good morning your honour's and may please the court peter stamina on behalf of appellant north american bankcard this appeal presents two fundamental issues both requiring reversal first the district court committed reversible error when it denied defendant  north american bankcard in a b motion to compel binding arbitration even though plaintiff in respondent failed to sustain his burden of unequivocally denying the existence of the arbitration agreement and submitting invisible evidence to support the only evidence before the district court was that respondent in applying online for the service that he actually received hit a button quote i have read and agreed to terms and conditions on the application was provided with an opportunity by a hyperlink to go to the page that contained those terms and conditions and was provided with five documents by virtue of the fact that he hit the button i have agreed to i have read and agreed to he agreed to all five respondent did not submit any evidence below therefore the court only had one inference and one record that respondent did be should have been granted respondent concedes this determined it is shewed by failing to address it much less contested in his answering brief the second issue requiring a reversal is that the district court erred by holding that the relevant user agreement could be ignored in favor of another agreement the terms and conditions of merchant service agreement were m s a because the first few lines of the text of that second document thank you well your honor you have the only evidence that this court where the court below had was the declaration of terry harwood that declaration starts on page fifty two of the record  specifically i'd like to draw the court's attention to page fifty five of the record that is that that page is the first page of the website in title how will you use pay anywhere all right i have that it is ok if you thank you if you go down to the bottom of that page there is a check box and as set forth in this far which declaration again the only evidence before the court the plaintiff respondent was required to click the i have read a are many cases including i believe the case that the that your honor sat on when in which the in which it was held that that it least constructive notice points first if the respondent did not understand or did not read the user agreement that contained the binding arbitration provision he could have put in a declaration saying so the second point is is that there are many cases including my view goober in the second disk in the second circuit which applied california law that held that just that type of of web page or or web application process where you have to click more than one which i think is what your honour's talking about so you have to click a link that takes you to terms and conditions page and then you have to click another link which is the user agreement which has the binding you think you're hiding the arbitration if you think your client not you your client type of transaction they're all listed and by clicking that button he's agreed to them once he get in he had every opportunity as this and other courts have held every opportunity to review those agreements once he was given that opportunity assuming that we get by the first factor which is actual notice which the only way he can contest would be to submit a decoration or some other evidence which he did not but once you get once you have the a reasonable opportunity and he did we will of the relevant web page then it's similar to a summary judgment standard and at that point the party resisting arbitration here the respondent has an obligation to submit it least to things he's got to say on equi existence of the agreement in one form or another and he's got to submit evidence he didn't do either and i think the reason why didn't do either is because he couldn't truthfully do it mr starr know what true forty for that statement you just made that he has to come forward that some similar to the summary judgment standard which are forty for the while your honor i think that's been the rule for over seventy years starting with almost says which we cited in both the opening and reply brief ok that's one forty eight f second six twenty five at six twenty eight second circuit nine hundred forty five that case has been followed in virtually every district i'm sorry every circuit including this one we've cited other cases central district and northern well the district court had two things happen first of all the district court took it under submission and the district court's ruling was was was based on an argument really that respondent didn't develop had we been able to at least argue we would have put forth the fact that there is no evidence before the before the record before the judge of anything other then responded did exactly what he was supposed to do on the website he's he's applying for  a credit card reader which is like a little dongle that would attach to up a cell phone or a tablet and then he has a service in the service transmits all those credit card processes so he had to know that and the website provided that in accepting those the dongle or the credit card reader and the service that he was going to accept an agreement and the terms and conditions are laid out in those is once he clicked on user agreement the burden shifted while my close my our theory is that once he clicked on terms and conditions he unqualified y admitted that he agreed to every single one of those documents and if he's going to oppose a motion to compel then he has the burden to put forth evidence that he didn't and i think that's what those cases whole i think it's fairly clear most cases hold that he didn't satisfy the bird because for whatever reason and again we can only suppose and i missed this the district judge ruled on something that wasn't raised for the district court held two things really the district court held that because the that the because as a judge were laws said because the website is constructed so it requires two clicks rather than one right at that wasn't sufficient in the court also held that the m s a was inconsistent with the user agreement the first issue has been resolved by the second circuit in just two clicks is not sufficient to the dean or deny notice as to the second issue the very terms of the m s a indicate that it doesn't apply it says that you have filled out a global m plaintiff respondent did not fill out that that agreement in fact if if if the court would like to look at the crew there's only three critical pages of the record and those pages are fifty five which is the the application page which is fifty eight and then sixty three which is the terms and conditions pardon me in the very few lines that are available on the m s a which is below the hyperlinks to the other documents including the user agreement it says this document terms and conditions of merchant service agreement accompanies a document global payments merchant application where he didn't submit or fill out that document what he did is he said mid and filled out first on page fifty five of the record you pay anywhere how will you use pay anywhere page and then he went to page fifty eight of record which is the actual application for the pay anywhere application there's nothing about global in any of those documents and it doesn't apply the reason why that document is there is because if a merchant like respondent reached a certain level of processing over a million dollars a year or one hundred thousand dollars a month then his processing activity would be switched but not until then in critically again there is no desperation there's no evidence that he was confused about this i haven't heard a good answer to my question about the merger agreement which just not none of none of the opposition is and i think it's a reasonable position and i think it's the right position obviously is that because the m s a on its face does not apply that merger clause doesn't apply it would apply if  only if he had filled out the responded to filled out the global payments merchant application but he didn't and there's no evidence in the record that he did and in fact in his complaint he alleges just the opposite in his complaint the only it's not really evidence but to be the only thing that we can tell from what point of said it is a complaint he alleges that he applied for the pay anywhere mobile card reader and service i can certainly give you a cite to good morning may please the court american already appearing on behalf of gerald mcgee before i go into my prepared remarks are there any questions or issues the court would like me to address well what about the lack of a declaration saying that he did does not notice or he had not looked at the let me get he had not looked at the user for gray meant certainly  party asserting an agreement to prove an establish the agreement it's not mickey's burden to to to do that and so the district court had the operative documents before it and found  basic matter of fundamental contract formation that there was not directing the requisite assent because of the confusing nature of the design and content of the website agreements under when  and your honors there is actually instructive ninth circuit precedent on this issue of assent in newton versus sirius x m radio in two thousand and fourteen the ninth circuit actually reverse notably this same district judge but there they reversed his granting a motion to compel in that case the ninth circuit reversed the granting of the motion to compel based on a lack of assent in the ninth circuit opinion in two thousand and fourteen under newton instructive language i'll quote here his is useful in this case and that the court is actually quoting  such purpose should be accomplished in a way that each party to the arrangement will fully and clearly comprehend that the agreement to arbitrate exists and bar and binds the parties there too so moving from they are as the standard if you dive into the minutiae of these contracts which i think is is important to do because the parties in their briefing obviously describe the documents as the best they can but if you actually turn to the documents  and i actually had it at sixty as you did as well so we can either turn to sixty years or fifty five whatever prefer you can see that this is what in the standard is a really what a reasonably prudent person would understand so if you do that there's a box nobody disputes this i have read and agreed to the terms and conditions quote there is nothing in that that says user agreement so from there you click the what's the link the terms and conditions to important to remember that what we're seeing  representation of a web page as well so then you were trying to where that page takes you which is at sixty three to seventy nine it appears in multiple places but that is where it can be found here what is the reason w prepared in person next encounter they encounter the web page represented here now are poena states that there are just a few lines at the bottom of the page but what this is actually showing the web page where you can scroll down if you scr down there are fifteen plus pages of detailed terms and above those before you even get there are the words page anywhere terms and conditions that's where you go to from terms and conditions then there's as as you suggested your honor a card acceptance guide and it's and you have the option of viewing that acceptance guide by clicking here then there's a pay anywhere pricing those are let's you know sort of terms and conditions that's some pricing view the pricing here you can click on that next we have the user agreement which again has the same thing view the user agreement here and then there's a terminal agreement view here then in full our v pay anywhere terms and conditions of merchant service agreement mr magee like everyone that is it that is signing up for the service is emerging it is not reasonable to expect them to think when they encounter oh this none of this applies to me i'm going to click on the the user agreement and this is without even getting into the conflicting choice of law terms and each and the conflict in merger clauses which state stop looking after this we're done here nothing else is part of this agreement so would state that yes it's a question of law based on the specific facts so in when it's stated that the validity of the agreement quote turns on whether the website puts a reasonably prudent user on increased notice of the terms of the contract which depends on the design and content of the website and the agreements web page so then you have to look at the concert at the design and content and here both are unclear and conflicting  yes i would agree your honor of is disputed you can't you can't decide on summary judgment here i would agree with that your hon that i believe that's in our brief and in terms of the standard of review i think it is a conclusion of law by their contracts for oh i'm sorry i maybe i misunderstood yes whether or not there's a contract formation i would say is a is a question of law that's correct whether there's a cent there or not and perhaps i'm confusing the the facts that are that form the basis of that so i would agree on  no there are not disputed facts in terms of what the operative documents are but those documents have to form the requisite notice to form a set so if you look at when says the validity you have to find the first thing you have to do is find an agreement there has to be a contract this form and to do that it turns over the website puts a recently print purse or person on inquiry notice of the terms of the contract which depends on the design and content of the website the agreements web page and those were before the district court and they found based on those facts that is a matter of law there is no sense in this when you say that of fact eerily referring to the court reading a review of this designed they chose these terms they could have done several things that the district court even points a couple of those out that they did not do instead they did what what is represented in the record and what is confusing to the recently print person so that this is a kinda summary judgment to his pleading just as i get it shifted the burden to you to come forward with something is that the way you understood his argument i believe so and he tells me that's been the thousand forty five that is not how we understand the the standard or authority our understanding is that the burden under again under if you look at an knutson into twenty fourteen the court states that the burden to establish a valid agreement by a preponderance of the evidence is on the party seeking to compel arbitration so they're the ones that have to establish the agreement so they have to establish through mention that and i think this is in the documents at least before the district court that their position is that mr magee agreed to everything when you put that box that he finds so that's a precinct matter of policy i just think it would be a terrible precedent to say that you can have this kind of confusion and mess be found to have a cent in a binding agreement to force someone to arbitration here so but terms and conditions of merchant service agreement should be ignored and instead a user agreement that's found a link that says user agreement applies to him based on apparently some application that he is supposed to know is distinct from some other merchant application it just it's not reasonable uars and i see them running out of time so i can reserve for rebuttal for no further question right that you're going to get revenge of that i don't think there's any further questions honor i know i only have a short amount of time let me just hit on some some very salient points first of all i think that when is certainly a relevant case i don't think it controls because and when there was evidence right but your honor you held that for the panel held that because that was more of a browse wrap agreement than a click i don't find these labels wrappers wrap very helpful understood well ok so the difference between that agreement and this agreement as discussed in many of the cases are brief including meyer view is that here you had a wink and a box that the user had to click i have read and agree to the terms and conditions before he or she could go on to the registration page to purchase or obtain the service that was not the case in barnes and noble were over i think your honor put forth the salient point which is absent evidence of actual notice here there is no evidence either way because the exact well it's not now i think i think i think the law is that he isn't he may be a merchant but in no sense is he a merchant as defined in this agreement which is the n s a the agreement that's at the bottom of the page so because he did not fill out a global payment merchant application now he could have explained in a declaration that he was confused he could have explained in a declaration i don't see have to explain that he did because it isn't i'm sorry because it's to prove that there is an aggrieved and found you did not grieve for our two points your honor i don't think i think that the burden really was on him and opposing counsel started the site of the newton case which is not in any of the briefs i haven't read but i believe i haven't read it recently i believe in that case there was a declaration in opposition to the motion there's another case however that is directly on point that was cited in the produce and that's the draft case in the graft case the court held the motion to compel arbitration had to be granted because the plaintiff had not sustained his burn his burden of coming forward with evidence showing that he did not assent under california law that's the same as the law since it does have that to collect rather the one click the second circuit their help the fact that there were two clicks rather than one was not sufficient to rule that a reasonable user wouldn't be on at least inquiry notice and again factual dispute about whether or not respondent had actual notice or even an inquiry notice and i don't think the court was permitted under those circumstances to rule as a matter of law that he did not at a minimum bread most that can be said is because he didn't come forward with any evidence and self based on the only evidence a district court had the only difference that could be given was that he did agree to each of the agreements on the terms and