you did provide us with notification that you were going to be putting up submit please the court j barnes on behalf of the plaintiff's appellate molina bernadino runners this is a case about new york contract law in new york and to start with it's a case  somewhat coincidentally also about or appellate jurisdiction is it not i thought you might be asking that question from the previous argument yes there's an issue of jurisdiction i don't always start by asking about poetry's diction i can't remember a day when the first two cases order that stays the case pending arbitration if the case is stayed pending arbitration and what the defendant asked for in this case in its motion was a stay pending arbitration is that not right that is correct they asked for a stay on it and the magistrate judge recommended granting the motion for a stay pending arbitration right that was in the judges in the magistrate judges recommendation the district judge then said except the recommendation of the magistrate judge and i grant the defendant's motion right and he said other things and then he also said he's closing the case yes your honor and if you know don't we have so so up to the point where he says closing the case we don't have jurisdiction right i mean you're argument that we have jurisdiction rests on the judge's statement that i'm granting the defendant's motion and closing the can directs the court to close the case and it rests on what the s p a one which is labeled as a judgment and is entered and the last item in it is like you said the cates is closed but it doesn't say the case is dismissed it says the case is clo you have case law directing that that is the proper procedure there is also case law from the circuit that an error in that regard does not deprive this court of jurisdiction over a case and that's from virk and then the case is not the same thing as dismissing a complaint while your honor's our view of what's labeled as a judgment is that it is a judgment and that the case is closed it's more than administrative because it's labeled a judgment because it was accompan motion by papers from the district me ass then a version of the of the next question and judge lynch's line so if judge kaplan's order had omitted the words close the case and everything else was exactly the same would you contend that there's appellate jurisdiction well there's two things here yes because of the word judgment and because the judgment was a company when given to us by notice of our rights to appeal the judge kaplan in colloquy with the parties specifically say i understand this is a motion to stay this is the normal procedure to stay the judgment in a call judge kaplan said the typical procedure is to that it will be a motion to compel to stay in lieu of arbitration but then when we got to the end it was an entry of a judgment where it says the case is closed and when it is sent to us it up informs us of our rights to appeal clerk's office presumably entered a judgment because the close the case language that was included in the order that's a presumption but again we have a what is labeled a judgment and says the case is close even if there's ambiguity wouldn't the appropriate disposition be to send it back for and for clarity as to entry of a stay in light of the ambiguity i think that in light of virk and sell trace communications this court is determined the merits of the issue of the motion to compel arbitration honor well why would in light of an ambiguity and i think it best you would be pressing an ambiguity here why would we assess not ask the district court but its intention was because i mean that's the whole point of i mean it's often the hardship to a party that thinks there's been a serious error it into law kotori order to have to go through litigation of some sort before appealing it but the reason for the  jurisdictional rule is absent a final judgment these issues may never have to be resolved you may get everything you want in arbitration that there is a possibility your honor but we believe we're here correctly because of the label of the judgment because it says the case is closed and judge kaplan obviously from the early call in the case was aware of those things and it says that his judge it's label to judge when it says the case is closed if i could get briefly was the motion that was filed alternatively captioned a motion to dismiss or was it solely a motion to stay pending arbitration i believe i'd have to refer back to the record the intentional relinquishment or abandonment of a known right or privilege in kindred the supreme court explained that a court may invalidate an arbitration agreement based on a generally applicable contract offense and that's what we have here as long ago as in one thousand nine hundred eight the new york court of appeals said waiver and i quote is a doctrine of general application and it's a doctrine that this circuit this court has applied in cases involving fundamental rights so national quit rental versus hendricks which has not been overruled anywhere he said in meyer against that's what we said in stark against square trade just a couple of weeks ago there's the idea has been and it's well supported in new york law that if someone has an opportunity to review these terms and then places the order that that's sufficient now i mean i am sympathetic to the argument that on the facts here there may be some considerable ambiguity about what actually happened and what your client actually saw but are you telling us that the way that you win this case is that we have to overrule cases like meyer and square trade no your honor their art we win under the myer standard we win under the knowing and intelligent waiver standard which this court has applied in other cases including a case called national quittner rental versus hendrix that involved a written contract to a more sophisticated party that was signed by the more sophisticated party and that was clearly in the contract itself it was speaking of waivers what are we to do with the fact that you specifically said to the district judge you or your predecessor counsel whoever was there on your client's behalf told the district court that you did not want a hearing into the  possible ambiguity that arise from the fact that the defendant submitted all this messed up evidence that first the defendant submitted one kind of thing and then they submitted a different kind of thing and so that was a different they were wrong in the first place about what your client saw and now they had something else and i had the impression reading through the record that gee maybe this doesn't meet a summary judgment standard because even if you have no evidence affirmative about what your client saw or didn't see they've already submitted two contradictory things and it might seem that then there should be a hearing or even a trial or even a jury trial about what the actual facts were regarding the supposed agreement to the terms and conditions but you said you don't want that the judge raised that possibility measure which i think raised up must be said no we don't want that we want the court to decide this as a matter of law or we've then in a position where we have to decide assuming we have jurisdiction as a matter of law whether  on the showing that was there we think they made an adequate showing that your client had an opportunity to consent or not to the terms and conditions and i believe you said it well about there not enough here you mentioned you thought from this evidence or might not be enough for might have been appear to grant a summary judgment like ruling but were normally what happens if there is not enough evidence to grant a summary judgment type ruling you get to have discovery  trial and you said we don't want that we want you to decided on the record that's here so is it not the case that we then on appeal if we have jurisdiction have to decide whether on the record that's here we think they've carried by some sort of burden for ponder and so whatever their case about what it is that your client saw i think there's two questions there the first is to the evidence as it is and that's a did novo review and that's where this exhibit comes in where in step one barnes and noble creates the impression for a reasonably prudent internet user that they are not going to be bound by the terms and they come in later and step four and change the rules after they've told set up this situation where they don't believe they're going to be bound you know they change they change the facts they said this isn't we made a mistake this affidavit was incorrect here's another affidavit and then your position it seems to me to the district court was not that doesn't suffice for a summary judgment type ruling but we want it to be decided that therefore we win the issue not that they don't get summary judgment but now we can take discovery we can depose the the person has made the first affidavit we can depose the person who's made the second affidavit we can get to the bottom of this but you didn't ask for that and i'm wondering if one reason is that you had screenshots from the relevant period that are not part of the record because i noticed that there were screenshots that were submitted by your side that predate any of these positions by by the other side so i'm wondering if you really didn't want to get to the bottom of what  actual website actually looked like no your honor that is not the cat's not the case that but that is what you did in an effect as you decided not to conduct further not to ask for further discovery or hearing you decided instead to ask the court to decide yes or no on the basis of the evidence that was there because we believe that based on the evidence what that was there we should have prevailed as it was and that we wanted to move on with the case based on we thought we had a strong position still think we have a strong position about where we were i mean if we have jurisdiction then you want us to decide whether based on this record as it is a question about whether we had a screen shot or not we did not have a cell take and that's that's we have screen shots now that it doesn't appear as what i want to know the way i want to know you are asking us to make a sensually a factual ruling about what you know whether the district judge was clearly erroneous as to its finding that the second affidavit was accurate and that we should find centrally as a matter of what we found that was clearly erroneous and that in fact the conditions are different than what the barnes and noble affidavit said it was i think there's two levels of review the first is just accepted as it is doesn't meet the standards the second is the clear air standard of review is whether it was admissible and sufficient to get into evidence so i think there's two questions and that's what dismiss the complaint and this court in cap gemini made very clear that it would require an official dismissal of all claims before reviewing an order compelling arbitration closing the case as your honor said was merely docket management tool that the lentil said and as your honor has said this court has a number of times made clear that merely closing the case and entering judgment is not on its own crew for a jurisdiction when the when the case when that case closed language showed itself and and the judgment issued did you seek any kind of clarification with the district court that this was in fact a motion to stay and that the case should be stayed pending arbitration rather than dismissed we did not your honor because we didn't see the need to the motion the question we got earlier what was our motion it's a notice of defendant's motion to compel arbitration and to stay proceedings pending arbitration no or in the alternative or dismiss and from the get go as we know you know katz requires a stay of proceedings an arbitration is compelled arbitration is compelled a stay of proceedings sought that day as again was alluded to earlier judge kaplan was well aware from the get go what was happening here from that court conference at eight fifty six to fifty eight where it's very clear i mistakenly i'll raise my hand i mistakenly below is docket thirty nine and then the magistrate judge recommends at s p f thirty two that the court grant our motion to compel and stay referring to docket number thirty nine and then don't kaplan's order  it at s p a three judge kaplan's order grant's docket number thirty nine which again is this motion to compel and stay and obviously there's nothing in his order that says anything about dismissal so to us it was clear eyes we shouldn't be dismissal clearly under katz do you agree then that we have appellate jurisdiction to review the merits of the arbitration decision if it's wrong it's wrong and then i guess if the court is wrong i have seen certainly cases before where the court has whether it was right or wrong determined that the court below dismissed and then has proceeded to listen to the merits cats did it right and outrageous i have seen that are of that i would i would say that it's possible we find ourselves here because the court has done that and it emboldens folks to come and say they'll listen to my merits so i'm more than prepared to discuss the merits because  the the court below got it right but the reality is that i think there's something to be said for having sort of the the the courage of convictions in saying if there is no jurisdiction there is no jurisdiction and we stop but  obviously happy to address it would have had to have been a sewer spontaneity dismissal given that you did not move to dismiss correct correct and there was no hint of that just haven't closed the docket because he didn't want it sitting open on his docket while we were sitting there are retreating that and we've said i think repeatedly that there's no jurisdictional significance to marketing marking the docket as closed correct many many times circuit courts other  it as well specifically with respect to arbitration and this court few months ago in a virus said that it has no no significance so absolutely this one is very clear again who shouldn't be here but i'm obviously happy and meyer which is obviously case that sets the standard here the question is whether the website provided reasonably conspicuous notice to a reasonably prudent smartphone user and i think maybe the easiest way to make this matters reporter recommendations are to be at the very end and what you see here in on the left is the display that was approved by this court in my ear and on the right you see the barnes and noble display and the five just sort of touching on the five factors that this court looked at meyer you see that like miers ours is uncluttered if anything as the court below said if anything ours is less cluttered than the screen in my honor the text regarding the terms of use appears directly below the submit order button  that was back to number two you don't have to scroll to access the hyperlink that's three for it's easy to read text about the terms of use is in black the hyperlink is in blue internal server i don't know that i understand the technology well enough to know exactly what that means but it sounds like that's not the server that hosted what ms bernadino would have so it's not it is the quality assurance server right so you're right it is not the exact server but it is the server that was there at the time that is used to ensure that they know exactly what a rendering from archived code and that was deemed sufficient this is significantly more compelling than that this is the this is what was at barnes and noble that was used to ensure that that internally they knew what was going to be customer facing my ignorance but what do you use a quality assurance server for internally what is what do you do with it if you can describe it server that is customer facing but they want to know if they're making changes they want to make sure they test those changes and internal to this is what they use extra to test the changed interface that apparently if it passes the test the next step is you transfer that over to the consumer facing court and you know it would seem to me that there is at least a possibility of some kind of glitch in the transfer now again that's a possibility that's a speculation of sorts but when we're talking about a summary judgment like the standard standard i wonder whether particularly given the fact that your side didn't cover itself with glory in uncovering this at the last minute after having contended that it was equally clear and evident based on an affidavit of a different person from barnes and noble that something can totally different is what the user would have seen at the time and now maybe this is a hypothetical kind of quibble because the other side didn't ask let's have let's depose all these people let's really get to the bottom of it let's have a hearing and find out who's right and who's wrong and we are left it seems to me just having to make for our best judgment based on the evidence that is available as to court would have to find clear error as this court noted earlier we have never seen a submit order page coming from counsel even though we have seen readings of pages coming from from counsel with respect to mister word that they didn't have they never looked at the other page but in effect that's on them they could have looked at whatever pages they were looking at that at the time that they made these these screenshots they weren't misled into that  thank you your honors paragraph sixteen of the burgess declaration on a forty seven or a four seventy nine contains in an mission that what they submitted to the court was not actually what a user would have seen he says the text some of the text and that only appears in the quality assurance server i'd also note your honor so that's paragraph sixteen isn't all of it only appear in the quality they don't have anything else but the quality is sure it's server well and that's a problem because they don't have what was actually consumer facing and there was a statement that this was not and we would have had the opportunity it seems to me if you had asked for to explore this assertion that  whatever would have been seen exactly mirrors the quality assurance server because you would have had the opportunity to go into was there any possibility the code had changed after the quality assurance server as it now exists out there was there was not the further exploration we thought that we on the evidence as it existed we had enough that we should have prevailed and we stood on the evidence that we had the other another point i wanted to address is the statement was made that this was not  recreation that contradicts what's actually in the bird joe's declaration at ok for seventy seven paragraph twelve mr burgess says this makes it possible to recreate in a test environment recreating in a test environment your honour's we assert is not enough to prove the existence of what the screen would have looked like at the time it has to come from a consumer facing server why would that be if the evidence  that if the consumer facing server no longer exists a court a jury a judge whoever is the fact finder would have to make a finding based on the best available evidence and it would be perfectly open it seems to me to a fact finder to say i'm not convinced by the circumstantial evidence but i'm not sure i understand why it wouldn't be also open to a fact finder to say based on the circumstantial evidence based on what's in there it is more probable than not that the thing that mr burgos has recreated is a fair and accurate depiction of what ms bernadino would have seen on the day in question what would be why why is it impossible to a accept that because they have to show what the consumer actually would have seen not from internal documents that don't go to consumer facing servers they concede this is a recreate they concede this is the actual evidence no longer exists if this is so i mean that happens every day in every courtroom in the country it's an inference it's an inference it's an inference from the available evidence and we have a purported expert who again if he had been cross examined might have turned out to be totally incompetent what do i know but that didn't happen in the affidavit that we have says you can count on this and if he had  testified as he did under oath but it testified in open court been cross examined a fact finder would make a credibility judgment do i believe that he is accurate in what he says and if he is then we have a reliable basis to know what the consumer would have seen if not not and your honors that you stated it was an inference on an inference all reasonable inferences go to the party opposing the motion in this circumstance and i'll go to the party opposing a motion for summary judgment and then what follows what follows is an actual hearing what follows is an actual trial not on the merits but a trial on what the arbiter whether it's arbiter a ball or not that's what would have happened if you had asked for it or should have happened if they judge that no then you could appeal lott as sometimes happens i've lost my second point that i intended to make if the court would indulge i would but it's up to you your honor well did you want to about what the consumer would have seen would not be appropriate next step be to have a trial to resolve the quest the factual question of what the consumer would have seen on which turns the question arbitration or no isn't that what happens that is one option your honor we thought that based on the or the court we should have won on the evidence before a court right and i  can could back seat drive now and we could could have done it a different way and we could have done it this way and i understand that point but that is still asking us to rule on what is the best conclusion or at least what i think the appropriate standard as ms goldstein says is was the district court's conclusion clearly erroneous given that the district court was asked to make a decision about what this evidence shows that's what the district court was asked to do and that's what we're reviewing is the district court's conclusion again assuming we have jurisdiction about what the evidence actually shows and i think there's two questions there one is the clear air as to whether it's accurate the other is