so your honour's this case raises an extremely important issue that is confronting the who are its repeatedly these days as more and more companies are attempting to bind consumers and workers do on line contracts we urged in this case that the court consider certifying the case to the massachusetts supreme judicial court because it had not yet ruled on what constitutes an enforceable on line made here on this appeal and compel a reversal what the cotters court made clear is that massachusetts has adopted a like many courts around the country a two part standard that the party is seeking to enforce the agreement the online agreement has the burden of proving to parts st that the agreement was reasonably communicated and also that there was a there is reasonable acceptance it's very clear from the decision that both problems must be met and the focus here or by the district court was that the plaintiff conceded at trial that she had clicked on a box satisfying the nd part of the test the reasonable manifestation of assent but it's very clear from compelled here so go going through the factors the court made clear that determining whether or not there is reasonable communication of terms of an online contract requires a  interface require the user to open the terms that she is allegedly agreeing to or make them readily available the court in cutter's noted that click wrap agreements are regularly in forest but didn't say that they're always in forest so the court below really focused on the fact that there was a click here that there was a box that she had to collect saying that she agreed to terms and that that was the end of the story is that it might it might raise other things but by the time she has to click that acceptance box something showing at least partially agreement and in a form that would suggest there's more to it does now now that's not correct so on the box on the screen if you look at the screen that she used to sign up st of all it's a clustered screen that asks for a lot of information her name her address her t shirt size whether she has previous cleaning experience etc and then at the very bottom and the main click on that screen is a click saying continue to next i thought on her screen will appear a portion of the contract not all of it actually just the beginning part of it in a way that would suggest there is more below  ok now so on that on the phone now there are there are these bullet points to confirm and though there is that but just answer my question she cooks except prior to doing that on the mobile app will a portion of the contract appear on her screen before she clicks accept without her being able to stop that from happening yes ok the st you lost back with respect so that there is a line in them one way to read that is that carter's case might be suggesting that there's a problem if you don't require scrolling the employer doesn't require scrolling which i can see the logic of that it's not clear to accept the court decided that that wasn't enough because they didn't require scrolling and if there had been scrawling the arbitration clause was buried deep within and which is  i thought in that case it wasn't just a matter of scrolling but that they never showed the terms and conditions to the drivers this case is quite different because as judge karen has pointed out and i agree that the screen where she has to accept the terms than new agreement she is shown on the st two paragraphs of the agreement and she has the ability to scroll down she chooses not to scroll down and and her deposition she says more or less i wasn't interested in out and therefore i didn't scroll down could you please tell us why that doesn't dispose of this case referring to saying district of new jersey opinion which the as j c cites with approval ok so here the fact that the pla said i wasn't interested in doing it doesn't mean that she realized that she could have scrolled but just simply chose not to there are no scrollbars here so there is nothing indicating that but again i think she's doing that with respect there's three different agreements right three different points in time it's just the last one of the three and i don't know quite what to make of that fact just how that relates to the other two but the arbitration agreement purports to be retroactive so i don't know so the rd time remember she wasn't actually entering a contract she was just trying to log in to get her personal information shouldn't she not i say this is out of contract at thir correct i see so with respect to the only agreements that are in question there's no evidence that she actually swirled i believe that's i believe right ok and again there's the reasonable  a contract she was just going back and then she was looking a little more closely because she wanted to figure out what was going on here and got her personal information just so i understand that this the timing of it would matter whether she had actual presentation of the term standard of cotter's was right she she could have scrolled but she didn't know it wasn't reasonable to expect her to understand you to school because there were no scrollbars  they're not you just you go to the side and you use your cursor and you scroll down in any event the scrolling mechanism you say was the same for later when she conditions and those were just flatly presented to or she didn't need to scroll down to see those well again i think this is very similar to this of gora's case where again the accepted or he ever the employee was there with a contracting party before acceptance to the personal presentation of the terms of the contract appears so that it would have been evident there was there was a contract with terms or not i believe i'm looking at this case and where it talks about the where the user could click and say i accept and says no where did the button multiple times a counselor a weapon point that kind of just makes is that somebody is trying to sign up for a service like or w necessarily think that they're an essence signing away their st born child it seems to me to be a little bit different in a situation like this because generally when you enter into an employ employee employer relationship it's it's a different kind of relationship and people would have an expectation that there has to be some kinds of terms and conditions well it's interesting because handy of course denies this was an employment relationship that claims the plaintiff was also a user a consumer of essentially a claims it was a matching service to match her up with being jobs and i think it's also important cotter's did cite two i believe it was a cigar us again talking about how we can't just assume that ordinary consumers realize that they're entering into a binding legal contract even when there are terms used such as and terms of service that we can't just assume that ordinary people understand terms of service means a contract in this case for how you would result legal disputes if you started to perform work for this company again remember that that her initial time the initial website she signed up for she hadn't even started working she hadn't even been and accepted she was they were being asking her things like do you have prior experience what's your t shirt size so terms of service does not is in a sense a term of art that laypeople should necessarily be assumed to understand they're entering requirement to scroll prior to is a precondition for being a valid contract well both cases really stand for cotter's and so gross stand for the proposition that you look at  holds that there is a requirement to prompt the person entering into the contract just scroll st prior to acceptance rather than to just give them a little bit of  us i think one could say that in the last there are other countervailing factors that make it overwhelmingly more visible without without that requirement of scrolling it would scroll is a necessary precondition a prompt to of course can be the reader can decide i'm not going to follow that  thought your argument was you had to be required to scroll before you accept so which are you arguing well i'm just i'm saying i don't think there are necessarily hard and fast rules there are different things that companies can do that would prompt someone to school you can either say please scroll and review before clicking or something there's a way that you and presenting the st two paragraphs is not adequate no or no with if it's not even clear that you can scroll because there are no scroll bars and there are also ways that and there are some contracts where you actually do have to scroll down to the bottom and you can't click i accept intil you actually do that and here are also just another point to compare them to ca remember it's not that most in this case the most obvious click at the bottom was not the click saying i hereby accepted answer i accept terms of service i accept terms of service was a little click box above the much bigger button that said i believe it's had continue so again there is focus in cotter's on where is the user's attention directed if the important thing here was accepting a binding legal contract why wasn't that the thing that had to be clicked that was in a large box why was there just a tiny little checkbox in the bigger clip was continue move on to the next which answer was in response to judge lynch's question about her deposition testimony that she was really concerned i mean i guess the question for us is is this a unique case where litigant his mate that kind of sort of damaging statement versus a situation where someone just says it was really a way or as opposed to i don't care i really don't think there's a difference here just because she was obviously upset and frustrated with the company and said i don't want to look at what they had to say i don't think that goes to the question of the reasonableness of what was presented to her and i believe the testimony that judgment was referring to was after her her rd time and that was the point when she was upset with the company she wasn't entering into an agreement to do continue doing work for the company she was just trying to get back into her online profile so that she could get her personal information about the work she had done so now i don't say you're saying it trial she did not make a concession as to her  her st two entries into their website that she didn't care i don't believe so i thought that was related to her comment related to her rd time going  class one last question which is what is the what is your understanding of the significance both in terms of why it's there and then how it might bear on any of the issues relating to contract formation of that term that says i am not i am an independent contractor i don't fully understand what that's doing and so does that is that potentially have some legal weight in the question of whether you're an employee not or not if you say that and then relatedly you mentioned that the company here was taking the position that it is the company you're taking a position that your client not even an independent contractor of them so the company takes the position that she is an independent contractor not an employee o analyze it in light of carter's was as just something was clearly a non work related setting it is the nature of this sort of just by virtue of handy taking the position that they're all customers somehow relevant to that part of the inquiry well i think it undermines hand his argument that she had should have been more on notice or would have been prompted to be more discerning of what was on the website because she was entering a work and employment relationship essentially is saying hand is in the whole case denying that she like other cleaners or entering any such type of employment agreement through which such terms who are aren't we end dependent contractor relationship as opposed to an employee employer relationship there right act and souce in so doing they very you're saying that that is under by their use of the term customers i'm just saying that it undermines i don't really know how significant this point is but it undermines their point that when someone is entering for example an employment relationship they might be more on let's say inquiry notice that they should be fully  studying every aspect of the on line sign up process to understand what the terms of that relationship would be i'm just i'm just saying that this doesn't really make much sense for them to claim that she's in a different circumstance from me consumer for if you could unmeet your device and introduce yourself on the record good morning may please the court my name is michael may yes and i represent handy technologies and as my sister mentioned we were fortunate in timing in this case because we had the s j c decision within the last month in cotter's which articulated the massachusetts law when it comes to the formation of online contracts and the enforceability all like contracts and that the stand and heard articulated by the court in that decision was nearly identical to the standard articulated by this court in calling and the court cited favorably favorably to calling and it also cited favorably even to the district court decision in this case but there are three i think the takeaways from the cotters case that apply directly here one is that the court was clear that while reasonable notice of the agreement is required conspicuous notice is not so they said the standard is slightly less than conspicuous notice it's just reasonable and they don't explain what that is what the difference is we know it's something less than conspicuous secondly they say that actual notice of the agreement is enough and if there's actual notice that these terms exist and the individual has had an opportunity for review those terms and that's the end of the increase you don't look at how big the font is a while call the font is or how busy that page was they just say it was actual notice that's it and it's only when there's not an actual notice that you start looking into all these other details of the page into how the terms are used like for example in the situation was displayed and whether someone could easily miss it and they looked is you know some labor cases where the terms of use you know were on the bottom of the page just as a hyperlink without any checkbox and a user can actually go and go on to the next page without even getting to the bottom of it will also generally be found where the user must somehow interact with the terms before agreeing to them so it's putting it onus on the person trapped in this contract to make sure that that the terms are at least reasonably noted sed so that someone can find them yes and what the quarter is but what carter's also did in that respect was they clarified what they meant by that because they then applied that term to the quick wrap agreement so we don't we're not even getting it to the scroll app agreement right where the actual contract is on the screen in front of the user we're starting  with a click track agreement clipper app agreement because that's what the carters court addresses and the carters court court is looking specifically at click wrap agreements and that's where the i agree to terms of use right agreed to this to scroll through the conditions or even select them that sentence seems to be hard to square with the idea that congress is clearly saying it's enough to present the st few lines of an agreement with  congress says so there are a couple of different lines from cauteries and i think they obviously need to be read together to understand what the court is court is saying but it says does the interface require the user to open the terms and i would say that would mean also scrolling through because it's opening the terms or and then there's an or does it make them readily available and i would say that based on cauterize and their discussion of click wrap agreements and then i think scroll operations are obviously even more obvious to the user as to there's an agreement that he would have to sit the thing is that i just have trouble reading your opinion as you're suggesting it because there's just no reason for them to mention the fact that it did not require them to sproule through or even select if just making it evident that there is a contract isn't up clearly they did make evident that there was a country because some of the terms were some of the poorest of the country were presented but if that's enough i will say there are a couple of other we can get to this after there are a couple of other statements in quaters were carter's i think it's the courts as it's clear that they don't have to actually show the user the terms it says alternately the author must reasonably notify the user that service agreement was not label terms of use or purchase or service agreement but rather just printable version so they were concerned number one that the hyperlink just said printable version and the hyperlink was not clear that it was box constituted the authorization for trangia union to obtain his personal information so wasn't that any given the reader a chance to review the scroll box what the court was concerned about  was in the scroll box was misleading enough that if someone was reading the scroll box they would be misled into thinking the scroll box was simply the authorization for the company to obtain personal information very specific as to why the scrolling is an issue in that case given the wording of the terms in that case there is not one other case and there might be but i've looked pretty exhaustive lee i can't find any case where a scrolling agreement was found to be unenforceable because it just had the st few paragraphs because it's all more it didn't require someone to read through the entire scrolling agreement and here you know i know i'm my sister makes much of the fact that there's no scrolling line on the right side of the screen we have to remember this is on a smartphone this is actually not on a computer and i would as i would say almost everyone has a smartphone understands the way that smartphone scroll and anyone is going to use a  smartphone for purposes of providing cleaning services for example you know should be sophisticate enough that they've been to a website before and if you go to c n n dot com for example on your smartphone there's no scrolling bar on the right you know if the st is the st paragraph or two of an article appears on your smartphone and you in the read the rest of it what are you doing is your finger and you swipe the phone up it's that easy and i don't see question why do you make so salient this statement that i am i understand i am an independent of that thing where you want to make it so salient what the nature of the employment relationship is that you're going to nine pages down in the contract that you don't make visible unless you scroll and you don't tell me have to scroll at the end of all that you're going to say oh by the way that thing about whether you're an independent contractor that can't go to court and it does i just don't get that why not just make that evident that's going to have to be arbitrated well your honor so the it is this is a use of the terms of use as one end and in the other one is an independent contractor agreement and genuine and i think remaining i actually think if you look at any types of agreements like this even in the commercial world any type agreement typically an agreement between a user and a company to the thing that most users are going to be interested in initially it is how does this app work how do i use it how do i how can i be introduced to potential customers or clients how do i get paid how do i contest my pay  i record what i'm doing for most people when they start up in a relationship you know those are the terms and then even if you look at a commercial agreement when it comes to ok are there disputes about what happens those are usually at the end of a contract just like they are if you buy a new t v or a new car in the st twenty pages to tell you how to use the t v or how to use the car and the end this troubleshooting what happens if you have issues how does that work and i think that is typical for most agreements because at the end of the day most users when they sign up to use an app want to know how they can use the app and how the app works frankly most users are probably not keys yes judge thompson what what what what i don't understand is i mean i have my i pa up next to my computer here when i signed up for the weather app or the dictionary for any of the apps that i have pulled up they all have terms of use i mean that's the language they use which makes me think it's the terms related to using the app itself it seems to me that that is the expression when you're entering into some kind of employment situation be it as an independent contractor or as a straight employee and it seems particularly confusing when you actually have to go to a face to face gathering where information is presented but something like the terms of your independent contractor is not presented at least in that face to face meeting well the an online contracts a terms of use so this situation is where someone wants to use the handy app in order to connect themselves with customers you know we're talking about in this particular setting the terms of use is everything that applies to that relationship and again i'm not aware of any cases that have issues with the terms of use now there are couple of cases my sister points them in her brief where terms of service is used as an issue and sometimes it's contrast it with terms of use and i can see why particularly in the customer setting like so for example in a situation where let's say you sign up for over a someone who wants to use a nuber drive her to go from point a to b terms of service is different because the term service arguably cases treat terms of use as different terms of use is the use of the app and all the practices and policies that apply to your use of the app for this particular purpose when you become when do you actually enter into the independent contractor relationship as the worker in the situation isn't only when somebody also uses it to connect with you so that you can do the cleaning so it could be so but work through that platform it's only in the do putting the work through that form that you become an independent contractor you don't invent a contract just by using the platform well you are you're presenting making that point you're not an independent country you're not an independent contractor listens when you're just using the platform presenting itself yes i would say for example it's like holding yourself out let's say you decided to start your own company as an independent contractor or you can offer your services without the use of hand his platform or any other platform or you just decide i'm going to tell you it's like kill somebody except my services or my labor i'm not in a contractual relationship with that person you would not doing it and there's no claim that you can have an to flip or just using the platform of holding yourself now it's the payment maybe i'm misunderstanding i don't think you can get paid just by holding yourself out no so the terms  relates to the terms of using the platform so you don't have to be it's not really about at that point being that the pin a contractor now the terms of you say that once you perform work you know just making clear to the person a user benefit but that's what gives rise i think to the ambiguity about whether terms of just enough to do just that you're entering into the employment contract w not the rd agreement later it was the nd every minute at that point she's not testifying that she scrolled you know she's saying that she saw the scrolling screen and when i asked her why didn't you scroll and read through it it wasn't that i didn't know  scroll she said because i think care what it said you know i guess i'm not funny if there was a big if if there was a requirement to crank someone to scrawl are you saying she had actual notice of the fact that you could pass over the salient term which is undermines she's not saying she ever did that so there's no mention student there's two dimensions that in the in the later testimony with respect to the rd situation she actually sa but she's not in that agreement there in the nd one she just says i didn't want to see what they said so i didn't scroll so she doesn't have those you could scroll but that's just different images there's apartment to make you scroll so that your eyes would have to pass over things so  that's where carter's comes in because crowder says essentially implicit in cauterets is that you don't have to make someone read the agreement you have to give them the the reason an opportunity to review the terms and then you know she's an adult as are other people at the use the app and then they make this ition am i going to decide to review this or not is this important to me to review but but it cauterized make that's one thing cause i think does make clear it says give the user the opportunity to review those t make them readily available and and so i would say regardless of how we think as a public policy you know how a person is more likely to read the terms when you force them to or not that's just not something that massachusetts law requires it just requires that you give how does that square what you're saying i just find the sentence hard to match with this because it seems like an unnecessary think to upset if what you're saying is true which is it's enough to know you can scroll they say the interface did not require you to sc have a scrolling text they only when they use the phrase judge baron that your firm to it's just simply in summarizing how the court held in another case it wasn't necessarily setting forth the standard but that's a call was articulat can i just ask one more question just lynch in cotter's do you think that the s j c iset all that each to be said on these agreements i mean in other words is there any certifying this this particular case what i would say not this particular case i mean there may be obviously other questions that come up in unique circumstances but when i recall auditors i see it as essential endorsing the click wrap agreement which we have here in the terms of use and here so you only need scroll and i mean click wrap is obviously a step short of having the paragraphs on the screen and if the court  favorable opinion of or reference to sing verse is saying a click wrap agreement where the person's only presented with a hyperlink and not presented with any part of the agreement is sufficient what here we have now paragraphs on a screen so now handy has gone one step beyond what the court said is necessary in cars and if you look at all the cases the cases my sister cites the cases that carter's relies on they're talking a click wrap agreements where the the user actually sees none of the agreement on this screen just a hyperlink and all these cases are saying that's enough about how in that case the goober and carefully required drivers to consider the terms and conditions but that's not the same situation we have here and i believe that the discussion of  was focused on the way that the user accepted and here of course our focus is not on whether there is reason why exceptions but whether there is reasonable note or if you just answer the last point that was maybe i'm missing something i'm just not seeing how to put those two points together i think the scrolling part goes to the reasonable notice step one where you know where is the respond notice in a click well in a click wrap agreement you have to have reasonable notice needed to be something reasonable such as it appearing on the screen or scrolling and that was either required well i mean as as you pointed out judge baron so i'm not sure in other words if in the click wrap if the screen say is there are additional terms and conditions that will be binding on you rick whether you read them o well it is it didn't say that here and i do think there are a lot of them here this year certification meeting warranted because they're obviously still unanswered questions as we are oh trying to sort out exactly what issue would you certify whether it is man and whether the website mandates that you scroll is that the issue that we would certify on your theory i think a little more clarification would be useful as to what constitutes reasonable not your brother has had the language which troubles judge karen shouldn't trouble him for two reasons one it was merely a description of another case but secondly cannot possibly import such an agreement because the discussion of the standards is there was a reasonable opportunity to view the terms decision it discusses the issues that led it to the conclusion it did under its totality the circumstances analysis and i also just want to point out the record is a little ambiguous about when the plaintiffs was referring to when she said i didn't care about reading the agreement i believe that my brother said that that related to the nd time but i think it's ambiguous whether she  the nd time that she could squall or that she was agreeing to a binding contract regarding her actual performance of her bench will work which she wasn't countering in the contract to do the work just because she