thank you under the phone arbitration act arbitrations are generally enforceable set for the normal contracts for the fences such as unconscious of building however before we can reach the issue of unconscious ask a question that was puzzling me i see that washington and california are very slightly different and perhaps not to the extent that there is a fundamental policy difference but there's likely difference in how they look at procedural substantive specifically states that procedural and substantive unconscious building both have to be present before the contract can be forcible however they do not have to be in the same degree california adopts a sliding scale test meaning that the more procedural unconscious ability the less substantial one cannot have said make a difference in this case so in other words what turns on whether we think washington or california law applies well your honor first there as you mentioned there is a doctrinal difference between the two doctrines are applied in a different way i think the second part of your question is whether there was a fundamental policy my question is what turns in this case what turns on which law is applicable if anything doesn't just say you want to say california law because you don't want to research washington law or is there some actual difference it makes if we apply california law than washington law in this case you are going to be a difference in this case for example washington law under washington supreme court press that particularly the zoo for vs air touch case states that for to invalidate a contract and a procedural unconscious bill he have to show first that the contract was just in palmer hands that they could not understand the arbitration agreement which is something we don't have here additionally you either have to show that there is undue pressure placed on contracting parties so that they no you are we saying this because we're trying to get out from under the law selection the choice the local laws in the contract because if that's what we're trying to do we're putting the cart before the horse until we determine whether or not this is forcible contract we don't know whether or not we look at the clause that says washington law applies so we've got to look at this independent of the choice a little clause to determine whether or not the contract isn't forcible now if we do that does that affect how we analyze the choice between california and washington law i don't believe so under california law the same elements that would lead a contract to be unconscionable on so lead to the application of california law and this is simply because california has such a strong pulp public policy against inserted unconscionable or maybe the question my question isn't so much whether or not it would make a difference  it seems to me that the only way we can analyze whether or not california law applies or not is independent of the choice of law clause because the choice of law clause is contained in the contract or we're trying to decide whether it's an forcible i'm sorry i don't quite get your the doctrine of severability we treat the arbitration agreement as different from the contract itself so while the contract itself i see so you're saying there's this provision several as akeley and so right now we are only determining whether the arbitration agreement itself is unconscionable and not the contract as i understood your briefing that you weren't arguing contract formation and so what you're saying is suggesting that that's correct thank you you're not arguing that a contract was formed you're just saying that the arbitration clause in the understood the arbitration clause is not as active as now here your honor under the assumption that california law applies this particular arbitration clause would be and indeed on forcible and like i said before the same elements that go in california unconscionably is generally first shown by a contract of the human and here am is all you have to do if you're choosing let's assume for the moment that california law applies which i'm not sure about but assuming it a reverse or cancel out the form selection clause right that's correct that requires a threshold showing to not yield to the parties agreement i suppose you could say it's an aviation contract and so the purchaser of this amazon didn't really get to negotiate the forms selection clause but you've still got to deal with the form selection clause like any other provision of the contract right certainly your honor and  here the form selection clause would be governed by the second restatement of conflict of laws which states that washington law should not apply if it would be against a fundamental public policy of california law and california has a greater interest in saying out for him washington they have extremely similar laws regarding when an arbitration provision is unconscionable it's hard to see what the fundamental policy difference is that's why i was  questioning why washington wouldn't apply understood your honor the fundamental public policy difference is that although washington and california both have prohibitions against unconscionable contracts california in the c l r erik super legal remedies act specifically prohibits inserting unconscionable terms into it sooner or contract and under california civil code seven hundred fifty one the protections of ely under either statute it's just a clear shot for you under california law i think that's a fair assumption you're on now additionally california has greater  is that your suggestion and no because they're supposed to be a fundamental policy difference now you're i mean at the lights right it's not that really say that obviously washington can protect its consumers washington can't protect it simmers but washington's laws there the fact that there is a difference between the nature of the laws that apply is add enough to be a fundamental policy difference and or at lloyds no it's not and that's why i mentioned seal or a particular because this is actually a legislature legislature it's indication that protections of consumers is a high priority in california and not in washington although it may be a priority in washington california has some of the strongest similar protection laws on the books and it's one of the end of prohibition that you're just finding in california law has no counterpart in washington law so that rubs out what you're telling me as far as unconscious building goes yes i don't believe that there is a similar how i mean a specific statute regarding there's the washington consumer protection act right i'm not sure if there's a specific provision in that specific  protecting consumers but not particularly gets unconscionable contracts which is the issue at bar now again assuming california law applies we have to review  whether this contract would be unconscionable in california law and of course that starts with a review of whether the contract is one of the he would you address the distinction if any between what we have here in front of us and the contract  in thompson one of the two cases that we send out a notice for to be prepared to argue yes ok in thompson's versus twenty three and me this case involves a single transaction namely the sale of a genetic testing piece of equipment or similar and the results there from now given the nature of genetics your genetics no change so it's unlikely that you're going to repeat the transaction now in thompson there was two particular issues that was found first that there was procedural unconscious ability however the procedural unconscious ability was to a minimum degree because the only showing a procedural unpolished ability was that of a contract of adhesion which we have here but we have a greater showing of procedural unconscious bilby due to the old in a surprise that's present in the conditions of use yes your honor however it's not that the law that is particularly of persuasive from the nicosia case but the court's reasoning the court decided on the same facts that we see here that are reasonable minds can disagree whether  similarly it says by placing your order you read amazon comes privacy notice and conditions of use next to the place order button so so it doesn't win a point us toward saying this was not  contract and it was not particularly near the button that that states place your order and visually nicosia case also stated that the button that says place your order unlike the tonkin case actually had a button that says i agree to the terms is not indicative to sooner that there agreed to additional terms and so this creates some level confusion i think that i have about a minute left can i request what do we hear from the other side and bridge fund capital case puts the burden on him to do that he came forward with no evidence whatsoever about anything that was an unconscionable as to him in fact he came forward with no evidence as to themself at all not a declaration not an affidavit not anything the third point which takes a different question which takes me to my third point actually and i think the other fundamental aspect of this is that every one of the the challenges he makes don't constitute billet he now every one of them and has been rejected by this court in one fas  i think there are aspects of poor on that address different pieces of it and certain of his his arguments about for example incorporation of the aaa rule of several portions of claims that are not are both those sorts of issues and that's what i intended to walk through i did not intend to argue about the difference between washington law and california law it's irrelevant here even if we assess this under california standards all the challenges that mr vice lee raises  do not establish a concert ability and in fact that's that's my primary focus it's irrelevant i don't think you're intending to say to us that we can apply california law just citing this case or do you say that now i'm saying that the in a different way i want to make sure i'm not putting you into a position where you don't want to be are you saying that in analyzing this case we can draw equally from california and washington law when you say there's no difference i mean let me respond this way that it washington l does govern this agreement given the claims that mr wisely has raised they fail under washington law or california law does respond your question well no not really i ask you are you telling us that we can rely equally and difference to look at california law because the answer is the same i see but you're not conceding that california law applies so when there are differences between washington and california law that favor the plaintiff you say the washington law has to be applied it would depend on what matter and so let me if i can sort of walk through them the first is his position that the contract is one of  i've got to go back to the supreme court in the deception case the times in which consumer contracts were anything other than he says is long past form contracts and he's in contracts have been forced in california and washington for years and under this court's analysis even negotiate said that reasonable minds may differ about whether that was sufficient notice or not negotiate a couple of the things that are different one it was a probably six motion so what the court was looking at there was just whether the allegations of the complaint were sufficiently possible in order to get past it will be sixty outer court held that they were did not decide that and that the layout of the page was not reasonable notice set expressly we are not deciding that and secondly the issue in the goetia was a set it wasn't that the contract was somehow unconscionable because of the reference to the mutation because exactly yeah so here we don't have that issue at all and there really can't be a viable claim on behalf of mr wisely that it's unconscionable to to have accepted the conditions of use that he admits he accepted that he acknowledges he accepted in fact six times concepcion than excuse me that would run afoul of the supreme court's rule that you can't have a different rule for arbitration clauses as to other parts of the contract right and one of the thing i should point out about kosher it went back to the district court on remand and actually just two weeks ago the magistrate judge recommended in that case had in making purchases could it could ever reasonably believe that he was not ascending to the exam so i don't understand why the fact that he did it six times makes all that much difference that is to say my understanding or normal consumer behavior is they blow past this time after time time after and the first time six times seven times they blow past it every time so i don't know that it helps a whole lot that the consistent consumer behavior is that they always ignore this line but put it this way around a response i think consisting consumer behavior is that they recognize by purchasing things out things on websites that they're accepting the terms that go with that website or by using facebook or or any other site but everybody knows  that they don't read them so that's whatever those terms might be out there in the cloud somewhere but nobody reads them and contract law has always been up that your failure to read something is not an excuse so long as you've given notice of the fact that the terms and conditions govern then the you're bound of the times and this and that but i come back to the point i'm not sure makes any difference that he did it six times compared to once and i suppose i beg to differ i think it does make a difference that when you've gone through the transaction six times and you've had six different opportunities to identify that that's what you're doing by this transaction that it's a lot less defensible to say that you didn't assent to it but in any of that in this case there's no question of a because he's already he's already conceded that so this argument about that provision of the check up page has nothing to do with his claims of a concert ability he does not claim that there was something unconscionable with the way the arbitration agreement was was presented in the terms and conditions don't say that at all and in fact that would be a very poor argument because it's very plainly stated he doesn't say that he was coerced into accepting the agreement he doesn't say he was forced into buying something on amazon so he doesn't point to  at any given moment you know after all without notice without actually does not say without notice that no the provision does not say that nor does the provision say that those changes we wrecked retroactive it simply says we may change things going and that is our position that that's the provision that governs unless you've accepted some other version of the agreement there after it's not a situation where there would be changes going forward and we never suggested that that that would be the case to your question very serious problem under good faith and fair dealing so with that assumption there's nothing unlawful or unconscionable about a provision that permits change and change the terms and out of washington law the standard for whether you can do something like that forever but you're telling me that you've interpreted it the changes are going to only those that are going forward but you've never changed it so in fact you have never interpreted that way because you never had on occasion to interpret your honour's correctly when probably better off to say that it's irrelevant to say that the change of terms of visions means anything for purposes of this case because it's never been applied and in fact case law from this circuit and from many different courts in the circuit i've also recognized that it got to you cannot avoid if you went back and changed rules retroactively that are intellectual property claims were not submitted arbitration well in the compton case it didn't look as though that really favored one side or the other because the court said it couldn't imagine any and had no evidence of any claims that of suits that we got by twenty three and me in order to protect its intellectual property i think i may have i may have read that a little bit differently but clearly amazon does have an interest to protect its own and point i believe that's right amazon certainly does have a dog for property rights customers using the amazon website may have their own intellectual property rights are actually preserved under the terms of additions but in any event the fact that the ruling in tompkins which involved a broader gather is made more prominent now what the conditions of use are and where you're clicking on what your agreement to the check out page has changed over time in that's you know one way is relevant relative to the questions in front of us has it changed in what way is relevant to that relative to the questions in front of us has it changed the references to by placing your order you're accepting the conditions of use as we move closer to the button there used to be two buttons on the pages which is the other side over why don't we put three minutes on the clock thank you your honor i appreciate it i'd like to clear clear up some misunderstandings first there is a rich factual record in this case it's just that the facts are largely not dispute because it's a website whose terms can be viewed by anybody so it doesn't need a declaration from our particular client however i want to go back to this idea of the modification clause in amazon's conditions of use stated that these this modification clause has never been used however that's simply not true in the original arbitration clause it calls for applications of the supplementary procedures for suma related disputes a triple a set of rules however if you look at the r j end that was filed by defendants they're now stating that a different set of rules should apply the consumer arbitration rules now this is not a difference without the stink ssion the new set of consumer arbitration rules raises the threshold on documents only arbitrations from ten thousand to twenty five thousand dollars additionally it gives amazon additional time to respond to requests for arbitration ten days versus fourteen days and strips the emergency measures of the original arbitration rules which rules are they are applicable in this case well this is the thing under their unilateral insert by reference or incorporate by reference a set of rules that simply doesn't exist what you just said in the record and if so where is it in the record it is in the record you can see the difference between well the fact that they applied the super arbitration rules the most recent dispute with the other plaintiff is in their r j and which are g m stands for us are requests for judicial notice i apologize additionally the differences between the rules can be seen at the  at course this is on the record of the supplementary procedures are still political the old set of rules out of the arbitration agreement and changed so what changed then well amazon reserves of course the right to unilaterally change the contract and that's the only answer that we have here so so there is a contract on the website yes and are you saying that the language of the contract has changed the language of the contract it hasn't changed has not changed like is it what is it that has changed amazon's interpretation there of instead of applying the law and where is the interpretation written down if you look at amazon's request for judicial notice that was issued to this court that simply put these these newer sets of similar arbitration rules do not exist that's not part of their arbitration agreement so whatever was agreed to between amazon and this other defendant it's not part of the arbitration provision yes and that's exactly my point your honor is the only way that these newer terms could become part and be a political is if amazon unilaterally changed it or either of them and integrate to follow these or rules i guess an understanding have because i guess if the contracts as rules x applies then presumably that's in force of all part of the agreement that's correct your honor but for some reason like i stated amazon doesn't feel they have to live up to it you know i'm confused and maybe you can help me yes what's changed and what's not changed is the arbitration agreement that's what you click on changed does it for example say with respect to them arbitration rules or does it specify certain arbitration rules and now we're looking at different arbitration rules because it doesn't make it clear as to what i want where my confusion is certainly your honor and if i could draw the court's attention to page two hundred seventy eight of the record that actually has arbitration agreement the arbitration agreement says a specific set of rules shall apply that is the procedural rules of started a supplementary procedural rules for similarly related disputes now as this name suggests these rules actually supplement another state rules which are not included in the arbitration agreement which is the commercial orbital rules those rules together are what least in basically sol dated two sets of rules and made changes to those rules into a single set of rules called the sooner or betray shools now defend it amazon now states that it's these newer set of rules that should be applied to future dispute and i don't have the specific provision of the arbitration clause in front of me as that is so you can just tell me does this specific arbitration clause refer to the earlier rules by name as to say the supplemental rules by name ok and also i think you brought up additional issue is sometimes arbitration agreements can state or whatever new or set of rules are applied by the  doesn't include in the terms of that to that regard i get it and so this creates issue because not only is amazon changing its arbitration agreement under its unilateral arbiter a minute clause but also a level of procedural unconscious building because the rules that are actually stated in the arbitration agreement are not the rules that are actually being applied disputes today and if there's any other questions this is this is not the ordinary procedure but i'd like mr grant to get up and say something because i've just heard something quite contrary to what mr grant represented s aaa changed the name and structure of their rules from the supplementary procedures for consumer related disputes to the consumer arbitration rules that was in two thousand and fourteen version of the agreement that we're dealing with here with mr wisely was in two thousand and twelve and referred to the earlier title aaa has also said the structure there agreement that any agree any provisions that referred to the old title now refer to the new consumer rules never oh let me make sure i understand what he said to me and then i'm going to ask you specifically with respect to that that the arbitration of girls the arbitration agreement specify a certain rules by name amazon is now applying different rules than those that were named so that right the aaa is applying the rules as they've interpreted them as they say expressly say in their own rules i think it's rule are fourteen that if you formally refer to supplemental rules they now refer to the determine that amazon is not applying some different set of rules if mr wisely wants to do apply the former supplementary procedures amazon would have no objection might have to deal with aaa about that because they've changed their own rules and they they apply them differently but certainly whichever version was an exhibit in existence at the time as i said as to the rest of the contract certainly is the one that he could he can invoke now if he chooses to but the problem here is it's not that amazon has gone out and changed the rules it is that the governing arbitration body decision thank both sides for their argument