district court's decision has holdings that are inconsistent with this court and supreme court adjourns prudence in two primary broad categories the st is a requirement that the plaintiffs involved who are individual purchasers of gift cards must have actually read or been provided actual notice of the specific terms and conditions decision the court actually makes reference to the fact that cashiers do not require are not required to and do not read to the customers when they purchase it it was part of the  rationale that the court i think definitely used as the basis of a holding that there had to be actual notice and actual reading of the terms and conditions the statement that i was referring to is wal mart cashiers do not ask plaintiffs to agree to the terms and believe that the actual legal requirement that the court did say is a requirement that the customers have actually seen the terms and conditions the statement there would be that the  did not see the terms of use were otherwise aware that the terms existed or saw the notice on the gift cards i do believe that the fair reading of the judge miller's decision is that there is a requirement that the terms and conditions be actually read and then you can combine it with the nd what we would view as legal error in the opinion which is a repeated reference to awareness and knowledge of the arbitration provisions specifically as opposed to the terms conditions awareness and we cite a series of cases from the supreme court on down that the terms and conditions and issues stand or fall and you can't require a specific notice of the arbitration provision itself and i think that the court trial court statement three different times could overcome their arguments if we could show that they had actual or constructive knowledge of the arbitration agreement arbitration agreement is mention or arbitration provision is mentioned three times and so are legal challenges to the rulings hinges in those two categories the st being that actual notice or actual really required and the nd being is there a requirement that be specifically directed to the arbitration provision or is it as we contend the law is under the u c c which applies here that conduct and create an agreement come when i ask you a question though i mean this i understand you're focusing on what judge miller said but your arbitration agreement at least under the terms and conditions says using or accessing the walmart sites constitutes your acceptance of this arbitration  my understanding now that judge miller said that there is no evidence that any of the plaintiffs that accepts the wept what walmart cites i think that's wrong from the record i think that three or four of them actually did but that's the way they  consent to this in this specific case because the notice of the terms and conditions is actually on the card itself we point out in our briefing that we have two alternative ways that there's acceptance here one under a classic u c c situation where you go into the store and you buy goods and if you look at the specific complaint in this case chief judge smith you see that they actually pled to counts specifically under the uniform commercial code to breaches of warranty that they specifically side to the u c c so we do believe that it is the sa sale of goods and so getting back to judge stresses question we think we have two alternatives admittedly a browser out type agreement where you do except by going on the web site you know that is basis and that is how the person manifests we think agreement happened at the point of sale because of our having it on the terms there and then we think also it happened when they access the web site under the terms that the court identified if i didn't think through this doesn't that create kind of eight which is your saying that going to the website is what creates mutual assassins and you're saying that while they give you carte points you to the app and i'm just trying to figure out how to reconcile that because it doesn't it just doesn't what's wrong with that line of reasoning i think that i think that there i think that what's wrong with it is that we're talking about two different scenarios where people use the gift cards there's a scenario where people buy the gift cards and they're old school brick and mortar shoppers and then they use them but their own inquiry notice that there are these terms and conditions and they accept that and then in addition as the plaintiff specifically alleges in this case you can buy these on line there's this allegation that you can buy them online and so we have an online group of customers too and so i think that what it does is reflect a lot of what judge easterbrook was talking about until versus gateway which is the practical realities of the modern world which is that there's multiple types of consumers and we want to make sure that we have both types covered and so i would say that there isn't it's not a metaphysical chicken and egg problem it's two different types of transactions that we're focused on and we handle both of them in a way that we think is clear and certainly would put people on inquiry notice just we put it on the physical card and then we also for the online people say you know if you buy it online and you shop online and they specifically allege some people shop on line and they do talk about the loading of the cards we've covered our bases totally so i would say that it just reflects the diversity of how people use the cards as opposed to a as opposed to a problem so then where we get to is i think the law is clear that inquiry notice or constructive notice is the standard under these set of circumstances and where we see what we see here is a really strong state of the record for us in this circumstance your honour's wal mart came forward with his declaration of it by president charge of the director in charge of these matters which is mr putnam we put his declaration in the a done them at fourteen and he describes how we go through this and what works and where they are but then you contrast that as well with the allegations of the complaint which make a series of very specific allegations about the fact that there are a lawful contracts and this because the judge process point if you look at paragraph nine hundred and fifty at the point of sale that's where they allege that the contracts were formed and that they form a lawful agreement and we go through our complaint in our briefing go through all the places where they talk about going online and doing things and finding the terms and conditions and we think those are judicial admissions so you take what the plaintiffs have alleged showing clear access to the terms and conditions a specific amount dedicated to the terms and conditions and allegedly a breach of the terms and conditions and a description of what's on the card you combine that with m declaration that we put together that goes through all the process and then you look at the other side of the ledger which is no evidence no declarations and all of the cases that the plaintiff side in response where they say oh well someone should be let out of their allegations someone comes forward with an affidavit that says i didn't actually read these i didn't access them they were hard to find in fact when you look at what judge miller cited he cited a case where they had a green website and they had a green link to the terms and condition that was really hard to find there's no record evidence of any sort of difficulty presented here and so we view it as having it as an extremely strong state of the record for us with no evidence in response i don't think they could say that these were hard to find her difficult to find or they didn't see them because we think that they did certainly those that went on line but when you look at this rule fifty six dollars standard that applies under the section four of the f a a what you look at is did we come forward with evidence which we did in the form of their own admissions in our own declaration and then did they come back with specific evidence in response to the council i wonder whether that ready answer your is i know you're saying there's not many facts but i think there are some facts that for example how many people clicked on the website which we don't know for sure there is questions about our market is the finder's questions about when some of these purchases occurred when they went to the  used all the time calls for certain things to be done we did those and there's actually nothing in response it is a four page four happy order that is scant but we think that we made our record and that they should live you know essentially they did not and the time to come has passed and you combine that with the standard of review for mosco much as anything in response needs to be treated in favor of arbitration the failure to come for the evidence at the time we've made  record and we think it's enforceable and we don't think it's a close case and there's no reason to invoke rule you know the the idea of summary trials of course we do have that alternative a question everything i'm sure that you noticed we don't think that there's any specific question on that here they certainly didn't meet their burden to come for the specific evidence we decide a series of cases and say once we come forward they have to have specific evidence tonight it be easy to have submitted a declaration say and i didn't know you could go online or something like that and i just don't think that that actually happened and so we think that the case should be reversed all reserve the rest of my time unless people have questions but it's still kind of weak on as people who purchased at the brick and mortar stores and when is it is they bought them these they have they were supposed to have secret pin numbers on them but they had already been stolen when they contact a customer service they didn't get any really and the people that were mentioned in defense counsel's argument was actually accessing the website they didn't access it before the transaction was after the transaction they wound up that their money had disappeared and the way to make a complaint to wal mart can be you can call wal mart or you can go online and you can make a complaint online so that's an after the fact when at the time that they had already tendered the money to wal mart and there's if those are the only agreement that's basically saying that the parties have to go online in order to d understand what their rights are but the card itself on the back in the small print says that it's governed by terms dot com for complete terms it doesn't say that they are binding themselves in any way that they are making any type of agreement or relinquishing any right at that point it doesn't give them any information but the next thing is if you go to this wal mart come that's a whole nother story walking through the walmart dot com website is no easy task the gift card they don't instruct the purchaser that card use the terminology terms and conditions but that phrase terms and conditions is used in new york in a broad sense it's a small t v small see it does that reference a website a link or a document when a user access is walmart dot com the st page consist of it colorful distracting items for sale at the bottom of the website line of site there is a list of some links and very small print there is thirty five  wings least on the current version and that's all i am and have similar to what was present in two thousand and sixteen to eighteen not a single one of those links is to give cards and not a single one is to the word terms in conditions if you need to look at that w address that very issue calling it customer service versus charms and conditions that they have to make that leap and enter the mind basically of the defendant what are they calling these various terms in order to find trick the word terms of use is no place on the gift card there's two versions there are thirty one single spaced pages the terms of use indicate these govern your access to use of all wal mart sites but these people never go to the website they never have agreed to any of these times there's win it's still insufficient because i don't believe they have to list all the terms and conditions but they have to tell them that that is part of their park and they have to understand that part of the park just think to look at something to look at a web site when they're making a got the website those three or four people that may have gone to the website they went to that website after the transit they purchased the car they did not go for the purposes of finding an agreement to consent to they went and the only thing they did was contact customer service through the website so if you don't know that you haven't manifested a set so this agreement because they have not constructively giving notice that i don't think that complaining after you've already been damaged were properly paula within consent i think that there could be a challenge to that but i think i think or you know it would always be the case that  assent would come afterwards and i guess you're on your phone at the time of sale or something and you say oh i don't know that i want to buy the scare card i'm going to check out these terms and conditions and you want a wal mart site i think and i think he assembled all these come afterwards and i'm not sure that's a assented to it now some people essentially it and they don't read it they'll check the box that's a different story but here just saying you come on our website i get by the terms well martin suggesting i can go on their website today i can go out view the possibility of sending this down for a summary trial so that we can get a more point nuanced order from the district court talking about these differences and obviously if the court ultimately view that the record was deficient we would prefer that it would be remanded but i really think that on its face this agreement is not in forcible because they have to go on the site different in order to each page of the website but it was so in conspicuous there the court now and that it was not sufficient for constructive no other reason since then if you have to go through multiple hyperlinks as you do here here you also have the dam's website as part of the hyperlink so they're constantly having to go through so many sites that it's disagree the always trumps and if they had got a walmart dot com what he needed a and a turning to direct them to find their way to the to the to give terms and conditions and the get terms and condition did not at the time include arbitration never did they only in two thousand and twenty eight now if those terms specifically to the get correct but previously they never had those include it and the identify specific evidence in the record demonstrating a material factual dispute for trial and that's a universal standard in all of the courts and we think that the state of the record shows that especially when you look at their own allegations just to make sure the record is clear and it sounds to me like the court's well aware of it the back of the card actually says see walmart dot com for complete terms if you go to walmart dot com there is a section called terms that you click on and so our case is different than the cases because we're saying here's where you go and here's the link in here when you click on it we're not also burying the concept of arbitration it has zero a since it's been a part of it then the introductory part in all  service desk in every place i don't recall up and say i want thirty five dollars and you say st we go to arbitration oh i'm sorry you can't call it the complaint well it's set it is that that would be the outcome if nobody agreed but you know we do have a customer service and reconciliation process and if somebody calls things tend so it worked out but the us and get her answers my next question i guess is the remedy illusory or real well we would say that given the fact of how many happy people we haven't used our gift cards which are a lot of people that it's a very sad customer friendly satisfactory process