good morning your honor steve r j butros jr representing this appeal turns on a very simple legal question would a reasonable person have known he was entering into a contract subject to hoover's terms of service when he downloaded app on his smartphone entered his personal and credit card information click the register button to open up and hooper account and then started using goober's services the answer is yes both the conspicuous content of the sign up screens on the top as well as the transactional context provided notice to a reasonable person that a contract was being formed as a result of the account registration process this court's decisions in cases like macos specked should point in one direction and that is reversal indeed more than a dozen district court decisions including three from from or four from the southern district of new york  facts of all of these cases and whether they are sufficiently similar but let me ask you to focus on the fact that in this case the registration button which is the signal that the  party is registering agreeing whatever anything appears on the site before that is the suggestion by the district court and in some of the cases is that it's possible that the consumer will work sequentially and therefore will have registered before realizing what registration it's why don't you tell us why we shouldn't view it that way definitely  fact this case was a smartphone application and the register button and the sentence the one sentence on the screen are all on the same screen on the phone so it's not but it that registration button is before it's  if you client set up the cage to say you know give us all the information and then told the consumer if you register you will agree to our terms and conditions and privacy it's at or we'll get i'll just give you examples of for example the twenty one of our brief we have the guilt screen which is another website for ordering retail goods that's an example the facebook screen usually the terms and in your point i think it goes to really fundamental difference then paper contracts or even website contracts when you have a smartphone you're seeing in the whole phone at once you can't miss the terms and conditions pop out  blue hyperlink and everyone reasonable consumer using a smartphone application like this thank  there are some arguments both ways here and i've kind of conducted my own personal survey and just trying to determine what a reasonable person thinks and you know you i'm getting answers both ways is it reasonably conspicuous and do you understand if you're agreeing to a contract and one of my questions is the procedural posture below this was done on motion just a motion to compel and that which should be treated like a summary judgment motion there was a an argument on the motion to compel based on the summary judgment standard there was a hearing on a discovery issue that had nothing to do with the motion to compel arbitration but one of the fundamental errors that the district court committed here was there were no factual disputes walking into that hearing the plaintiffs did not claim that there was illegibility or that you couldn't see the terms and conditions on the screen or anything like that the district court created and a document reduced version and then found value was illegible should hart was also presented with power points and i mean just because in the opinion that's the way it came up it doesn't mean that's what the district court looked at another question is if you had a trial with there be other evidence that could be present at or what the factual record be essentially what it is now i thought about that are we there i think there would be other areas because the district court found found a factual dispute the court said that smaller than the ones you gave us in our brief right but when one inches across not six and they're they're smaller but there was no but on page forty of our brief here we included an ad of a more accurate it's it's a different reading experience so in just so you know there was no dispute when we made our copy for the court that's on page eight that's in the exhibit plaintiff's weren't saying that it was illegible or you couldn't read it that font size is all over the m and all over websites and apps in it and so i think going to judge chin's point in a trial we would have the phones we would have the screens we would have expert witnesses if we need to we would have individuals testify and talk about these issues we could ask mr meyer to testify he didn't dispute that he couldn't read it or see it he said when he read the declaration of the official who put a declaration that reminded him that he had gone through this process  submitted extraneous material it was improper for the district court to consider it that there should be a trial or hearing we at that point we filed a motion to compel arbitration because the facts appear to be undisputed  and the plaintiffs in their briefs here on page thirty three and thirty four say that the facts of the screen and everything was undisputed it was the interpretation of facts but the problem with the two fundamental flaws in the district court's order was it made factual findings against cowan even though the facts were supposed to be undisputed and if there were material factual disputes then under the federal arbitration act the case was supposed to go to a summary trial and so we would be ready to do that i think as a matter of long going back to the images we also have the selden case from the district of columbia the district court page thirteen of our brief finding assent and there is a scent you click on the register button to sign up for the services it's very similar  it's below the sign up and that's how they are questions the sequence the way the register is understood by the average consumer to be entering into a contract with their terms of service is understood to be terms that will apply to the consumer you know it does say you agree to the terms of service but these were the things the district court identified  not to speed it is that how we would decide this whether or not those reading of those different parts of the notice are sufficient that that's what we who goes to sign up on an app downloads the app puts their credit card information in knowing that they're going to be charged by the company for a service in ca and is faced with a disclosure that says b signing opening an account you are agreeing to these terms of service and there's a hyperlink we believe that a reasonable burst with a notice inquiry notice and we cited this isn't a new concept although the courts are applying these part of the person clicking might be required exactly in the in the spec case which with the free download case then judge sort of my own noted that their purse person screaming at you this is free this is free on one screen and there wasn't a smartphone it was long before the i phone came out even and it was the you had to scroll down once you got your free download most people would look likely stop scrolling but you had to scroll down and then there was a terms and conditions by me here it's right there on the phone it's the knows are signing up or terms and conditions and they're readily available matts been a principal in california law for over a century that it is it's a it's whether it's the notice is recently conspicuous to the prudent consumer but california supreme court it was a receipt we have the image in our you know our brief in our reply brief i believe it's on page fourteen and it was a receipt that the person the person from the company storing barrels of alcohol got when they went to the w receipt on the side it said your honor only if there are leaks in the supreme court of california said it was and it was a disclosure much less conspicuous than we have here in the california supreme court said you had it you could have looked at it you you accepted the the responsible for knowing those absent any even without any flag that they have changed their national registration makes you liable because the terms and conditions say and we can unilaterally change these well it would depend on other so there is a lot more notification than we used to have with the shrinkwrap contracts that were upheld back in the day other contracts it's all right there at your fingertips in consumers these days is the amica supreme show why don't i just know about this why don't they talk and i agree that one and the question when it if the other different ways to do it but i don't think it would have made appreciably more conspicuous because you're signing up or account you're registering you're giving your credit card information for an ongoing forward looking service which is also much different than a lot of these other cases and here you're also you're registering and it's it's clear from the transactional context in the words of this court inspect that you're signing up you're opening an account and then it says you agree to these terms and they're right there he's easy to access and we believe the context the affirmative assent by touching the register button and the conspicuousness of this closures created a contract if the court were to find paper record where their declaration submitted there was a trial under the f a a just like in u s type so there's no need to send this back for a trial the district court made factual findings and at  twenty five of the special appendix this report says the court finds that plaintiff meyer did not have reasonably conspicuous notice of routers user agreement including its arbitration clause or events an ambiguous manifestation of a to those terms most importantly the uber registration screen as explained supra did not adequately call users attention to the existence of terms of service let alone to the fact that by registering the user or the user was agreeing to them in this case there is no reason we conspicuous notice there is no unambiguous manifestation of a sense that to the extent reason all minds can disagree about that tells us that those are factual questions and again as i just read the district court made those factual findings at the district court make those findings the defendants never asked for such a more complete record in fact of the notice of motion which we said in our supplemental appendix at page one eleven they ask that the motion be determined on the basis of this notice of motion the memorandum of points and authorities offered in support the supporting declaration of vincent meehan exhibits all documents in the court's file any matters of which the court may take your dish will notice and any evidence or argument presented in this matter that's exactly what this record is  considered all of those things and again as in us tighten the paper record itself can constitute a trial under the f a a and those are factual findings that this court should defer to if we look at reasonable person who has recently familiar with smartphones is it not obvious that when you click on the register you are going to certain terms and conditions not at all not at all your honor in fact now your honor in fact the fifty one law professors who supported our position in the makers brief in this case have noted to register means to your name on an official list it does not mean that you are engaging in some complex obligation in your credit card information this is for signing up for an ongoing service that you then use over time repeatedly so that the want to be clear that the credit card information that's it that's in the register screen of course is the courtyard in order that's at the very top and then the register button is immediately below that the credit card information is provided so that the drivers of the who are not employees of or some of the drivers are working you can later on when when the registering takes it takes a right to charge for information there is reason to wanting what the terms and conditions are for the use of the act writing card information and so i mean i pressed council on the fact that the registration but was before the critical language here but the language at the bottom says by creating an account you agree to do so it's not we agree that we will only do certain things it's that you're going to agree you the consumer to the terms of service and privacy policy so i don't i don't know how you can argue that it's not it a  notice here whether it's adequate maybe a question but to suggest it's not a notice at all strikes me is a difficult argument for the notice itself is not conspicuous and so we know under spec that it's that terms you know unless you're someone who still has a flip phone and doesn't know how much highlighted and bloomy you know most individuals will understand that they're entering to some kind of a contract conspicuous notice right now that is that is one of the two question are yes the first part and here we submit it's not reason we conspicuous and we certainly submit that the district court's finding that it wasn't easily conspicuous was a totally different look at what's reasonable am i looking at a reasonably smart phone savvy person or am i looking at my secretary who still has a flip phone who's the reasonable person here i think just a reasonable person a reasonably prudent person who is engaging in this in this activity person who uses are not necessarily but someone who is i mean again we i don't think it's necessarily someone who's in gauging  conspicuous notice here you think that's crystal clear we we think at a minimum that reasonal minds could disagree in which case under this court's decision in the kosher that's a matter of fact that the district court found reasonably against goober in this case that this court recently found that there was not reasonably conspicuous notice here and also found reasonably that there was no an ambiguous manifestation of assent by smear lee clicking a register button now this court and other courts have made very clear how could have done this in a way that would be enforceable as a matter of law and so this court unregister dot com and  one element and any question our cases do recognize that you don't have to write this course cases of recognized today that it's not required and yet the point that i'm making is that it is very easy for her to do it that way they've done it in other instances that way we say that mohammad case there's the sink case one of the district of new jersey recently in which they were used and i agree button and and actually required the people who are the drivers in those cases to affirm two terms the safe harbor they did not they chose make an excuse me i'm so are you saying that the determination about whether a notice was recently conspicuous is so as to signify the actual assent was given is totally a question of fact and there's no legal element there are certainly instances where no reasonable fact finder could have so concluded i think that the quick wrap example that i've given where if the terms and conditions are provided in the scroll mechanism and there's an i accept fact finder could have found this recently conspicuous as a matter of law is that right here he he was making a factual finding that there was no reason we conspicuous notice and that there was no one in the us manifestation of assent and as we know from the question which post recounts opinion by a few weeks or a month or so those are factual findings that are that are entitled to deference that the district court in this case i would also just have a few seconds remaining that no court of appeals has done what defendants are asking this court to do which is to reverse in the electronic contract context to reverse  case of course not i mean yes we have so many variations on the screen but there are lots of council has pointed to me and it's pointed to the guild case where you know it's pointed to a number of cases in which it's the sequences here so sometimes there is parallel wording between the assent button and the language that's the key language that's that near the the terms of service in this case there is not parallel wording it says by creating an account versus press about this as register there are there are other differences i mean it really there's a lot of these cases the point i think that's important because there are so many variations is that these are fact intensive inquiries and that's exactly what these are fact intensive and on this record that was presented below with declarations and arguments on both sides the district court reviewed all of that material and reached reasonable conclusions in this case thank you no let me start the last point not a single district court other than his record here has found that there was not mutual assent in a situation that resembled this one and in with respect to we cited on page twenty five of our brief  image from another rubric case a different screen it's it's virtually identical and i think the version that was used on the samsung here was clear that's the chua name case the courtis case another case this one's from the northern district of california again it's if anything i mean it's a similar style if there are no material differences in the disclosure informations at the bottom the case that we submit in a twenty eight j letter earlier this week or at the end of last week again and case virtually identical system and we can't have district judges making going on immaterial distinctions here it's on the screen right in front of the individual and going to the question of whether it's a reasonable person a reasonable prudent smart user in the spec case this court said the question was whether a reasonably prudent offeree of downloadable software was would have been on notice and here someone who has taken ten rides on hoover mr meyer had by the time this complaint was filed said in his complaint that an order this was in the both complaint in the amended complaint that an individual to use must first agree to the terms of service  evidentiary hearing counsel suggesting that if you follow a motion for summary judgment and you say decide my motion for summary judgment and it's denied the district court could then just result of the factual is choose and treat it like a trial unless you said oh or said i'm not sure about the font size and the and judge rick of said we could have an evidentiary hearing on that and mr brodsky said we could and then the judge said but for today's purpose assume it's a six point five and the next thing we know we get a decision a six point font resolving factual issues against tuber on summary judgment that's not a proper procedure none of those findings are entitled to any deference and we think the court can decide this issue in our favor as a matter of law but at a bare minimum we should have more factual proceedings