d'errico for the appellant global telling which we all called t t l we ask this course court to reverse and to enforce details arbitration agreement with mr hobbs we ask it to do so on the basis of a commonsense principle and that principle is that when a company states that a proposed bargain is subject to terms and conditions it puts the customer on reasonable notice that entering into the bargain constitutes acceptance of those terms he didn't use the term subject to write it used the term i got in terms of use or so in this case on five separate occasions mr hobbs called g t o on the telephone each time details phone system played an automated recording that said please note that your account and any transactions you complete with t t l are governed by the terms of use and the privacy statement posted at w w w dot connect network dot com and nothing happened after that you didn't punch a number you may know with a lot of companies you punch a number of the end that you accept or you transfer you reaffirm you didn't punch the numbers or do anything that just listen right that is correct it's rarely the case when parties are transacting by telephone that they punch in a number in this case that's certainly not the record i'm sure of but go ahead it wasn't either in this case but mr hobbs then did was talk to a live operator the first time he spoke with a live operator in february of two thousand and fifteen he declined he heard he heard the automated message then talk to live operator then he declined to open an account we believe the reason he declined to open an account was that he realized that the facility that his son was that was not actually served by g t l but before we get too far along the third circuit's case why doesn't that pretty much resolve this case two reasons your honor one is it applied in new jersey law rather than texas law new jersey law is in a very important way distinct from texas law in under texas law there are two requirements for assent one is reasonably conspicuous notice of the existence of contractual terms and two is that the terms be readily accessible we laid that out in our brief about pages twenty through twenty two under new jersey law by contrast and i can just read you from what the james court actually said mutual assent requires that the parties have an understanding of the terms to which they have agreed that citing to the new jersey supreme court's decision in the adelies case this is just another quote from james cook the party bound by the terms must have had knowledge of and  the incorporated terms that is to say under new jersey law there is a heavy emphasis on the customer's nol actual knowledge of the arbitration agreement and more than that the fact that arbitration constitutes a waiver of a right to a jury trial the adelies case the new jersey supreme court decision in adelies is quite remarkable in that decision the new jersey supreme court held that it is not sufficient to say in a contract you agreed to binding arbitration on top of that in order for an arbitration agreement to be enforceable in new jersey the contract must say and just so you know arbitration  that you are not going to have your case resolved by a court you are going to have the case resolved by an arbitrator so texas is a restatement of contracts section sixty nine section nineteen the basic sections right i don't think there's any disagreement with respect to the basic sections but i think where the disagreement arises is with respect to the basic principle that we ask this court to adopt which is again that when a company says in plain english that  proposed transaction is subject to terms and conditions or to be governed by terms and conditions if i agree to enter into that transaction i'm accepting the terms and there are legion cases that adopt that principle the hubb case which applies texas law involved a situation where a customer bought a dell computer and dell said again in very plain english all sales are subject to the terms and conditions of sale and the court had no difficulty determining that by agreeing to buy the computer the customer was agreeing to accept the terms and conditions judge will fall in a second circuit case called register dot com has a somewhat quainter example but i think it's equally apt he talks about a fruit stand where there's a sign that's posted and it says apples are fifty cents fifty cents apiece if somebody then goes into the fruit contract on the back you think that's a contract absolutely your honor if you know if you are on notice of the existence of terms and then you agree to enter into they're going to let you know you don't find it till later and you drive surely that's not a contract well i was trying to pose an easy one to ok well if there is no notice until after the yeah if after the transaction is completely finished then the question might be different but here we're talking about a situation in which mr hobbs had a thirty day right to opt out of the contract either the entire contract or just the arbitration clause the terms of use of retail say if you open an account you have thirty days to decide first look find the terms you use then decide whether you accept them and if you don't accept them altogether or if you just don't like the arbitration agreement you can opt out of either one of those two things and that's quite similar to what judge easterbrook said was perfectly acceptable in the hill against gateway case and i would emphasize that case for this court because that case again is quite apt what judge easterbrook said in hill is and involved a telephone transaction just like this is when a customer calls and wants to buy something by phone  challenge on the part of the company is to try to find a way to communicate the terms in writing nobody wants the terms to be communicated to them by to them orally and even if recorded on a bigger part even if  standard here's object if you agree yes it is wouldn't you rather have it recorded i state the terms you say yes and that's record i don't think so you're our boy and the reason is that in the context of consumer transactions what the customer values more than anything is getting the transaction done expeditiously if you had to sit on the phone and listen every time you called up the airline and said i want to buy a ticket to wherever to a ten minute certainly there are other ways to design the system but what i what better way as to design well you know i think what the companies are trying to do is balance the consumers demand for expeditious transactions and the be objective on the part of a very very small number of consumers let's be honest about it to actually be able to see these terms and i think that the design of the g p l system is appropriately strikes that balance by saying you are please note there are terms of use that govern this transaction here's where you can find them and for the small minority of people that want to find them it is very a telephone transaction with publication of the terms on the internet and i think that hill is part of the answer to that in the sense that what judge easterbrook is saying is that when you trans telephone the consumer needs to get the terms in writing in that case gateway was selling a product and so what judges are upset is it's perfectly sensible for the company to include the terms and conditions in the package of the product and then give the consumer thirty days to look at the package read the terms if he wants to and then return the product here you're going to hear you're equating writing with electronic right what i'm  does right you're not to get a writing here you've got to go and look at the website and do it and exactly show writing in electronic being the same thing to write for from the standpoint of a company that provides a service in other words we have no computer that we're going to send to the customer so we can't put something in the package that the customer can then read so what we do instead is we say what's the next best thing for trying to communicate these terms in writing to someone who we're not going to be corresponding with through the mails the best way in this day and age is to post the written terms on the internet and you're quoting electronic with writing by the way their uniform do this don't i'm not trying to beat you up but you but you're saying that right i'm saying that in especially in the context of the kind of transaction that we're doing here it is especially nowadays a readily accessible way to publish written contract terms to a consumer to say they're if you want to look at these terms and conditions anywhere in the world twenty four hours a day seven days a week you can do it from your smartphone whereas if what we did was mail these terms and couldn't the conditions for people in the mail if it got lost or if they were away from home or whatever you know it actually does not provide as readily accessible access to the to the terms as an internet publication does i see i'm into my which i'd like to reserve with the court's permission what if is there a live operator involved in these initial calls there is so what happens is you hear the automated recording that right off the bat you can't you don't get pas go but if you don't have a pen and paper handy to write down w w w connect network died you missed it you could ask at a live operator you know i heard there were some way what happens after the recording is a live on a live operator comes on you have every opportunity to request clarification you know i heard there was a website but i didn't get it down and again again mr hobbs heard this recording five times he spoke with a live operator on five separate occasions the first time as i mentioned he didn't open the account the next four times he opened the account and deposited money on no occasion did he ever ask a live operator anything and the repeated nature of this transaction i think confirms that with respect to mr hobbs and the inquiry again is a reasonable person in mr hobbs the circumstances that he did get reasonable notice of the existence of and james were there multiple contacts in some cases there they were mor  i urge you obviously to affirm the district court's decision the district court got the analysis completely right it applied texas law as texas law requires it to be applied determining whether their contract was formed it plies texas law with regard to the requirement that there must be a notice of the contract and there must be a match and there must be mutual consent and there must be a manifestation of a sent and in this regard the district court also got especially with regard to the manifestation of assent the issue precisely the way the third circuit and the district court in new jersey did in jane's and with regard manifestation of assent new jersey law does not differ from texas law or restatement law you have to jersey follow the restatement strictly as texas does i can't i do not know that your honor i do know that new jersey has some differences with regard to the amount of knowledge it's required but that's a different issue because it's a two step inquiry and the inquiry is to have notice of the of the contract of the of the agreement to arbitrate and the second point is have you express mutual assent and as the district court here correctly determined in the context of this factual scenario and the objective facts presented to the district court there was not sufficient either notice that a bargain was being proposed and i did notice that my colleague mentioned that a bargain was being proposed but that's not exactly what was stated to the consumer who was calling in this case mr hobbs in order to put money into an account so he could talk to his every circumstance with the question of the bargain but that's the core of the mark that is the core of the bargain whether there were additional terms and conditions that are attached to that bargain are not is not apparently clear well so it's a separate question you said before there is no connect network dot com the terms of use and privacy statement were most recently revised on july third two thousand and thirteen that together it took me about twenty seconds to sign it and then a live operator comes on  press this button and you can hear the terms of the contract it does not say press this button into a note to indicate that you were sent to the terms of the contract there is nothing in that statement that indicates that  they terms are being the terms of a contract are being proposed for which your conduct manifests intent and that is the criteria that has been established under the law in this circuit and i mean in texas they want to think the closest texas cases i think the well there's two of them i think that the southwest which a district court case with southwest airlines versus i think it's board first and also i think the recent ok switching has been appealed i understand concerning employees and policy employment policies is also on on point in that it too makes clear that what you need know have is a reasonably conspicuous statement of a of a policy or a contract and an affirmation of assent and that when a conduct is interpreted  that and the employee was also told that they were responsible for being familiar with those things none of that applies here here all we have is a statement which as i read before simply just said you know your account is governed by the terms of use and privacy stated it says variance actions to counsel now that the district court has a lot of the magic words section in it where they talk about magic words that would work why is it transactions close enough to the magic words that even the district court says that would work if the district court in yeah these the district says no words like contract consent agree a send off or accept and the like because because i think that those convey more to a person that we're giving you some choice you're given your bargain contract and you have a choice to accept these provisions that will apply to it or not and and i think that that is why in many of the electronic contracting cases to spatial and temporal proximity these are the things so when you have internet contracting and a link appears on the bottom of every page as it did in the meyers versus hoover case which is second circuit first the district court on that is the stands where in blue writing at the bottom of the registration page there is a link that says here you can get this temporal spatially and temporally in that circumstance you have immediate access to the terms and conditions tie on it i thought the district court was not concerned about spatial and temporal the district court thought that a reasonable person would think that the recording was referring to what it called generally applicable legal rights and duties that were imposed on providers and users of in may calling services alike by third party state actors the district court i mean part of what i think the district mean here that means to me that the court was saying you know you're calling someone out of prison there's a possibility that these calls are governed by restrictions and and and rules that are different than every day calling and that that that is possibly what that could have referred to in in the recording rights as any tracks in transactions you complete are governed by the terms of use and privacy statement for instance monitoring you know your calls can be monitored if you call on prison those types of things  district court did not state that well as the way that the that the the the notice with the audio notice would be interpreted but he said that was a possibility and that was one reason that he said he concluded that you could not say that there was a notice of contractual terms that you were being asked to assent to and that your conduct in continuing constitutes assent to i would i would also say with regard to it so this district court here was not your right the district court was not looking at the temple or spatial proximity the district court was saying this is what was told to you this doesn't notify you and under texas law you have to be if you're told something that could mean one thing or another thing that's not sufficient to put you on notice you have got is that reasonable you think to believe that the company was referring to the prison regulations  statement yeah it could mean that it certainly doesn't mean on its face that we're offering you terms of a contract it doesn't give you the opportunity to see spatially immediately what it is you're being offered like it is in many of the other cases where browse reckon quick wrap are enforced and determined to be sufficient to give notice it doesn't equate to when you receive a package which meant in most cases where someone signs up online or signed up over the phone i believe that in hill the terms were provided subsequently mr ho said well this is the hills instructive here but it's just the internet age so it's different you can just tell someone in internet address you could say to someone what your internet what's your email address and we will send you the terms and conditions that's very similar to someone mailing terms and conditions which has often been the case in the past the circumstances here are such that and as the james court found a statistic or hear found as a district court in new jersey found that there was not sufficient information to advice someone that they were entering a contract and that they were manifesting a cent by continuing to use the funds that they put into that account to talk to their loved one as they said in james they need to  transaction with t t l occurred over the telephone they neither received the terms of use and i would add nor were they put in near proximity were provided subsequently it's not the courts as we go here nor were they informed that merely using telephone service would constitute assent to those terms and in in reaching that using that analysis and making that the determined of points which is essentially the same points the basic contract law you've got to know that a proposed terms are being offered to you and you have to know that by acting in a certain way your conduct will be interpreted as assent so that i'm just go unless you have specific questions i just wrap i will wrap up with that with that basic tenet you know it's true it's the internet age it's true that there's telephones and and this was interactive voice but you have to look at the reality offered and that governed the use of the service and that were proposed to govern the use of the service to quote mr ho and that by continuing and making that call you were agreeing to those terms and conditions my final point would be is you cannot look at the terms and conditions to determine whether or not the thirty eight for the thirty day opt out because it doesn't make any sense if you're not put on notice that you ought to look at the terms and conditions then there is no reason for you to look at them and then you want to see the opt out provision so you think comes down to whether telling the person that transactions are governed by the terms of use of the website conveys that they are that those terms of use  contractual terms i think it comes down to the same thing yes basically and that's the same thing it comes down to in any contract and what's come down in and out trying to contracting the clarity in conspicuousness we are all i mean a judge brooks went off on this idea that they might have been prison regulations that were the terms of use but suppose it's clear that terms of use means terms proposed by the company that's offering a service when you think there's still a problem in that the user has to go to a website and look them up or is that a reasonable i think gas of a consumer i don't think it's i actually don't think it's a reasonable thing to ask a consumer and i think that the case is dealing with proximity which is that what you do do establish the courts generally do look at how easy is it for you to get to those terms and conditions do you have it i don't think it's right to place on the consumer a burden to go out and search down something that you refer company's burden should be less in this circumstance of interactive phone communication than any other where courts have held you have an obligation to place in the conspicuous reasonably conspicuous position the terms and conditions that you're seeking to bind somebody to whether that be in the click wrap in the wrapping you send them after they they sign up on it on the phone whether it be on the internet in a hyperlink at the bottom whether it be in a box of say yes i accept these terms and conditions but in those circumstances there's an immediacy and an ability to access it that is not here and i think that's further heightened when you deal with a circumstance where it's audio only and i do think in that circumstance the fact that you are intending and trying to call someone in a prison does make it less reasonable to assume that the statement made we first to a contractual  judge brooks rejected all of plaintiff's arguments but one and that's the one the judge colleton alluded to which is the notion that details notice didn't contain as judge benton put it magic words and could have been misunderstood as being prison regulations with all respect to judge brooks we don't think that under no over review that holding bear survives scrutiny for one as judge college and pointed out the context here is a bargain a proposed bargain an exchange of telephone services for money and under texas law in particular the ha ha's case that we cite it is absolutely clear that you consider the context in determining whether the customer or their counterpart counterparty had reason to know so the bargaining context here is clear to the language does actually allude to terms about bargaining terms of use are widely understood to mean a contract the term transactions with t t l in firms that the language refers to a contract so we have context and we have language and then third we have what the myer court and the schwartz court in the second and third circuits concluded which is that it's an unreasonable result otherwise mr h more for this court suggesting conceding that there was a contract but mr hobbs's view the contract had no written terms whatsoever in fact mr hobbs view the entire contract was implied in law and everything about the contract including the rate the term about price rates would have to be supplied by a court so if mr hall were to try to enforce the contract for example we would have to be in front of a district court and the district court would have to decide for the parties what the reasonable rate was that's not a reasonable commercial outcome it's it's frankly unreasonable as the schwartz court concluded now you say judge brooks rejected every argument but that one but did he really address this notion of spatial and temporal proximity because he concluded as you just mentioned that the terms of use might not have been contractual terms so he never really got to those other issues well i think you did because in the preceding paragraph he he notes that under texas law you know and if there were adequate notice it would not be a bar to enforcement that he never signed it never clicked or never had an opportunity to review the terms of use prior to using g t o services so you think i'm saying that you know that you don't need the kind of that's right and that's because texas law you know there are texas cases that basically adopt the view that judges brooke has that it is it is affective for consumers efficient for consumers to honor come down to the question of reasonableness and i think in this day and age where as chief justice roberts said in the riley case an alien from outer space could be forgiven for thinking that smartphones are a part of the human anatomy i think it is reasonable for businesses to be able to expect that if they publish things clearly in conspicuously on a website that that constitutes effective notice of the terms if we live in an internet  economy and it's important for consumers to be able to obtain written terms in an effective way in an efficient way and i think internet publication should be accepted as a reasonable process for doing that  it is reasonable in the abstract to expect someone to access the internet at the very least there ought to be a rematch and because a subsequent deposition of mr hobbs revealed that he owns an internet business he called his business a mini amazon it's an internet fulfillment business so there is no question that again mr hobbs at the very least is not in the position of someone who unlike chief justice justice roberts might but morna global so are we to assume or we could make any assumptions about the level of the sophistication of the people who are using the system in terms of the real world knowledge i think that the standard  as you said judge woman is a reasonable person a person or and so we look to see what ordinary americans experiences short of that i think it is quite relevant what mr