reasons the st one being is neither aquila stoppel nor direct benefit to stop posing as an argument amazon ever made in the district court below in three separate opportunities a motion to dismiss it made back in two thousand and fifteen a motion to compel moment we'll talk about what neither one of those are present secondly thirdly you're on to discover why barry heavily in its decision on a case called bridge st credit one financial case it thought was both factually and legally very similar to this case  actually it had some distinctions because unlike of like the plaintiff in bridgepoint if you never represented to be somebody else but legally the district court relied very heavily on that case it's cited a two thousand and sixteen opinion from bridge where the district court in nevada held that i will stop all of direct benefits stoppel applied fortunately the district court did not take notice that you have one more minute thank you the district court here did not take notice that that was doesn't apply you want a direct benefit to stop it requires both knowing exploitation and direct benefit to the point of there is no direct exploitation none of the plaintiffs claims he had derived from his wife's underlying agreement with that agreement that did not require arbitration he did not gain a benefit by advice on having attributed his purchase of one day diet he did not get free shipping he did not get faster shipping he did not get a lower price because amazon had attributed his purchases to his wife's account instead of his own it was no direct benefit in his own contract with amazon it did not get a benefit even if one were to look at even traditional equitable stoppel has a couple extra elements as well it requires the plaintiff to know that he was intentionally misleading here on and he did not he did not share anyone's password he does not know is wi product a dangerous product that contained an illegal drug which would lead me to the last point i want to make about a stop all the quotes from the you with the common refrain to receive equity you must come with equity and here you are on is on soul plaintiff in a legal drug there's a stipulation in this case that it would be illegal for amazon to sell a product containing some between including the product bought by this coast it violates federal statutes avenues on wall perhaps perhaps of the clean hands doctrine does not equate to equality it certainly pertains to equity is on could not have argued any of the equitable doctrines that the district court attributed to a yes mr two so i know you argued in your papers that this particular argument was waived by the lack of across the table i just disagree with you on that so i want to address the merits of this argument one of the argues that was made in the magistrate judge did a reference th after this lawsuit after your client files of declaration november of two thousand and fourteen stating that he was aware of the terms and conditions he then made twenty seven more purchases on amazon with those terms and express limitation to future disputes should be applied to any preexisting claims on on purchases that took place prior to that time which is what the situation would be here you know there's a number of other cases that have said that in other cases so why a defendant is trying to expand the judgment below by referring to a different legal theory as opposed to different factual theories we believe we get into an area where the cross of cable trumps the discretion this court would generally have to look into the record the let's talk  but he had actual notice of the of the legal theory that was on was a spousal plain of specific it was is that they were looking at the wrong contract that he to extend an agreement with amazon tall it's an agreement that did not require that his that is written agreement is two thousand and ten agreement with amazon did not require arbitration and of course you're on has read the st opinion when there was talk about whether or not that contract was of a lawful ie modified in the  thousand and fourteen when the issue st arrives that if he has an agreement on this one it does not require observation and one that was never lawfully modified because there's been no notice and has been no separate part just to be just to clarify slightly the fact his wife's initial agreement was amazon's two thousand and eight and the coast is separate agreement where he stablish his own account with amazon was two thousand and so the district court of and so those are still the operative position it's well let me not be too glib in this so the district court relied very heavily on whether or not his wife had agreed to a modification of her agreement based on her subsequent the decision that in order to do so he would have had to receive notice some is going to say i don't understand he didn't you study count to order the product if you use his wife account how can you say that this agreement he had with amazon on an account that he didn't use continues to apply forever when he used his wife's account and then entered in using his wife's account to get about his wife's modification or not he entered at the time of purchase a terms and conditions that include an arbitration clause where he and his wife's account but is only because the computer that he used was apparently last used by his wife to log on tabs on this in the coast nothing to log in as his wife he had his own account amazon produce discover his cage showing that they have been purchases on his own account amazon apparently has a policy in place where it's going to remember the last computer that signed into amazon and not request the next use at the site and again apparently this is the way they like to speed along its parts so he did not these were not prime products to get prime shipping and prime pricing and so that's the st thing i wanted to mention the nd thing i think i want to respond to that's inherent in your question you're on is you said the wife's agent receive notice this is an issue we'd like to respond to as well i think it's a no no no you misunderstood me i said he received notice through you his agent when they when they found folks to come up the tree after the lawsuit i was referring to denn but i think it's important to remember what amazon was arguing amazon was initially arguing only only indirect notice based on an agreement that they said it was modified and of course we believe they were wrong in this and  fair to say it's right around is that since he knew amazon was making a motion to dismiss based on his use of the check out on the screen he continued to make a few more purchases up until the time he was preparing for his deposition and thank you and good morning your honor can you all hear me all right quite clearly great may it please the court this is greg park for amazon dot com when we were here last time it was on a motion to dismiss in favor of arbitration on that rigorous motion to dismiss standard and with a limited factual record this court held that reasonable minds could disagree on constructive notice as it relates to the arbitration question but this court did articulate the standard for this case and others involving contracts with arbitration clauses formed on the internet and that standard is arbitration should be compelled where there is actual or constructive notice of terms containing an arbitration clause this court remanded for further proceedings and that's what the  at length the constructive and actual notice that the plaintiff had and i think this court can and should affirm the judgment below under either an actual or constructive notice standard because the decisions below comply or cause after amazon made its motion to dismiss and after invoking the arbitration clause and maybe more pointedly after the plane to put in an affidavit acknowledging that clause he himself made twenty seven purchases on amazon dot com and it's not at that point like mr to said that and he was just aware of amazon's theory what he was actually aware of is that there was a line on the order page that said by clicking on place your order you agree to the conditions if you he was actually aware of that and you kept clicking on that place your order but twenty set whether he was aware of the extent of the arbitration clause is lazy to actually read the arbitration clause and you have a mormon it doesn't matter and i think that could resolve this case in the court that affirm on that grounds nd turning to constructive notice on remand it showed that the account the plaintiffs used to place this purchase and that by the way he knew he was using that account he said that sometimes he would go on that computer and he would see is white email address up in the corner and he knew that he getting the prime shipping enjoyed the the two day free shipping and he knew he was using that account in that account at signed up for amazon prime and agreed to the prime term conditions through the amazon mom sign up program which is in our brief but pages thirteen and fourteen and on that sign up flow in two places it tells the consumer by clicking on the continued button you agree to spatially adjacent nd it uses the phrase sign up which is a phrase that signals to a consumer the fact that they're agreeing to some things some program and rd it occurs at a time when the plane to for the consumer is initiating a program which is something that the meyer court found to be significant but at that point the consumer should expect there are other terms and conditions so this sign up page squarely meets the standard in wire person super now on the question of whether the plaintiffs should be bound by that i think the fact that he was using that same crime account was receiving direct benefits from that trying to cal knew he was getting direct benefits from that prime account settled we in our papers below called that a derivative rights theory because we were saying it's derivative from his wife's right to place an order and so he's subject to those same decisions district court judge glasser who is more learned than me and been doing this longer than a lot of  decided that that would be better to be analyzed under an equitable stoppel but it's the same basic idea and it is this basic idea that in a context where online ordering is becoming increasingly common and as we're doing this segment from our homes in the midst of a pandemic where online and distant socially distant ordering is going to become even more common it's really important that the and alice not turn on who's clicking the button because if it does then consumers and savvy internet purchasers everywhere could avoid contractual obligations simply by having someone else click the button and that possibly part could i ask your question about that you say it's basically the same  idea do you have a view as to which we should start with this between equitable stoppel group of rights and why you know i think that particular fact judge glasser has convinced me under the particular facts at issue here equitable stoppel does apply a little bit more in that he was receiving benefits under the prime contract that his wife's account had agreed to by signing up her mom which was really the initiation of that crime relationship and having agreed the prime terms and conditions at that point and he was receiving benefits because by virtue of the fact that he was on the screen and saw that it was his wife e mail account that was listed there and he was clicking the place your order but he knows that he's representing to amazon that he's in that account that is his wife and whether he's misrepresenting to her that he's really her or not i think matters less than the fact that he knows he's using that account he knows that account is signed up for prime he's got to know in fact in a lot of these instances he has actual knowledge that that prime account is subject to the terms and conditions contained in arbitration clause so i think that works a little bit better on the back here because we have that full record but even if you didn't have the full record i think the derivative right theory might be the one that you know a lot of cases is going to be more applicable because we might not always have the pure facts years it would be i maybe for the court to get to that point as well as to plus the problem with a quick stop is that it contains a lot of other elements that would not be part of a derivative analysis so the extent that this issue comes up a lot you would want to have in every case all these other aspects of mean we did minute it now but at the time of the sale we didn't know that and so i think on those facts it was not an abuse of discretion by judge glasser to not say well amazon comes here with on clean hands and so i i think given those facts to this this court could likewise affirm that point but i think it does raise a good point that in some ways the derivative right theory is perhaps better and cleaner for most cases where we might not have the same factual record all in front of us can i just ask you to address the modification issue you heard mr truce that today as it relates to i think his argument even the twenty seven purchases  that he had an agreement with amazon and the subsequent actions constitute a modification of that agreement yes your honor it is not our position that there was a modification of the agreement it's our position that each time each one of the interactions with amazon was a new contract so signing up for amazon mom and incorporating the prime terms and conditions that was a new contract that agreed to arbitration each one of the twenty seven dollars times that the plaintiff knew there was an arbitration clause and clicked on it that was a new contract so we're not saying there was a modification and i think that he can out of the district of washington that we cite in our paper that also involved in this on dot com does a very nice job of addressing the fact that no there are separate new contracts this is not a modification of an existing contract from two thousand well i know that what are the pros these aren't the facts here but suppose someone signed up to amazon didn't have an arbitration clause in it  and then used that account but the subsequent purchase after that that was an arbitration provision added is your position that even in that situation that's not considered a modification no your honor it would be amazon's position that there's a new contract each time and you would evaluate under that new contract whether there was an arbitration term imposed under a constructive or an actual notice standard you're right that's not the stick the condition here  facts here the facts are he used an amazon prime account that had signed up for amazon mom and for amazon prime and had those additional things but had he used his own separate account to purchase the one day died or had to use his own separate account in other instances would be looking at a different question would be looking at in all of those instances should he have had constructive notice should he have seen those links being a return visit or does this virtual apple stand to draw on judg and register dot com if you returns those multiple times should he have seen that the magistrate judge down that that's the case that this was a visitor who visited so frequently he should have seen that sign but i think the judge spoiling the actual analogy and register dot com was judge laval saying just say someone it's an apple on the way out of the stand and then sees the sign that says apple's zero dollars fifty cents they can't come back to the same stand over and over again keep taking apples and not paying for the apples that's exactly what mr nicko he did here he knew that buying from amazon involved an arbitration clause and he kept coming back to that virtual apple stand and making purchases on the actual notice kind of standard you sign up you do these things and there's an arbitration clause you then look at the scope of that arbitration clause and the scope of the arbitration clause here is very broad it applies to any dispute guarding any purchase at amazon dot com and this is such a dispute and the supreme court has instructed in the moses cone case that the court once it gets that nd question of the scope of arbitration should resolve any doubt in favor of finding an arbitrary billet easy and that's why the courts instead yes the temporal limitation as long as the arbitration clause doesn't say it only applies to future or it only applies to past it applies to both past and future and any live dispute that still existed in twenty twentieth's to a purchase in two thousand  then the arbiter of all under a contract that that's broad and that's what congress intended in the federal arbitration act and what the supreme court has directed courts throughout the land to interpret very b derivative rights concept derived it was based on the sub licensee theory it's a very different very different contract based argument and equity and so it certainly is is quite different china i want to spend a moment talking about though mr parks has repeated statements that cause his wife most certainly would have had notice here through an agent and then based on their mom sign up flow i think this is a point that's got a lot of attention district court decision below and i think both the st thing procedurally we have to mention is this was an area roundly rejected by the report recommendation from the magistrate judge and was not the subject of any rule seventy two objection it should have been pox talk about the mom side of i think it's important to look at the record shows here there are five pages of website screens talking about the my mom signed a full beginning in the appendix of page eight hundred and ninety seven  hyperlink of that to the prime terms and conditions if one were to see that hyperlink you go to the prior terms and conditions does not once mention arbitration you would have to then hit us a rd wink to get the conditions of use before you held that out as on has not satisfied sprint to prove that it wants on remand amazon sort of changed its idea of how a notice may have come up and now it said ok forget the author screens we're now we really what we think this case should have been about upon remand but upon room at amazon change horses so to speak we argue that was a waiver in our papers and now they're arguing this side outflow what has some sometimes being called by some in contracts the mom and the prime contracts which don't mention arbitration follow three different hyperlinks from the mom terms and conditions to the prime terms and conditions to the terms finally the conditions  much much tougher to do than it ever was to so let me just let me just ask you you didn't really address today at least mr plucks argument that if we agree with your approach here on derivative rights and that you know your client can't be bound by your wife socks or the agent of your wife socks his argument is that someone could just have your spouse sign up to all the different accounts on the internet and just decide they're not going to you know  you tension to terms and conditions and make all sorts of purchases may be completely immune from the terms and conditions or all these different you know entities that are doing business with what's your response to that thank you ron i think it's easy for  be creating a larger problem by allowing spouses to share here what you have to understand is the kosi did have his own agreement he wasn't trying to get around not having a contract with amazon to make purchases and when he logged on he wasn't asked to put it in any account account credentials why not because he tried to be his wife not because he misread represent a thing to anyone it's because adam is on doesn't require you to sign on if it recognizes your computer this is a problem amazon could fix if it wants to you're on it could require you to sign in every time you log on to amazon dot com out it doesn't want to slow you down before purchasing whatever you're purchasing on amazon if you know mr park said w must have known her email address was in the upper right hand corner that's a factual argument that perhaps has to go to trial below but that's not what's in the record here the record here is that missing the kosi it did not ever intend to i understand amazon's point in the abstract and i think any internet commerce provider would have that position but i think we have to understand that this is largely a problem of its own making because it doesn't require you cited and missed macos he did nothing to misrepresent he was somebody he wasn't the truth of the matter is he very forthrightly signed up for his own accounts he had his own accounts and amazon attributed this to his wife's account but by no fault of his own he did nothing in equitable lawful which would lead admins on to have attributed these properties purchases to his wife and this is why we think it was a bit of an end run for the district court to allow ms on to not do modification of his agreements with amazon i heard mr parks say well those twenty seven dollars purchases every time you signed on it implicated the conditions of use to the extent they implicated the conditions of use our position has been from the time the cases started that the conditions of use that apical missed in the kosi his own conditions of use because he had his own agreement and unless and until the court below or perhaps this court makes a finding on modification then there is no finding that his