district court dismissed after declining to exercise supplemental jurisdiction in fact the court had original jurisdiction as expressly pled in the complaint and the parties agree that the judgment needs to be reversed as to the cut a claim and the case we mandated to the district court while the cut a claim is being remanded to the district court we also strongly urge the court to recurring electronic funds transfer is provided to a page that a copy of that authorization will be provided and web loyalty asserts that it provided two documents that accomplish that goal the so called acknowledgment page and the so called joint e mail the acknowledgment page is not a permanent record it only flashed on the computer screen and after expressly requires that disclosures be given to a consumer in a manner that it could be kept and so the acknowledgment page as judge hate rightly  commented is not particularly relevant to the discussion of compliance to f his copy of the authorization requirement i'll add that it also suffers from the same effect same defects as the join email to join email is not a copy of the authorization in what are them new tiriel differences in your view between the two  purportedly e mails to the plaintiff and was what judge hate primarily focused on and in particular if you the e mail web contract a copy of it was never provided to the plaintiff in fact in supplement to the that's the staff comments to regulation s what i'm asking is the there was a joint e mail  provided and that provided information that was similar to at least one what was on the screen when when somebody signs up and my question is what's the  difference i know your argument is that it's not a copy and my question is more specific what's different about it i just said thank you write it first of all it doesn't mention recurring electronic fund transfer it mentions that the consumer will be built a billing is a credit card transaction and a credit card transaction is governed by or by cut correct congressional legislation by different statutory scheme than electronic funds transfer congress recognized billing to be materially different than  congress determined that's a material difference the regulators have enacted different regulatory schemes for credit cards and for electronic fun transfers and this  usually this court likewise should enforce this material difference between credit card transactions and electronic it says it will be billed by shoppers discount to the credit or debit card you mean that there will be a transfer because that's how a debit card works well i do believe that this is confusing language when after requires clear language and the manner that it's been presented  requires the consumer to put on a detective hat and figure out what exactly this is being said here if we're i worry that we get go from consumer confusion and the essence of a cut put claim to interpret ing what a copy is under the act that the defendants had to comply with here and is it your position roman page not as a screenshot but in its archived server and it was absolutely able to provide a copy of it is that your position that that's what they had to do yes yes however we also i'm itself and the nates from an unknown unidentifiable center but the subject line says as requested your membership can't and billing details for shopper discount and rewards so doesn't that overcome any ambiguity in the from line actually i think it creates more ambiguity because i often receive and i wonder members of the court have as well an e mail that says it's from a t n t or from netfli what if the email had provided the enrollment page itself according to your argument you would know who sending it to you if if well but loyalty had properly identified itself consistent with the terms of concern and i think that's an important thing that needs to be focused on here is that under the esau and their web loyalty was only permitted to provide this disclosure to the point that by email consistent with the terms of the consent on the enrollment page the in roman page size that shopper discounts and rewards will communicate with the point of not customer service i see us do your splendid never consented to receive emails from this unknown soldier and the fact that it emanates from another known sender renders the joint email and nobody it's utterly irrelevant because it could not be provided to a point  a copy of the thing itself it's it's boiling down of what what would be important and and specifically says you know deal with the timing and the amount of the recurring transfers and according to the consumer financial protection bureau that should be enough well you wanted the c f p be in that all again also six times refers to the copy of the authorization a copy of provide a copy of the authorization just provide to requirement that the authorization itself reflect the challenge and in fact over and over and see if people in it refers to instances where that didn't happen where question is how much is st of all how do we receive the v actual contract and like i said it's been binding only admitted that that document with all the extraneous details is a contract that you're seeing the enrollment being roman page it would have the salutary effect of the the consumer receiving this document in close temporal proximity to the time when it was executed and gain the ability to scrutinize that contract like anyone gets to do when they execute a contract and determined that off electronic phone transfers were authorized but more than that judge hate posited a situation where this so putting aside that inconsistency when we go to the joint e mail and take a look it too is littered with irrelevant details that have nothing to do with an electronic funds transfer and the question then becomes this isn't a situation where there was a document filled with irrelevant details followed up by a clearance and succinct here is your route confirmation of your recurring electronic filing transfer authorization in fact what web loyalty did is it went and devised a new document filled with irrelevant details that have nothing to do with the transaction and at the bottom included some form of information regarding some transaction that was purportedly that that that there's a transaction between the  i need to i need to ask a little confused about exactly what your position is about when what web loyalty had to do to comply and whether the term copy is in big us or not ambiguous such that the c f p be in construing it to mean a copy of the material terms and conditions was going beyond the clear text of the statute or whether it had the authority to interpret it that way in the context of electronic fund transfers and the east sign act and other variability of the technology variables of technology that you know might make it empowered to protect trying to protect consumers in this way so it is it your position that copy means copies c f p b has gone beyond the statute and the only way to comply is to provide a screenshot of the actual document that ls signed or is it something else i just break this down into place to help st of all our position is that the join email is not sufficient under after so your honor the court does not read need to reach today the issue of whether copy means copy an authorization is authorization because this join e mail emanating from an unknown unidentifiable center filled with irrelevant diversionary language only containing the important provide i can judge parks and question so you're suggesting by taking that position that had provided all the material terms and conditions and mentioned electronic funds transfer that it would have satisfied that is that right i'm the term well let me just back up one second that the copy of the authorization versus a copy of the terms of the authorization needn't be decided today because of the provided neither in regardless of the ruler used to measure the document given to the point of a copy of the operation authorization or copy of the terms of the authorization web loyalty doesn't meet the test for the various reasons that have been discussed said that need to be remanded and the district court would be confused about what needed to happen next well part t is i do believe that the congress meant what it said copy of the authorization and as apparatus of that that the regulators believe that too i don't believe the c f p be modified this for web to the c f p be considered a new situation where telefonica authorizations would now be awhile and it contemplated a new situation where the consumer would not  writing initially and would have no writing to get a copy so in those circumstances the c f p be wanted to ensure that some meaningful document is provided to the a staff comment supplement to regulation and the staff comments provide an example of compliance and says give the consumer two contracts say sign one and return the other ok excuse me sign one and keep the consumer has the entire contract in his hands at the end of the transaction and obviously the staff thought that was in the situations where there's a written contract that does not change ok thank you very much a few minutes rebuttal will hear from mr fleming good morning and then please the court mark fleming on behalf of the app ellie's i think it's worth recalling what's not disputed at this stage there is no dispute that the plaintiff did authorize the fund transfers that was decided in the last appeal and is no longer an issue plaintiff agrees that the pla meaning of a copy includes not only an exact replica but also an imitation and the question is an imitation of what and the statute says of such authorization and this court in the prior appeal on page one of six plaintiff agrees that  imitation counts yes that's on footnote twelve of the blue brief on page thirty two dollars and also again on page thirteen of the reply brief ok so an imitation that would be like a screenshot it could be a screen shot but it's not limited to a screen shot it as long as it provides that would suggest still something other than a restatement of what ever the vendor considers to be material terms and conditions in tiredly different format i don't think that's right judge carney's as this court said in the prior decision when talking about the enrollment page the written authorization notes quote the terms of the transfer including the amount to be deducted from appellants account and the frequency with which the schedule debits would take place the join provides all of that the authorization is the assent by the plaintiff to the terms of the transaction and how do we read copy copying copying in big us we think copy is simply broader than the plaintiff thinks it is so we think it is clear that a copy means what the mr katz reference the federal reserve staff say they refer to a copy of the terms of the authorization and the stapleton says he just says copy right poppy of such authorization yes has such authorization and congress knows that it's a copy of the terms and conditions of such authorization it also knows how to say a replica or a facsimile and we cite examples where congress has required you know an absolute verbatim copy of something else that's not what it has done here and the agencies charged with its administration have set a copy of the terms of the authorization is sufficient and that is equally as and certainly amply sufficient in order to satisfy the purpose i sa difficulty in common parlance understanding how copy can mean something that looks so entirely different from what the ls originally signed off on because i think the difficulty here is mr katz is arguing we had to provide a copy of the enrollment page the statute says a copy of the authorization and the authorization is part of what the enrollment page contains but it's not it's entirety as judge jacobs indicated with this question it includes other stuff that you just referred to the authorization but the authorization  was in a box on the enrollment page right and was very clear when you were signing off on it wasn't the ad or the coupon it was the offer and billing details and your consent to receiving it in a box and it's colored in that's the authorization that's the operative language and to me that looks that a copy in common parlance would mean a copy of that and not a typing of some of those terms and as your colleagues pointed out it doesn't refer to electronic transfers it restates it is it your credit card will be billed her debit card will be billed it doesn't use the say language even so as a consumer i'm subject to the vendors re formulation of what i've authorized i don't think judge carney that that is a meaningful reform reformulation in any sense of the word because when you are what he agrees i believe that billing means charging in fact this court's previous opinion refers to whether loyalties monthly charges he himself on page believe it's page eight of the blue brief refers to them as recurring monthly charges when you charge a debit card the money is deducted from the account  debit card works so the fact that we didn't use the word deducted in the joint email i mean there's no confusion possible confusion as what's what's going to happen it says twelve dollars will be billed monthly that provides the card says visa and has the card number it says the date of the st billing the sentences are short they're clear there's a number to call if there's any confusion it's plenty to allow the the member to figure out whether the charges that ultimately appear are authorized and match the terms that he assented to i still just have kind of casual flipping back from a copy of such authorization to a copy of the terms and conditions i find somewhat perplexing is that i'm not sure the statute goes that far and as a as a skeptical consumer i like to see exactly what it is i signed i don't want to have someone else's restatement of it and so i'm i'm a little confused about how to approach this do i need to think of this is copy being somewhat ambiguous in this context and see if p p and the federal being charged with interpret ing it as in the context of electronic transfers at least sign act was within their authority to say this is how you can satisfy that that i think which i think you certainly can think of it that way we don't think you need to in the st instance we think copy is clear in that it is broader than simply an exact replica or a facsimile those are words congress uses elsewhere in the news here if that's not convincing to the court then i think the most we get to is that the the  section copy of such authorization is in big us and in that situation not only the c f p but also the staff of the federal reserve in comments that are also persuasive under the supreme court's decision in the hall and all talk about the terms of the authorization that's fully consistent with the purpose of your client does retain actual copyright a screenshot of the page is that right i want to be clear about this because there's been a lot of confusion here we do not keep a copy of the enrollment page with the pla personal information e mail address and card number in it if we did that for all of our members that would require untold server space to do we have course do have the text and layout of the enrollment page with the blank boxes and that's what your honor sees in the appendix is that we do require an enormous amount of space would be one page for every customer correct and you know there are three businesses and several pages for every customer i mean space should keep electronic out to anything t the the minor plaintive contends he does not remember getting anything isn't right he said in his deposition he doesn't remember either way he did not say he didn't get it he says he has no memory of what had one way or the other correct do not remember either way so this is this issue one that has to be resolved on this appeal if if the miner plaintive doesn't remember getting anything and we happen to know what it fraud claims are out of the case and the only argument remaining under after is whether he received a copy of such authorization and for that and or after does one have to say to have a claimant or after and i did not receive of the terms and i didn't understand that i owed this money on these terms well we're here on summary judgment so there has to be evidence at this point that after was not complied with we have we provided the district court with evidence required but entitled to under after and there's nothing on the other side defining what it is is intitled well that's you know i don't mean to be difficult i mean that's that's the dispute among us is it is does the does the requirement of a copy of such authorization is that satisfied by what the federal reserve in the c of p b s said is satisfies and what the courts who've decided the issues when the authorization is telephonic not by creating a judicial exception to the statute but by interpreting and applying the statute the way it was meant to be applied what is what is the difference in terms of the actual notice to consume consumer know what it is he or she is signing up for what is the difference there is no difference there and that's why mr katz is incorrect when he says there is some kind of exception for telephonic authorization if mr katz were right then a telephonic authorization would have to be followed up by a recording or maybe a verbatim transcript of a phone call that's not the way it works you can provide  of the terms of the authorization which are relevant to the key material terms of the transaction which is exactly what we did and there's nothing in the statute that says there's a different way of doing it when the authorization is by phone versus when it's online that's why we think that the standard is the same regardless of how the authorization is provided and as your honor says what we did is exactly the same as what happens in the telephone cases so we don't think there's any difference there and let me just ask my right to my understanding that you agree that the case needs to be remanded because there was catheters to that that's exactly right your honor needs to go back there's a fully briefed motion for judgment on the pleadings on the merits which we think should be granted but it hasn't been addressed and should be addressed in the st instance by the district court all right thank you very and thank the opportunity and it's in the docket of the black case and we cite it and in fact the in the black case mr black didn't get any extraneous details he didn't get a document filled with advertising with the facts buried at the bottom he got a clear and unequivocal no yes you authorized a recurring electronic fund transfers and nothing else that's our norm what's the norm for online transactions  and i guess if you could try to answer the question as you know what is the norm for a firm recurring authorization on a credit card do you have a sense of what companies in this space typically do that they provide a copy of the contract providing for their work earning electronic fund transfers and not a new document filled with extraneous off topic irrelevant details and a matter of fact we believe we urge the court to note the red flag here that i believe judge jacob said caught is that this document this in roman pages in web loyalties archives server and could do not have an electronic version of the completed forms not in print that's correct however even receiving the blank template would have had the salutary effect of the point of seeing that contract he purportedly s it and would ensure that he signed it and it wouldn't show an obligation but they would say that well i believe that they should provide it signed but even if they provided it more like it would have and with the representation that but it would have required space in the cloud but whichever they did send a blank template or send a signed version the question i believe the real red flag here is why instead of sending the blank template devise a different document with different language paraphrasing removing parts of the offer and doing the tells and recasting it why they do that and of the marketers like web loyalty that are watching what this court does and if in fact these this consumer protection is watered down in the way web board sit watered down so we could continue to unfairly deceptively deceive consumers then that's what's going to happen in the future mr katz we're in a different age now where all kinds of things are permitted that weren't when we'd go and you know visit in person to the vendor of some you know service the oil company that's delivering our oil every month you know we signed the thing and  process i have no idea really what that means but where we're conducting real estate transactions and all kinds of things not in person with security techniques and measures that are  unlike what we used to be the case and is judge parker was pointing out we don't always get screenshots people have gotten comfortable with the click on the terms here in click on terms there and either you print them out or don't and even in the prior the enroll nt page the acknowledgment page confirmation page says print these out print these out print these out and that clearly isn't satisfied satisfy the statute in which the vendor has to provide a copy of such authorization nonetheless  it seems that c f p be might have been within its authority to interpret a copy of such authorization as it has it isn't isn't it right to look at the whole context of current technology what congress has said in the sign act as well as after in determining what a copy of such authorization might be i'm just having a fart hard time seeing how technology changes the fact that this is a contract that was provided and that the joint email was being sent to the plaintiff so i don't understand how technology would require where blois to we make the enrolment page and change the terms of the offer and billing details because of technology the the reason it did that is because it's engaged in sham marketing and doesn't want anyone to know that that's why you changed it not because of regulatory burden or changing technology that that that argument underscores that that's your cut argument that this was deceptive with regard to the consumer but that this you have p p is charged with interpretation and expressly at the beginning of this non binding statement of policy says it's dealing with the situation of a new technology telephonic authorizations and i don't understand how do understand why it would ruin why you providing a sound file to a consumer might be unhelpful and a matter of fact and explains why the c f p b indicated in circumstances where there isn't a written contract telephonic authorization that there that those terms and conditions must be righted they've got to be provided some or all right thank you very much