tree thank you hundred douglas winthrop may please the court i'm a counsel for a pal and square trade the plaintiff in this case is a serial class action plaintiffs who brought suit against square trade alleging that the square trade were trading geisha an unfair business practices by delivering him a contract after the purchase via a confirmation e mail that differed from the sample contract that was available to him on the website on of the time of purchase these are the exact words of the complaint paragraph twenty nine the confirmation e mail that's where trade sets out from the confirmation e mail from square trade sets out the general contract terms and provides a link or other access to the terms and conditions of the protection plan paragraph thirty paragraph seventy six makes the exact same assertion of fact that the confirmation e mail includes a link to the plan to the terms and conditions of the plan it was only after square trade moved to compel arbitration that mr starr contended that no reasonable person could understand that the link to the terms and condition in that email was a link to the plan stark is bound to two primary questions the vs reasonable notice but the second is the send and is it fair to say that even though there is that term and conditions hyperlink there is in fact no requirement that any purchaser of this particular product would have to assent would have to agree centrally what you're suggesting is that because there's this notice on the bottom there's a recognition that that's essentially a waiver that is assent and my question is why don't you just have something which requires the particular buyer to exhibit their assent so the the buyer in this case exhibits their assent by accepting the benefits of the contract keeping the contract and not returning it and if you look at the page the selling page when he purchased it says they're right up front you were going to send you a contract if you don't want to keep the contract you can return it within thirty days for a full refund and the first page that have hyperlink the terms and conditions sorry i'm sorry this is not a new question in this case right why does that first page where you put it in your shopping cart you pay that this is meaningless it's what you're going to get later on that governs this agreement why do you put in terms of conditions in the initial page the terms and conditions are linked on the website the whole structure of this the way in this ditch which this business has been run and it's run according to state law which says and risk a seven nine zero three of the new york insurance law which is very very similar throughout the country that if you are in a store you need to provide the person with the contract right there on the spot if you are outside that physical environment you can do it this way it's exactly it's been done is does is white all over the country and it's structured that way given the nature of the statute and this is and i understand the statute but my question is a little more focused on that is that i get it if you would put on that first page and we're going to send you the terms and conditions of this agreement later tomorrow and we get a confirmation e mail sent out but if you have on that first page hyperlink to terms and conditions and there are extensive and it has no arbitration clause why wouldn't result purchasers purchasers think well this is the contract i just day that you get from on the amazon website ought to have a disclaimer saying do not click on this because these aren't the terms and conditions the terms and conditions are going to be a switch from the bait that these terms and conditions tell you are the actual terms and conditions of course that's not what it should say the there is obviously really tell me why it should just tell me why it obviously shouldn't say that the obviously here there was a mistake dispute there was a mistake when square trade updated its terms and conditions amazon did not after the link and when this case was filed that mistake was corrected and mr kline will tell you it wasn't  corrected because after we corrected it there were still some other amazon links that were not corrected and that is because amazon has two programs the program of square trade sales and the program of kindle sales of square tree of square trade program that amazon runs itself and their parents were run by two different people and so when they corrected the first one they didn't correct the second one we learned that we got it all correct so wouldn't it all be a lot easier i mean this is not like in the store it seems to me in the store i look at a sample and i think that's a pretty good item i'm going to buy it and there's going to be an arbitration clause it will turn out that is in the box i don't see to like get home i did not think it was the law that the store has to show me a pamphlet identical to the one that's in the box before i buy the product i thought the shrinkwrap rule was when i got home and opened the box i find the term and that makes a lot of sense in that context because otherwise it's the store rather than the manufacturer who gets to set the terms because of the store fails to give you the template now suddenly we've got a problem but here there is no problem because everything could be done correctly on the website from the start why isn't that a different situation than the one that takes place with sales of  physical items in brick and mortar stores what keeps a company from being able to not make mistakes and make sure that what the terms and conditions are there and a person has the opportunity to read them granted a lot of people aren't going to read them but then you're clear because you've given them the opportunity to read this and if they don't read it it's on them right and there are many many ways that goober could have structured its web page to make it stronger clearer higher more upfront and this court's in say well it could have been better he could have been a bigger link you could have you could have had the person scroll on the terms of use and then say at the bottom i agree all of those things could have been true but it wasn't that way the question is why wouldn't a reasonable consumer looking at what was sent say oh i see this is the contract i've got the coverage amount i understand what that is i've got the coverage term i've got the price says what's covered now i've got my my contract it seems fine to me why should they when they're going to see terms and conditions and think oh that's where the real contract is because if you look at that one page e mail where there are only two hyperlinks and where there is a summary of the terms it says for example coverage ok it's just says coverage coverage type standard that's that's the that's the coverage what does that mean what is the coverage what happens when the product breaks i have to recognize that and of course you're now telling me that the last time i saw one that said terms and conditions i should ignore that because that doesn't mean anything and of course there are many links here which have things like log in in a giant box write a review in a red box that are far more prominent even need help gets a more prominent mention than the thing that you're saying is the most important thing the person should look for it's not act itself it is what it is one of the porton things that the consumer should look for and if you look at these cases they don't demand that the retailer  make the notice the most prominent the most significant item in the view or the consumer's view the there is a recognition that these are private parties structuring their relations where the  has the right to order the information to provide what it thinks is going to be a reasonable relevance to the consumer and if you the premise that that the you have to start from the notion that this is in many ways easier than the minor case easier than the case right i came to the court today by ok i get in they take me to the court i get out i know they're going to take money from my credit card and then i'm done as far as i'm concerned and i are complete why do we have this these cases that talk about where where the signing is where the terms and conditions are because if you don't have it in a certain way i want even though there's a contract here but here there's a it's clear there's a contract for them so when you signed up for yeah you would have gone through the contractual arrangement and they would have described to you probably the terms and conditions and they would have laid out a specific terms of conditions and you then probably my guess is would click on some particular spot in which you say yes i assent to those particular conditions and that's not what happened here and that's not what happened in newburgh your honor in newburgh it's not at all in nuber you click on register you register for the service and below that it says by registering in very very small print i would ask you to take a look at the  seven of their brief it's really small it says by registering you agree to the terms of service there's no click i assent and this court upheld that and i would say this is an easier case because in there you needed to tell the consumer there was a contract here he knows there's a contract he's admitted there's a contract and if you look at the court and this does to this court d duty to read and the online context by creating the account you agree to the terms and service it doesn't say on your page if you don't send send us back a rejection and you've agreed to the following terms and conditions i probably yes and i agree with that the goober has to link the lead in phrase in the rubric case that lead in phrase is extremely small it's very i mean i was i must say struck again in getting ready how tiny it is and more proof there's a more profound problem with this contract isn't there that there was a mutual mistake it seems to me about what the person what mr starke was buying in the sense that he thought  that he was covering the product that he bought and that's buyer staples or wherever he bought it and presumably so did square trade and square trade didn't think where taking this premium from this guy to cover nothing  somehow and if a machine can think whatever is happening in your square trade must be assuming he's paying to cover a product that is covered but that turned out to be wrong and then i take it i think i have this right i don't think this is about settlement negotiations i think square trade offer to give him his money back right square free did give him his money back and i'm pretty sure he cancelled he can't cash the check and if you look at joint appendix seventy the actual contract says if this protection plan was inadvertently sold to you on a product which was not intended to be covered by this protection plan we will cancel this protection plan and return the full purchase price of the protection plan to you and stark somehow is claiming that he didn't actually cancel it but if you took the money that for the refund why isn't the whole case over at that point that's not an argument that i saw you make in and they're claiming the whole thing is somehow an intentional fraud that sort of thing that's even assume it is i'm still having trouble understanding why and i know you don't agree with you i'm trying to figure out why mr stark becomes an appropriate point of here if in his case there was no contract ever really there was no product that was covered it was all a mistake on everybody's part and then they gave your company gave him his money that that notice was at the bottom of the email at the bottom of the purchase page and was not given prior and there was no proper disclosure of that so as far as whether or not mr stark has a degree meant  the terms and conditions that provided that language that would have allowed them to cancel only came afterwards in the in the terms of conditions that that that was imposed in the post post it was at the several on the purchase page way below several screens down there was a notice but there was nothing to get any place where the reasonable consumer would have seen it prior to purchase or not that there wasn't  o but going back to the to the overall case here the mayor gave us really the framework for how to actually do it right this is the case where the court has an opportunity to say how not to do it and that is in the at the very outset when squids had presented the presented the sale you had the terms and conditions of the bond the did not have an arbitration agreement pre sale it wasn't even referred to us terms and conditions let's remember there is no document titled terms and conditions prior to the sale there is a reference to a service contract and then at the bottom of the purchase page of several screens down there is a link titled warranty p d f the it's the normal collector of terms and conditions that not show up at all contract that's claiming the same court and nobody reads the stuff it doesn't matter we'll just pick whichever one we like and whichever one has better language to two to hold the consumer to i'm sorry the lincoln mayor it was somewhat smaller tax than the rest of the page but what with the carly the mayor is is that a consumer in this century and in the current environment of e commerce understands the concept of that around the space where there is a button linked to the large in the register or whatever might be there is there will be and the customer needs to be on the lookout should she choose to read it for that link and the car later that is that when you don't have it you've you've lost the ability to give reasonable notice to the consumer and that's exactly what happened here at every stage the the  language for example and in many of in some of the cases where you do see the court expecting the consumer to look at or or click at the link or be bound by it you have strong language saying you must read understand and agree to these to the following terms and conditions with a link to it you will have graphical signs addressing the point in the consumer to weinstein what do you think about the factors that were used by the district board here and do you think this would be a viable approach to this kind of and he contracts i think in many ways  it's really i think the mayor took a bit of a holistic approach in a more of a common sense rather than a factoring approach and judge wisely and broaden the concept to more specific factors but it's really one of the same and the that is a clustered is there are there other signs pointing the way the consumer directed the consumers attention to the link i should add one thing that one thing that works and doesn't do and just wants and doesn't do is he presume presumes that the consumer will be looking for these terms and conditions at the time of the sale so in fact just characters in its opinion kind of gave the square trade the benefit terms and conditions to the contract itself they did not the after the case was filed the company issued some kind of automatic credit not it was not either through the credit card or or the way it was purchased it's not something that that certainly not prior to the case but after even though they said it will be returned it was not returned but i think it means nothing no i mean did they send him a check the deposited in his bank or do you credit for another square trade extended warranty or what did they do and what did your client do i believe my client did not do anything meaning in whatever way was returned if it was a check he did not passion but i believe it was not a check it was either a credit card  it is something that was not in his control square trade either it had his credit card account either i believe so it was something like for an art of mounts meaning not for the same amount that he that he  whatever their company says happened is any of that in the record the whatever refund was i believe not i believe not but certainly we did not place anything in the record other than the fact that in the complaint that it was not returned which at the time it was not was at this time as of the time of the complaint it had not it definitely was not and i suppose again the problem is that they're so enamored of their arbitration clause and protecting it that that really the fact that maybe there was no contract at all or the contract had been rescinded or something like that would be a marriage question that would have to be decided by the court if the court is supposed to decide it but the issue here is a prior question does this go to arbitration and that turns on something else correct the again this is the first we klein said that the language that square trade refunds the purchase price if there's a mistake came in the sack subsequent arbitrary subsequent contract to the one that was emailed that's not the case if you look at  joint appendix one a one is the same language that was not a change that was made that's been there but does paragraph three other never refunded the prius they are correct that it didn't happen till after the case was filed it's a long story there was confusion between mr stark and manager and when this is you know i think they wanted mr start to call and discuss this and the that never happened and so it kind of fell by the wayside he sued they  account they sent him a gift card whatever it was it was something like that they gave back his money and what i was told was that he accepted that that you know that and that's consistent with their policy it's typical and you know these insurance like agreement with that with there's no coverage ave you give back what was taken that's part of the way you do this there was a comment about there was the the phrase terms and conditions was never used only the term warranty if you look at the case that was an issue in the case one wink said terms of service another said terms and conditions the judge the court did not give that much notice than to the consumers understand this is language  contract one of the questions was you know i think you're on and you said well how do we know he didn't you know he didn't see any of this stuff if you look at the goober case the case in that case the mr meyer express attested that he did not see the link where he had the terms and conditions and the court nonetheless said it didn't matter in this case if you look at mr ma mr stark declaration it's very interesting he says a lot of things he doesn't deny that he saw the terms and conditions link there is no dispute i believe that he was on actual notice of that terms and conditions link and that was important in the mire case mr klein talked about you know we lost the ability to give reasonable notice because it wasn't temporal in the in this case this all happened in a day if you look at mr look at the complaint look at mr stark's declaration he buys from amazon it says right there contracts going to come in the e mail he gets a confirmation from amazon it says write their contracts and com e mail from square trade same day e mail comes from square trade right there with the with the the email with the link the that is temporal if you look at the cases if you look at for example it went the other way because there was no notice that anything subsequent was going to come but the court had no problem with the idea that if you tell somebody contracts coming in an e mail and it comes in an e mail and there's a link that certainly is enough to give the consumer notice and it ties into the idea of to read these