your voices calling in and out a little so please try to make sure you're speaking into the microphone that your voice is going out again i'm sorry you unfortunately is this mr saltus so the panel will have the video we promise to remember your face we can go to our website and play it again but we'll let you make the argument by phone for and mr soul destroying you have the ability at least as far as i'm concerned to say from now on that you were in the face of the th circuit mr soros from as soon as you're connected by phone i will be cutting your video connection there rich richard did we did we could from that nobody has a cell phone i have a cell phone judge who does this is richard i do have a cell phone now but i mean mr soldiers yeah we're working on this right now he's about to call into the video call using his phone ok to kristen when we patched in the cell phone do you have to cut off the video or we'll be able to see counsel i i could leave the video up judge if you would prefer that i can do so but if if it's having an adverse effect on the one yes on a technical no mr prince i do see you and i do see we have active video from you can you just say a couple words make sure we still have your audio here now yes thank you very much thank you yes we can hear you know i have muted your audio from your computer to try to prevent the feedback  to limit the time you have to bring a claim against us other important terms to review it if you wish opt out of some of the clauses act and it gives a  years ever contain this type of notice ever act in a copy or are you even a separate bill for notice it dictating there were terms on line or gave her any indication that she should left under didn't enjoy time warner cable after banner which is typically used for advertisement so if they inspect that place and the bill says if some of her contract right may change or whether her relationship with the company may be fundamentally altered in specifics they hear altered in a way that waves very important right procedure all right substantive rights the right to company what is happening is the company's intermittently without any other notice include in small font under three other advertisements that do not  specifically relationship with the company the company says this one paragraph in bill number forty two completely altered your rights and obligations with the company and that is where judge carter aired here charge card or did not take into consideration the context of the consumer relationship did not take into consideration this is exact and then all of a sudden bill number forty three dollars said we're changing your contract right now look on line if you want to know about it that is a fundamental difference and it is it created a provide assent to those terms what what what given the there was this long you can take it as a hypothetical if you want a long standing consumer relationship what should they have done to provide adequate notice numerous ways that companies can provide adequate notice and many companies do it out in time they included with a bill a notice that attached to the bill is a copy of your terms if you pay the has an affirmative obligation it's the master of its own online term at complete control over how it gets notice of them and how it requests sent here it chose to only give is limited time that you have to bring a claim against us and then it says review it if you wish opt out so why isn't that sufficient to indicate that if you don't opt out you're  fundamental right if she did not opt out and that brings us back to the court that dealings between her and the company for the preceding four years she she had no indication that paying forty three could completely change her right now conditions with respect to the company and eleven last point before i reserve my time at a minimum there is a genuine issue of material fact and whether whether the limited evidence charter chose to put it on the record and miss part of the money that she didn't see it she was miss hart has been a customer of ours since two thousand and six and over that period of time we have repeatedly provided her notice in a variety of ways that she has found to our subscriber that we've notified her when there's changes to her subtribe reasonably prudent person would be on important notice but looking at a bet like this and the district court got it right i think just like judge total in the southern district of new york got it right in the recent case you cited which is that billing statements in the context of a relationship with a cable company go to the heart of the us for relationship this is the cable company's primary mechanism of communicating with customers not only do we communicate the price for the services our route which can change over time we communicate changes in channel right up we communicate important messages that the f c c requires us to communicate to customers and yes we communicate  new subscriber agreement we explained it has an arbitration clause we prompted the user to do something we said is important we said you should review it and that you have a right opt to rupture or a right to opt out of it this is why i voluntary relationship your continuing in your can your decision to continue to maintain employment is a manifestation of assent and i think the same holds true here but even if there was any doubt about whether our billing statements provided adequate notice or she madam miss hart manifested her scent i think that has to have been cleared up by august of this same here when she affirmed the police side to work order this at a time warner cable representative went to our house on multiple occasions presented her with a device and that she does not recall whether you know that the agreement was above it or not but she did sign it that's we cited on page twenty seven dollars of our brief and that case makes it very clear that as a matter of california law the fact you didn't read the agreement the fact you don't remember signing it and the fact that with the fact that even that you didn't understand necessarily that you were signing a contract it is a relevant and in fact a big pile for me of course have gone even farther including in the desert outdoor advertising case which we said on page twenty eight of our brief which is  even if our technician contrary to representative contrary to the record evidence but even if our technician had affirmatively represented to her that you don't need to read this thing it's not important as a matter of california rott is deemed all reasonable to contract it seems the vision to put her on actual notice that there was a contract is assuming she could have seen the text about it so you know like i said that our primary argument relies on hugo statements and it was the court of other questions about the billing if my sense is the law supports that the cases support that but if we're being realistic isn't this really a legal fiction to a certain extent it's like the shrinkwrap agreements that may or may not provide for arbitration or may or may not provide at their trade secrets when you break the wrapper or rather the privacy notices on the web sites i doubt that very many people except except some judges actually read the privacy notices and even then they kind of give up after a minute or two so isn't this notice on this bill very much like that that only and will only survive because it is a legal fiction it's just easier rather than going into each case as to who really read it what they understood to say this is recognize that if you're on constructive notice of a contract structures you're back down to the i mean the nd circuit inspects case which is the case that has been cited against us you know acknowledge that in the in the ordinary course if you have a paper that that people on notice of a contract it's going to be in force the courts have adopted sort of specific rules in the context of the internet era not including you know as i think you were mentioning the quick front directly on top of the notice that we gave about this particular contract so i don't think we're not sort of in the end a puddle speculation where there's a real question about whether any consumer would have a look at th say that he didn't say that there was a cop out he did assert that fact but he made a note legal argument about the effects of the opt out and that the district court was not required to invent an argument on his behalf i can't do that here and that's because his heart failed to comply with the substantive requirements of federal law as articulated by the supreme court and rent a center and as applied by this court and  raise any issues about the superseding effect of the later opt out on the two thousand and fourteen agreement before the irish trayner and miss hart is not wants to challenge the our work so the issue just is not before the court the answer with respect to time warner cable is fairly straightforward and that is plaintiff's complaint admitted that time warner cable merged into spectrum management but one company which is a delaware and id and i  really don't even think this is a question sort of a california model think it's a question of delaware law the question is today who has time warner cable and i believe the answer to that is under a dollar amount that spectrum management must be drawn in favor of the nonmoving party here the course of dealings for over for multiple years the us in our view nature of the  there are multiple cases cited in the not reply brief where the court inboard clear circumstances than these held that there was a genuine issue of material fact that needed to be submitted to the jury or hearing if a jury trial was not demanded alvarez versus t mobile there was that in the electronically signed agreement that the company produced showing these terms were signed by the company but based on testimony disputed over whether that agreement was communicated whether the whether the customer knew that signing a pattern the store meant agreed to online terms that were not provided with the fact issue that had to be resolved by  argue the fact that the consumer should have known better and should happen eckerd advertisement advertising back in the bill in order to understand their rights and obligations related to their se