[00:00:00] Speaker 03: Case number 19-7168. [00:00:03] Speaker 03: Gregory Seldon, a balance versus Airbnb Inc. [00:00:07] Speaker 03: Mr. Emejuru for the balance. [00:00:09] Speaker 03: Mr. Morota for the epaulee. [00:00:13] Speaker 04: Mr. Emejuru, good morning whenever you're ready. [00:00:18] Speaker 02: Good morning Judge. [00:00:20] Speaker 02: Good morning. [00:00:21] Speaker 02: My name is Ike Majuro. [00:00:22] Speaker 02: I'm the counsel for Appellant Gregory Seldin, and may it please the court. [00:00:26] Speaker 02: Today, the court is hearing Mr. Seldin's appeal based upon his belief that he was not provided reasonable notice of arbitration terms, that his claims brought in the district court are not arbitrable, and that he was not given a fair shot at the arbitration during the arbitration proceedings. [00:00:50] Speaker 02: First and foremost, Mr. Sullivan does not believe that he was provided a reasonable notice of the terms and conditions provided by Airbnb. [00:01:00] Speaker 02: As we now know, based upon case law and various circuits that a consumer must be given, a reasonably proven consumer, internet user must be given notice of terms and conditions before they sign up or receive with any services from an online [00:01:20] Speaker 02: organization or company. [00:01:23] Speaker 04: Is your theory that any sign-in wrap, by definition, is insufficient notice? [00:01:33] Speaker 02: Judge Casas, that is not our theory that any sign-in wrap, but we do believe that a sign-in wrap should provide clear conspicuous notice of terms. [00:01:43] Speaker 04: If it's not the fact that someone had to click on the link, [00:01:49] Speaker 04: What else could possibly be insufficient with this? [00:01:54] Speaker 04: You have the three sign up options and then immediately under it, you have a simple statement by signing up, I agree to the terms and there's contrast in the color and it's simple and it's right there. [00:02:11] Speaker 02: Yes, so the signing procedure that had to be put forth has three different sign up buttons. [00:02:19] Speaker 02: attention that this was 2016. [00:02:20] Speaker 02: So right now it's slightly more, the consumer has gotten a little more prudent as to what's going on in terms of signing up. [00:02:27] Speaker 02: But if you take a look at the signing procedures, it says sign up with Facebook, sign up with Google, sign up with email. [00:02:33] Speaker 02: The sign up with Facebook does not suggest that you're signing up with Airbnb, it's a sign up with Facebook. [00:02:39] Speaker 02: So sign up wrap that you're looking at before you may confuse or provide confusing [00:02:47] Speaker 02: Confusing I get this consumer that you're going to sign up with Facebook rather than signing up with Airbnb. [00:02:52] Speaker 02: It is one of those advertisements or other types of companies and affiliated Airbnb at the courts and the coast here and the Amazon and Cullinan have discussed as problematic for consumers. [00:03:05] Speaker 02: So [00:03:06] Speaker 02: If you also look at the sign-up mechanism or procedure, sign-up mechanism from Airbnb, you look at it's a sign-up of Facebook, but nowhere underneath that sign-up of Facebook are the terms and conditions placed underneath so that the consumer knows that they are signing up the Airbnb. [00:03:21] Speaker 02: Mr. Seldin, in this case, it's undisputed that he's signing up with Facebook. [00:03:26] Speaker 02: Once he signs up with Facebook, it takes him to another [00:03:28] Speaker 02: page. [00:03:29] Speaker 02: It takes them through Facebook's mechanism and then back into getting into Airbnb to continue the process of looking for accommodations. [00:03:39] Speaker 02: I think that in itself is also confusing for a consumer and not necessarily something that is in line with the case law that was proposed. [00:03:47] Speaker 03: Mr. Emiger, what about the Second Circuit's decision in Meyer versus Uber? [00:03:53] Speaker 03: I mean, the website there seems very, I mean, of course it's not binding on us, but the website there seems very similar to the website that Airbnb used. [00:04:07] Speaker 03: And there it was found to, the Uber website was found to provide reasonable notice. [00:04:12] Speaker 03: So I'm wondering, can you distinguish the Airbnb website from this Uber? [00:04:16] Speaker 03: website? [00:04:18] Speaker 02: Yes, Judge Rao, I believe I can. [00:04:20] Speaker 02: I think that if you take a look at the mechanism, first of all, there's two different sign-up screens for the Uber case. [00:04:28] Speaker 02: You have a register sign-up and a payment sign-up. [00:04:31] Speaker 02: So that's two different screens. [00:04:32] Speaker 02: So the first, the register sign-up in Myer has the Google or Facebook button at the top, but there's no terms and conditions in that particular registration page. [00:04:42] Speaker 02: payment page has the terms and conditions that has nothing with a Google or nothing with a Facebook page that leads the consumer to believe that [00:04:56] Speaker 02: that can distract the consumer, I should say. [00:04:59] Speaker 02: If you look at the payment button or payment options in the Meyer case, it has the mechanism for the consumer to pay. [00:05:08] Speaker 02: And at that point in time, the consumer knows, hey, I'm paying for this service, and it's time for me to agree to these terms and conditions, right? [00:05:17] Speaker 02: But in this particular case, in Airbnb's case, the sign up Facebook, Google, or email are all in one [00:05:27] Speaker 02: terms and conditions, but the consumer can easily be led away by clicking the button right away with Facebook and then becoming distracted with the Facebook button and the Google button. [00:05:37] Speaker 03: I think that's... So your theory is that because there are these other platforms, either Facebook or Google, that's distracting from the terms and conditions of Airbnb. [00:05:48] Speaker 02: Yes, that's right. [00:05:50] Speaker 02: I think that that is the theory in this particular case. [00:05:54] Speaker 02: That and also the other distracting terms and conditions that are in [00:05:57] Speaker 02: the red font below the sign up with email button. [00:06:02] Speaker 02: I think the red font that matches, excuse me, that doesn't match the other buttons above that are distracting for the consumer. [00:06:11] Speaker 00: In the Meyer case, when you click on Facebook, don't you travel the same route you do in this case? [00:06:20] Speaker 00: Because on your registration page, you must click either Google or Facebook. [00:06:26] Speaker 00: And you said you were concerned because if you click on Facebook, then you're sidetracked. [00:06:31] Speaker 00: Well, that would be the same in Meyer, no? [00:06:35] Speaker 02: No, Judge. [00:06:35] Speaker 02: I don't think so. [00:06:37] Speaker 02: I'm not sure how the payment processing would work at that point for a consumer if they are rerouted from the Facebook page back to the back to whatever service they're using on Uber. [00:06:50] Speaker 02: So I'm not sure about those particular facts. [00:06:53] Speaker 02: But I know that the [00:06:57] Speaker 02: Once the consumer in Meyer is on the payment page, they know that they are still working with Uber. [00:07:06] Speaker 00: No, no, I understand what you're saying there. [00:07:08] Speaker 00: But one of your arguments here was that to get started, you have to click, say, for example, Facebook. [00:07:16] Speaker 00: Well, that's true in Meyer as well. [00:07:18] Speaker 00: You have to click on either Google or Facebook. [00:07:21] Speaker 00: So you're saying that's a distraction. [00:07:23] Speaker 00: So you don't click on Next in Meyer first. [00:07:25] Speaker 00: You have to click on Google or Facebook. [00:07:27] Speaker 00: or you do the sign-in below. [00:07:33] Speaker 00: So I'm not sure, I'm trying to understand why that's less confusing in your mind. [00:07:42] Speaker 02: I'll also take, in other words, if you take a look at the nexus between, so if you take a look at the Meyer screen, the register page, there's also nothing on that register page, the registration page or box that has anything to do with the terms and conditions, I believe, until you get to the payment page. [00:08:03] Speaker 02: So the consumer, if being led to Facebook, [00:08:13] Speaker 02: will then go into another orbit, I believe, and not understand whether this terms and conditions apply to Uber as opposed to Facebook. [00:08:25] Speaker 02: OK. [00:08:26] Speaker 02: This particular, if the consumer in Airbnb signs up with Facebook or signs up with Google, [00:08:37] Speaker 02: I think that, again, it provides a distraction of different advertisements. [00:08:40] Speaker 02: Also, the fragmented screen, which Mr. Selden had raised in his brief, is also a distraction as well. [00:08:47] Speaker 02: You have the oar here on the same screen, within the Airbnb sign-up screen. [00:08:52] Speaker 02: The oar is also separating both of the companies. [00:08:55] Speaker 02: Again, a user, a reasonably premium user may be confused, I think, at that point between where, in fact, or whose terms and conditions are applying, I believe, [00:09:07] Speaker 03: Can I ask you a question about your argument about Title II prohibiting arbitration of these claims? [00:09:14] Speaker 03: I'm wondering, can you point to any other federal statute that specifically prohibits arbitration of claims under that statute? [00:09:25] Speaker 03: Or any case interpreting a statute to prohibit arbitration of claims? [00:09:34] Speaker 02: We didn't provide any other statutes that prohibit arbitration. [00:09:39] Speaker 02: But I think that it's very important that this court look at the language and text of the statute. [00:09:43] Speaker 02: I know I've emphasized it enough in the brief. [00:09:45] Speaker 02: But again, this statute in 1964 came out after the arbitration or FAA was passed. [00:09:51] Speaker 02: I think looking at the text of the statute saying without regard, which means notwithstanding, it doesn't matter whether someone has [00:10:02] Speaker 02: are gone through any type of administrative process or remedy at law. [00:10:07] Speaker 02: I think that in itself suggests that arbitration is inapplicable to this particular statute. [00:10:13] Speaker 02: I think that the federal courts, given the case law and the statutes that we've cited, suggest that this particular statute is inapplicable [00:10:27] Speaker 03: Yeah, I was just, I mean, I was unable to locate any analogies, right, where courts have actually read a federal statute to prohibit arbitration. [00:10:37] Speaker 03: And so I just think there's such a strong presumption in favor of arbitrability. [00:10:43] Speaker 03: And even, you know, in the Title VII cases, you know, arbitration is permitted under Title VII. [00:10:50] Speaker 03: So that's why I was just looking, you know, if there were any other examples of statutes. [00:10:54] Speaker 02: Sorry, the statute, the statute that title seven does not have the same language as title two. [00:11:08] Speaker 02: The statute was written in 1964. [00:11:10] Speaker 02: I don't think that would have, 1964, I think that the language within title two [00:11:16] Speaker 02: pertains to exclusive, and the without regard is not contained in subsequent statutes like Title VII. [00:11:24] Speaker 02: It is within the Age Discrimination Act. [00:11:28] Speaker 02: I don't believe that it's another any other statute except for Title II, that particular type of language. [00:11:37] Speaker 04: Anything else, Judge Raff? [00:11:40] Speaker 04: Yeah. [00:11:40] Speaker 04: Judge Edwards? [00:11:41] Speaker 00: No. [00:11:42] Speaker 04: Thank you. [00:11:42] Speaker 04: OK. [00:11:42] Speaker 04: You're a little bit over time, but we'll give you some rebuttal. [00:11:47] Speaker 04: Mr. Murata, good morning. [00:11:48] Speaker 05: Good morning. [00:11:49] Speaker 05: Thank you, Judge Katz. [00:11:50] Speaker 05: And may it please the court, Sean Murata on behalf of the Appellee Airbnb. [00:11:54] Speaker 05: There are essentially three questions in this case, contract formation, enforceability of the arbitral agreement, and then vacant or of the arbitral award. [00:12:03] Speaker 05: But I think like my friend on the other side, I'll spend most of my time on contract formation this morning. [00:12:08] Speaker 05: On contract formation, the question is whether a reasonably sophisticated smartphone user would find the terms reasonably conspicuous. [00:12:16] Speaker 05: And for those following along at home, the key screens are JA-201, which is the initial three box screen. [00:12:24] Speaker 05: And JA 205, which is the second screen that you would see if you clicked sign up with email. [00:12:29] Speaker 05: Because one of the discussions today has been about that first screen and as the district court found that first screen and the first sign up through Facebook is all the court needs to affirm to decide this case. [00:12:40] Speaker 05: But even if their court had any lingering doubts about that first screen, don't forget that Mr. Selden signed up twice again through the second sign up with email process in which he would have seen a second screen, which again warned him about what he was about to do by clicking the sign up button. [00:12:57] Speaker 05: And note that that second screen places the warning about by signing up. [00:13:02] Speaker 05: I agree to Airbnb's terms of service above the sign up button which reduces any concerns about people being distracted or somehow clicking on the button before you've entirely [00:13:14] Speaker 05: taken in the page. [00:13:16] Speaker 05: But even with regard to the first sign up screen, my friend has cited no case where a sign up with Facebook button, which as the court noted is a fairly common feature across apps, which allows people to create their accounts by filling in personal information from other services that they may use, does not provide reasonable notice. [00:13:35] Speaker 05: In fact, Myers in the payment screen, which is what we replicate at page 28 of the red brief, has the same divided [00:13:44] Speaker 05: In fact, in that case, you had the registration or the sign up with email equivalent at the top and the buttons for signing up with Google Wallet and PayPal at the bottom and the warning about by signing up, I agree to following it. [00:13:59] Speaker 05: And that was found to be sufficient. [00:14:01] Speaker 05: And there's really four features about Airbnb sign up page that make it reasonably conspicuous here. [00:14:06] Speaker 05: First, the by signing up warning appears roughly in the middle of the page. [00:14:10] Speaker 05: It's in close proximity to all three boxes. [00:14:13] Speaker 05: Second, the links appear in a dark red font that contrasts with the white background and contrasts with the black text around it. [00:14:20] Speaker 05: Mr. Seldin argues in his brief that the mix of colors would be confusing. [00:14:24] Speaker 05: In fact, it's the mix of colors that makes it conspicuous because a reasonable internet user would understand, oh, if some text is black and some text is red, what makes the red text different is it must be a hyperlink. [00:14:37] Speaker 05: And third, the text is clearly legible. [00:14:39] Speaker 05: It's roughly the same size as already an Airbnb member sign in, which again gives a hint that it's a hyperlink. [00:14:45] Speaker 05: Because if you see a login that's in the red text, you must realize that, oh, the other red text must be hyperlinks as well. [00:14:53] Speaker 05: And the page is simple and uncluttered. [00:14:55] Speaker 05: The only elements on the page are the three sign up buttons, the by signing up, I agree warning, and the already an Airbnb member state. [00:15:03] Speaker 05: That's all that's on the page. [00:15:05] Speaker 05: So there's nothing to draw the user away or distract them or to keep him from noticing the terms of service link. [00:15:12] Speaker 05: And so for all those reasons, it's a reasonably sophisticated internet user, not someone who's dropped it from Mars and has never used a computer before, but someone who uses a smartphone in their everyday life would understand what he was about to do by signing up. [00:15:27] Speaker 05: And courts have routinely held this kind of sign up rap [00:15:30] Speaker 05: is enforceable. [00:15:31] Speaker 05: Judge Ryle, you asked if there are statutes that categorically do not allow for arbitrability in the Title II content, or you asked regarding Title II. [00:15:40] Speaker 05: One example is the Automobile Dealers Fair Day in Court Act, I think it's called. [00:15:45] Speaker 05: And what that statute simply says, and says quite clearly, is there cannot be pre-arbitration disputes for claims that arise out of this act. [00:15:54] Speaker 05: So when Congress wants to make something non-arbitrable, [00:15:57] Speaker 05: It rarely does it because of the strong principle in favor of arbitrability. [00:16:02] Speaker 05: But it does, though. [00:16:03] Speaker 05: Also, the Federal Arbitration Act itself has exclusions to arbitrability, such as contracts that involve, I think, interstate transportation and commerce. [00:16:12] Speaker 05: Title II, by contrast, says that there's federal court jurisdiction under it, but that does not displace the arbitral forum. [00:16:19] Speaker 05: And it says that the remedies in the statute are exclusive, which is fine because under the arbitration agreement, Mr. Seldin could have received every single remedy that's available to him under Title II or any of the other statutes. [00:16:32] Speaker 00: Is there any case law that construes it the way you want us to construe it? [00:16:37] Speaker 05: Title II, my understanding is there's no Title II specific arbitrability law, I think because Title II claims themselves are fairly unusual in the federal courts. [00:16:48] Speaker 00: But of course, Title VII- This language is not typical. [00:16:51] Speaker 00: Are there any other statutes with this language that have reached the construction that you want? [00:16:57] Speaker 05: I don't know if, with regards to the language- This is not usual language. [00:17:03] Speaker 00: And I see how you're trying to parse it, but where is that coming from? [00:17:07] Speaker 05: Well, I think it's coming from two places. [00:17:09] Speaker 05: The first is just the general presumption of arbitrability, which forget that I understand that. [00:17:13] Speaker 00: But the problem is you have the general presumption of presumption is rebuttable. [00:17:17] Speaker 00: And so the question is whether this language, which is not typical. [00:17:22] Speaker 00: It's just not typical language and says this is the exclusive suggest this is the exclusive remedy and you're in court. [00:17:29] Speaker 00: Are there any other statutes or any case law construing this statute reaching the result that you want? [00:17:35] Speaker 00: Because it's not self-evident to me. [00:17:37] Speaker 00: When I first read that, I just didn't remember it. [00:17:39] Speaker 00: When I first read it, it did not occur to me that the construction you're giving is the plausible construction. [00:17:49] Speaker 05: I think it's the plausible construction judge Edwards for the simple and let me answer the question first is I'm not aware necessarily of any case that construes title to an arbitration. [00:17:58] Speaker 05: And I'm not necessarily aware of other statutes that use the exact same language, though I'm not going to say they're not out there, but I think [00:18:04] Speaker 00: I'm assuming you would have found them if they were there. [00:18:07] Speaker 05: I assume I would have as well, Judge Edwards. [00:18:09] Speaker 05: But what I would say is that, you know, the burden falls on Mr. Seldin to show that the language admits of the construction that there is... Well, I mean, what I'm asking you, what I'm suggesting is the language facially admits of the construction that they're propounding. [00:18:25] Speaker 00: And I'm trying to figure out why we would go in a way that's inconsistent with that language would suggest that [00:18:34] Speaker 00: The exclusive remedy is in court. [00:18:37] Speaker 05: Well, but I would disagree, Judge Edwards, because the language in the statute doesn't say the exclusive remedy is in court. [00:18:43] Speaker 05: It says federal courts have jurisdiction, and it says that the remedies in this act are the exclusive remedies. [00:18:49] Speaker 05: But they never marry up the two and say the exclusive remedies are in court. [00:18:53] Speaker 05: So what that means is, is that, for instance, you can go to federal court, you don't have to exhaust remedies, such as under Title VII, when you have to go through the EEOC. [00:19:02] Speaker 05: And it says that these remedies are the only one, so you don't supplement them with common law remedies. [00:19:07] Speaker 05: But the statute never says the exclusive remedies are court remedies. [00:19:11] Speaker 05: And that's the key part. [00:19:13] Speaker 04: Can I press you on that a little bit? [00:19:17] Speaker 04: Because the statute says, I agree with you on the jurisdictional provision, but then there's a remedies provision. [00:19:26] Speaker 04: And it says the remedies provided shall be the exclusive means of enforcing. [00:19:34] Speaker 04: Now, the word remedies is a little bit ambiguous. [00:19:37] Speaker 04: It could mean form of relief. [00:19:41] Speaker 04: but it also could mean forum or tribunal, right? [00:19:45] Speaker 04: We often speak of judicial remedies as opposed to arbitral remedies. [00:19:52] Speaker 04: And this statutes talks about remedies as a means of enforcing, which to me at least somewhat suggests or connotes a forum rather than a type of relief. [00:20:09] Speaker 05: I would disagree with that, Judge Katz, because I think when you speak of the remedies, it's talking about we're not supplementing with common law remedies, let's say. [00:20:21] Speaker 05: Instead, what it's saying is that the remedies that are in this act are the only way you are going to enforce the act, not other things that you might draw from the common law. [00:20:28] Speaker 05: And of course, if there's anything settled in the arbitrable case law, it's that it is perfectly fine to simply swap out a judicial forum from an arbitrable forum [00:20:37] Speaker 05: so long as you could get the same substantive relief you could have in court. [00:20:42] Speaker 05: And I don't understand your forum to be one of the remedies that's afforded under the Act. [00:20:47] Speaker 05: It might be the place you bring the suit, but it is not one of the remedies that the Act provides. [00:20:53] Speaker 05: In fact, I'm not aware of jurisdiction being a way that you enforce something. [00:20:57] Speaker 05: It might be the place you go to enforce something if you're parsing the text, but it's not [00:21:01] Speaker 05: an actual enforcement of the Act. [00:21:05] Speaker 05: But even then, you have to consider that, you know, to the extent you may think there may be an ambiguity in the language, all of that has to be read against the general presumption in favor of arbitrability that says that if Congress wants to make something non-arbitrable, it has to be fairly clear in doing so. [00:21:19] Speaker 05: And so, as I said, in the Automobile Dealer Fair Day in Court Act, [00:21:24] Speaker 05: It just simply said, these claims may not be arbitrated, at least in a pre-dispute way. [00:21:29] Speaker 05: The Federal Arbitration Act itself carves out certain things. [00:21:32] Speaker 05: So again, to the extent you think there is some play in the joints in the language, I think the presumption carries us the rest of the way, unless the court has further questions. [00:21:43] Speaker 04: Judge Rao? [00:21:44] Speaker 00: No. [00:21:45] Speaker 04: Judge Edwards? [00:21:45] Speaker 00: No, thank you. [00:21:46] Speaker 04: Thank you, Mr. Morata. [00:21:49] Speaker 04: Mr. Amadur, we'll give you a minute. [00:21:52] Speaker 02: Thank you, Judge. [00:21:53] Speaker 02: I just wanted to touch upon a couple of points from my colleague, Mr. Morota. [00:21:58] Speaker 02: I think, again, I tried to make the distinction to the court of the payments screen versus the sign-up screen in Uber and Meyer versus Airbnb. [00:22:07] Speaker 02: But again, let me just touch upon the Title II statute really quickly. [00:22:10] Speaker 02: I think that the court must take a look at the intent and purpose of the statute. [00:22:15] Speaker 02: I don't believe, I still rely on Atlanta Motel as our principal case [00:22:23] Speaker 02: I don't think that Airbnb has even tried to distinguish that case or looked at the purpose and intent within the briefs. [00:22:31] Speaker 02: But I'll also suggest, Your Honor, that the remedy is the form and that the federal courts promote or advance the intent and purpose of Title II, of the statute itself. [00:22:47] Speaker 01: And that is all that I have to say. [00:22:55] Speaker 04: Thank you, Mr. Major. [00:22:56] Speaker 04: The case is submitted. [00:22:58] Speaker 04: Thank you, Judge.