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Case number 24-7154.

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Cheryl Walker versus Cooper Technologies, King et al.

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at balance.

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Mr. Huston for the balance.

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Ms.

[00:00:10] Speaker 04:
Leighton for the appellee.

[00:00:13] Speaker 01:
Good morning, counsel.

[00:00:14] Speaker 01:
Mr. Huston, please proceed when you're ready.

[00:00:19] Speaker 02:
May it please the court, I'm Michael Huston of Perkins Coie for Uber.

[00:00:23] Speaker 02:
The district court's decision denying the motion to compel arbitration should be reversed for two independent reasons.

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Both are important.

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I hope we'll talk about both.

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First, contract law in the District of Columbia as in virtually every state uses an inquiry notice standard.

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A contract is formed so long as a reasonable person would have had an opportunity to view the terms before agreeing to them.

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That's the DC Court of Appeals in Forrest and this court in Selden.

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Uber's text message to Carol Walker provided that reasonable opportunity.

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Uber made no attempt to obscure or hide from Mr. Walker the fact that by agreeing to take this ride, he was required to agree to the contractual terms of use.

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On the contrary, we sent him a text message providing him the most critically important information about the services he was using, the car and driver that would be picking him up.

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And in that same message, even before that most important information, we Uber stated in plain easy to understand language that by taking this ride, Mr. Walker would agree to the terms of use.

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A reasonable user of uber services would have read that text message.

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So we created inquiry notice of the contract as a matter of law.

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Second and independently.

[00:01:43] Speaker 05:
I think that your view of inquiry notice is pretty narrow.

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It seems that the law requires a fact-intensive totality of the circumstances approach, which goes beyond what you just said.

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You have to look at the course of conduct between the user and the business.

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And this user didn't have an Uber.

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account or anything like that.

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You have to look at the type of transaction it is.

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We're not buying a house or a car.

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It's just a ride.

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Things of that nature.

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It seems to me that your analysis ignores a lot of other facts.

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The bottom line is this was an unsolicited text that

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You know, he may or may not have looked at, and he says he didn't.

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And is that enough to create inquiry notice under every circumstance?

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You're saying it is.

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You're saying we should just assume anytime Uber sends a text like this, there's a contract.

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And I find that difficult to accept.

[00:02:36] Speaker 02:
No, respectfully, Judge Pan, I don't think our position is saying that.

[00:02:40] Speaker 02:
I don't think we're saying any text message.

[00:02:42] Speaker 05:
Any text that says your ride is coming forms a contract to the rider?

[00:02:46] Speaker 02:
No, I think a contract was formed because this was the most direct communication that we had.

[00:02:53] Speaker 05:
Correct, but aren't you saying that anytime Uber sends a text that says your ride is coming, a reasonable person would open that?

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I feel like that's the crux of your argument.

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I think there's more to it.

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In the context, I think all the other, you're right that the inquiry notice standard takes account of the facts and circumstances.

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All of the other facts and circumstances here weigh in our favor.

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That's why the district court found that Mrs. Walker was bound.

[00:03:17] Speaker 05:
That's why courts around the country have repeatedly found that the same- But does your position then boil down to any time Uber sends a text that says your ride is coming?

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that forms a contract?

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Any reasonable person would open that app to see the terms and conditions.

[00:03:32] Speaker 05:
It doesn't boil down to that?

[00:03:33] Speaker 02:
No, it does not.

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Under what circumstances would somebody receive that app and not be bound?

[00:03:38] Speaker 02:
I think the point, Your Honor, is Mr. Walker cannot evade.

[00:03:44] Speaker 05:
Can you answer my question?

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Under what circumstances would Uber send that app and there would not be inquiry notice?

[00:03:49] Speaker 02:
So I guess I'm not sure, I don't think Uber, in the context of Uber sending a message to a user about the ride that's coming to pick you up, about the services that you have requested, I think that is the best way for us as a company to get that information in front of the user.

[00:04:05] Speaker 05:
I'm just trying to understand your legal position.

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I read your legal position to say that anytime Uber sends one of these texts,

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a reasonable person would open it and they would have inquiry notice and there would be a contract at that point.

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And I, you said, no, no, that's not it.

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And I'm asking you then under what circumstances would Uber send that text and it would not form a contract.

[00:04:29] Speaker 02:
I think there would be inquiry notes.

[00:04:31] Speaker 02:
Let me try to clarify.

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Can you just answer that directly?

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Sure.

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I'm trying to, I want to clarify our position.

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I think when Uber sends this text message to a user and says, these are the details of the ride that's picking you up, and to accept that benefit, you must agree to the contract, that is reasonable.

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That suffices.

[00:04:50] Speaker 05:
Any time they send the text, period.

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Yes.

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So there is no situation in which they would send a text and no contract was formed.

[00:04:57] Speaker 02:
Well, the user would have to decline that would that would be when there's no contract form when the user says I'm not willing to enter this bargain.

[00:05:03] Speaker 02:
I'm out.

[00:05:04] Speaker 05:
I don't want no, I think you're assuming your whole position is a reasonable person would open the.

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Open the yes, that is correct.

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It is not commercial means that anytime you send the text period were done.

[00:05:18] Speaker 02:
As long as the text is received, yes.

[00:05:21] Speaker 05:
OK, anytime they receive it, go ahead.

[00:05:23] Speaker 02:
What if they have a flip phone?

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So, Your Honor, there's nothing in the record to suggest.

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What if they did?

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So I still think that most flip phones are capable of receiving text messages.

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Most flip phones have connection to the internet.

[00:05:36] Speaker 01:
So I take it Uber prides itself on providing drivers quickly, right?

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That's the goal, obviously, is to send a driver as quickly as possible.

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So if it's a minute and you have a flip phone,

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is the upshot of the theory, and you're a guest.

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I mean, I take, I understand the situation in which you're first subscribing for the service.

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That's kind of like being on a website.

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You got time, you can research it, you can do all this stuff.

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If you're the guest, and Uber's doing its job really, really well, so the ride's gonna be there within a minute, and you have a flip phone.

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And I take it Uber still has, I think it's the case that if you don't get in the car soon enough, the ride's gone.

[00:06:19] Speaker 01:
So what in that situation?

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You have a minute and you have a flip phone.

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There's at least two reasons why Mr. Walker can't and didn't make that argument on this record.

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I mean, the first is he knows what kind of phone he had.

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He never attempted to argue.

[00:06:35] Speaker 01:
Can I just, I'm sorry, I totally understand where you're going.

[00:06:38] Speaker 01:
In terms of the theory, in terms of your theory in response to Judge Pan, I'm just wondering, does your theory apply in that situation where the person in fact does have a flip phone and where the riot is coming in a minute?

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Yes, it would.

[00:06:52] Speaker 02:
It's not the record

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here and I just I want to add one more note about why it's not the record and then I promise I'll answer your question directly.

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The reason why it's not here is Mr. Walker at the record shows had taken at least five rides before this one so even if there had been some question about whether you know that's more analogous to him signing up he had that opportunity to review the terms in connection with his prior rides this was not the first time he had used the service.

[00:07:12] Speaker 02:
I think it's also part of the record that he didn't use texts.

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He says that, but I think that's very important, Your Honor.

[00:07:18] Speaker 02:
That's what the case turned on for the district court and what my friend's argument hangs their head on.

[00:07:23] Speaker 02:
That is the classic example of a idiosyncratic subjective practice where this individual plaintiff says, I am the extraordinary person who at this time

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in our age does not use text messaging.

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I categorically refuse to read and that's a subjective practice that cannot be seen.

[00:07:45] Speaker 01:
I may have a follow-up about that but let's get back to not the person who doesn't use text when they have a smartphone but the person who doesn't have a smartphone and Uber is coming in a minute.

[00:07:57] Speaker 02:
So even if they don't have a smartphone, your honor, as long as they're capable of receiving text messages, they're going to get a message.

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And keep in mind, this is the message that tells you what car to get into.

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So it's not like this is a message that you can conveniently ignore.

[00:08:10] Speaker 01:
True, but as to that, I mean, presumably the way this works is that the primary user can, and I think that's what happened here, but I could see it happening in other situations, the primary user can reach out to the guest and let them know what to look for.

[00:08:23] Speaker 01:
So it doesn't seem

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brazy to me that a guest wouldn't have to.

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And I take the point, you know, a lot of guests are going to look and verify and all that.

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I don't dispute that.

[00:08:33] Speaker 01:
But if you have a situation in which the guest has a flip phone, it's not easy to leaf through a contract, a multiple page contract to find the arbitration clause.

[00:08:41] Speaker 01:
And they have a minute.

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And if the ride leaves, they're in the middle of nowhere.

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They're stopped for 25 more minutes.

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Uber's position is that they're bound to the terms of the contract that they were supposed to.

[00:08:52] Speaker 01:
How do they get it on the flip phone, by the way?

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I'm sorry.

[00:08:54] Speaker 01:
How do they get it on the flip phone?

[00:08:56] Speaker 02:
Well, even flip phones are capable of receiving text messages, Your Honor.

[00:08:59] Speaker 02:
Most of them are.

[00:09:00] Speaker 01:
But I thought, how do they see the contract?

[00:09:02] Speaker 02:
Well, most flip phones still have a connection to the internet.

[00:09:06] Speaker 04:
So I think the situation- So you can click on a link on a flip phone?

[00:09:12] Speaker 02:
Absolutely, Your Honor.

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As long as you have a connection to the internet.

[00:09:16] Speaker 02:
Well, I think most flip, I mean, maybe we're thinking about different kinds of flip phones, your honor, but I think a flip phone that you can buy today in a store is capable of receiving text messages.

[00:09:27] Speaker 02:
It's capable.

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It has a little track pad where you can click on a hyperlink and it has an internet browser.

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Most of them do.

[00:09:33] Speaker 02:
If you are the extraordinary minority of users who have, you're using the Uber application, but you don't have a connection to the internet.

[00:09:43] Speaker 02:
And again, we're talking about just the, you know,

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an extreme, extreme minority.

[00:09:48] Speaker 04:
He's not using the Uber app.

[00:09:51] Speaker 02:
That's right, Your Honor.

[00:09:52] Speaker 04:
But he has a phone.

[00:09:56] Speaker 02:
That's right.

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He's not using the Uber application.

[00:10:01] Speaker 02:
But my point is, Mr. Walker knows if he is one of the extreme minority of Americans who has a flip phone that doesn't have a connection to the internet or doesn't have the capability of receiving text messaging.

[00:10:13] Speaker 02:
He never made any of those arguments because I would be surprised if they were true.

[00:10:16] Speaker 01:
Let's suppose it's a flip phone with a connection to the internet.

[00:10:18] Speaker 01:
OK.

[00:10:19] Speaker 01:
So it's a flip phone with a connection to the internet.

[00:10:21] Speaker 01:
I don't know how great the connection is, but it's a connection to the internet.

[00:10:23] Speaker 01:
Let's just assume you're kind of out in the middle of nowhere.

[00:10:25] Speaker 01:
And you got a minute.

[00:10:27] Speaker 01:
Rides come in in a minute.

[00:10:28] Speaker 01:
Is the reasonable person is someone who does what?

[00:10:33] Speaker 01:
Who reads the text message.

[00:10:35] Speaker 01:
That's all we'd ask you to do.

[00:10:36] Speaker 01:
That's all we're asking.

[00:10:37] Speaker 01:
No, no.

[00:10:38] Speaker 01:
You've got to do more than read the text message because you've got to read the attachment.

[00:10:41] Speaker 02:
You have to, when you, as soon as you read the text message, you know, if I want to take this ride, I'm going to have obligations that run in exchange for using the ride.

[00:10:51] Speaker 02:
If you click on that hyperlink within the very first few paragraphs, it's not buried, it's not the arbitration agreement, doesn't appear like page 20.

[00:10:59] Speaker 01:
And it doesn't surprise me that you couldn't do it in a minute.

[00:11:01] Speaker 01:
It's a lot to ask in a minute.

[00:11:03] Speaker 01:
Is the reasonable person supposed to say, I've got to, I'm passing up on the ride?

[00:11:06] Speaker 02:
I think if they feel strongly about that, Your Honor, if they're like, I'm too concerned about what these terms might say, I'm not comfortable taking this ride until I've had a chance to review, then yes, that's exactly what they're supposed to do as in every other situation.

[00:11:21] Speaker 02:
And again, I would just note, Mr. Walker can't make any of these arguments because he had used this same service multiple times before.

[00:11:27] Speaker 02:
He can't plausibly argue he didn't have a full and fair opportunity to review these terms before he took this ride.

[00:11:35] Speaker 01:
It's also the case that Uber could have done more to make sure that a person who's in a guest situation is bound to the contract that it attaches.

[00:11:45] Speaker 02:
So, Your Honor, I think you respectfully, you could always say that.

[00:11:49] Speaker 02:
You could always say there's more we could imagine.

[00:11:51] Speaker 02:
Uber could have physically sent somebody with a clipboard to meet Mr. Walker to get his pen ink signature.

[00:11:57] Speaker 02:
But the standard under the District of Columbia contract formation law doesn't demand the most that Uber could possibly do.

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It asks, did Uber take steps that would allow a reasonably prudent user to know that there were contract terms?

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That is the standard in the District of Columbia.

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It is the standard in the overwhelming majority of other states.

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And that is this, I think we amply satisfied.

[00:12:21] Speaker 05:
So do you have a single case which has found contract formation under similar circumstances?

[00:12:25] Speaker 05:
Unsolicited text, no like actual membership with Uber or anything like that.

[00:12:31] Speaker 02:
Your Honor, yes, we absolutely do.

[00:12:33] Speaker 02:
But I mean, I have to take issue respectfully with Your Honor's characterization of the text as unsolicited.

[00:12:37] Speaker 02:
The text came to him because it was solicited by his wife.

[00:12:41] Speaker 02:
I know, but by him, unsolicited by him.

[00:12:43] Speaker 05:
So I mean, I guess I would just say it was a fact intensive inquiry and you're trying to say that he was on inquiry notice.

[00:12:49] Speaker 02:
Yes.

[00:12:50] Speaker 05:
So he gets a text that he, you know, didn't ask for, he didn't solicit.

[00:12:54] Speaker 05:
So your honor, if he's relying on his wife to tell him what the car is, anyway, I know it's a reasonable person inquiry.

[00:13:01] Speaker 05:
I'm just asking you what's your best case.

[00:13:04] Speaker 02:
I think that the cases like Hamilton from the Southern District of New York, cases like Hartenstein from this district court, cases like the Hilbert case decided recently by Judge Ali, all involve users who claimed we didn't have actual notice.

[00:13:22] Speaker 02:
We didn't read the terms because I was blind, because I was in a hurry, because I didn't have my own account.

[00:13:28] Speaker 02:
I think you need to be a little bit more specific than that.

[00:13:30] Speaker 02:
So there's not going to be a case, Your Honor.

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where a user said, I didn't have notice because I categorically don't read text messages sent to me by the companies that I'm transacting with.

[00:13:41] Speaker 02:
But my point is, that's not a legally valid defense.

[00:13:45] Speaker 05:
I'm just asking you if you have a case that says all reasonable people open an unsolicited text under these circumstances.

[00:13:51] Speaker 02:
I don't think you do.

[00:13:54] Speaker 02:
Your honor, can I come back to the unsolicited point?

[00:13:57] Speaker 02:
Because I think that's important.

[00:13:59] Speaker 05:
Can we confirm that you don't have a case that supports this theory that all people open texts under these circumstances?

[00:14:06] Speaker 02:
I think the standard is what is commercially reasonable.

[00:14:11] Speaker 05:
No, but as I keep mentioning, it's not just who would open the text.

[00:14:16] Speaker 05:
It's a fact-intensive inquiry which goes into the relationship you had, the type of transaction it is, et cetera, et cetera, et cetera.

[00:14:25] Speaker 05:
And I'm just, I guess I'm asking you, I guess Uber is a big company.

[00:14:30] Speaker 05:
It has lots and lots of people using its app all over the country.

[00:14:33] Speaker 05:
Has any other court held that this is a contract that puts people on inquiry notice when you just send the text that says your car is coming?

[00:14:40] Speaker 02:
Yes, a court's repeat.

[00:14:41] Speaker 02:
We cite in the cases on page 27 of our brief, I think the Starkey case from the Second Circuit.

[00:14:46] Speaker 05:
But are those people who were mem, who, I guess, downloaded the app, accepted the terms and conditions?

[00:14:52] Speaker 02:
Some are, some are not.

[00:14:53] Speaker 02:
There are multiple cases involving guest riders, people who didn't themselves request the ride, who are nevertheless held to have notice.

[00:15:02] Speaker 05:
Just because they received the text that says your ride is coming?

[00:15:05] Speaker 05:
No, but that's what I'm asking you.

[00:15:07] Speaker 05:
That's what I'm trying to zero in on.

[00:15:08] Speaker 05:
Your honor, that's the crux of your argument that that text that said your ride is coming, that is the inquiry notice.

[00:15:15] Speaker 05:
Is there any other case that said that that text is sufficient inquiry notice?

[00:15:19] Speaker 02:
I don't have a case that fits this exact fact pattern, your honor.

[00:15:22] Speaker 02:
Obviously, I would give it to you if I had.

[00:15:24] Speaker 02:
That's fine.

[00:15:24] Speaker 05:
That's what I was asking you.

[00:15:25] Speaker 02:
The reason why we don't have it

[00:15:27] Speaker 02:
is, I think, because there is almost nobody who would successfully make the argument that they have an idiosyncratic, commercially unreasonable practice of ignoring all text messages.

[00:15:39] Speaker 05:
Well, it wouldn't have to be that.

[00:15:40] Speaker 02:
It's just they didn't open that text.

[00:15:43] Speaker 02:
That is, you're right.

[00:15:44] Speaker 02:
And so on that point, I didn't open it.

[00:15:46] Speaker 02:
That is an argument that we see all the time.

[00:15:48] Speaker 05:
And the courts- Can we zero in on that?

[00:15:50] Speaker 05:
Yes.

[00:15:51] Speaker 05:
Are there cases that say Uber sent the actual text that says, your ride is coming now,

[00:15:57] Speaker 05:
and the clients that didn't open it, but they were held to be an inquiry notice.

[00:16:03] Speaker 02:
I'm sorry, when you say didn't open it, can I?

[00:16:04] Speaker 02:
Didn't open it, didn't look at it.

[00:16:06] Speaker 02:
Didn't open the text message?

[00:16:07] Speaker 02:
No, there's not cases like that, because again, nobody makes that argument that I just categorically refuse to open text messages.

[00:16:16] Speaker 05:
But I'm not saying categorically refuse, just didn't on this occasion.

[00:16:18] Speaker 02:
No, people, I'm not aware of cases that fit that precise pattern, but I think it's a great example.

[00:16:24] Speaker 05:
But isn't that the crux of your argument, that you sending the text

[00:16:27] Speaker 05:
was enough.

[00:16:29] Speaker 05:
It doesn't matter how they react to it.

[00:16:31] Speaker 05:
You're saying in every situation, every reasonable person would open the text, regardless of their relationship with Uber, how many times they've written, the size of this transaction, all the other factors that I think

[00:16:44] Speaker 05:
other cases.

[00:16:45] Speaker 02:
So what I'm saying, your honor is in the context of this transaction, Uber as a technology company, we're providing you services where we as the company are trying to tell you the car that is coming to pick you up.

[00:16:56] Speaker 02:
Here's the driver.

[00:16:57] Speaker 02:
Here's the license plate.

[00:16:58] Speaker 05:
I'm trying to understand like why that text is sufficient to form a contract.

[00:17:02] Speaker 02:
because a lot of the cases have focused on things like temporal proximity.

[00:17:08] Speaker 02:
When did you put the information in front of the user?

[00:17:10] Speaker 02:
Were you trying to obscure it or hide it or were you trying to do your level best to get it in front of them?

[00:17:16] Speaker 02:
My point to your honor is we clearly are in the position of

[00:17:19] Speaker 02:
trying to get this information in front of Mr. Walker.

[00:17:22] Speaker 02:
We want him to know that taking this ride is going to result in agreement.

[00:17:27] Speaker 02:
It requires agreement to the terms.

[00:17:28] Speaker 02:
And the reason why is because in the message where we're telling him when to get picked up, we give him his link.

[00:17:34] Speaker 05:
But a reasonable rider might not know.

[00:17:36] Speaker 05:
If you're sending a text message that just says your driver will be here and here's his

[00:17:41] Speaker 05:
like license plate number, they're not, a reasonable person wouldn't think there's also going to be all this other information in here.

[00:17:48] Speaker 05:
I better click to find out and therefore, you know, I will be bound.

[00:17:51] Speaker 05:
And when I enter the cab ride, I'm entering a contract.

[00:17:54] Speaker 05:
I just don't think that's reasonable.

[00:17:56] Speaker 05:
May I make two points about it, Your Honor?

[00:17:57] Speaker 02:
The first is the order.

[00:17:59] Speaker 02:
Before we get to telling you which car and driver is going to pick you up, the text message says, and by agreeing to this ride, you agree to these terms and conditions provided by hybrid.

[00:18:10] Speaker 05:
I'm saying something different, which is that I don't think a reasonable person would understand that they need to open

[00:18:17] Speaker 05:
before they enter the car ride understand what the contract is that they're entering.

[00:18:21] Speaker 05:
Your argument seems to hinge on the fact that reasonable people always open this text, and so they're on inquiry notice of the contract because these tests always include those things.

[00:18:34] Speaker 05:
But reasonable people who are getting their Uber might not know that there's something on top of just getting the ride.

[00:18:42] Speaker 05:
entering this whole contract with terms and conditions, et cetera, by getting into the car.

[00:18:45] Speaker 02:
I don't know that.

[00:18:46] Speaker 02:
A reasonable person using the Uber service needs to open that text message in order to know the ride that's picking them up.

[00:18:54] Speaker 05:
Probably not because some people have their spouses tell them.

[00:18:58] Speaker 02:
So I don't think that's necessarily commercially reasonable behavior, but let me speak just directly to that for a moment, because the record also reflects, as we explained, that Mrs. Walker was told that she was required to provide Carol Walker's cell phone information, his phone number, and she was told

[00:19:16] Speaker 02:
Mr. Gadis testified in the record that she was going to be, that Mr. Walker would be provided information about the terms of use.

[00:19:24] Speaker 02:
So if you were in the unusual situation where we're relying on the wife to provide the information about the license plate, we're also telling the wife, Mr. Walker needs to know about these terms of use that are going to govern the ride.

[00:19:37] Speaker 02:
So I just think I can't, that can't.

[00:19:39] Speaker 05:
Oh, go ahead.

[00:19:41] Speaker 01:
If she doesn't pass that along, it's hard to say that he's bound.

[00:19:45] Speaker 02:
Your Honor, I think that's commercially unreasonable behavior.

[00:19:48] Speaker 02:
If we're telling her, here's all the information you need to know about this ride.

[00:19:51] Speaker 02:
You need to know the license plate and car that's picking you up, and you need to know about the terms of use that govern this ride.

[00:19:57] Speaker 02:
If she's choosing to only pass along half of that message to her husband, I don't think that that's commercially reasonable behavior.

[00:20:04] Speaker 01:
That also applies.

[00:20:04] Speaker 01:
I think one situation in which you can have a guest ride is where the person has lost their phone.

[00:20:08] Speaker 01:
I mean, we've all been in a bar or restaurant or something.

[00:20:11] Speaker 01:
We misplace our phone.

[00:20:12] Speaker 01:
We can't find the phone.

[00:20:13] Speaker 01:
So we can't call Uber.

[00:20:14] Speaker 01:
So someone else calls Uber on our behalf.

[00:20:17] Speaker 02:
And I think what you'd rely on in that situation, Your Honor, you would rely on the person calling, requesting the ride for you to provide you with both, hey, what car am I looking for?

[00:20:26] Speaker 02:
What's the license plate?

[00:20:27] Speaker 02:
Is it a Toyota Camry that I need to know?

[00:20:29] Speaker 02:
And is there anything else I need to know?

[00:20:31] Speaker 02:
And the point is, whoever called that ride for you in that hypothetical situation, we told them, here's what you need to know about the

[00:20:38] Speaker 01:
There would be inquiry notice in a situation in which the guest doesn't have an Uber account.

[00:20:45] Speaker 01:
They lost their phone, so they can't get texts.

[00:20:48] Speaker 01:
But Uber, of course, has a communication with the primary user that is taken as a given by everybody, I think, that the guest has inquiry notice

[00:20:58] Speaker 01:
even though they don't have a phone.

[00:20:59] Speaker 02:
Yes, because we have made, we have provided reasonable means for the user to know both the ride that's picking them up, the service they're getting, and the terms and obligations that govern their use of that services.

[00:21:13] Speaker 02:
Maybe talk about the third party beneficiary argument.

[00:21:16] Speaker 04:
Before we get there, I don't know if you're done.

[00:21:21] Speaker 04:
Uber has set up a system here where someone can use a service without

[00:21:27] Speaker 04:
opening the text without clicking on anything.

[00:21:31] Speaker 04:
Just got in the car, and that's what happened here.

[00:21:33] Speaker 04:
It's just able to get in the car.

[00:21:35] Speaker 04:
It's not required that you open the text.

[00:21:39] Speaker 04:
It's not required that you click on anything.

[00:21:42] Speaker 04:
It's not required that you look on your phone to use this service.

[00:21:46] Speaker 04:
You sure hope they will, but it's not required.

[00:21:50] Speaker 04:
So why is this not the equivalent of a browser app?

[00:21:53] Speaker 02:
BrowseWrap agreements, Your Honor, are not invalid under District of Columbia law or the law of many other states.

[00:22:00] Speaker 04:
What District of Columbia case has found inquiry notice for BrowseWrap?

[00:22:07] Speaker 03:
I think Forrest is a pretty good example of that.

[00:22:09] Speaker 03:
That was BrowseWrap.

[00:22:10] Speaker 04:
The person didn't have the app, hadn't signed up for anything.

[00:22:15] Speaker 04:
No, this person did not have an account with Uber, which would have created the contract by itself regardless of the ride.

[00:22:22] Speaker 02:
I agree with your honor.

[00:22:23] Speaker 04:
All right.

[00:22:23] Speaker 04:
Forrest makes up that situation, someone who didn't have a pre-existing contract with the company and simply said that the company sends them a text, but they don't look at it or whatever and they decide or whatever form the information came from.

[00:22:39] Speaker 04:
But looking at that information is not a condition of accepting the service.

[00:22:43] Speaker 02:
So I think Forrest is an example of a BrowseWrap agreement that was upheld by the district of Columbia.

[00:22:49] Speaker 04:
circumstances where it's you don't have to click on anything.

[00:22:52] Speaker 04:
You don't have to, it doesn't even send like a read message back to the company.

[00:22:56] Speaker 04:
Nothing is done to show nor is anything required of the individual with respect to that information to accept the service.

[00:23:05] Speaker 02:
Well, I think what's required of the individual your honor is to make the decision.

[00:23:09] Speaker 04:
No, I'm asking you

[00:23:11] Speaker 04:
about your forest case.

[00:23:12] Speaker 04:
I do not read that as holding as a matter of D.C.

[00:23:17] Speaker 04:
law.

[00:23:17] Speaker 04:
And we have to be sensitive here.

[00:23:18] Speaker 04:
We're not the experts on that.

[00:23:20] Speaker 04:
D.C.

[00:23:20] Speaker 04:
Court of Appeals is.

[00:23:23] Speaker 04:
Inquiry notice is sufficient even if

[00:23:28] Speaker 04:
There's no requirement that the information be looked at, opened, read, received.

[00:23:34] Speaker 04:
No action is required from the customer whatsoever with respect to that information as a precondition of accepting the service.

[00:23:43] Speaker 04:
Is that yes or no as to Forrest?

[00:23:46] Speaker 04:
I'm sorry, I'm genuinely unsure how to- If Tony Forrest covers the situation, I've told you the question I'm asking about.

[00:23:53] Speaker 04:
That's how I understand a BrowseWrap.

[00:23:55] Speaker 04:
You don't have to do anything

[00:23:57] Speaker 04:
accept the service.

[00:23:59] Speaker 02:
I'm very reluctant to correct, Your Honor, but respectfully, I just don't think that's what a browse wrap is.

[00:24:04] Speaker 02:
A browse wrap refers to a situation conventionally where a website says, in order to sign up, you know, by signing up to use our service, you are agreeing to terms and conditions.

[00:24:15] Speaker 04:
And the courts that have looked at browse... Signing up to receive our services and then the person does something to sign up.

[00:24:22] Speaker 02:
Precisely, Your Honor.

[00:24:23] Speaker 02:
Precisely.

[00:24:24] Speaker 04:
But that's not BrowseWrap.

[00:24:25] Speaker 04:
BrowseWrap does not require, that might be ShrinkWrap, but that is not BrowseWrap where you don't have to do actually anything.

[00:24:33] Speaker 04:
I mean, these are the, where nothing is required of the customer to accept the service.

[00:24:39] Speaker 04:
Nothing is required of the customer to accept the service.

[00:24:42] Speaker 04:
Information might be given to them, but nothing is required.

[00:24:44] Speaker 04:
Reading, accepting, clicking, nothing is required and they can go forward and have the service just the same as anyone else could.

[00:24:53] Speaker 04:
Those are the browse wrap agreements that have been flatly rejected by courts.

[00:24:56] Speaker 02:
No, respectfully, I don't think that that's quite right, Your Honor.

[00:24:59] Speaker 04:
What courts have said about browse wrap... What was he required to do here that if he didn't do, he couldn't have gotten into that Uber?

[00:25:07] Speaker 02:
He was required to either accept the service or reject it.

[00:25:10] Speaker 04:
That was... Oh, so the door was locked until... The door to the Uber was locked.

[00:25:15] Speaker 04:
He couldn't get in until he told the Uber driver, yes, I have received this message and clicked on the agreement.

[00:25:20] Speaker 04:
You don't make it a precondition.

[00:25:22] Speaker 04:
He got in this car without reading the text message or thinking on anything.

[00:25:27] Speaker 03:
He claims he got in without... That's the facts we have before us.

[00:25:30] Speaker 03:
He claims that he got into the car.

[00:25:32] Speaker 03:
That's the facts we have before us.

[00:25:34] Speaker 04:
Yes, Your Honor, but that... Do you have evidence that he did?

[00:25:37] Speaker 02:
No, your honor, but that is an example of a idiosyncratic subjective practice and it this contract that you don't require anything from them on J 163.

[00:25:49] Speaker 04:
What does the word bounce mean?

[00:25:53] Speaker 02:
These messages on J 163 year.

[00:25:56] Speaker 04:
What does the word bouncing?

[00:25:58] Speaker 03:
I'm not certain.

[00:26:00] Speaker 03:
This is about

[00:26:07] Speaker 02:
I'm sorry, Your Honor, I don't know.

[00:26:10] Speaker 04:
Does that mean maybe it didn't even go through?

[00:26:12] Speaker 04:
Because your next page is show when things are completed.

[00:26:16] Speaker 04:
I don't even know.

[00:26:17] Speaker 04:
How do we know the calling went through?

[00:26:19] Speaker 03:
How do we know that the text message went through?

[00:26:21] Speaker 03:
If we don't know what this bounce, bounce, bounce, bounce means.

[00:26:25] Speaker 04:
So maybe this is something completely different.

[00:26:27] Speaker 04:
I just don't know what bounce means here.

[00:26:29] Speaker 02:
I'm not sure either, Your Honor.

[00:26:31] Speaker 02:
This wasn't a point of argument between the parties either in the Court of Appeals or in the district.

[00:26:35] Speaker 04:
It's a reasonable thing.

[00:26:38] Speaker 04:
No one has mentioned here what the district court found as a factual basis for part of its decision, and that is the appearance of the message.

[00:26:47] Speaker 04:
All right, and the appearance of the message has what you all call the nuanced stuff.

[00:26:52] Speaker 04:
I never knew about nuanced stuff until I read this case.

[00:26:54] Speaker 04:
Maybe I'm unreasonable, let me know.

[00:26:57] Speaker 04:
I look at this something, if I got a text that looked like this, with lots of dashes, ends, I don't understand what it is, lots of letters and numbers all put together, I'm gonna remember my training from our computer team here and I'm gonna think it's spam.

[00:27:13] Speaker 04:
If we assume, I know you don't think that, but if you assume it looked like this, as a district court found what he called a mishmash of numbers and letters and other figures, and someone said,

[00:27:29] Speaker 04:
I don't have an Ember account.

[00:27:30] Speaker 04:
I'm not, I know better than to click on things that look strange.

[00:27:33] Speaker 04:
That's what's one of the, one of the, the markers of spam or more vicious communications, harmful communications is this mix of weird signals and things like that where things are all smushed together.

[00:27:45] Speaker 04:
And so they thought it was spam.

[00:27:49] Speaker 04:
I look at this, I would have thought it was spam.

[00:27:51] Speaker 04:
If it showed up like this, put aside your argument as to what it looked like.

[00:27:55] Speaker 04:
If it actually looked like this,

[00:27:59] Speaker 04:
Would a reasonable person click on it?

[00:28:01] Speaker 03:
I'm going to say yes, Your Honor.

[00:28:02] Speaker 04:
OK, so I'm unreasonable.

[00:28:03] Speaker 04:
I would look at that and I'd say spam.

[00:28:05] Speaker 03:
I would not click on something.

[00:28:06] Speaker 04:
I'm not going to ask for this message.

[00:28:08] Speaker 04:
I'm not an Uber subscriber.

[00:28:10] Speaker 02:
Your Honor, your spouse is named in the message, in the hypothetical.

[00:28:17] Speaker 02:
And your spouse is- Of course.

[00:28:18] Speaker 04:
There's always information somehow relevant.

[00:28:21] Speaker 04:
That's how they get you in.

[00:28:23] Speaker 02:
I think, respectfully, it would be a mistake.

[00:28:26] Speaker 04:
You have to win.

[00:28:28] Speaker 04:
given the district court's findings, your facts presented to the district court judge, and the district court's reliance on your factual evidence for making this decision, you have to show that any reasonable person who does not have an account with Uber, has not agreed to anything with Uber, and gets this text with just a few minutes before the car shows up, would click on that

[00:28:57] Speaker 04:
and put me in the category of unreasonable, then click on, or would open that up to read it, and then click on a link within it, the one thing you're just definitely not supposed to do when things look strange and you didn't ask for them.

[00:29:08] Speaker 04:
And then read it and understand 11 pages of legalese,

[00:29:15] Speaker 04:
Which does, and make that to say, I understand, I shouldn't get in the car unless I sign up to all this.

[00:29:20] Speaker 04:
That is the position you have to demonstrate to show.

[00:29:23] Speaker 02:
Judge Mullett, respectfully, that is not what the record shows.

[00:29:25] Speaker 02:
May I ask you to look at page 93 of the JA?

[00:29:28] Speaker 02:
This is the Gattis affidavit.

[00:29:30] Speaker 02:
This is the record evidence, okay?

[00:29:32] Speaker 02:
This is paragraph 17.

[00:29:34] Speaker 02:
Now you are right, and the district court focused on the fact that Mr. Gattis in paragraph 17 in the first sentence.

[00:29:40] Speaker 04:
I gotta get to the right page here.

[00:29:42] Speaker 02:
JA 93, Your Honor.

[00:29:45] Speaker ?:
Yep.

[00:29:46] Speaker 02:
Okay.

[00:29:46] Speaker 02:
So you're right.

[00:29:47] Speaker 02:
In the first sentence, Mr. Gaddis explains the coding, but keep reading.

[00:29:52] Speaker 02:
Two sentences later, Mr. Gaddis explains- Which paragraph again?

[00:29:55] Speaker 02:
I'm in paragraph 17, your honor.

[00:29:57] Speaker 02:
Two paragraphs later, it's three lines up from the bottom of the paragraph.

[00:30:02] Speaker 02:
Mr. Gaddis explains in the record evidence that went to the district court how this text message looked.

[00:30:08] Speaker 02:
what did we say to Mr. Walker?

[00:30:09] Speaker 02:
The text quote, the text message expressly stated that by taking this trip, you agree to the Uber terms of use and privacy policy.

[00:30:17] Speaker 04:
But that was the district.

[00:30:19] Speaker 04:
So district court acknowledged that we need to be fair to the district court here.

[00:30:23] Speaker 04:
But the district court said that sentence was buried in this mishmash of information here.

[00:30:30] Speaker 04:
And that's the problem.

[00:30:31] Speaker 04:
You can't get away from that.

[00:30:34] Speaker 04:
So if Uber actually chose to send things out with all kinds of symbols and letters and numbers and things all put together and has a nice little link in the middle with one coherent sentence,

[00:30:49] Speaker 04:
then everybody is automatically bound by that, even if people concerned about spam from unsolicited text messages.

[00:31:00] Speaker 04:
wouldn't click on it?

[00:31:01] Speaker 02:
Judge Mollett, I think it would be a miscarriage of justice to decide this important case based on a factual misconception about how this text message looked.

[00:31:08] Speaker 02:
What was the misconception?

[00:31:09] Speaker 02:
It was the district court's misconception.

[00:31:11] Speaker 04:
I think that is quite unfair.

[00:31:12] Speaker 04:
Respect.

[00:31:13] Speaker 04:
That is quite unfair.

[00:31:14] Speaker 04:
This is the information.

[00:31:16] Speaker 04:
This was your evidence.

[00:31:18] Speaker 04:
Somebody may be messed up, but this was your evidence.

[00:31:21] Speaker 04:
The district court said, reproduced it line for line for line as presented in your evidence

[00:31:30] Speaker 04:
all of it, acknowledge what you said about the hyperlink, and you say, oh, judge, silly judge, you just said a misconception, an erroneous conception by the district court, judge, you erred in taking us at our word and thinking we meant what we said.

[00:31:49] Speaker 02:
Your honor, I think we attempted to tell that there was no factual dispute about this issue in the district court.

[00:31:57] Speaker 02:
We did not know.

[00:31:58] Speaker 02:
If we had known.

[00:31:59] Speaker 04:
You mean no factual dispute.

[00:32:00] Speaker 04:
There's nothing.

[00:32:01] Speaker 04:
You're right.

[00:32:01] Speaker 04:
That's exactly right.

[00:32:03] Speaker 04:
You put it in and said, this is the message he received.

[00:32:08] Speaker 04:
You put it in.

[00:32:08] Speaker 04:
This is the message he received.

[00:32:11] Speaker 04:
I think.

[00:32:11] Speaker 04:
Of course there's no factual dispute.

[00:32:13] Speaker 04:
Is it our district courts, do they engage in error and misconceptions when they accept as given evidence presented to them by a party?

[00:32:22] Speaker 02:
The plaintiff did.

[00:32:23] Speaker 04:
Do district courts in error engage in misconceptions when they accept as given the evidence presented to them by a party?

[00:32:32] Speaker 02:
I think.

[00:32:33] Speaker 04:
Do they, yes or no?

[00:32:34] Speaker 02:
No, as a general matter, but as a general matter, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no,

[00:32:55] Speaker 04:
Your honor, I'm not going to read this.

[00:32:57] Speaker 04:
He said in his opinion, yeah, that hyperlink was in there.

[00:33:00] Speaker 04:
But the problem is the presentation.

[00:33:02] Speaker 04:
Your honor, the question.

[00:33:05] Speaker 04:
And people have got a few minutes here.

[00:33:06] Speaker 04:
First, they've got to figure out, what is this?

[00:33:09] Speaker 04:
If they happen to look at all.

[00:33:11] Speaker 04:
And then they've got to look at it and go, what is this?

[00:33:13] Speaker 04:
Should I open it or not?

[00:33:16] Speaker 04:
I wouldn't.

[00:33:17] Speaker 04:
And then if they choose to, they've got to go navigate through this information that's unreadable and yet click on this link and then

[00:33:25] Speaker 04:
and then they have to on their phone read 11 pages of single-space fine print full of legalese that never actually directly says, we could debate for a long time the legal proposition of whether the content of that document put him on immediate notice that he was agreeing to arbitration.

[00:33:48] Speaker 04:
So you tell me,

[00:33:51] Speaker 04:
It's not enough to say any reasonable person would open a text message that looks like this and then go to the middle of it and click on a link.

[00:34:04] Speaker 04:
When it's not necessary, I'm closing my phone, car shows up and I get in and nothing Uber has set up in this process that it designed requires any confirmatory or acknowledging action on my part.

[00:34:20] Speaker 02:
May I make two responses to that, Your Honor?

[00:34:22] Speaker 02:
The first is I do want to talk about the important issue of the idea that the terms of use were 11 pages and that it was obscured.

[00:34:29] Speaker 02:
If Your Honor takes a look, as I know you will, at the record with the terms of use, you will see that the arbitration agreement is presented right up front.

[00:34:37] Speaker 02:
It is literally one of the first things that is presented.

[00:34:40] Speaker 02:
This is at JA 122.

[00:34:42] Speaker 02:
It is the paragraph that's in all caps and bold.

[00:34:45] Speaker 02:
That's not the most important point, though, but I think that the point there is just to say that anybody who opened up this terms of use and even just glanced at it in the little bit is going to see this bolded paragraph that says you need to be aware that there's an arbitration agreement that's going to govern how disputes between you and Uber can be raised.

[00:35:02] Speaker 04:
We can do this, Yvonne.

[00:35:03] Speaker 04:
I've already looked at it.

[00:35:04] Speaker 04:
I don't think it's

[00:35:06] Speaker 04:
where this case rises or falls on, but the services.

[00:35:11] Speaker 04:
All right?

[00:35:12] Speaker 04:
The service.

[00:35:13] Speaker 04:
I'm only agreeing to anything, a contact regarding the services.

[00:35:17] Speaker 04:
And then the services, where are they defined?

[00:35:22] Speaker 04:
Got global human pages.

[00:35:23] Speaker 04:
We get marketplace platform and services.

[00:35:25] Speaker 04:
That's about using as a website.

[00:35:28] Speaker 04:
Third party services and content.

[00:35:30] Speaker 04:
That applies to Ms.

[00:35:31] Speaker 04:
Walker.

[00:35:32] Speaker 04:
Access and use of the services.

[00:35:36] Speaker 04:
But it never talks about, it never says if you get in the car, if you're a third party.

[00:35:42] Speaker 04:
It never says if you're a third party.

[00:35:45] Speaker 04:
It requires inference about what these services are and that gets back to what the district court talked about is even taking your reading.

[00:35:53] Speaker 04:
It's not clear.

[00:35:56] Speaker 02:
Your honor, this is a really important point.

[00:35:57] Speaker 02:
Can I ask you to look at JA123, please?

[00:36:03] Speaker 02:
It's within 2A.

[00:36:04] Speaker 02:
It's the third paragraph in there.

[00:36:06] Speaker 02:
This is the critical part of the arbitration clause.

[00:36:09] Speaker 02:
This arbitration agreement shall be binding on and shall include any claims brought by or against any third parties, including but not limited to your spouse's third party beneficiaries.

[00:36:21] Speaker 02:
to the extent that we goes on to say to the extent that any third party beneficiary to this agreement thinks claims against the parties.

[00:36:27] Speaker 02:
Those claims shall also be subject to this arbitration agreement.

[00:36:30] Speaker 03:
I think that is a clear relation to your use of the service.

[00:36:34] Speaker 02:
Yes and the services are the transportation services.

[00:36:38] Speaker 04:
Where's that?

[00:36:39] Speaker 02:
I'm sorry.

[00:36:40] Speaker 04:
Where is the definition?

[00:36:41] Speaker 02:
It's on GA 125 and 126.

[00:36:44] Speaker 02:
It's the definition of the marketplace platform and services, and it says that the services consist of the marketplace platform, the matching service, and the providing of transportation services.

[00:36:54] Speaker 04:
That's what the app allows you to do.

[00:36:55] Speaker 04:
But he wasn't signing up for that.

[00:36:58] Speaker 02:
Mr. Walker is clearly a user of the services that Uber is providing.

[00:37:04] Speaker 02:
Uber is providing the means for him to get connected to a transportation provider to get a ride.

[00:37:11] Speaker 02:
This is also why he is an intended third party beneficiary.

[00:37:14] Speaker 02:
It's very important to talk about this argument because even if you disagree or even if you agree with the district court's conclusion that he didn't have inquiry notice, he's still bound under both principles of

[00:37:26] Speaker 02:
a third party beneficiary law and estoppel.

[00:37:29] Speaker 02:
And I want to talk for a moment about that estoppel argument because- Let's go back to the third party beneficiary thing.

[00:37:34] Speaker 04:
First of all, again, the reason we want to talk about this is because it's not crystal clear, at least to me.

[00:37:41] Speaker 04:
Maybe ultimately the contract would be interpreted the way you want it, but on a read by me, in more than 10 minutes it took for his car to come,

[00:37:55] Speaker 04:
It's not crystal clear what happens here to people who don't actually have the Uber account and someone gets a ride for them.

[00:38:02] Speaker 04:
It's just not laid out.

[00:38:04] Speaker 04:
And it's not only laid out, it's omitted.

[00:38:07] Speaker 04:
There's talk about minors, right?

[00:38:11] Speaker 04:
But there's no talk about adults.

[00:38:13] Speaker 02:
Well, in the agreements, I think that miss all you need to know in order to know that Mr Walker was bound by the terms of this contract is that he was using Uber's transportation services that Uber is provided and he clearly was.

[00:38:30] Speaker 04:
I think if he understood what the services meant under this contract, not so locally.

[00:38:37] Speaker 04:
What they meant under this contract.

[00:38:38] Speaker 04:
But I'm sorry, you wanted to talk about- Estoppel, Your Honor, because even if you don't find that he's a third party beneficiary, so it's common legal- Well, do you agree that DC Court of Appeals law is crystal clear that third party beneficiary is a basis for someone to sue you because they are part of the contract, but DC Court of Appeals has held that it doesn't work the other direction.

[00:39:01] Speaker 02:
I absolutely do not agree with that, Your Honor.

[00:39:03] Speaker 02:
That is my opponent's argument.

[00:39:04] Speaker 02:
I think it's quite wrong.

[00:39:05] Speaker 02:
I would urge the court to take a look at Judge Boasberg's decision in Hartenstein.

[00:39:08] Speaker 04:
What's your best case from the DC Court of Appeals?

[00:39:12] Speaker 02:
Yes.

[00:39:12] Speaker 02:
So I'm going to give you three.

[00:39:13] Speaker 02:
Fort Lincoln, Fairman, and Thorborn.

[00:39:17] Speaker 02:
These are all cases cited in Judge Boasberg's opinion in Hartenstein and Judge Bates's opinion in the OM case.

[00:39:22] Speaker 02:
That's O-E-H-M-E.

[00:39:24] Speaker 02:
These are both DC, obviously, district court cases that are applying DC

[00:39:29] Speaker 02:
territorial law, they are citing Fort Lincoln, Fairman, and Thorborn.

[00:39:34] Speaker 02:
Now, the holding of those cases, and this is agreed between the parties.

[00:39:38] Speaker 02:
You can take a look at page 48 of the red brief where my opponent cites Thorborn, and they say exactly the same thing.

[00:39:45] Speaker 02:
Here's the legal standard that both parties agree on.

[00:39:48] Speaker 02:
A non-signatory is bound to arbitrate

[00:39:51] Speaker 02:
if he knowingly seeks and obtains the direct benefits from a contract, seeks to enforce the terms of a contract, or asserts claims that must be determined by reference to that contract.

[00:40:02] Speaker 04:
That's a quote.

[00:40:03] Speaker 04:
I mean, that's essentially the estoppel argument.

[00:40:06] Speaker 04:
Yes, it is.

[00:40:07] Speaker 04:
But that's different than third-party beneficiary.

[00:40:09] Speaker 03:
I asked you a third party beneficiary question.

[00:40:12] Speaker 03:
You want to do equitable estoppel?

[00:40:14] Speaker 02:
I do want to do estoppel.

[00:40:15] Speaker 02:
I want to do both, Your Honor.

[00:40:17] Speaker 02:
May I complete the estoppel point for just a moment?

[00:40:23] Speaker 02:
A non-signatory is found where they assert claims that must be determined by reference to the contract.

[00:40:28] Speaker 02:
Again, that's a quote from the DC Court of Appeals in Boardborne.

[00:40:31] Speaker 02:
My opponent has it at page 48 of the red brief.

[00:40:33] Speaker 02:
That situation applies here.

[00:40:35] Speaker 02:
Why?

[00:40:36] Speaker 02:
Because of the complaint at JA33 paragraph 160K.

[00:40:41] Speaker 02:
Mr. Walker pleaded, he says that Uber, I'm sorry?

[00:40:46] Speaker 05:
Where is this in the JA?

[00:40:47] Speaker 02:
JA33, Your Honor, paragraph 160K.

[00:40:52] Speaker 02:
So Mr. Walker alleged in his complaint that Uber through official communications, Your Honor, you'll need to read the whole paragraph to sort of get this, because it's broken up along multiple subparts, as you can see.

[00:41:07] Speaker 02:
But here's the allegation in the complaint.

[00:41:09] Speaker 02:
Here's the claim.

[00:41:10] Speaker 02:
Uber through official communications represented to their customers, including plaintiffs, including him, Mr. Walker, that Uber drivers are agents

[00:41:19] Speaker 02:
of the uber defendants and that their care and skill are carefully vetted so he is and he says i relied to my detriment on that the only way for the court the district court to evaluate that claim is to turn to the official communications that uber provided in the terms of use now of course the terms of use are going to actually turn out to the estoppel argument isn't that

[00:41:45] Speaker 04:
Contract might be one piece of evidence in a case.

[00:41:48] Speaker 04:
The estoppel argument is when someone sues on the contract.

[00:41:51] Speaker 04:
There is not a contract claim in this complaint.

[00:41:55] Speaker 04:
This K, this subparagraph we reference to, is under account free negligence.

[00:42:02] Speaker 02:
Yes, but he's saying that the negligence was because he relied to his detriment on Uber's official communications.

[00:42:11] Speaker 02:
Those official communications occur in the contract.

[00:42:14] Speaker 02:
That's how we officially communicate.

[00:42:16] Speaker 05:
But also through advertising campaigns.

[00:42:18] Speaker 02:
Also, he has other theories as well.

[00:42:21] Speaker 02:
But the point is, there's no way to adjudicate this claim to know whether we as a company misrepresented the legal status of drivers.

[00:42:30] Speaker 02:
There's no way to know that without looking at the terms of use where we talk about the status of our drivers.

[00:42:36] Speaker 02:
And so it's precisely because Mr. Walker is here in one breath saying, I want to talk, I relied on Uber's official communications, meaning the terms of use.

[00:42:47] Speaker 02:
Because he wants to invoke that contract as a source of legal duty, he cannot turn around on the same hand and say, but I disclaim any obligations running the other way.

[00:42:58] Speaker 02:
That's the core principle of estoppel recognized under DC Court of Appeals.

[00:43:06] Speaker 04:
Do you have a case, equitable estoppel has always been applied as I've seen it.

[00:43:10] Speaker 04:
when someone is suing on the contract.

[00:43:13] Speaker 04:
That is a contract claim for relief.

[00:43:15] Speaker 04:
If you have a case from the DC Court of Appeals that says it's sufficient that the contract could be one of multiple sources of evidence for a tort claim, what's your best case?

[00:43:32] Speaker 02:
I have a case that says that where a party asserts claims that must be determined by reference to the contract,

[00:43:38] Speaker 02:
the contract binds them.

[00:43:39] Speaker 02:
That's the DC Court of Appeals decision in Thurburn.

[00:43:43] Speaker 02:
What I read you is just a quote from that.

[00:43:46] Speaker 05:
So that's a tort case where they relied on a contract term and then the contract binds them?

[00:43:50] Speaker 02:
I'm not sure off the, I can't remember off the top of my head whether it was a tort case, Your Honor, but keep in mind, these are general principles of contract law.

[00:43:57] Speaker 02:
This is not like an esoteric area of the law.

[00:44:00] Speaker 02:
The DC Court of Appeals has applied the restatement of contracts.

[00:44:04] Speaker 01:
But it wasn't a contract claim.

[00:44:05] Speaker 01:
I think the point is whether it was tort or not, it was not a contract claim.

[00:44:07] Speaker 02:
I'm not certain off the top of my head, Your Honor.

[00:44:10] Speaker 02:
I can't remember.

[00:44:10] Speaker 02:
But I know that the Hardenstein case, Judge Boasberg's decision, that's a decision against Uber.

[00:44:16] Speaker 02:
Judge Boasberg, in that opinion, is making the same essential point.

[00:44:21] Speaker 02:
And he's quoting the DC Court of Appeals decision in Thorburn.

[00:44:25] Speaker 02:
So again, I just think that's the application of a conventional contract law principle found in the restatement that multiple courts of appeals all around the country have accepted.

[00:44:36] Speaker 02:
As we explained in our brief, this idea that guest writers are bound, you're not breaking new ground.

[00:44:41] Speaker 02:
Indeed, for this court to reject that theory would be going overwhelmingly against the sort of the tide of cases that have addressed this whole lot with equitable estoppel in your briefing, your opening brief.

[00:44:52] Speaker 04:
But I'm not suggesting you completely

[00:44:55] Speaker 04:
waived it.

[00:44:57] Speaker 04:
Where did you cite to this paragraph?

[00:45:00] Speaker 04:
I'm sorry, where did we cite to which paragraph?

[00:45:04] Speaker 04:
I'm not sure that we cited that particular paragraph, but we certainly made the... Did you cite a particular part of the complaint as invoking a contractual argument?

[00:45:14] Speaker 04:
Yes, I'm quite confident, Your Honor, that we... All I remember you saying is you can't claim the benefits without the

[00:45:19] Speaker 02:
We did make that argument.

[00:45:21] Speaker 02:
We also made the argument that you could not assert claims that needed to be decided by reference to the contract and then disclaim your obligations under the contract.

[00:45:31] Speaker 02:
That's in both our opening brief and in our reply brief when my friend said you need to separate the difference between third-party beneficiary and estoppel.

[00:45:39] Speaker 02:
Of course, as we explained in the reply, there's multiple cases saying that's a really thin distinction.

[00:45:44] Speaker 04:
any suggestion that this was waived below is I think that's not what I'm asking the question I'm asking where you pointed to and maybe you have other parts of the maybe is that your only part of the complaint that you think references no I don't think it's the only part I think it's I'm just asking where those were argued to us and you're pretty good your honor I don't have the briefs you can everybody lectern but I'd be more than happy to provide them on rebuttal so you're done for this part of your argument

[00:46:08] Speaker 01:
You're not relying on the notion that by accepting the benefits of a contract, you're bound to the contract.

[00:46:14] Speaker 01:
You're saying the plaintiffs did not just accept the benefits of the contract.

[00:46:20] Speaker 01:
They referred to the contract and the complaint.

[00:46:22] Speaker 02:
That's right.

[00:46:22] Speaker 02:
There's different arguments, Your Honor.

[00:46:24] Speaker 02:
I believe both are true.

[00:46:26] Speaker 02:
certainly as your honor is alluding to, we have forcefully argued that Mr. Walker accepted the benefits of the contract.

[00:46:32] Speaker 02:
He took the ride and he did so knowingly and he did so after Mrs. Walker was informed through the contract that she would have the opportunity

[00:46:43] Speaker 02:
to get services for third parties and that third parties any bringing any claims in connection with her use or their use of the services would also be subject to the same arbitration cost.

[00:46:55] Speaker 02:
That's the essence of the third party beneficiary argument.

[00:46:58] Speaker 02:
Even if you don't have inquiry notice.

[00:46:59] Speaker 02:
Even if that's exactly right.

[00:47:01] Speaker 02:
That's exactly correct.

[00:47:02] Speaker 02:
That is correct.

[00:47:04] Speaker 02:
So really you have three independent reasons why Mr. Walker is bound.

[00:47:08] Speaker 02:
He's bound because he received inquiry notice through a text message that put a reasonable person on notice and his idiosyncratic defense that he chooses not to read text messages does not defeat the objective standard.

[00:47:21] Speaker 02:
You have contract formation because he's a third party beneficiary when he knowingly accepted the benefit of the services with and knowledge through his wife's agreement that he was a third party beneficiary who would be bound to arbitrate specifically.

[00:47:36] Speaker 02:
And third and finally, you have contract formation because he made arguments in the complaint that require referencing the contract, and he cannot simultaneously invoke that contract as a sword, but say none of the other obligations on him apply.

[00:47:52] Speaker 01:
And all three of these theories would apply in all the factual scenarios that we've discussed, meaning regardless of whether you in fact happen to have a phone, regardless of whether the ride's coming in a minute,

[00:48:03] Speaker 01:
All three of these theories would apply.

[00:48:06] Speaker 02:
Your honor, I'm not sure I can say that respectfully, just because I think each theory turns on the factual record that you have.

[00:48:13] Speaker 02:
They all apply here.

[00:48:14] Speaker 02:
And I wouldn't ask them.

[00:48:15] Speaker 02:
I don't think the court should venture into saying, this is how these contract formation principles would apply in all factual settings.

[00:48:23] Speaker 02:
I think all we moved on.

[00:48:24] Speaker 01:
It wouldn't be all factual settings, but the scope of the theory, obviously.

[00:48:27] Speaker 01:
Of course.

[00:48:27] Speaker 01:
Of course it matters to courts.

[00:48:28] Speaker 01:
And we've got to understand the rule that you're pressing upon us.

[00:48:33] Speaker 02:
And I think the only rule that we need, you know, the rule that your honor should pronounce is where a company like Uber takes steps to put a reasonably prudent user to quote Judge Moss on notice of the terms that are going to govern his or her use of a commercial service

[00:48:53] Speaker 02:
A user who accepts those terms by their contract, which my friend agrees is a perfectly legitimate way of manifesting assent under District of Columbia law, a person who accepts those terms is bound by the terms and cannot later claim that they have an idiosyncratic practice to categorically refuse to read the information that's presented to them.

[00:49:13] Speaker 01:
Let me make sure my colleagues don't have additional questions.

[00:49:16] Speaker 01:
Okay.

[00:49:16] Speaker 01:
Thank you, Council.

[00:49:17] Speaker 01:
We'll give you all the time for both.

[00:49:22] Speaker 01:
Thank you.

[00:49:37] Speaker 00:
Thank you.

[00:49:41] Speaker 00:
Carol Walker has never downloaded the Uber app or had an Uber account.

[00:49:46] Speaker 00:
Despite that, Uber argues that by simply getting into an Uber called by his wife, Carol waived his right to a jury trial in court and must arbitrate his claims.

[00:49:56] Speaker 00:
The district court correctly rejected Uber's attempt to reshape basic principles of contract law.

[00:50:03] Speaker 00:
I'll start with the formation issue.

[00:50:05] Speaker 00:
Uber is essentially saying that a user can be bound to a contract based on a text message they didn't have to open, view, or interact with before getting in the Uber.

[00:50:19] Speaker 00:
In the online contract formation cases, courts engage in two levels of inquiry.

[00:50:25] Speaker 00:
The first inquiry is whether a reasonable consumer would have necessarily seen the reference to the terms while completing the transaction at issue.

[00:50:37] Speaker 00:
So for example, if the consumer has to scroll to a different part of the page to see the terms,

[00:50:43] Speaker 00:
that they don't need to scroll to to click a button or complete the transaction, courts have said that's insufficient to form a contract.

[00:50:52] Speaker 00:
Conversely, if the information is right next to the button that the user has to click, and they must have necessarily seen that information,

[00:51:04] Speaker 00:
while clicking the button, courts uphold that as sufficient notice.

[00:51:09] Speaker 00:
It's only then, once you determine what the consumer would have necessarily seen, that you look to whether the language and formatting of that information is sufficient to put the consumer on inquiry notice of what the actual terms of the contract are.

[00:51:26] Speaker 00:
And so if you apply those cases here, the threshold question is whether Carol would have necessarily seen the text message from Uber before he got in the Uber.

[00:51:36] Speaker 00:
And the answer to that is clearly no.

[00:51:38] Speaker 04:
Why is the test whether he necessarily would have seen it?

[00:51:43] Speaker 04:
Whether a reasonable third party customer would see it.

[00:51:47] Speaker 00:
It's whether a reasonable person would have necessarily seen that as part of conducting the transaction.

[00:51:54] Speaker 00:
So in browser app cases, for example, like the SPECT case from the Second Circuit, which is one of the original browser app cases, the court looked at

[00:52:06] Speaker 00:
the fact that what the screen looked like to the consumer and whether a reasonable consumer would have necessarily known that there was a reference to terms somewhere on the page.

[00:52:19] Speaker 00:
And because they wouldn't have, because they would have had to scroll down to see that, the court said that was insufficient notice.

[00:52:26] Speaker 00:
And in the Marshall v. Georgetown case out of the Fourth Circuit, it was the same thing.

[00:52:34] Speaker 00:
So would the person have necessarily had to see the reference to the terms?

[00:52:39] Speaker 00:
No, they could complete the employment application and submit the application without ever looking at the terms.

[00:52:46] Speaker 00:
And so that's insufficient to provide notice.

[00:52:49] Speaker 00:
The same thing is true here.

[00:52:50] Speaker 00:
Carol or any reasonable consumer can get in the Uber and complete this transaction without ever having to see the terms.

[00:52:59] Speaker 00:
And what Uber could have done here is make it so that they did have to see the terms before they get in the Uber.

[00:53:07] Speaker 00:
Uber could have required them to reply to a text message or click on something in the text message.

[00:53:13] Speaker 00:
in order for the Uber to be dispatched to them.

[00:53:16] Speaker 00:
It could have sent a pin in a text message, which is what the companies did in some of the cases that Uber cites, where you would then give the pin to the driver from the text message.

[00:53:28] Speaker 00:
And all of those things would require that the person actually has to open the text message and read the text message before they get in the Uber.

[00:53:37] Speaker 00:
Uber didn't do that here.

[00:53:38] Speaker 00:
And so you have a situation where

[00:53:40] Speaker 00:
you would a reasonable consumer is not necessarily going to see the text message before completing the transaction.

[00:53:51] Speaker 00:
And I think it's worth pointing out here that Uber knows how to do this because it did it with Cheryl.

[00:54:00] Speaker 00:
For people that have the Uber app, unlike Carol, it requires them.

[00:54:05] Speaker 00:
It has a blocking screen that says you can't order an Uber until you accept our update to our terms of service.

[00:54:13] Speaker 00:
So it knows how to make it a condition of the transaction, but it doesn't do that for guest writers here.

[00:54:22] Speaker 00:
unless there are no more questions about that.

[00:54:27] Speaker 04:
If the text had just been a direct text, let's assume it was plain readable text, and it just says, if you accept a ride from Uber, you are bound by our contract attached at this link.

[00:54:47] Speaker 04:
That be sufficient?

[00:54:48] Speaker 00:
No, I don't think that this turns on what the text says.

[00:54:52] Speaker 00:
The focus is on whether someone would need to open the text before taking the ride.

[00:54:59] Speaker 00:
So if you have the situation where the Uber is coming in one minute and your phone's in your pocket, you don't necessarily see the text at all.

[00:55:08] Speaker 00:
Or in the example where you've lost your phone, someone's calling an Uber for you, again, you're not seeing the text at all.

[00:55:14] Speaker 00:
And Uber is not doing anything to require that you see the text.

[00:55:18] Speaker 00:
And I don't think it is reasonable to expect that any consumer would necessarily have their phone out and be opening all their text messages in the few minutes before an Uber arrives.

[00:55:32] Speaker 00:
And the way to address that problem is to require them to do something with the text message before they get into the Uber.

[00:55:41] Speaker 00:
Um, if there are no further questions on the formation point, um, I will, I'm just trying to understand the line between your argument and require your actual notice.

[00:55:54] Speaker 04:
You have to actual notice before there's inquiry notice.

[00:55:56] Speaker 04:
And that's, it's not clear to me that that's DC law.

[00:56:01] Speaker 04:
And yet it seems to me that your argument is requiring actual.

[00:56:06] Speaker 04:
They have to see something, they have to do something that you would only do if you saw the document itself.

[00:56:15] Speaker 04:
Check a box, send in a PIN, whatever.

[00:56:17] Speaker 00:
Right.

[00:56:18] Speaker 00:
I mean, I think there's no question that inquiry notice is required here.

[00:56:24] Speaker 00:
But the question is when the inquiry notice comes into play.

[00:56:30] Speaker 04:
Before inquiry notice.

[00:56:32] Speaker 00:
Right.

[00:56:32] Speaker 00:
So I mean, the definition of inquiry notice is that you have actual knowledge of circumstances that put you on notice to inquire further.

[00:56:40] Speaker 00:
So the actual notice thing is sort of baked into the inquiry notice standard.

[00:56:46] Speaker 00:
But I think, again, in these cases, there's this threshold and inquiry of what would a person have seen.

[00:56:54] Speaker 00:
And then there's the second question of assuming they saw that, would that have put them on inquiry notice of what the terms of the contract were?

[00:57:02] Speaker 00:
And so the threshold question, I think you can look at that threshold question as

[00:57:09] Speaker 00:
sort of an actual notice standard, because it's essentially an evidentiary question.

[00:57:14] Speaker 01:
You don't need actual notice of the contract terms.

[00:57:17] Speaker 01:
I mean, I think that's the question.

[00:57:18] Speaker 00:
You don't need actual notice of the contract terms.

[00:57:20] Speaker 00:
We 100% agree that you don't need actual notice of the contract terms.

[00:57:25] Speaker 00:
The question is, there's just two steps here that I think Uber is conflating into one step.

[00:57:32] Speaker 00:
So once he's

[00:57:35] Speaker 00:
Looking at the text message, the question is, is the language of the text message sufficient to put you on inquiry notice of what the actual terms of the contract are?

[00:57:47] Speaker 00:
But before you get to that question, you have to show that the person would have necessarily seen the text message that would then put them on inquiry notice of what the terms are.

[00:57:59] Speaker 00:
And that question, I think, is courts have treated it as somewhere between sort of an actual notice standard and like an inference of actual notice.

[00:58:09] Speaker 00:
So where courts, for example, if someone says, I don't remember seeing that language on the screen, but courts say, well, it was right next to the button you clicked.

[00:58:21] Speaker 00:
So we're going to assume that a reasonable person would see that.

[00:58:24] Speaker 00:
And that therefore, we're going to analyze the language and whether it put you on inquiry notice of the contract.

[00:58:29] Speaker 00:
So I think that in this situation, you first have to look at what a reasonable person in Carol's situation have necessarily seen the text message despite him saying subjectively, I didn't see the text message.

[00:58:48] Speaker 00:
And the answer to that is, no, they wouldn't have necessarily seen that, nor did Carol, in fact, see it himself.

[00:58:56] Speaker 00:
And because of that, you don't even get to this second step, which is, did the language of the text message put someone on inquiry notice what the terms of the contract actually were?

[00:59:11] Speaker 05:
Um, so I can like his wife telling him do most users, they can only know which car to get into by looking at the text message.

[00:59:21] Speaker 05:
Is that correct?

[00:59:22] Speaker 00:
I don't think that's correct, Your Honor.

[00:59:25] Speaker 00:
I mean, in this case, his wife told him, in many cases, you know, you have a situation where, you know, if you've lost your phone, you might be standing right next to the person who's calling the Uber for you.

[00:59:35] Speaker 00:
I think you could also just presume anytime someone's here.

[00:59:43] Speaker 00:
You could rely on that person to tell you, which is this whole situation is just when someone's calling you an Uber.

[00:59:48] Speaker 00:
I think there's also just the inference that if a car pulls up in front of you and stops, that it is an Uber.

[00:59:56] Speaker 00:
They have the little Uber signs and stuff like that.

[00:59:59] Speaker 00:
I don't think you would necessarily need to know specific information about the car.

[01:00:04] Speaker 04:
You open the door and they say his last name, and you say, yes, that's me.

[01:00:08] Speaker 00:
Yeah, exactly.

[01:00:09] Speaker 00:
And I think that depends on the circumstances, but it's certainly not the case that someone would necessarily need to look at that information.

[01:00:18] Speaker 00:
I mean, you think about calling a taxi or a car service, another type of car service, you don't necessarily get a text, but people sort of figure out how to identify it.

[01:00:29] Speaker 00:
So yeah, I think that even if a person could look at the text to get that information, the question is whether someone necessarily would need to look at the text before getting in the Uber.

[01:00:45] Speaker 00:
And again, Uber has done nothing to make that required.

[01:00:50] Speaker 00:
thing that's important here, even if you're looking at a reasonable consumer's expectation, is that if you have someone else who has an Uber account, you know they have an Uber account and you know they've called an Uber for you, you expect them to be the one with a contract to Uber.

[01:01:05] Speaker 00:
You don't expect that you are being asked to contract with Uber.

[01:01:11] Speaker 00:
And again, an example of that would be if I go out to dinner with my spouse and they make a reservation for us on OpenTable, I go to the restaurant, I don't think that I'm bound by OpenTable's terms just because my spouse is making us a reservation using their OpenTable account.

[01:01:33] Speaker 00:
And this is sort of the same thing, where you're not expecting to be bound by a separate contract

[01:01:40] Speaker 00:
when someone who has a contract is doing the whole transaction.

[01:01:43] Speaker 00:
I can move on to the third party beneficiary or non-signatory enforcement.

[01:01:56] Speaker 04:
Can you address their effortless double argument that there's a reference to the contract and the complaint in a negligence count?

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

[01:02:05] Speaker 00:
So first of all, you are correct that they only raise that in their reply brief.

[01:02:10] Speaker 00:
They don't raise that argument in their opening brief.

[01:02:12] Speaker 00:
And even in their reply brief, they cite to that provision of the complaint in their brief.

[01:02:17] Speaker 00:
They do cite to the complaint in their reply.

[01:02:23] Speaker 00:
But let's see.

[01:02:30] Speaker 04:
That's OK.

[01:02:31] Speaker 04:
We can figure it out later.

[01:02:33] Speaker 00:
Yeah, sorry.

[01:02:33] Speaker 00:
I don't have it exactly.

[01:02:36] Speaker 00:
I know that they make a couple arguments based on the complaint in their reply brief.

[01:02:43] Speaker 00:
But first of all, in terms of that particular argument,

[01:02:48] Speaker 00:
The reference to official communications by Uber is not intended to refer to the contract.

[01:02:56] Speaker 00:
It is intended to refer to representations that Carol actually saw and that Cheryl actually saw.

[01:03:03] Speaker 00:
So I don't know where they're getting the leap from official communications by Uber to the contract itself.

[01:03:15] Speaker 00:
But certainly his his negligence claims do not require reference to the contract, but I think just just back to the contract enough sparkable sample from the cases I've seen involve a suit on the contract.

[01:03:31] Speaker 00:
That's right.

[01:03:32] Speaker 04:
So I think maybe it's broader than that in other jurisdictions or other cases.

[01:03:37] Speaker 00:
I think that it, I agree.

[01:03:39] Speaker 00:
I think it requires seeking to enforce some part of the contract.

[01:03:45] Speaker 00:
And I think you could have a situation, I think the reference to the contract is really referring to a situation in which maybe it's not a breach of contract claim, but it's centered around the contract.

[01:03:57] Speaker 00:
That's definitely an optic case here.

[01:03:58] Speaker 00:
And in, you know, as the court pointed out in the case.

[01:04:04] Speaker 04:
What is the source of legal duty here?

[01:04:07] Speaker 00:
The source of legal duty is a common law, duties of care, not contractual duties.

[01:04:14] Speaker 00:
And yeah, I think that it's a really important point, because even the Ohm case that they cite recognizes that under all three of those different ways that

[01:04:27] Speaker 00:
you can have equitable estoppel, most of the cases involve enforcing a contract or suing under a contract.

[01:04:38] Speaker 00:
And that's just not at all the case here.

[01:04:39] Speaker 00:
I also.

[01:04:41] Speaker 01:
If you have to sue on the contract, do you think then that equitable estoppel principles range more broadly than inquiry notice?

[01:04:50] Speaker 01:
If we're talking about a contract action anyway, then it seems like inquiry notice could naturally come up because we're talking about the contract.

[01:04:58] Speaker 01:
then does equitable estoppel range, is the circle bigger than inquiry notice?

[01:05:06] Speaker 00:
I'm sorry.

[01:05:07] Speaker 00:
I don't know if I understand the question.

[01:05:11] Speaker 00:
So you're asking, if he's going to rely on what it says in the contract, does he have to have inquiry notice of what's in the contract?

[01:05:24] Speaker 00:
Is that what you're asking?

[01:05:26] Speaker 01:
Right.

[01:05:26] Speaker 01:
In other words, if he brings a claim that's on the contract, and which I think is your exchange with Judge Millett indicated was a precondition to reliance for the other side to rely on equitable estoppel.

[01:05:39] Speaker 01:
If we're in that land, then does the principle of equitable estoppel allow for

[01:05:49] Speaker 01:
holding the claimant to limitations in the contract, even if inquiry notice isn't satisfied.

[01:05:57] Speaker 00:
Well, I think that's the big picture problem here is that he didn't form a contract, which is why he's not bringing a breach of contract claim.

[01:06:08] Speaker 00:
And it would be likely inconsistent for him to argue both that there was no contract and bring a breach of contract claim.

[01:06:19] Speaker 00:
And that comes up in these cases and is why maybe Uber is conflating third party beneficiary

[01:06:26] Speaker 00:
and equitable estoppel is because in some of these cases, what happens is that the person trying to enforce the contract has to argue that they're a third-party beneficiary of the contract so they can enforce it.

[01:06:39] Speaker 00:
And then the court is saying, well, now that you've done that, you've brought a claim under the contract under a third-party beneficiary theory.

[01:06:47] Speaker 00:
You can't now avoid another part of the contract.

[01:06:50] Speaker 00:
That's not what's happening here.

[01:06:52] Speaker 00:
He is not arguing in any way that he can enforce this contract or that even a contract exists in the first place.

[01:06:59] Speaker 00:
And so this is different from those cases.

[01:07:02] Speaker 00:
But in any event, he's also not seeking to bring a claim that has any relation to this contract.

[01:07:13] Speaker 00:
Or I think the other point here is that he doesn't have

[01:07:18] Speaker 00:
any rights under this contract, even assuming that he could somehow enforce it.

[01:07:24] Speaker 00:
He, as a guest writer, is not mentioned in this contract at all.

[01:07:28] Speaker 00:
All the rights in the contract are about Cheryl.

[01:07:30] Speaker 00:
And so it cannot be that he's seeking to somehow benefit from a contractual right, because he has no contractual rights in this situation.

[01:07:39] Speaker 01:
Make sure my colleagues don't have additional questions.

[01:07:45] Speaker 00:
Thank you.

[01:07:46] Speaker 01:
Thank you, counsel.

[01:07:55] Speaker 01:
Houston will give you two minutes for a rebuttal.

[01:07:57] Speaker 02:
Thank you, your honor.

[01:07:58] Speaker 02:
A couple of points.

[01:07:59] Speaker 02:
Judge Millett, I promised I would tell you where in our opening brief, we cited the various provisions of the complaint that we think give rise to a stop all.

[01:08:06] Speaker 02:
You can find that at pages forty-six and forty-seven of our blue brief.

[01:08:10] Speaker 02:
It starts at the bottom of forty-six.

[01:08:11] Speaker 02:
It goes on to forty-seven.

[01:08:12] Speaker 02:
You'll see multiple citations to multiple paragraphs of the complaint that we think require referencing the referencing the contract in order to adjudicate these claims.

[01:08:23] Speaker 04:
Sorry, you just help me here.

[01:08:24] Speaker 04:
Forty-six.

[01:08:26] Speaker 02:
The bottom of 46, it goes on to 47, Your Honor.

[01:08:29] Speaker 02:
Most of it is on 47, including the key language that I quoted to you in my opening provision of the argument appearing at paragraph 160 of the complaint.

[01:08:39] Speaker 02:
You see that in the fourth line of page 47.

[01:08:41] Speaker 02:
So it's definitely in our opening brief.

[01:08:43] Speaker 02:
We also argued it in terms of both third-party beneficiary and estoppel.

[01:08:46] Speaker 02:
in the district court, you can see that at page JA83.

[01:08:50] Speaker 04:
The inquiry... I'm sorry, just give me a second here.

[01:08:55] Speaker 04:
You say that both Cheryl and he, isn't it about whether the driver's an employee?

[01:09:02] Speaker 02:
I'm sorry, Your Honor, I'm having a hard time hearing you.

[01:09:04] Speaker 04:
Sorry, that's my fault.

[01:09:08] Speaker 04:
The first one is whether the driver is an employee of Uber or their agent.

[01:09:14] Speaker 04:
Right, but... And then...

[01:09:18] Speaker 02:
Whether they understood them to be, whether the plaintiffs understood them to be their driver or agent.

[01:09:23] Speaker 02:
And that's the claim here.

[01:09:25] Speaker 02:
The plaintiffs were saying we were deceived by Uber about whether he was an agent.

[01:09:28] Speaker 02:
And that was because of the communications from Uber in the complaint.

[01:09:32] Speaker 02:
The third party standard.

[01:09:34] Speaker 04:
Their duty isn't, does allege a duty.

[01:09:37] Speaker 04:
to them.

[01:09:38] Speaker 04:
I mean, you reference that, but it alleges that under DC law.

[01:09:42] Speaker 02:
Right.

[01:09:43] Speaker 02:
But I think, Your Honor, the duty that they are alleging here comes from the complaint.

[01:09:47] Speaker 02:
The only way Carroll can allege that Uber owes him any duties at all is because of the contract that was formed between Cheryl and Uber.

[01:09:57] Speaker 02:
That is the source of any duties that he is alleging.

[01:10:00] Speaker 02:
That's the only reason he has any relationship whatsoever to Uber.

[01:10:03] Speaker 02:
And the point of the third-party beneficiary cases under the district's law is you cannot simultaneously... It's not relying on the contract necessarily if he took the ride.

[01:10:14] Speaker 05:
Like, what if my friend calls an Uber and I just get in the Uber with them?

[01:10:18] Speaker 05:
I'm not a third-party beneficiary in the way that Mr. Carroll is.

[01:10:24] Speaker 05:
But there's just a general duty of care.

[01:10:26] Speaker 05:
It's a negligence.

[01:10:28] Speaker 02:
But that gets the difference between the two strands, Your Honor.

[01:10:30] Speaker 02:
So when we're talking about estoppel, that does turn on the specific claims that Mr. Walker chose to plead.

[01:10:36] Speaker 02:
And I think what I'm saying and what we said at page 46 and 47 of our brief is because he chose to plead claims that require to use the words of the case law reference to the contract, he cannot simultaneously disclaim the obligations under the contract.

[01:10:52] Speaker 02:
If he hadn't, if he had pleaded more narrowly along the lines of what your honor is suggesting, he would still be a third party beneficiary under the clear terms of this contract because of the provision that I quoted to Judge Millett in the opening argument where we clearly reference third parties that are going to have access to the services through Cheryl's account.

[01:11:14] Speaker 02:
And we said unambiguously, those third parties are going to be bound by the same arbitration clause.

[01:11:21] Speaker 05:
Do you have a case about this reference to the contract as opposed to a claim under the contract?

[01:11:27] Speaker 02:
Yes, I do, Your Honor.

[01:11:28] Speaker 05:
It's not Thuberon, is it?

[01:11:29] Speaker 05:
Because we can't see it in that.

[01:11:30] Speaker 05:
Or where in Thuberon are you seeing it?

[01:11:32] Speaker 02:
I would urge the court to take a look at the Ohm case, O-E-H-M-E.

[01:11:36] Speaker 02:
This is Judge Bates' decision.

[01:11:38] Speaker 02:
He's quoting here, a non-signatory may be bound to arbitrate if he or she knowingly seeks and obtains direct benefits from the contract, which Carol did, seeks to enforce the terms of that contract, or asserts claims that must be determined by reference to the contract.

[01:11:56] Speaker 02:
That is the case law that we're applying here.

[01:11:58] Speaker 05:
Well, he's citing, because he's just a district attorney.

[01:12:00] Speaker 02:
quoting from a Fifth Circuit decision and also a Second Circuit decision.

[01:12:05] Speaker 02:
But again, we're talking here about general principles of the restatement of contracts.

[01:12:10] Speaker 02:
No one has argued that the district's law doesn't follow the general principles.

[01:12:14] Speaker 05:
No, I understand.

[01:12:15] Speaker 05:
It's just that I think what we're all a little bit unsure about is whether the claim has to arise from enforcing the contract or whether it can just reference the contract.

[01:12:25] Speaker 05:
I understand.

[01:12:25] Speaker 05:
I don't think that's clear in the restatement.

[01:12:27] Speaker 02:
I understand that, Your Honor.

[01:12:28] Speaker 02:
I mean, I think respectfully, if that's where we get to in this case, it may be appropriate to certify it to the D.C.

[01:12:34] Speaker 02:
Court of Appeals if we ultimately, you know, if the court ultimately thinks that the law, that this turns on what the D.C.

[01:12:41] Speaker 02:
contract law turns out to be.

[01:12:42] Speaker 02:
And if you find it to be an unsettled question, my reading of the D.C.

[01:12:46] Speaker 02:
Court of Appeals cases is that they apply restatement principles and numerous courts, not only Judge Bates, but others,

[01:12:52] Speaker 02:
have applied these principles, both in the context of the estoppel argument and in the context of the third-party beneficiary.

[01:12:59] Speaker 02:
And again, that would be cases like Hilton, Hilbert, Hartenstein, the Hamilton case from the Southern District of New York, all of which involve what you might call classic guest rider situations where somebody joins in an Uber ride.

[01:13:13] Speaker 02:
And the point is you are knowingly using the benefit... Hartenstein, the third-party rider, downloaded the app.

[01:13:19] Speaker 03:
That's true, Your Honor, but that wasn't the basis of the court's decision.

[01:13:22] Speaker 03:
The same thing was trying to arbitrate.

[01:13:25] Speaker 03:
That's what the dispute was about.

[01:13:26] Speaker 03:
Understood, Your Honor, but the terms of the contract.

[01:13:28] Speaker 02:
Hamilton, it was the reverse.

[01:13:30] Speaker 02:
Hamilton was a case where the agreement was being enforced against the rider, very much like this one.

[01:13:36] Speaker 02:
And again, I think, I mean, there are dozens and dozens of these cases that we cite numerous ones in our brief.

[01:13:41] Speaker 04:
Could you point into

[01:13:45] Speaker 04:
Paragraph 160 subsection K of the complaint is that that's the one you pointed to is referencing the contract.

[01:13:53] Speaker 02:
That's not the only one, Your Honor.

[01:13:55] Speaker 02:
The others are noted at page 47 of our group.

[01:13:57] Speaker 02:
I think that's the clearest one.

[01:13:58] Speaker 02:
But the other there are other paragraphs that reference the complaint as well.

[01:14:01] Speaker 04:
I think trying to enforce language in the contract.

[01:14:04] Speaker 02:
I think they are saying language.

[01:14:06] Speaker 02:
I'm sorry.

[01:14:07] Speaker 04:
Just they might save us some time here if I just go this is a long complaint.

[01:14:11] Speaker 04:
Lots of negligence counts and other court counts.

[01:14:15] Speaker 04:
If we found that one part of one count or a subpart of one count was in fact seeking to enforce the contract, does that mean the entire tort case has to get arbitrated or just so that one piece gets severed off for arbitration?

[01:14:36] Speaker 02:
It means the entire case has to go to arbitration.

[01:14:38] Speaker 03:
I'm sorry.

[01:14:39] Speaker 03:
What's your best authority for that?

[01:14:40] Speaker 02:
Well, I think that's the clear import.

[01:14:42] Speaker 02:
I think that's the Supreme Court's case law on delegation clauses, which there is a delegation clause in this agreement.

[01:14:48] Speaker 02:
So as soon as you find that there was a contract formed and this stopple is a means of creating a contract, Mr. Walker agreed to a delegation clause that says all issues of scope

[01:14:59] Speaker 02:
are delegated to the arbitrator, and as this court knows from the Supreme Court's multiple precedents on this topic, that really has to be rigorously enforced.

[01:15:07] Speaker 02:
So as long as we have a contract between Mr. Walker is bound by the arbitration clause, the delegation clause will require all other scope issues to go to the arbitrator.

[01:15:19] Speaker 02:
Now, he might win that argument before the arbitrator and say, really, the only thing that should be before you

[01:15:24] Speaker 02:
So he might win that argument in front

[01:15:45] Speaker 02:
On the inquiry notice point, if I might just ask the court to take a look at your own decision in Selden, here's what this court said is the inquiry notice standard because I know my friend spent some time debating that and there's obviously a legal disagreement between us about what it is.

[01:16:00] Speaker 02:
It is not about actual notice, either of the contract terms or even the notification prompt or the hyperlink.

[01:16:08] Speaker 02:
Inquiry notice, this is a quote from Selden, this court.

[01:16:11] Speaker 02:
Inquiry notice, also called constructive notice,

[01:16:14] Speaker 02:
So right there, we know it's not actual notice.

[01:16:16] Speaker 02:
Constructive notice turns on whether reasonable people in the position of the parties would have known about the terms and conduct that would be required to assent to them.

[01:16:27] Speaker 01:
Thank you.

[01:16:28] Speaker 01:
Thank you, counsel.

[01:16:28] Speaker 01:
Thank you to both counsel.

[01:16:30] Speaker 01:
We'll take this case under submission.