 03:
Yeah, you're right, Your Honor.

[00:25:13] Speaker 03:
It's not one time.

[00:25:16] Speaker 03:
But I think the fact that there was no subscription, no money exchanged, he did not create, he did not provide his credit card information, he did not download the app.

[00:25:32] Speaker 03:
I think that creates, that is evidence that shows that

[00:25:37] Speaker 03:
there wasn't a reasonable expectation that the relationship would be governed by contractual terms.

[00:25:43] Speaker 03:
And I think just like in Chabola, where the court balanced all the facts to determine whether or not there was the context of the transaction was important, the court in the end, even though balancing all the facts, said that it was relatively neutral.

[00:25:58] Speaker 03:
It didn't help one or the other.

[00:26:01] Speaker 03:
And then focused on the lack of conspicuousness of the terms and the lack of manifestation

[00:26:08] Speaker 03:
of assent to eventually come to the conclusion that there was no meeting of the minds and affirm the trial court's order.

[00:26:18] Speaker 02:
Using the actual page as a predicate, what would you maintain should have been added and would have made it

[00:26:32] Speaker 03:
Well, Your Honor, they should have deleted, I mean, if they were to make this less distracting, they should not have bolded no sugar daddies or sugar babies.

[00:26:47] Speaker 03:
They should have the service agreement and privacy policy.

[00:26:52] Speaker 03:
They should have all capitalized it or colored it, something to make it stand out.

[00:27:00] Speaker 03:
advisory or explanatory paragraph should have said by clicking the continue button, I agree to the terms of service.

[00:27:09] Speaker 03:
Because it didn't say that, there was no unambiguous assent to the service agreement.

[00:27:17] Speaker 03:
And that's basically what the ruling in Godun was.

[00:27:23] Speaker 03:
And if I may, and I'm quoting from Godun,

[00:27:27] Speaker 03:
in Godoon, the court held while Berman was straightforward, we clear up any remaining confusion.

[00:27:33] Speaker 03:
An advisor that simply states I understand and agree to the terms and conditions but fails to indicate to the user what action would constitute assent is not enough to invite an unambiguous manifestation of assent.

[00:27:48] Speaker 03:
So in this case, you have

[00:27:52] Speaker 03:
The terms, the service agreement and the textual notice were insufficient to give conspicuous notice.

[00:27:59] Speaker 01:
Council, did I hear you say a minute ago that your client did not create an account?

[00:28:04] Speaker 03:
No, he did not download the app.

[00:28:07] Speaker 03:
And he did not create a subscription or pay for a subscription.

[00:28:10] Speaker 01:
But if he created an account, you don't think that's a relationship?

[00:28:16] Speaker 03:
I think it is relationship.

[00:28:19] Speaker 03:
You're right.

[00:28:19] Speaker 03:
I think by the way, I think this is not a click wrap.

[00:28:22] Speaker 03:
This is a sign in wrap because in a click wrap, when you, you know, the terms and conditions are going to pop out and then you have to agree before you continue.

[00:28:31] Speaker 01:
This is a... That's what this was.

[00:28:32] Speaker 01:
You had to agree before you could continue.

[00:28:36] Speaker 03:
But the terms of service were not, did not pop out on the screen for you to review and then... But if you clicked it...

[00:28:45] Speaker 01:
the terms and service were available, correct?

[00:28:48] Speaker 01:
Correct.

[00:28:49] Speaker 00:
And it's not required for a click-grap agreement that the actual terms be on the same screen as the assent?

[00:28:56] Speaker 00:
That's correct.

[00:28:57] Speaker 00:
You would agree that's what's in the case law.

[00:28:58] Speaker 00:
It says in most instances that text is not going to be on the same screen.

[00:29:02] Speaker 03:
Correct.

[00:29:02] Speaker 03:
In the sign-in wraps, you can create an account without actually reviewing the terms of service agreement.

[00:29:08] Speaker 03:
That's why this is a sign-in wrap, not a click wrap.

[00:29:11] Speaker 00:
Right.

[00:29:11] Speaker 00:
But if you agree, then in a click wrap agreement, the actual terms don't have to be on the same screen as where you assent to the terms.

[00:29:20] Speaker 00:
That instance as well, the users may not be reading that, but agreeing to it.

[00:29:25] Speaker 03:
Correct.

[00:29:26] Speaker 00:
Okay.

[00:29:29] Speaker 03:
Your Honor, just to sum this up with the limited time I have left, Berman requires two elements, conspicuous notice and unambiguous manifestation of assent.

[00:29:43] Speaker 03:
There was no conspicuous notice here.

[00:29:45] Speaker 03:
The text was underlined, normal text, font as, you know, which was the same as other text on the page, and some of the text on the page was much larger.

[00:29:57] Speaker 03:
And finally, there was no unambiguous assent because the advisory notice nor the textual notice said by clicking the continue button, I agree to the service agreement.

[00:30:09] Speaker 03:
Thank you.

[00:30:10] Speaker 01:
Thank you, counsel.

[00:30:11] Speaker 01:
Rebuttal.

[00:30:17] Speaker 04:
Thank you, your honor.

[00:30:19] Speaker 04:
Just briefly, two points.

[00:30:21] Speaker 04:
One, since no sugar daddies and no sugar babies keeps coming back,

[00:30:27] Speaker 04:
There's a reason that that's there.

[00:30:30] Speaker 04:
There's a reason that it's bold-faced, and that's because they don't want people signing up to be members for this service that are looking for something that the service isn't providing.

[00:30:38] Speaker 00:
Really?

[00:30:39] Speaker 00:
Then why have a millionairematch.com website?

[00:30:41] Speaker 04:
Or people that have... Isn't that what you're looking for?

[00:30:43] Speaker 00:
Sugar Babies and Sugar Daddy?

[00:30:45] Speaker 04:
I think it's because... No, there are actually websites that cater to that.

[00:30:49] Speaker 04:
But what they are looking for here are people who have money and want to date other people with money that aren't looking

[00:30:56] Speaker 04:
to get rich by getting married to somebody with money.

[00:30:59] Speaker 04:
I think that's the intent.

[00:31:00] Speaker 04:
So they're trying to, this is, yes, they're saying don't sign up if that's what you're looking for, because that's not what we're, who we're looking for in terms of our members.

[00:31:08] Speaker 01:
All right.

[00:31:08] Speaker 01:
Thank you, counsel.

[00:31:09] Speaker 04:
One other thing briefly.

[00:31:10] Speaker 01:
I'm grateful you're over your time.

[00:31:11] Speaker 04:
I'm sorry.

[00:31:14] Speaker 04:
The, the assent issue is, is, if you look at Judge Bybee's dissent in the Chabela case, he actually quotes from Sellers, which is the, one of the leading California case.

[00:31:25] Speaker 04:
A click wrap is an agreement.

[00:31:26] Speaker 04:
where you click a box like this one agree and you have a hyperlink or you can have a pop-up but you have you can have a hyperlink that you just click and it pops up and it says here's what the agreement is this is a classic click wrap which are as far as i can tell hardly ever overturned thank you your honor counsel thank you to both counsel for your helpful arguments the case just argued is submitted for a decision by the court