good morning your honour's adam hansen on behalf on behalf of petitioner randall hall endeavor to reserve two minutes of time for rebuttal and then please the court the district court committed clear air when it failed to apply bedrock principles of contract formation and compelling petitioner to arbitration i'm going to proceed as follows today beginning with the issue of contract formation and how the district court deviated from the of likable standards then moving to address the ho arguments that respondent raises under the federal arbitration act and then i will address if the court has any questions the remaining mandamus factors those those factors by the way at least for me are very important the contract issues  let me just try to respond briefly up front will come back to it certainly with respect to the bahman factors this court has two decisions one very recent one about ten years old that arose specifically in this context of the motion and that's the the johnson and the henson case so those cases do shine the light on the path that we have to walk on your honor to accomplish that and i would note that in the at least in the henson case that decision explicitly said only the first three baumann factors were satisfied so that is enough to get us over the hump but let me return to that at the end time allowing with respect to the third factor clear error of course the most important factor in the mandamus analysis the district court as i mentioned a moment ago did commit clear air here the question of contract formation of course turns on the mutual manifestation of assent that conjures up the play tonic ideal of two people sitting on opposite sides of the bargaining table in the real world of two thousand nineteen we have created the legal fiction of inquiry notice and this is an important legal concept that of course is going to government government when we have contracts that are delivered mechanically and i don't take it or leave it basis in other words contracts of  in other words all contracts related to software for example well i assume you know if i'm a software vendor in a large company there there may be some exceptions to that but basically from the consumer context if you're on the internet we're in the are you are you suggesting that all or substantially all contracts that people click on without reading for software are you couldn't possibly have something in operable and what courts have said is well when we don't have this play tonic ideal of two people on opposite sides of the table what would a reasonable person have understood themselves to be agreeing to in that situation and courts have established the guideposts of be so deeply hidden then it takes a degree in software coding to be able to find correct yes and indeed as i understand it now u this particular program puts it right up front that doesn't resolve this litigation but that's an example of how you can make more point now with this program this my choice program first of all your correct so he did that on his own that was voluntary right in the checks the box which says my selecting this check box in the continue button i agreed to the u p s technology agreement and the  s my choice service terms correct correct and there was a hyperlink attached to that correct to have a list which got you to the service terms and conditions one of which was claims and legal if you go to the first hyperlink you get a ninety eight page document that mentions nothing likable to this point of arbitration in fact on page eight it says all claims shall be filed as state or federal court it also incorporates six i think other documents by reference so in theory while still on that first link you could go off and read all of these other documents now let's talk about the second link the second link takes you to a very a relatively short document a three page document which is the my choice service terms this document mentions nothing about arbitration or court or dispute resolution at all but it does purport to incorporate by reference yet three additional documents an hour up to seven eight and nine total and one of those documents the second on the twenty seventh page claims to require arbitration so hopefully i'm getting a flavor for this description of what we're dealing with and is that on the u p s website that last one the last one is the u k s website but that also is a good point because in that second three page document it makes reference to these three additional documents and it says you can go to u p s dot com to find them but if you were to go to u b s dot com into the control fin for those three documents you wouldn't find them on the main p s page he would actually have to read around and search on you guessed dot com all right so i want to make sure that i'm understanding your response to get chalking this question so your position is you could not get to these terms through hyperlinks correct that's undisputed so it's not impossible but what what we have here is the standard of conspicuousness which it gives integrity  legal fiction that we're all living with it gives integrity to this concept that if a person were to give his or her level best and actually sit down and read these things that they would have the same understanding as the material terms as the offering party does it matter that i'm not against ninety nine percent of the consuming public hasn't got the faintest idea what any of it says let alone the arbitration clause i don't think it matters in fact i  think it matters in the other direction because what we're really talking about here is look we're not going to bail out people who don't read these things the expectation is you need to go read it but if if you're in the ninety nine percent who doesn't read it we're only it must be understandable that it's not impossible in fact it's easy for these terms to be written in a way that a person of ordinary ability and intelligence can understand and the fact that we've gotten so accustomed to  contracts this one i think being one of the worst offending examples of just this being impossible morass is it speaks to the problem that you're not saying as i understand that  take you are saying is that they can make the process of discovering the band so attenuated that fact it's not reasonable and it's not conspicuous correct in this i mean we're talking about internet contracting here but this is a body of laws this court has recognized in nguyen it has not fundamentally changed with the advent of the internet there are cases going back hundreds of years that deal with steamship tickets that deal with insurance contracts you can buy at the airport through a vending machine these are the early cases that deal with contracts that he should and courts have established these guy posts as i have said simply to promote the integrity of this legal fiction that if someone gave it their level best that they would have essentially gotten there they would have gotten to that meeting of the minds well if it had been hyperlinked to follow up from my last question would you still be arguing the same position that we should man a missed the trial court because of that it would be better but i wouldn't and here's why and this is a good segue to the next point as i mentioned to that response to judge hawkins question the first hyperlink document contained a dispute resolution provision that says all claims arising rayon that talk about if you have competing dispute resolution provisions within the same morass of contractual documents that there is no meeting of the minds on that material term and so judge lynn that point least some of the facts in this particular case would be independent of impediments to you know the district court's holding but if i take your point more generally which is if you just have a website and a then behind that i believe you've got clear conspicuous terms and yes i would agree that that gets the job done so i'm not here asking the court to overturn the you know what is really the principal business practices of most software  vendors this is an outstanding extraordinary offending example when it comes to in conspicuousness and lack of clarity though so from from your perspective what you want us to take away from this is even if they were able to tie in arbitration through a normal hyperlink in this case even a lawyer looking at this would say ok on the one hand on the contract i've got a more traditional conflict resolution which involve courts the choice of law on the other hand i got arbitration those are mutually exclusive there was no meaning in the mind therefore at least in this case they are entitle to compel that right yes that's that's that's right and that's we really have the weight of authority contra contract principles be they formation or contract offenses that discriminate against arbitration or essentially effectuate that discrimination covertly justice kagan turned a nice phrase in kindred when she said a state can't for example have a rule that applies to arbitration and black swans in this case these rules don't apply to arbitration or single arbitration in any unique way of course lots of contracts them over tradition have nothing to do with  agreements that are as he said in nature i can going to go shoot freely an arbitration agreement and none of these rules would apply by the same token court said apply these rules to many other clauses and agreements limitations on liability contractual statutes of limitation venue clauses many other cited are brief and so what you have here is a rule of general of likability and the supreme court in concepcion specifically said that those are still ok this is rule these rules that we go really to the fundamental heart of contract formation do not draw their essence from arbitration or discriminate against arbitration in any meaningful way you want to have some of your time i would like to look at thanks so much  didn't clearly air and none of the other factors justified mandamus either let's talk about the point that we've just been discussing with your opponent he seems to concede that the normal kinds of things that bother people in these matters don't apply here he understands you can have a i phone and hyperlink and have arbitration people may not understand it but in this case you've got a contract that has two  conflicting classes why isn't he right it is a matter of basic contract law there's a failure to have a meeting of the minds and therefore at least in this limited case you don't have a right to compel arbitration because  dischord correctly conclude here that there's no conflict your honor so there's no conflict between a clause that says that any as you point out the very broadest kind of conflict resolution will be to settle in state or federal court  of venue provisions versus arbitration how and how can they be anything other than in conflict because the first one is in and is contained in the in the technology agreement and as the just a court recognize the technology  clear on its face that it relates to use of u p s s technology the arbitration clause by contrast has been point complete contained in the u b s terms and conditions which makes clear on its first page that it governs u p s the shipping here and that's and that is clear in the contracts that the that the language the general state federal language that at only applies to college agreement that agreement itself makes it clear clause on which they rely is qualified it arising out of related to this agreement the agreement about using technology services in the district court again it certainly didn't clearly air and i don't believe it's wrong at all including the technology  and here it doesn't apply to the shipping claims and to get to the contract that was formed so to accept an inquiry notice governs at all in this situation the question is did you enter into a contract with u b s petitioner does not dispute that he entered into a contract with you yes he agrees as your i was pointing out that he selected i agree i accept the my choice service terms he didn't have to do that entered into a contract it was clear he was interim into a contract that reference are the u p s here terms and conditions which are available at u p s dot com that under california law in this is the under california incorporation by reference law that is plenty sufficient title insurance the plymouth mary tyler insurance document did not contain your attrition clause but it said by expressing corporate the policy which was available at the office that issued this policy available at the office  act in that policy was the arbitration clause the california court held that even if the plaintiff was not subjectively aware of what the policy said or that it contained an arbitration clause that he was of the doc in it to which you link when you click on the hyperlink that was made available to him when he signed up saying i was going to still have to go to u b s dot com you do but the record shows that is readily available to him certainly even more available than going to the the u p s website through the search link the customer service link and notably also the arbitration clause is attached to the petitioners complaint in two places is he attaches the tariff terms and conditions  that includes his complaint includes the arbitration clause in that document he attaches the u p s rate in service guide at exhibit c which is the foundation of all his claims here that includes the terms and tariffs at the back of exhibit c of the complaint which includes the very arbitration clause that u p s s and vote here and that clause is broad encompasses all shipping claims you have with the u p s he accepted under california law he accepted and joined in agreed to those terms and he is b my limited understanding of the business model of the us i can't imagine they would ever agree to having individual lawsuits in courts all over the country they would require or they would require arbitration why not put it up front well so if your answer i take it is they're not required to and here are some cases where it was even more difficult to find the arbitration they aren't required to your honor as one of you noted it now they now have put it made it more readily available u p s is always looking for ways to make things easier for their customers and they added it but the fact that they added suspenders to the belt that was already there doesn't mean the belt wasn't binding and it was under california law it was and so and i would like to turn and say and the rule he's requesting you to adopt would both be contrary to by i mean california supreme court precedent which has said there is no requirement in california to highlight an arbitration clause that's a supreme court california supreme court decision in sanchez nor to call it particularly to the plaintiff's attention and if there were such a rule it would be preempted by the federal arbitration act that is what the supreme court held in one thousand nine hundred six as the petitioner concedes in his reply brief at page seven in a case called doctor's associates which was where the u s supreme court was presented with a case of can you require can a state require the arbitration clause to be on the first page and highlighted a contract in the supreme court held that was preempted well is there any wine that it's just too hard to find it i mean if someone if you p s head a crude map cross the golden gate bridge drive two miles climb one hundred feet bring his shovel presumably that wouldn't do well so i think it would be a question of california law your honor as to whether or not you concluded it was readily available it's all it's very easy to get to from u p s dot tom and certainly easier than going to the apollo the office that issued this policy is that when he wants to rule that he is positing is to somehow contracts that sounds like a dirty word but it's not those are just simply contracts that are on standard forms where you don't have an opportunity to negotiate the contracts as the u s supreme court has recognized very common these days to have these kinds of contracts  if a well were to be adopted that treated arbitration clauses as something bad that were unexpected in the same way that it exclusionary policy in  policy is unexpected or bad and therefore must be called to the engine that would be preempted i mean i think dr so she's pretty much already does preempt it but anything that concepcion makes that theory thing that calls out arbitration is something  special because it's arbitration and the only way to apply which is yours rule would be to look at the cause itself and say are we talking about an urgent clause and if so then it fits into the exculpatory clause bad bucket and therefore it must be called out in highlighted in some way special that would be presented and contrary to california law to start with because sanchez i think makes clear it isn't that sort of clause sanchez as you don't have to highly arbitration clauses and you don't have to behalf of this particular district court on just reports generally we agree with the petitioner that regular contract law principles apply these are just well established principles of contract law that the question is how they apply on this case thank you very though and i just ask you right up the bat yes you when you and i talked before you said there's a player they have a meeting of the minds her answer is you got two different entities involved two different contracts what's your response to  that we don't agree with that there is it on page one of the document the technology agreement does mention a different entity but as you would likely suspect the dispute resolution clause does not limit itself to that entity u p s market driver it includes elliot's including u k s a k a the defendant in this case and your other question judge smith there is no master principle there's no clause that says well you know if another agreement applies then this one stands down there just  to perpetuate this this scheme i'd like to close with two final points and i guess one final point since i asked that question judge hawkins you asked why companies don't put this right up front and the answer that question is if you talk to marketing or business people at these companies they want this process to be as contract free and simple as possible the legal people on the company on the other hand they want something that is going to stand up and so unless of course are independently willing to have a dialogue on these points and require companies to be more conspicuous and more plain and clear this is going to be the rule of the road courts will put in print their imprimatur on so called agreements like