Announcer: SJC-12883,
Christopher P. Kauders v. Uber Technologies Inc.
-: Ms.Ellsworth.
-: Good morning, and may it please the court.
There are two fundamental flaws
in the Superior Court's decision,
one procedural and one substantive,
both of which require reversal.
Briefly on the procedural point,
the Arbitration Act allows a party to challenge
whether an agreement to arbitrate exists only once,
either in opposing a motion to compel
at the outset of a case,
or after an arbitration award has been issued
in a motion to vacate that arbitration award.
The Kauders here chose the former action,
the former route,
and the Superior Court was without jurisdiction or authority
to reconsider his prior ruling compelling arbitration,
after an arbitrator had issued an award in Uber's favor,
and after Uber had filed a motion to confirm that award.
A motion for reconsideration,
can't be used to circumvent the requirements
of Chapter 251,
including the strictly enforced 30-day limit
for moving to vacate.
On the substance, as to the question
whether the Kauders entered a binding contract with Uber,
the answer to that question is unequivocally yes.
Many other courts, including in New York, California,
Illinois, and Texas, have concluded
that Uber's registration process
provides reasonable notice to users,
that by creating an Uber account,
they are agreeing to Uber's terms and conditions.
The first circuit's decision in Cullinane
is an outlier relied upon by the Superior Court,
and it's inconsistent with this great weight of authority.
It imposes a conspicuousness standard,
found nowhere in Massachusetts law of contract formation,
and it fails to consider the Uber registration process
through the lens of the reasonable user,
who is a consumer using a smart phone
to engage in an online commercial transaction.
The Uber registration process is straight forward.
It consists of three screens,
all of which must be completed to create an account.
The third and final screen contains only 24 words,
all visible without scrolling on a single screen.
And it provides a notice of the terms and conditions
that is bolded, in the center of the screen,
in different color font, in large font,
and emphasized by a surrounding box
indicating a clickable link.
This single uncluttered screen, reasonably communicated
to the Kauders and any other reasonable user,
that by creating an Uber account,
they were doing so subject to Uber's terms and conditions.
And it provided clear notice of how to review the terms,
in the same way that notice has been provided,
in the terms of paper contracts throughout time.
Uber's registration process also requires users
to make an affirmative act of acknowledgement,
notifying users that by creating an account,
by completing the registration process and clicking Done,
they are doing so and agreeing to be subject to these terms.
The (audio blurs) courts...
Yes.
-: May I ask you,
can we go back for a minute, to the 30-day issue,
the procedural rule?
-: Yes. -: And.
-: My question here is if you look at 251 Section 12,
is that what you're relying on
with regard to the 30-day rule?
-: Well, yes, Your Honor.
In Section 12 and in particular,
it states that an award will be confirmed upon motion
unless a timely motion has been otherwise filed to vacate.
And here there's no question that a motion to vacate
was not filed within 30 days.
-: Okay, and then it lists in Subsection A, that,
it says the court shall vacate if,
and then it says it has four,
I think that's what the judge decided anyway,
four subsections in his decision.
And what my question is, is if we conclude
that actually there was no valid arbitration agreement,
in fact, and that arbitration
shouldn't have occurred in the first place,
how does any of these apply?
-: Well, if I understand the question, Your Honor,
if this court were to conclude
that no valid arbitration agreement existed at that option,
or the ability to use that argument to the court,
was available to the plaintiffs
by simply appealing a confirmation of the award.
So Uber moved to confirm the award and the Superior Court--
-: So, when you moved to confirm the award,
the judge could confirm it,
or he could not confirm it, correct?
-: I don't think he had a basis to vacate it
on the grounds that the Kauders have raised here,
which is the lack of an agreement to arbitrary.
Section 1285 indicates that,
that can be a ground to vacate award an award
only if a prior motion has not already been brought
pursuant to section two along those lines.
So it's an either/or.
-: Okay.
Let me move back to the substance for a moment
before I release you to the other judges.
And one of my questions is, when you signed in here,
when you created your Zoom account,
do you know what terms you agreed to do?
-: Do I know what terms I agree to?
-: I do not, Your Honor.
-: So we don't know if any of us
signed onto an arbitration agreement right now?
-: Well, I think we were, if I recall,
when I registered for Zoom back in the day,
I was probably put on reasonable notice
that there were terms that applied and had I--
-: You don't remember what they are,
or have any idea what they are.
-: No, and there's no requirement,
as Your Honor is well aware
that anybody has actually reviewed the terms of a contract
to be bound by it.
So that it is likely commonplace and may be the case here
that doesn't defeat the contract formation at all.
-: I guess, when I think about these,
I understand these clickwrap and browsewrap,
and all of this stuff is just everywhere and we all do it.
I do it constantly.
I agree to all sorts of things
I probably shouldn't agree to.
But then I go back in my head and I think about
contracts of adhesion,
in contract law, in law school,
and I don't understand
how these just aren't contracts of adhesion.
We all do it,
but does that make them not contracts of adhesion?
-: Well, a contract of adhesion can be enforced
and is frequently enforced.
So I don't think that that nomenclature,
whether it's accurate or not,
sort of answers the question with respect.
I think the question is whether a user in this case,
the Kauders here, or any Uber user, is put on notice,
inquiry notice, constructive notice, that they are in fact
going to be subject to these terms and conditions.
And the question of whether they've been put on such notice,
is one that the court looks at
in the context of the entire transaction,
and from the objective standpoint of a reasonable user,
and as to how the terms are identified and available to be--
-: What do we do now that we have Cullinane telling us,
this is not noticing, no notice.
-: Well, so the Cullinane decision,
that we believe is wrongly decided for several reasons,
allow me to articulate a few of them.
The first is, it elevates the conspicuousness concept.
It imports that into Massachusetts law, first of all,
it's not found in agemy, and it's not a feature
of Massachusetts contract formation law,
in any case that I've seen
or any case that's been cited in these briefs.
And it suggests that, it always be form over substance
in the sense that it suggests that somehow
the notice that is provided
on this very uncluttered record appendix 47,
has the screen reproduced for the court,
its very uncluttered screen.
It suggests that somehow the box indicating
Terms and Conditions must be blue
in order to place a user on reasonable notice.
There's simply no requirement for that sort of fly specking
of the user interface when you're making the determination
of whether somebody is on reasonable notice
that they are entering into a contract.
And again, I point the court
to the Meyer court's decision in the second circuit,
which evaluated a very similar user interface for Uber.
Although a user interface
that the district court in Meyer indicated,
was more cluttered and more confusing
than that that had an issue in Cullinane,
and indicated that,
in light of the nature of the transaction there,
and the way in which the screen is laid out,
users are put on constructive notice
that they are entering into a contract,
when they proceed through this process
and create an account.
And so I think the Cullinade decision
is simply wrongly decided on the facts,
suggest this coordinate and follow it.
-: Thank you.
-: I'll get you, Justice Lowy.
How is the user supposed to know that the box is clickable?
I mean, usually hyperlinks are indicated
with a different color.
Here, it just says Terms and Conditions in a box.
But I guess you rely on the sophistication of people
who sign up for Uber,
or there could be people like me who signed up for Uber,
who are less sophisticated.
-: We're totally not relying
on anybody being more sophisticated
than a reasonable consumer.
I think the underlining and blue color
is a feature of hyperlinks
that existed probably 10, 15 years ago.
And as subs, the chamber of commerce brief noted,
and we cited some of the sort of standards for programming.
Boxes like these are increasingly commonplace,
very commonplace, particularly in smartphones, as indicating
that you can click on that and obtain more information.
And so it's an objective standard that the court applies
of course, of the reasonable user.
But we think the reasonable user
who operates with the smartphone has gone to,
here it's the app store, because it was an Apple phone,
as the record indicates, downloaded an app,
and gone through the process of signing up,
understands what the different layout
of screen like this entails.
-: Of course, you made a business decision,
not clutter your screen.
Could've added text,
could have put a subscript that says,
click for further information,
but that was a business system made by Uber easier,
is that correct?
-: Well, I think
the more information that you put on the screen,
the potentially more difficult becomes
for a user to understand what's being communicated.
I think the uncluttered nature of the screen here,
which is relied upon by all of the other courts
to consider this particular Uber interface,
Meyer, the West Court, the Johnson Court,
all cited in our briefs,
the fact that it's all one page, no scrolling.
As a part of a commercial transaction,
this is the point in the process
at which you're entering your credit card, right?
You're agreeing to enter into a forward-looking relationship
with Uber, where you'll use the app
to try and request rides from drivers.
The entire context of the transaction
is one in which a reasonable user is going to understand
that as a part of this arrangement,
terms and conditions likely apply,
and the notice is provided right there
in the center of the screen.
Your eyes really can't miss it
as you're entering in credit card information.
-: It's one thing that the award people apparently supply.
Certainly another thing, just tell people,
if you want to find those terms and conditions,
click on this box.
-: And I'd submit that's precisely
what Uber's interface does.
It says by creating an account,
you agree to the terms and conditions
and the box is recognizable
as the type of box that you click to follow
and get more information.
And indeed, as the record shows,
if you click on that,
you're brought to another page
where you can review the terms and conditions
if you choose.
There's nothing to suggest here
that the Kauders did or did not do that.
But again, that's not required in order to form a contract.
What's required is that it'd be reasonably communicated,
and accepted, and we think that's shown here.
-: Justice Lowy.
-: Sure, Ms. Ellsworth,
let's use the term reasonably communicated,
as opposed to conspicuous, for the purposes of my question.
So if you come into the Adams Courthouse,
and you want to use the guest internet,
you have a provision that comes up
that lets you know about what's involved.
And before you can get on the internet,
you have to do one more thing, you have to hit Accept.
So, that's easy enough to do.
When we're looking at reasonably communicated,
let's just assume that the Agemian, instead of conspicuous,
why isn't it reasonable when you have a situation like this,
especially if it's an adhesion contract,
to just require that one more click on the hyperlink.
-: Well, Your Honor,
I guess I responded in a few different ways.
The first is,
I think there are two different steps here.
There's whether the existence of the contract
and the accessibility,
the ability to review the terms, is reasonably communicated.
That, I think, relates to how the screen looks
and the appearance of the link
to go get the terms and conditions.
And then there's the question
of whether it has been accepted.
And as the Agemian Court noted,
and a variety of other courts have also concluded,
at some affirmative action of accepting
indicates, in sort of a manifest intent
to accept the contract.
But that action doesn't need to be, I Accept,
The Agemian Court says--
-: I'm not asking you about whether or not
they assented to the terms.
I understand impromptu at the analysis.
And I'm not asking about impromptu,
I'm asking you about reasonable.
And considering all of the questions Cypher asked
about the screen uncluttered
and the nature of how often we're doing this,
why don't we infuse into reasonable,
that you are able to have something that you can click on,
as to prong one?
-: So if I understand the question, Justice Lowy,
the suggestion is that
we should have to click and actually review the terms
in order to be viewed, to have accepted them.
And I think that that's simply not required.
It wasn't required in the time of paper contracts.
I would point the court to the analysis
in the Stei Sure of the Facebook case,
which is cited in Agemian,
which makes this analogy to the Apple stand.
And you can turn over the sign,
and look at the terms and conditions if you choose.
It's constructive note--
-: That's going to whether or not it was assented to.
Your answer is addressing whether it's assented to.
Justice Cypher's questions went to
whether or not the way this screen appears
in order to know what you're doing,
whether it's conspicuous
or whether we want to call it reasonably communicated.
You know it's reasonably communicated,
if you have to do something
that shows that it was communicated.
-: And here, I think that we have.
I think that the Uber interface that shows that this box
that you can look at, or not, as you see fit,
reasonably communicates to the user,
that there are terms and conditions that apply here.
So again, I take your question
and I understand that
whether it's called conspicuous or prominence,
or sort of any other phrase that we might use,
this is neither here nor there.
The question is whether it's reasonable
looking at this screen with 24 words on it,
with this box in the center of the screen,
to understand that it user has been communicated,
that there are terms and conditions that apply.
And again, I would just point the court
to the West decision,
the Meyer decision, the Johnson decision,
all of the other decisions,
looking at the Uber interface
at very similar interfaces to this one,
and concluding, under the contract law of other States,
but all of which contain the same prong one and prong two,
reasonably communicated and accepted standards,
that, that is a reasonable communication.
And I would also just step back and remind them--
-: Before we continue,
have you asked your question, Justice Lowy?
-: No, I don't have anything.
-: Okay, we have questions from Justice Kafker
and then Justice Lenk, in order of (indistinct).
Justice Kafker.
-: What do we make of the fact that,
with the drivers, there is an elaborate agreement process,
and with the users, there's no,
as Justice Lowy just pointed out,
no formal requirement of hitting the word, Agree or Accept?
So what do we make of that?
-: So Your Honor, as a point of clarification,
the record doesn't actually show what the driver process is.
I understand an Amicus brief was put in
that suggests what the driver processes,
but I don't think the court has before it,
credible or competent information
about how the driver sign up process unfold.
But putting that to the side,
we do have a requirement here
that users have to manifest and attempt an agreement,
it is clicking Done.
And they're being notified that by taking that action,
by creating, by consummating
their attempt to create the user account,
they are agreeing to the terms and conditions.
Whether we call it the notes for the warning,
the statement I creating an Uber account, you agree to the,
and then the box of terms and conditions.
They're notified that
by going through with this process,
in fact, they're agreeing to those terms.
So there is an affirmative act of acceptance here,
and that's what,
again, the other courts to consider
the Uber interface have concluded.
But also courts,
in a variety of other online commerce contexts,
have concluded that not just I Accept is required,
we have Sign Up, Place Order,
there are other words like that
where an affirmative act is required to be taken,
but isn't just clicking I Accept, or I Agree.
And that's sufficient to manifest the assent.
-: People think that, sort of the average,
the reasonable user out there
doesn't think they have to hit I Agree anymore.
I mean, when you sign a contract in writing,
you're manifesting your assent somehow.
And most of us are used to the internet,
but we really do have the right,
we usually do hit, I Accept The Terms,
that's common experience.
You don't think there's anything sort of clever
about the way this is done,
where you don't have to hit, I Accept The Terms?
-: I don't, Your Honor.
I think there are a large number of examples
where you don't have to say, I accept, or I agree,
and that contract is deemed to be formed.
I've done the Stark versus Guilt case,
that Facebook case that I cited earlier,
there is a Beachbody case, Crawford versus Beachbody.
All of those have a contract being upheld,
using some affirmation that's different than I Accept.
And closer to home,
I would point the court to the Agemian decision.
-: I would like to get to the procedural issue quickly,
'cause I don't understand why...
I mean, a judge has to be able to revisit a mistake.
A judge may have to revisit it
within the 30-day requirement.
You're saying the judge has a one-time decision,
and that doesn't seem right to me.
Couldn't the judge, during the 30-day period, had said,
I got this wrong?
I mean, if someone had asked the judge
to reconsider within 30-days,
wouldn't that have been appropriate?
-: Well, I think there are two responses.
First of all, the 30-day period here,
of course, the Kauders missed,
and so that's not this case.
The judge might have a right to reconsider,
maybe before the arbitration hearing had commenced,
or there may be a point in time at which we considered.
-: Can the judge decides he or she is wrong?
They've gotta be.
I mean, I don't know if they can revisit it
after the 30-days,
but a judge can't be get a onetime...
There's nothing in the law ever
that the judge can't change his or her mind, is there?
I've never seen anything like it in the law,
anywhere in the universe.
-: Well, I point the court
to the statutory structure of chapter 251,
I think it's quite clear.
It says you can challenge
either before an arbitration, into section two,
or Section 1285.
If you have not filed a challenge
to the existence of an agreement to arbitrary
pursuant to section two,
then you can seek to vacate on those grounds.
That's the statutory structure that's set up by chapter 251.
But in this case,
after the motion to confirm had been filed,
at that point, the judge really did not have the ability
to reconsider this order, compelling arbitration.
It's almost like the filing of a notice of appeal.
-: I get it, that he may not have the ability
after the 30-days is expired
because we want our arbitrations to be done quickly.
And the plaintiffs may have been required
within the 30-day period
and say, look, you I'm appealing your decision.
I'm saying you're wrong and I'm appealing your decision
within the 30-day period and then moving forward.
But I don't see why the judge can't only get to one timer,
but again, that's all I've got.
Thank you Justice Gaziano.
-: You're welcome, Justice Lenk.
-: Yeah, I want to return
to the subject of the adhesion contract.
How do you, maybe you could educate me about
what it is that makes an adhesion contract enforceable,
'cause you say some of them are and some of them aren't.
I'd like to know what it is you think
makes an adhesion contract enforceable
and when it's not enforceable.
And secondly, I'd like to talk
about the question of whether or not
accepting the terms and conditions is really...
Do we have to look at the terms and conditions themselves
to make sure that they're not ridiculously oppressive?
For example, I mean,
you could have a kind of contract nobody looks at
the terms of conditions could be that
you give me your first born child
and nobody would enforce that.
So, I mean, is it a question of, what do we look at?
Did you ever determine, first of all,
whether it is a contract of adhesion?
And then secondly, if it is, what makes it enforceable?
-: Well, what we look at as the first question
is whether the user has the ability
to accept or reject the contract.
And here the user has the ability to do that.
They accept the contract by registering and clicking Done.
If they choose not to accept the contract
because they disagree with the terms and conditions,
or they don't want to be bound by the terms and conditions,
they press Cancel.
They don't register for an account.
They don't avail themselves of Uber service,
or have the right to use the app, and they've moved forward.
I think whether something is a valid contract
that will be enforced by the courts,
again goes to this question,
the two prong reasonable communication and accepted.
That's what this court needs to look at.
-: It doesn't matter what the terms and conditions are
in other words,
it doesn't matter what they are.
-: Well, first of all, nobody has ever argued in this case.
-: I'm just trying to understand
what makes it a contract of adhesion.
Terms and conditions is not just the question of
whether you're going to accept the terms and conditions,
but what they are reasonable terms and conditions, right?
-: Right, well, if the terms of conditions are unreasonable,
a court can, as the Superior Court did here,
sever certain of those aspects as contrary to public policy,
which is a decision that Uber did not appeal here.
There's a portion of the arbitration clause
that was severed before it went to the arbitrator,
and that was based on the severability provision
in the arbitration clause.
So there's never been any suggestion
that there is a problem with the term conditions here.
But I do think it is not required
for anybody to have ever reviewed a contract
to be bound by it.
If they have manifested the intent to be bound
from hundreds of years ago,
that doesn't mean that they have to understand the terms.
It doesn't mean that they have to have even read them.
And the rule shouldn't be any different
simply because it's an online contract
created through a smartphone, than it was in the,
call it the Cruise cases from 20 to 30 years ago,
or much further back Willis to non contracts, et cetera.
It's not an argument that's been raised here.
It's not an argument that we think would apply
to the terms and conditions in Uber's contract,
which is in the record here,
but the fact that the user
might not have read or understood the contract
that he or she is agreeing to
is not a barrier to enforceability of that contract.
-: Any further questions for Ms. Ellsworth?
-: I just have one quick question.
And that is that, one of your arguments is that
if we rule in favor of the plaintiffs,
there will be uncertainty in the legal market of contracts,
there will be all this legal uncertainty.
But don't individual people
experience that legal uncertainty now?
-: In this, allow me to answer the question in this way.
I think that the requirement
that a contract be set out in a particular color font
or in a particular manner
in the way that the Cullinane court laid out
and that the Superior Court accepted or adopted here,
does create, we think, significant uncertainty
about the enforceability of a large swath of contracts
that exist today.
And we think that is a problem.
And that's something the court that should not wait into
or should not create.
As to whether there is uncertainty
for consumers and users today about the contracts,
again I go back to the core principles
of contract formation.
If users were put on notice, that what they are doing,
is going to subject them to terms and conditions,
as we all are almost every day
as we engage in these transactions,
then the users are bound by those terms and conditions.
They can choose not to engage
in the transaction or the relationship
if they don't want to be so bound.
-: Sure.
And we agreed not to be this bound by Zoom today.
I'm finished, thank you.
-: Okay, thank you Ms. Elspeth.
Mr. Needham.
-: Good morning.
May I please the court.
I'm Paul Needham, I represent the Kauders.
And to start with,
I want to deal with the issue of
the motion for reconsideration.
This was a motion.
And before the motion for reconsideration,
the judge did a number of unusual things.
First of all, when he looked at this contract,
he struck a liability.
There was a limitation of liability clause
and what he said about it,
it was the instruction to the arbitrator to deny--
-: Could you talk a little louder?
-: Yes, my microphone, I'll try to take it up a notch.
The judge said with regards to striking the liability limit
that was in force in the contract,
that the instruction to the arbitrator
to deny all legal relief, could hardly be clearer
or more encompassing.
The arbitrator under this fine print of this contract
could not award any damages whatsoever.
So that's the start
on kind of the ultimate contract of adhesion.
So he did that,
that's one of the things that he did.
And the other thing that he did is
he retained a certain amount of very unusual control
over the case
'cause he was very troubled by this.
He said it was a close call
and then he remanded it to arbitration reluctantly.
And so a couple of occasions on the 31st,
and this is in 2017 of August,
he said that he was retaining jurisdiction
in case there was further litigation.
And again, on December 7th,
he said the court defers any action
that may prove necessarily
to preserve the plaintiff's rights
or to successfully obtain relief
against the provisions of the agreement
that violate law of public policy.
And he found also,
that there was a violation of public policy,
because there was a criminal statute 272, 98, 8,
that makes it a crime,
not to pick up somebody in a public conveyance,
that has a guide dog.
And not once, not twice, but three times,
Uber failed to pick up Mr. Kauders.
So these things all went into the mix.
Then, so it goes to arbitration, we had no choice.
We were the plaintiff, we had no choice, but to go,
we made all sorts of objections.
And when we came back, it's rather interesting.
The arbitral decision was on the 4th of June, 2018.
21 days later, Cullinane came out
and then in that forward before the judge
opposing their motion to confirm the arbitration award,
and the judge said a couple of things.
he said, first of all,
I relied heavily on Cullinane in my first decision
and Uber relied heavily on Cullinane
and Cullinane is now flipped completely.
-: Right.
Counsel may I interrupt you now?
I read the transcript that you're referring to
and I've read Judge Wilkins' considered memo.
And I suppose what I need you to do for me
is to address the question,
the specific question of this 30-day limitation.
And I understand the argument that
if it's an invalid arbitration agreement,
perhaps the 30-days doesn't apply at all.
But if we're stuck with this 30-day limitation
in terms of your motion to vacate
or your motion to dismiss rather, how do you win on that?
How do you get around that?
-: Well, I don't think you're stuck
with the 30-day limitation or we're stuck with it,
unless you can sell a valid contract we've created,
unless there was a valid contract,
where no strictures of the FAA or the AMA
is going to control under the circumstances.
And what we have shown I think in this case rather clearly,
is that it wasn't a valid contract,
not according to a Agemian, not according to Cullinane,
not according to the theater of cases
and other cases that followed in the federal district court.
Because if you look at that,
it's very clear that you have to contract this away.
You have a seventh amendment, right to a jury trial.
If it's contracted away,
the court takes a close look at the contract.
And whether there's no question is reasonable,
reasonably conspicuous notice or reasonable notice,
we have neither.
And then you have something called
an unambiguous manifestation of assent,
and that wasn't here either.
So my answer to your question, Justice Cypher is that,
if there is no contract, there is no arbitration,
there is no obligation to have a 30-day rule.
And we think we've shown rather clearly
that there wasn't a contract.
-: Thank you.
-: And you come to that conclusion by looking at the screens.
And here we have three screens.
Yes, Justice Kafker.
-: We've been reversed and rebuked by the U S Supreme Court
a number of times for not enforcing arbitration agreement.
We enter into this area where we've gotta be cautious.
So I'm troubled unless...
And Cullinane's not binding on us.
It's a first circuit decision, it's not binding.
Teach me why we should not find the acceptance here,
unreasonably communicated,
and the provisions not reasonably set out,
because when you use the service, you sort of...
And I mean, I looked at the supplemental appendix
and we have a rule on whether this is proper or not.
But on one page, you look at it and it says,
by using this, you accept the terms and conditions, right?
It says that right up front.
-: It states that,
but what's hopelessly confusing about this.
And the reason there is not a contract
and there's not about acceptance, is this three screens.
The first screen is called, Create an Account.
Second screen is called, Create a Profile.
Third screen is called, Link Payment.
-: But you don't get to use Uber
unless you get to the third screen and fill it out.
The first two screens are warmups,
they don't mean anything.
But you got to get to the third screen,
or you're not using Uber.
-: That's correct.
And you have to push down on the third screen,
and there's no blue underlined hyperlink.
And we all know we all, when we logged on today,
we looked at at a Zoom meeting,
and everybody knows you go to the blue underlined hyperlink.
And there was such a hyperlink Meyer,
when in the second circuit said Passed Muster.
There was no blue underline hyperlink.
There was a real confusion here.
After you put your credit card in, you could push Done.
It didn't prevent you from pushing Done.
It didn't say, by pushing Done,
you have accepted these terms, this' done,
until you're done with the financial transaction.
-: Do you think a reasonable user who's done this,
doesn't think they're bound
by the terms and conditions here,
given the way that screen works?
You think that they get to use it, but on their own terms?
-: I don't think so under contract law,
because this is what we're talking about,
formation of a contract.
And so there's a burden
on the person who's enforcing the contract
to show that this was a reasonably conspicuous notice,
and there was an--
-: The conspicuous point,
I don't get, I don't know where that comes from
because isn't it connected to form selection provisions,
which are held to higher standards?
Has Supreme Court required conspicuous arbitration language?
-: Well, I think if you look at this,
if you look at the form selection
in cases like agemy in this, they announced the standard.
It wasn't specifically
for shortening the statute of limitations.
It wasn't specifically for form selection.
And when you look at this screen, and keep in mind,
this was a very different screen in Meyer.
And Meyer showed you, I think, what the minimum standard is.
In Meyer, there was a hyperlink.
And there was a thing that they called
physical proximity and spatial copament.
There was a bar or a button called Register.
Right directly under was the hyperlink.
Here, There's no hyperlink.
The statement about terms and conditions
is at the bottom of the page, it's called link payment.
You have a little box called Done,
right up after you put your card in, it puts Done.
And what's more confusing here,
is the first screen was called, Create an Account.
So it's quite possible you're gonna be looking at this--
-: Okay, I have one last question, Mr. Needham,
and I'll defer to my colleagues.
My understanding,
at least in the MCI Telecommunications case, bar circuit,
again, we're not bound by it.
It says that when you participate in arbitration,
even if you're sort of dragged into it,
you still are bound by the 30-day rule.
Why shouldn't we require you...
Cullinane was decided within 30-days.
Why shouldn't we require you to appeal within 30-days?
Meaning, tell the judge, you got it wrong, the arbitrator...
Why don't you just,
you preserve your objection within 30-days,
and then you can take this up on appeal,
but if you let it sit longer,
you've violated the arbitration act?
-: Well, the whole basis for the motion for reconsideration
was a couple of things.
It was a Cullinane case to restore.
The arbitral decision was the 4th of June in 2018,
Cullinane was 21 days later.
And then we were in August
when they were confirming arbitration.
And that's when we learned the first time
that the judge was saying, you brief the Agemian
initially in June of 2017,
I failed to properly consider it.
And that is the basis of a motion for reconsideration,
he failed to properly consider it.
And so I think that motion for reconsideration
is a determination that there was no contract
in the first place.
And therefore I don't believe were bound by the 30-day rule.
Because this was the, these facts did not become,
we did not become aware of these facts
until we had a meeting with the judge
in a hearing on October 25th.
And he announced it is that if you read the transcript
and then that was in January, 2019 opinion.
So I don't think that we were bound by the 30-days
under the circumstances.
And I think when you look at the screen, this screen,
obviously the gold standard is, I Accept,
you have to scroll down.
But here, when you say done,
you don't know what's being done.
You don't know--
-: I think you're circling back
from the question to the subsidy.
Let me now turn to Justice Lowy, who has a question.
-: I'm sorry, yes Justice.
-: Justice Kafker's concerns
about the Federal Arbitration Act,
and whether the act preempt state law
when state law is providing
some sort of enhanced contractual protection
in the context of arbitration.
And the issue is whether the conspicuous requirements
that's sort of imported in from the form selection clause,
Agemian circumstance,
is really singling out arbitration agreements
under Massachusetts contract law
in a way that, as Justice Kafker says,
it's going to get us in trouble again,
because the federal arbitration act preempt state law,
when you're in a situation where the state law
has enhanced protections for arbitration clause.
-: If there's no contract,
and we believe if the Judge Wilkins showed very clearly,
there is no contract, there is no federal obligation law.
There is no federal preemption, that just doesn't--
-: That could have circled though.
Assuming in my question is that,
conspicuous from selection clause
sort of adds to the requirements
for the meeting of the minds
when the contract involves arbitration.
-: Well, I think whether this is conspicuous
or reasonable notice to reasonably conspicuous notice,
I don't think this makes it under either circumstance.
And as far as going to the arbitration has been brought up,
we had no choice, we were the plaintiff.
We didn't go to arbitration, we had no right to appeal.
You have a right to appeal
if the motion for a compel arbitration is a denied,
but if it's allowed you have to go.
So we had no choice
when we protested, we went there.
And I think subsequently with the Cullinane case,
coupled with the judges,
rather Frank assessment that I failed to consider this.
You can't override a judge on,
in one of the cases called it,
this was a judgment on the road to final judgment.
A judge cannot, when he looks at, it says,
you braked it, I missed it, I'm reconsidering it.
And he went back and I think he has a discretion to do that.
And he determined that there was no contract.
And I think that that means that there is no applicability
to the 30-day rule.
I think that's the response.
So I think that for the court, I think,
to rule in our favor,
if the court rules, and I hope you will,
that no contract was created because it wasn't conspicuous.
And there was no manifested scent.
It's a very confusing screen no hyperlink.
If you reach that determination,
then there is no written arbitration agreement.
-: You had a choice, right?
You could've refused to go to arbitration
Justice Wilkins can't make you go to arbitration.
You could have refused to go
and appeal Justice Wilkins' order.
-: Again the appeal, it says, there is no right to appeal
and the Appeals Court tells us all the time,
no interlocutory appeals and he said--
-: You can just refuse
to participate in the arbitration altogether.
And then when they issue the award,
you can appeal it, correct or not?
-: But if Uber's not going to ask for,
if we don't ask for arbitration as the plaintiff,
Uber's not going to do anything.
Why should they bring forward,
and so we're left without a remedy?
We had no choice,
but to do what we did reject as much as we could,
we have no right to appeal, we have no interlocutory appeal
'cause we don't have a final judgment.
And Uber, I can't speak for Uber,
but Uber make no sense for Uber to go to an arbitration.
We're the ones looking for the relief.
We're the ones that had to ask for arbitration,
and that's why we did it.
And we felt we had no other option.
And I think that Your Honors can reach this conclusion
that it's clear that
there are a lot of options available to Uber.
There's hyperlinks they could have used,
there's the gold standard of a clickwrap.
-: You have a case that says, if you were,
you say, Judge Wilkins gets this wrong,
but this is not subject to arbitration.
And there is no way
you are absolutely forced into the arbitration.
You can't appeal that, you can't,
'cause we have a lot of cases
where we've got people challenging
the arbitrability of issues.
So tell me which cases I should look at
that says you're stuck following that order,
going in through the arbitration process.
-: Well, we looked at it at 251.
It says you don't have a right to appeal.
We have the Appeals Court always say,
I don't know whether it's 231108,
we don't like piecemeal the pallet litigation,
come back and see us when you got a final judgment.
I don't know how many times I've heard that from the field.
And so, and to just correct one thing,
I didn't say Judge Wilkins was wrong,
Judge Wilkins said, that he was wrong,
in a very candid assessment.
And I think he has to freshen under those circumstances.
And I think if the court is concerned
about treading too much on the FAA,
well, it's hurting too much.
What I'm concerned about is a judge, a trial judge
on a road to final judgment will decide to reconsideration
based on system change circumstances
that he doesn't have the discretion to do that
before a final judgment.
That's the point that we want to make.
We think that's an important point.
-: Mr. Needham, let me ask you,
do you believe that the reasonable user experience
evolves as technology increases?
-: Well, I sometimes do, but some days with myself,
I think I get more confused rather than less confused
as time goes on with this.
'Cause there's always a new change.
I consider it a little backward
if you're looking for a hyperlink.
-: Right,
you put your finger
on the point I was trying to ask you about.
Because if we say, ah, you need a blue hyperlink,
and the response from Ms. Ellsworth is,
that was the flip phone era,
we're now into the smartphone era,
do we run the risk of shortchanging the technology,
and doing damage to this vital part of the economy?
If we say in our old stodgy opinions,
unless there's a blue hyperlink, you're out of luck.
-: Well, even with, if they're buttons, instead of hyperlinks
in the button Passed Muster in Meyer,
because they said that there was this spatial couplings,
physical proximity, it was put underneath.
And if we all logged onto Zoom tomorrow,
and there's no hyperlink or some kind of box
or some kind of description--
-: What if there's a whole bunch of 20 year olds
who are watching this that are giggling
because they know darn well,
that a blue blocks means that you click it?
-: Well, I think that regardless of the technology,
and this is a bit of a hypothetical question,
they've got to make it clear and logical
that they can do so many instances
where it would have been very easy
for Uber to solve this problem,
by saying, you can't push Done
until you click on the Terms and Policies.
And it'd be clear that by Done,
you're acknowledging that you have read this,
there's no connecting the two.
This Done is consistent with several different things,
they didn't make it clear.
And therefore, I think that they have violated their right
to make it as clear as they possibly can.
And it's a formation contract,
and we're going back to the formation of contracts,
State law, the judge has discretion,
the judge has distraction, and a motion for reconsideration,
and that's our argument, I think it's a very sound argument.
And I think that this, and take a look at the screen,
and if you see how confusing they are,
they could have made it clear.
They could have made it much better.
They didn't, and they have to bear the burden.
-: Any further questions for Mr. Needham?
Thank you, counsel.
-: Thank you.
-: Your Honor, I'd like to seek the court's permission
to submit a letter pursuant to rule 22 C
to address some of the points Mr. Needham made.
-: You certainly have that ability.