Good morning, Your Honours. May I please the Court? Michelle Dullin on behalf of the Pellant Barnes and Noble. Pink. The issue before the Court today is whether the plaintiff in this case should be compelled arbitration. And it's our position that the District Court below failed to consider the totality of the circumstances of this particular case. In this particular case, which is different than all of the cases that were cited by the plaintiff and that is urging both this Court and the Court to follow, is here the plaintiff is affirmatively trying to enforce a very specific term in the very contract that at the same time he's not bound by. What about severability? Severability is a complete right hearing error because severability is an issue that the Court would decide or an arbitrator would decide. The plaintiff does not get to pick and choose severability. Why can't we decide it on appeal? By just say, for example, there is a severability provision, right? There is a severability provision. So if we analyze the contract based upon appropriate law, of course, choice of laws and issue, then why can't we decide? Whether or not it's severable. Well, there's two reasons. The Court can use its discretion to rule on issues that the District Court did not rule on. However, the District Court did not address the issue of unconscionability or severability below. And I don't think it's appropriate for the Court at this time to actually make that finding
. However, if the Court was going to make that finding, in the sense of severability, the issue of severability would be very limited. There's case law specifically, the Federal Arbitration Act. The public policy is to enforce arbitration. And so when you're looking at what would be severed, it wouldn't be the entire provision. It should be with an eye to what is it exactly that could be severed to save the arbitration provision in its entirety, not the entire contract of the court. You say the case law doesn't, does not look to save the contract first as opposed to the arbitration provision. The Federal Arbitration Act, I agree with you. Certainly it encourages arbitrations. Spring Court has said that a number of times. But the issue of severability is often first to save the contract. Well, the issue of severability would be severability of what the plaintiffs are asking for the entire provision of the arbitration to be severed. But again, that's a broader issue than what I think would be appropriate for a court to consider. The issue to be considered would be within the arbitration provision, which would be, is there some particular line that, or particular term, that could be severed to save the arbitration clause within the contract? Not that we would just sever the arbitration provision in its entirety
. But separate and apart from that, the issue here, again, with severability, the problem here is not just severing. The plaintiff is specifically, of course, in the record, page 117 of the record, the plaintiff quotes, just because the plaintiff has a leg that one term is enforceable. It does not follow the entire contract is enforceable. The plaintiff has cited absolutely no law to support that proposition. And this court in the night circuit has held in other cases that you don't get the benefits of a contract without taking the burdens. It's as simple as an employee coming on Friday to collect their check when they didn't do any of the work. And when they're asked about why they're collecting their check and the employer says, you didn't do any of the work. They say, well, we don't want to pay attention to that part of it. We just want to show up and get paid. It's no different. And no case in any of these contacts where it's online in person, in a paper contract, or by conduct, does a party, its fundamental contract law get to come into a court filing nationwide class action, assert benefits of a particular clause that is literally within a half an inch next to the very clause they're saying they're not going to. I don't gather that that's what they're asking for. What they're asking for is that they thought they created a contract to purchase to 16 GB, HP, Touchpad tablets that were at a great discount because they ordered it and they received a confirmation of their order, but then Barnes and Noble was not able to feel that order
. And so that's the breach or the fraud that they're, I don't know how they, I can't remember how they, this is the last case, very long. I can't remember what they're precise claimants, but that's what they're saying. It was the fraudulent practice, was the advertisement and that the contract they were lying on is the purchase of the book. And they didn't get that when they had a confirmed order for it. Well, they are relying on the terms of use that are at issue and then using the website, placing the purchase, placing a previous purchase as well as placing the order at issue. So again, so I don't even see why they would need to rely on the terms of use. Well, they have your honor. They have your honor because they're asserting they're a California resident and the only basis upon which they can assert a claim under New York law is based on the terms of use. But no one's, no one's even conducted a complicate of law analysis yet here. No, the district court only looked at the issue of whether or not there was notice of this, of the terms of use and only in a very limited manner. The district court failed on a couple of grounds. One, the court did not consider the the ratification of the agreement. I don't think, I don't, I really think that that is also a red hary because I'm sure once they at some point obviously an attorney got involved in this and got the terms of use to see what was going on here
. And you know, they were willing to go along with New York law applying once they've learned about it. That's not necessarily the kind of intentional act by the plaintiff himself to create a ratification. Let's talk about though what your, what what Barnes and Noble is really doing here. I know it's called a Rao's rap agreement because there's no requirement that the there's any affirmative act by the customer to to agree to the terms of use. Right. That's a plaintiff's position and there is affirmative act. What is the affirmative act? Okay, so the affirmative action of what that the plaintiff undertook in this particular case is a month prior to even the at this issue, the orders that are issued in this case, he went to the website. He'd not just look at the website one time and flip through. He went to the website, he joined as a member of the website. He was using the website. What do you mean he joined as a member of the website? He became a member. He interned into information and about himself to be able to get benefits through shipping and other other attributes of being a member of the website. So was he a member of the website or a member of Barnes and Noble? Barnes and Noble being through the website
. Well, wait a minute. What do you become a member in? You're a member of the Barnes and Noble. There's like a club if you will and you're doing it. Shopping community? Yes, but specifically you get benefits for doing that. It's not. Do you think that you sign up as a member? Is there any requirement that you accept the terms of use? There is your honor and there is. Where is that in the record? Okay. The issue of him placing his order in that context, he's also, so at that time he made a purchase. It wasn't just an order. He placed an order he made a purchase. Throughout that process, again, what the district court did not look at is every single page that the person Mr. the plaintiff was, it was invisible view right before him with the district court. I'm not answering my question
. I'm asking what is the affirmative act that the plaintiff did when to agree to the terms of use? There's two, there's three things. One, he was using the website. The terms of use by and by using the website. He was using the website. He was using the website by making a purchase on the website a month previously, which when he gets when he gets to the screen, what the district court didn't look at was that it was on every page in the lower right in the lower left corner. You had to scroll down though. That's one half of the equation, but that's what the court looked at and that is clear error because on the record in page 157, 158, 159, all the way through 64, it is not scrolling down and that is the key difference between this fact and what the plaintiff rely on. But the problem is, the problem is though, it's with its terms of use, copyright and privacy policy. Are you saying that anybody who purchases anything online from Barnes and Noble has to click on all those things? I mean, I buy things online. I never clicked on all those things. Are you saying I would be bound to arbitration or other things that could be in all of that just by going on the website? Let me add to that also, it was just a link. It didn't give the exact details of what he was agreeing to, so it was a link. Okay, two specific points
. In this particular case, there was absolutely no scrolling necessary to see the link. I realized that distinction from just a cent of my or a second circuit case. I realized that's a distinction from that particular case. Yes, and it's also a distinction between the Heinz case, which is the other case of the court rule on. And in particular, evidence in that case where the plaintiff said, I could not see it without scrolling. When an individual is engaging in a transaction, this is not a one-click transaction. This is not a free download. This is a commercial transaction where the person is sitting at a computer. They are getting to the screen. When they get to the screen, they've got to enter information. Not just what's your favorite dog. You're credit card information. You have to turn over and give your security code
. You have to check your address. You're surviving the information. You're making time that any person who was responsible would before they turned over all this confidential information would check the terms of use. Absolutely. You're required to look at if you choose not to read a contract that's never a defense. Well, you have to send to it. There's case law. In that case, it's precisely on point with this one, except for one that neither party cited, which my law clerk found, and which frankly goes against you. But it's a district court opinion from somewhere. Let's say it's from it's from a central district of Illinois. But in that case, it's exactly your term that your thing. But in that case, before you could place your order, the last step was you review the terms. They told them to review the terms before they could place the order
. So they were unnoticed that they needed to review the terms. Let me ask you, once you go to your terms abuse, do you have a thing to set a click on for? I agree or I disagree? No. No. You don't have that. And that's the problem, isn't it? That's not a problem. Well, you don't think it's a problem. But ordinarily, I mean, you wouldn't be here if it said I accept. In fact, you have to get to the point where you're saying you have to be extraordinarily careful. And the question is whether a reasonably prudent user would have to have read the terms in condition, which was part of a link. Isn't that what you're saying? Is that and do we look at this in conjunction then also with how is the agreement construed against or in favor of Barnes and Noble? First and foremost, when you're entering into a contract, whether you choose to read it or not, is never a defense. And the case was clear on that. They were entering into a contract. They were buying a tablet
. They were entering into, they were placing an order and they had, and previously as well on the same website, made a purchase. They had entered into a commercial transaction. This is Barnes and Noble want the message to be don't shop at Barnes and Noble because if you order something online, you're going to get stuck with all these terms abuse that you may never have even looked at or didn't even notice were there. Absolutely not your honor. Barnes and Noble's position is that the terms of use of a hyperlink, which has been decided in numerous cases, is notice. It's just, it's no different than the case of that this court decided in 1987, the Da Nero versus American Airlines. In the airlines case, that that individual was wanting to assert a claim against last damage to their cargo, which happened to be dogs. Very unfortunate. Nine of them, I guess, died. But the reality is, is that customer basically said, yeah, I bought the ticket. This court said if it was only on the ticket, maybe it's a close call. But we look at the facts this person had traveled before. This particular plaintiff has his own website with terms of use on it in exact same format. In this case, the plaintiff has his own website with a link that says legal. He has used the website in the past. He's an avid user of the internet. He has multiple links to Facebook, all sorts of other websites that use very similar. Your position is that this case, it's case specific. And this particular plaintiff, as a reasonably prudent person, should have read the terms before he agreed. Is that what you're saying? I'm absolutely saying that in the bit. And either he did or he didn't, but assuming that he should have, he then would have a pat to agree to the arbitration. He could have chose not to look at that. But yes, he absolutely was on notice. That's a narrow case. What the court said was, in that case, the testimony from that individual customer was, I saw stuff down there. I didn't really look at it
. In this case, the plaintiff has his own website with a link that says legal. He has used the website in the past. He's an avid user of the internet. He has multiple links to Facebook, all sorts of other websites that use very similar. Your position is that this case, it's case specific. And this particular plaintiff, as a reasonably prudent person, should have read the terms before he agreed. Is that what you're saying? I'm absolutely saying that in the bit. And either he did or he didn't, but assuming that he should have, he then would have a pat to agree to the arbitration. He could have chose not to look at that. But yes, he absolutely was on notice. That's a narrow case. What the court said was, in that case, the testimony from that individual customer was, I saw stuff down there. I didn't really look at it. Well, that's not a defense. If you choose not to read a contract, even when someone is illiterate and cannot read, if you know you're signing something but you choose not to read it, it's not a defense. That's basically what this plaintiff did. He came to our website and what the district court did not consider on this particular case was what he did prior to even the issue, which is he made a purchase, he used the website he was found. He was not in some hurry up situation. He didn't say anything about that. He used it in that particular time. He saw that screenshot six times in that transaction where he does not have to scroll. Then he comes back. He makes another order. Again, that's 12 pages where it's right there. The issue of arbitration though is pretty significant, isn't it? So that if it merely says the terms and conditions, that doesn't alert somebody to, you are giving up your right to sue. And so shouldn't it be clear that you better check this out? Because terms and conditions do not always include a waiver of litigation and an obligation to engage in arbitration
. Well, that's not a defense. If you choose not to read a contract, even when someone is illiterate and cannot read, if you know you're signing something but you choose not to read it, it's not a defense. That's basically what this plaintiff did. He came to our website and what the district court did not consider on this particular case was what he did prior to even the issue, which is he made a purchase, he used the website he was found. He was not in some hurry up situation. He didn't say anything about that. He used it in that particular time. He saw that screenshot six times in that transaction where he does not have to scroll. Then he comes back. He makes another order. Again, that's 12 pages where it's right there. The issue of arbitration though is pretty significant, isn't it? So that if it merely says the terms and conditions, that doesn't alert somebody to, you are giving up your right to sue. And so shouldn't it be clear that you better check this out? Because terms and conditions do not always include a waiver of litigation and an obligation to engage in arbitration. And the record doesn't establish that and you're not asking this to find that as a matter of law. Terms of use is the trigger to, there are terms that are governing this. You want to know what they are? You need to look at them. But if you're a client, which of course is enormously important to your client, wanted anybody to purchase something to waive their right to litigation. Why would they just merely say terms of use and not say you accept waiving your right to litigation? I don't think that there's a distinction between adding an arbitration provision in there to the terms of use. The terms of use cover all sorts of things. That's right. But something as significant as this would, anybody who's purchasing something, if they were going to, if you wanted them to be sure they understood they were waiving their right to litigation, wouldn't you have and wouldn't it be an ordinary person, a prudent person would have expected? They would have to have affirmatively accepted it. The case law does not support that position you're on or the case law. There are differences and clearly cases will say if you put a click with that, make it maybe it a different standard, yes, but is that required? No. I mean, for example, in the Facebook case, the Fed versus Facebook case, very specifically, the court said, this person is an added Facebook user and they're coming in and they're suing saying, I'm not, I'm not bound by these terms of use. It's literally what it is. And the court says, we're not going to look at it and say, we need to just say, click here, terms of use
. And the record doesn't establish that and you're not asking this to find that as a matter of law. Terms of use is the trigger to, there are terms that are governing this. You want to know what they are? You need to look at them. But if you're a client, which of course is enormously important to your client, wanted anybody to purchase something to waive their right to litigation. Why would they just merely say terms of use and not say you accept waiving your right to litigation? I don't think that there's a distinction between adding an arbitration provision in there to the terms of use. The terms of use cover all sorts of things. That's right. But something as significant as this would, anybody who's purchasing something, if they were going to, if you wanted them to be sure they understood they were waiving their right to litigation, wouldn't you have and wouldn't it be an ordinary person, a prudent person would have expected? They would have to have affirmatively accepted it. The case law does not support that position you're on or the case law. There are differences and clearly cases will say if you put a click with that, make it maybe it a different standard, yes, but is that required? No. I mean, for example, in the Facebook case, the Fed versus Facebook case, very specifically, the court said, this person is an added Facebook user and they're coming in and they're suing saying, I'm not, I'm not bound by these terms of use. It's literally what it is. And the court says, we're not going to look at it and say, we need to just say, click here, terms of use. The paper contracts, if I would argue in an online context, the person has more notice than if it was an individual paper and you're just flipping to the end. You can automatically get to the end, right? In a multiple page contract, you say, okay, it's three pages, they go to the end. In this particular instance, the person is online, they are stopped throughout the process to enter information and you can't just scroll down through the end and you have to take the time to fill things out. And it is right there. It is one inch away and it is no different than all of the paper contracts or the cruise line cases that says, you could have them on the back and you can say, turn over. It's no different. There's also a lot of the cases talked about the classic Apple case. Do you have any, any, any one case where the terms of use were only available via hyperlink and the website did not explicitly warn the user that the terms applied? I believe that the, the Hubert case, and I do believe that saying terms of use in today's world is disclosure right on its face that there's terms and condition you're subject to it. Cases 15 years ago may have been different but in today's world and with this particular plaintiff who has his own website, it is disclosure and the Hubert and the major case. If you don't have a case that's directly on point. I do, I have, there is no case specifically that includes all of the facts of our case, which I think our case makes it much stronger for my client because we have the unique factors of the plaintiff. We have the ratification after whether you hire a lawyer or not. You don't get to come in after the fact and say, all right, you've made your arguments
. The paper contracts, if I would argue in an online context, the person has more notice than if it was an individual paper and you're just flipping to the end. You can automatically get to the end, right? In a multiple page contract, you say, okay, it's three pages, they go to the end. In this particular instance, the person is online, they are stopped throughout the process to enter information and you can't just scroll down through the end and you have to take the time to fill things out. And it is right there. It is one inch away and it is no different than all of the paper contracts or the cruise line cases that says, you could have them on the back and you can say, turn over. It's no different. There's also a lot of the cases talked about the classic Apple case. Do you have any, any, any one case where the terms of use were only available via hyperlink and the website did not explicitly warn the user that the terms applied? I believe that the, the Hubert case, and I do believe that saying terms of use in today's world is disclosure right on its face that there's terms and condition you're subject to it. Cases 15 years ago may have been different but in today's world and with this particular plaintiff who has his own website, it is disclosure and the Hubert and the major case. If you don't have a case that's directly on point. I do, I have, there is no case specifically that includes all of the facts of our case, which I think our case makes it much stronger for my client because we have the unique factors of the plaintiff. We have the ratification after whether you hire a lawyer or not. You don't get to come in after the fact and say, all right, you've made your arguments. Thank you. Good morning, ma'am. Please, the court, I'm a question carpenter representing Mr. Winn and I have John Segley with me and Mr. Winn is also in the courtroom today. I like to focus my argument on the key issue that the court has obviously already picked up on, which is that there was no agreement to arbitrate here as the district court properly found. Just taking a look at the facts, what we have is someone logging on to Barnesandobl.com, attempting to purchase two touch pads during a fire sale, going through the checkout process, having no actual notice and no reason to notice the terms and conditions on the very bottom of the page in small font for what the plaintiff thought was a simple purchase transaction. Barnes andobl. No reasons to notice. So why don't you respond to what a Pellet Council has said about reason to notice? Your Honor, this is a reasonably prudent user standard, isn't it? Yes, Your Honor. Okay. So this case, why? In this case, we have a normal consumer purchasing a product on a website
. Thank you. Good morning, ma'am. Please, the court, I'm a question carpenter representing Mr. Winn and I have John Segley with me and Mr. Winn is also in the courtroom today. I like to focus my argument on the key issue that the court has obviously already picked up on, which is that there was no agreement to arbitrate here as the district court properly found. Just taking a look at the facts, what we have is someone logging on to Barnesandobl.com, attempting to purchase two touch pads during a fire sale, going through the checkout process, having no actual notice and no reason to notice the terms and conditions on the very bottom of the page in small font for what the plaintiff thought was a simple purchase transaction. Barnes andobl. No reasons to notice. So why don't you respond to what a Pellet Council has said about reason to notice? Your Honor, this is a reasonably prudent user standard, isn't it? Yes, Your Honor. Okay. So this case, why? In this case, we have a normal consumer purchasing a product on a website. We have, if you think you're engaging in a simple purchase transaction, doesn't put you on notice that there are terms of use on a website that apply specifically to your purchase transaction. And here we have a situation where there's absolutely no indication anywhere except within the terms of use themselves that says that these terms of use apply to a purchase transaction on the website. A reasonable person, if they notice the terms of use link at all, maybe thinks the terms of use apply to copyright and privacy type issues, which wouldn't be implicated by a simple purchase transaction. So we have Barnes andobl, not requiring an affirmative click that there's an ascent to the terms of use in general or specifically to the arbitration clause therein. There's not even so much as a suggestion that the plaintiff should review the terms of use. Nor is there anything during the checkout process that says you are going to be bound by these terms of use as soon as you click purchase. So this case has implications for every person, every business that's selling things online right now, right? Yes, Your Honor. And I believe what Barnes andobl is effectively asking for is an exemption from the mutual ascent requirement for an online purchase. Barnes andobl, if you go not handing you an almost 7,000 word contract and telling you that you are going to be bound by that. I happen to be a Barnes andobl member. I have the card and I do shop at Barnes andobl and I've never seen a terms of use in the in store. And there's no reason the situation should be different here. We have the same type of a transaction
. We have, if you think you're engaging in a simple purchase transaction, doesn't put you on notice that there are terms of use on a website that apply specifically to your purchase transaction. And here we have a situation where there's absolutely no indication anywhere except within the terms of use themselves that says that these terms of use apply to a purchase transaction on the website. A reasonable person, if they notice the terms of use link at all, maybe thinks the terms of use apply to copyright and privacy type issues, which wouldn't be implicated by a simple purchase transaction. So we have Barnes andobl, not requiring an affirmative click that there's an ascent to the terms of use in general or specifically to the arbitration clause therein. There's not even so much as a suggestion that the plaintiff should review the terms of use. Nor is there anything during the checkout process that says you are going to be bound by these terms of use as soon as you click purchase. So this case has implications for every person, every business that's selling things online right now, right? Yes, Your Honor. And I believe what Barnes andobl is effectively asking for is an exemption from the mutual ascent requirement for an online purchase. Barnes andobl, if you go not handing you an almost 7,000 word contract and telling you that you are going to be bound by that. I happen to be a Barnes andobl member. I have the card and I do shop at Barnes andobl and I've never seen a terms of use in the in store. And there's no reason the situation should be different here. We have the same type of a transaction. We have a consumer. This is not a commercial transaction in the sense of sophisticated commercial parties. This is a consumer case on behalf of consumers. And we have Mr. Wynn testifying in this declaration that he did not notice the terms of use. It appears in fact that Barnes andobl went fairly far out of its way to make sure that customers didn't know about the terms. I like another case is they did have it in contrast. It was a different color at the bottom. And you didn't have to scroll down in every case to see that. Doesn't that make a difference? You're on or no it doesn't. The first of all the the scroll down is required on the first page and it's also separated by substantial advertising material. I believe it shows up when you print out the page on page five or six of the so that's on the home page. Once you start going through the checkout process it is on the left hand bottom of the page and it is in a green underlined typeface
. We have a consumer. This is not a commercial transaction in the sense of sophisticated commercial parties. This is a consumer case on behalf of consumers. And we have Mr. Wynn testifying in this declaration that he did not notice the terms of use. It appears in fact that Barnes andobl went fairly far out of its way to make sure that customers didn't know about the terms. I like another case is they did have it in contrast. It was a different color at the bottom. And you didn't have to scroll down in every case to see that. Doesn't that make a difference? You're on or no it doesn't. The first of all the the scroll down is required on the first page and it's also separated by substantial advertising material. I believe it shows up when you print out the page on page five or six of the so that's on the home page. Once you start going through the checkout process it is on the left hand bottom of the page and it is in a green underlined typeface. But the green appears throughout the actual webpage. It's I think Barnes andobl's logo has green in it. So it doesn't particularly stand out. And in any event as the district court properly found there wouldn't be any reason to know those terms of use would apply to to a transaction such as this. Well what if if someone is looking at it a reasonably prudent person why wouldn't they look at it? I mean what else are they going to think about when they see terms of use? Well that assumes first of all that the consumer even notices that there are terms of use. Here Mr. Wynn didn't. Why wouldn't a reasonably prudent purchaser be required to take a look at everything as a Pellets Council said? It's on paper. Why would a reasonably prudent person be allowed to ignore it? Because from Mr. Wynn's perspective he's simply purchasing some touch pads in an online transaction. He's filling in his information and he's clicking purchase. That's the extent of the contractual relationship as far as Mr. Wynn's
. But the green appears throughout the actual webpage. It's I think Barnes andobl's logo has green in it. So it doesn't particularly stand out. And in any event as the district court properly found there wouldn't be any reason to know those terms of use would apply to to a transaction such as this. Well what if if someone is looking at it a reasonably prudent person why wouldn't they look at it? I mean what else are they going to think about when they see terms of use? Well that assumes first of all that the consumer even notices that there are terms of use. Here Mr. Wynn didn't. Why wouldn't a reasonably prudent purchaser be required to take a look at everything as a Pellets Council said? It's on paper. Why would a reasonably prudent person be allowed to ignore it? Because from Mr. Wynn's perspective he's simply purchasing some touch pads in an online transaction. He's filling in his information and he's clicking purchase. That's the extent of the contractual relationship as far as Mr. Wynn's. I think there's a terms of use. So why terms of use of what? What is a reasonably prudent person going to think that means? A reasonably prudent person probably would have no idea what that means. And certainly I don't believe. Whose obligation is it? It's Barnes and Noble's obligation to make sure it gets mutual ascent for its contracts. So you're saying that that provision is construed against Barnes and Noble? Absolutely. I'm saying that's an obligation to make sure if you're entering into this contract you better know what it means. Yes Your Honor. I believe that's true. So I have another question. Why did you make use of the agreement's choice of law provision when you believe that the agreement didn't bind your client? Your Honor I think you were you were dead on when you said earlier that last night. That was my speculation. Why did we include the choice of law because there was a pretty good person in the in the lawsuit right? In the complaint yes Your Honor. And the contract at issue in the complaint is the purchase contract and it's the contract I just described where Mr
. Wynn thought he was purchasing the touch pads and there was a breach of that agreement because he never received them in his order was cancelled. So that contract breach and the consumer claims that are asserted in the complaint the statutory consumer claims have nothing to do with those terms of use and we did allege that the New York choice of law clause was enforceable in the complaint and that was not a question of Mr. Wynn saying oh here's these terms of use that applies to my contract and there's a I agree with this and so let's include a choice of law clause. So based on the facts the the district court made clear that she was considering all of the facts that she had read the briefs and that she did hear oral argument and she found based on those facts that the defendant didn't post the notice in a location where a consumers would see it and in fact didn't even give notice that the terms of use applied and therefore there was no a sent to arbitration. The the district court did not ignore the plaintiff's evidence it was all before the court and the court acknowledged that that it had read all the papers. Substantial case law does support the district court's ruling we have the second circuit decision in the suspect case we also have the Hines versus Overse dot com case which is very closely on point there were the court there didn't make a relevant distinction about whether there was a necessary scroll down on every page of the website also the zapos dot com customer data security breach litigation cited in our briefs is is nearly identical circumstances to those present here basically Barnes and Noble's argument comes down to because we placed the terms of use hyperlink within an inch to an inch and a half of where the customer had to input information in order to complete this purchase attempt solely based on that fact there wasn't mutual sent here and what that effectively will do is create an exemption for any online purchase transaction in a consumer setting like this all of the cases cited by Barnes and Noble in this case are are very easily distinguishable the Hubbard case which Ms. Doolan just mentioned was a case where there were three online forms which said all sales are subject to delts terms and conditions that doesn't exist here also in the FATA versus space bookcase there was a note on the website that said a representation on the website by clicking sign up you're agreeing that you read and agree to the terms we're we're not talking about the case where the plaintiff was handed the contract and chose not to read it that's not the situation well what's interesting is is that we would clearly find him bound to the terms if there's a box that said I agree to the terms of condition that you had to click before you could place your order then we would find I think we would clearly find him bound whether it had read the terms and conditions because he had to do something affirmative and this is a case where he's not even asked to look at the hyperlink and I think that's what's problematic you know and are you aware of any particular case any case on point in this well you're under the Zappos and the Heights case both found no agreements in those cases in their and those cases are both cited in upper weeks and very close to the point I would argue the spectre case is also very close to the point it's and how are they closely on point because you have actually because you have you have a website internet transactions where there's a hyperlink where they are trying to hold the one party to the terms of terms and conditions of website where there's nothing to the nothing to put the the consumer on reasonable notice that they need to click on terms and conditions it says terms and conditions in those cases in terms of use or what's the what what is the language in those cases um here on our I apologize I don't have it here but they generally are terms either terms and conditions or terms of use I would be happy to look at that oh that's okay I'm not going to read it but terms and conditions as for probably would alerts somebody that they better take a look at the conditions as opposed to terms of use so we have terms of use here and that's that's that's the parameters right um Your Honor I don't think it would um it would make a difference because I think either way you're you need to tell someone that they're subject to those terms regardless if it's called terms and conditions or if it's called terms of use or it's called terms of use privacy and copyright policy you need to inform the consumer other than in those hyperlink terms of use that they are bound item um very briefly I would like to address the unconsumability issue if the court doesn't have any further questions on the oh you're just bad out of time so just get to it okay very briefly I just like to point out that we also have a very serious unconsumability problem with this arbitration agreement this is an arbitration agreement that was imposed under extremely procedurally unconsumable conditions most which we've already discussed whose law applies on that cash stability um Your Honor I think the result would be the same under either law but under the uncircuit decision in the ground case I think because we're diverse of future restriction that California law would apply to the unconsumability process and but either way I believe the result would be the same because what we have here is a very procedurally unconsumable contact and the one side that is very clear and undisputed specifically preserves unconsumable the right to lividate in court at its discretion thank you very much thank you very much um in this case when versus Barnes and Noble will be submitte