undisputed that ms solomon opted in to receive a coupon while standing in line at a subway sandwich shop in response to a display ad that plainly said it was subject to terms and conditions and the way you think it plainly said it yes your honor because the question is whether the question is whether it was reasonably conspicuous and this was a display ad it was not a website so actually it is as presented you've got the the big language and then you have small print a reasonable consumer knows that small print is the terms and conditions and this this appears to me to be a fundamentally different type of case than this to terms and conditions simply based upon taking information off of a print head is there any case that says that that's taking information off the printer head we can talk about the size of the print but it seems like this is a whole new category it's the whole idea of reasonably conspicuous we have said if you're clicking to buy something and write about it it says by clicking on registering the purchasing you're agreeing to these terms we've said that's reason conspicuous you're saying it's recently conspicuous intentions post information o which say you were great it doesn't say you were agreeing that that's that's certainly true but again this is a display ad and the display ad reprints what exists on the website it was pointed out to the plywood anyone think they're week they can use it on or other other types of restrictions regarding it not that they're taking on any agreement to do anything or refrain from doing anything i don't understand why consumer would think based upon a lack of even saying you're agreeing to something that they would understand that in this context well i think a reasonable consumer assumes that a free sandwich is always going to be subject to terms otherwise the store would just hand out the sandwiches and there was a display ad and the sales person pointed out here's the a reasonable consumer she had to take certain steps to get that free coupon so she had to look at the end and when you look at the ad this is not a clutter dad it's very clear when you take that only quote it but they don't have to  reasonable henri man with with evidence and proof that presumably have something that could be shown but it plainly in the language the the ad was clear enough so that this consumer was able to affirmatively opt in to follow the instructions and a reasonable consumer would assume that unless the store is just getting out sandwiches if they have to undertake certain tasks to get the free coupon then what would it be for your client if someone texted in that number they get a  before they proceed any further that you're going to terms and conditions when i went to the website all it requires is one additional text and then you would have a click where they would see it on their foam what's so hard about that well that certainly could be done but again this is the nd circuit in my are made very clear that there are many different ways to set things up the standard can't be can you give more notice again this is not for the sale of ability maya again maya had a quick we're right above where you're clicking at the time you're registering for where it says you agree in the terms and conditions which is what i'm suggesting the scenario i gave you would be equivalent to well i mean again as a matter of policy maybe that is a better thing to do but that's not what the law requires and  here you not only have the words terms and conditions which a reasonable consumer would understand it to mean that the offer subject the conditions but the actual address and the address isn't that complicated some way dot com slash some way routes so let's assume that directly in the henry schein case last year which is when you have a delegation clause which you do under nd circuit law when you've got aaa the issue of whether this dispute is within the scope of an agreement to arbitra conspicuous it says terms and conditions it has the exact u r l address a reasonable consumer knows the free sandwich is going to be subject to terms if it says certain state terms of use for the promotion and the website should say i certainly understand your honor but again this was from a website it was put on a board it was pointed out to her the reasonable consumer should understand that although i understand and understand why you're saying what a reasonable consumer should understand terms and conditions exact address means that applies to this promotion and then it's under henry shine it's up to the arbitrator to decide whether in fact this is outside the scope mixed media arbitration agreement i've never seen a case where it looks maybe arbitration agreement involving three forms of media has has been upheld by any court and just explain what i mean by that is a call to action was it printed advertisement that was displayed on the counter in the store it was in very small print you can see that big i hate to keep harping on the same but how big was this poster you're calling it a print thing which could suggest it's a size of a tab book or i understood as a poster could be huge on a wall how big was it my understanding and your honor i'm i can only speak to this based on my understanding because as mister ballen says there's something specifically in the record my understanding is it's one of those little platters that sitting with a base and then a fold ready up that goes like that on the counter and so it's rosalie small it's smaller than a sheet of paper you can tell that it's very small because the actual  it that is in the record is very blurry as if it's been blown up in size and so this text is minuscule and i would it is maginot it's something like a size two or three fine as far as how small this fine print have in the record somebody has advised that they had ads that were either this ad or substantially for purposes of the arguments that are being presented substantially identical to the the call to action that's in the record one of the issues that we had in the original district court dispute was that we didn't think that somebody had met its initial burden of showing the actual agreement that they believe that our client had agreed to it all but after some discussion with the district court we alternately conceded that there was must have been some call to action because subways position was that this call to action with this language would have been in all the stores maybe it would have been slightly different but not different all right and then on your st point which with regard to this is mixed media there's no kinda case like this you're not suggesting that if if the font size was big enough and it would set off in different colors and language that there is an agreement being reached and then what happens when she going to the website it is not your argument it's that in addition to the fact that there is mixed media a mixed media element of this case is just one of the factors in deciding  conspicuousness and whether or not there's actual notice and so you've got three forms of media you have the print ad you have the actual form of media that they were calling our client state which was to use for phone to send a text message not to access the internet and then you have this rd one where the arbitration agreement was supposedly buried in this fine print or you know you have any case in any circuit or even a district court where a court has decided this mixed media issue one way or the other i'm not i'm not aware of a single case that has dealt with this issue that doesn't mean that there aren't any out there i can find that either but that's why i'm asking you what i do know is that what somebody did here is they put up multiple barriers for our client so from the point that she supposedly saw this call to action suit the stage where she's would have been put on a reasonably conspicuous notice of the terms one of those barriers is the fact that there is mixed media and that's just one of the elements of the be the ultimate determination of the court as to whether or not the test under meyer is or is not satisfied and so i think that that makes the element just to fest ation of assent in the st place and there's not here in fact this case as your honor pointed out is very similar to a browser app agreement because there isn't any language in the actual fine print that beyond what your client agreed to except you say fine never agreed to accept anything once that's not true your your client agreed to accept text offers and got maybe ten and is complaining because she got a little well you know a completely separate issue of as to whether or not there was an agreement to something the question isn't whether there was a grid to something it was whether there was an agreed it's arbitrary and that is where there is a there is an issue with the conspicuous manifestation of assent because you can go to a website a perfect example you can go to a website and you can buy something and you can look at that website and say i would like to buy this product and it's twenty dollars and i pray to buy that product but there may be some terms and conditions at the very bottom of the web page such as in the wind versus barnes and noble case that we cited and in the suspect case that we cited th circuit in and nd circuit precedent both analyzed under california law and those cases how that burying the terms and conditions down at the bottom without a firm affirmation of some type of clip wrap saying i read these terms without that element there's no actual agreements  those terms and so that's a threshold problem with some ways position in this case because there is no language in a call to action that says anything like that code she agreed to everything men want to defend his medicare so he says that but that's not accurate if you actually look at the record of the case the text messages that were exchanged between our client and subway don code you agree to these terms and conditions and by the way here they are if they had done that i think it would be a click track agreement and we probably wouldn't be here today because we would be in condition it's what's referred to as a double locked in procedure the federal communications commission has issued rule making so about it and it typically does constitute what's a prior express consent under the telephone consumer protection act if you engage in it  and again it is an agreement to something it's an agreement to opt in to receive text messages under the regulatory body of a lot of the t c p but that isn't a completely separate issue from whether there's a contract to a separate set of terms and conditions it's buried elsewhere and never advised that it's agreed to in any way shape or form there are a lot of reasons that this case is completely distinguishable from meyer which is the only case that defense council really tax undermined and in close proximity to the language which said i agree to these terms and here they are and you can click on the right here in front of the person that is a very different scenario from a an reasonable consumer from reading further and believing that that covered the terms of their their exchange of the message with some way for the sandwich because it didn't relate to the promotion at all it related only to the to the  wo to the website it's you're saying you're saying to be effective in to have to refer to each promotion in other words these things terms and conditions appl your sandwich promotion you are not only paid promotion you have to keep we doing and that they may have dozens of promotions going on all the time if you say your chance conditions at this website say anything the point i'm making is that it actively dissuaded a reasonable consumer for reading further and believing that that applied to the transaction at issue so if it said too much when it said these terms and conditions apply to this client said which the standard is whether there's a reasonably conspicuous notice of the existence of contract terms that apply to the scenario that a person it is engaged and and here not only wasn't there are reasonably conspicuous notice there was notice that the consumer should read further that's the point that i'm trying to make and that is a roadblock that was thrown out by some way now now they  may i would not go so far though as to say your honor that if it doesn't specify at the top of the page that every single thing that applies to that therefore it's an invalid arbitration i would not go that far i don't think that would be a fair reading but i do think that it is fair to say that if you put up language that says this doesn't this applies only to the us that if the consumer doesn't have any application to what it says that they're not going to read further and they're going to be discouraged from doing so and that's a very different situation from the cases that defense counsel is citing to regarding the delegation clause you don't even get to the delegation clause if you're discouraged from reading further  any one of which is subject to a political already either in by this circuit by the th circuit or by the california court of appeal interpretated california contract law and those issues were thoroughly laid out and reviewed by the district court which came to the correct conclusion that there is no contract here there's no contract because there's no agreement to anything and even if there was it's completely in conspicuous and it's completely tell my apologies thank you your honor we don't think there are twenty roadblocks and we also don't think this is mixed media or other complexity or browse wrap or click wrap or a hybrid wrapper or any other term this goes back to st year contracts class there express assent or implied as this is an implied assent case so the question is was the notice sufficient and here you have you have a notice that  required action on a mobile phone so my replies and indeed made plaintiffs zone declaration shows that she understood this that the meier case teaches that you have to assume that a reasonable mobile consumer has entered into contracts before her declaration shows she's done that she talks about many other different kinds of give you a hypothetical suppose you had a printed for a car for a car dealer and it said give this code come to your dealership get this code will give you five percent off on your car but it had the same type of language at the bottom and the same that we don't know your client and here and within those terms and conditions it said you can't get a refund if you purchase this car that has to be a concept of proportionality and what's reasonable and this is this is a case involving a free sandwich the u s supreme court in the carnival cruise line case at pages five hundred and ninety three to ninety four while not talking about what is or isn't reasonable but in talking about small print on the back of a cruise line where a consumer pays a lot more than then a free sandwich tox about how common sense dictates that when that when there is small print that those are terms and conditions the consumer is free to read it or ignore it but at her parents that that's on the ticket that's on the ticket yes and added it and the person is doing nothing more than providing hope what they think is a discount well no because the because the ad claimant plainly has small cl court makes clear when they're small printed consumers on reasonable should be on reasonable notice that those are the terms and conditions and it benefits companies a company like that like subway can't give away excusing the question you're saying this is based upon prior ca case in the united states that has said that a print of this nature that your client utilized that someone has assented to terms and conditions through through this type of media mixed media i guess based on notice but we think the case that is life is much higher because this is a mobile contract formation and this is what she did she took out her phone she didn't have to do it she could have stepped out of line to read the terms and conditions she could have printed them at home if she wanted it but this is a mobile contract she took out her phone she typed in the numbers there was the ad there and there's nothing in the record saying this was small our understanding it's a big it's a big display if that's a factual question it should be addressed henri man but we do like all kinds of crazy things could affect a consumer's ability to see that as opposed to a website where a body would see to see it the same money it could be but the concept is increasing notice you know what is the consumer put on in korea notice and if the lighting was poor and if the type print was bad she was on inquiry notice and if and if and if that were the issue she would have raised that there's nothing in the record to suggest the lighting was bad the print was unclear what's undisputed is she doesn't even remember seeing the speak to that  it well again it's perfectly good by miss isn't the case about her for about a buying a car it's about a free sandwich and the question of whether a company can reasonably give a free sandwich what is reasonable inquiry notice the someone standing in line at a store she saw the small print the supreme court suggest that consumers know that small print means terms and conditions subway would just hand out on the street free sandwiches if it wanted to hand out free sandwiches it's not unreasonable to assume there would be terms and conditions and here it said terms and conditions and provided the exact address she could have typed it in she could have printed it at home she could have stepped out of line nothing forced her to accept the free sandwich