WEBVTT
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SJC-13490.
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William Good, the Uber Technologies Inc., and others.
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Okay, Attorney Huston is first.
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Good morning, may it please the court.
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I'm Michael Huston of Perkins Coie
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on behalf of the Uber defendants.
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I'll address all of the contract
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formation issues in the case.
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Mr. Monson will be available to address any questions
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the court may have about the claims
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against the independent driver, defendant.
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The Superior Court's decision refusing to enforce
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the party's agreement in this case should be reversed
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because it's contrary to this court's precedence
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and contrary to the overwhelming weight
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of authority in other states.
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It is notable that plaintiff asks this court
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to make this commonwealth an extreme outlier.
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Plaintiff's brief does not cite a single decision
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by any appellate court anywhere in the country.
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We don't really have to go too far
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to figure out what the relevant law here is, right?
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It's Kauders and Archer, right?
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Before we get into a speech,
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why don't we focus on those, okay?
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Certainly, your Honor.
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I think that Kauders and Archer,
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as your honor points out,
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make clear the standard of contract formation.
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And that standard clearly dictates
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that this contract is enforceable.
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The key point in the court's holding in Kauders
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was that a clear and simple interface
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conveys to a reasonable consumer
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that they are the terms that are going to bind him.
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And this type of "I agree" checkbox-
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Well, it's not an "I agree" checkbox.
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It's a "confirm" checkbox.
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And hold on, I know it says "I agree and confirm,"
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but it's not just I agree to one thing.
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It's I agree includes privacy, it includes the age.
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Going back to Justice Kafker's initial point,
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the histrionics, the trickery on one side,
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the sky's falling down on the other side, not helpful.
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We're trying to really dig in here
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and get this very important issue right.
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And it's the totality of the circumstances
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on reasonable notice,
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and this is not a registration situation.
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This is an update.
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Someone's trying to get a ride.
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They've got a message that says "update,"
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and they want their ride.
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And they can manage to get through all of that
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without ever seeing the terms and conditions and find out
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that this is actually an initial contract,
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not when they're registering,
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but when they're trying to get a ride.
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So Justice Lowy, I think the most important thing
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in the question that you just asked
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is the suggestion that a person could get through
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all of this without ever being aware
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that they were agreeing to terms of use.
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I just don't think that page 66 in the record,
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which is the interface, makes that possible.
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That was the key holding in Kauders.
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The court thought that a person could click
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and get all the way through the process without being aware
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that there were terms to which there were gonna be bound.
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But here, the whole point of the screen
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is to call the user's attention to the fact
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that Uber has updated the terms
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on which we are offering the use of our services.
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That's what terms of use are.
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And then there's exactly the kind of language-
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Terms of use.
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Interesting choice of words, right?
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Terms of use.
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We're updating,
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basically, we're updating our app terms of use.
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Not any language typical
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of you're entering into a contract, agree, right?
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Whether it's enough or not, I don't know.
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But it's not clear in the sense that you're arguing.
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It doesn't say update.
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After counters, basically, we have no contract with you.
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Read these terms of this agreement and agree to them.
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It's much more opaque than that, right?
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Justice Kafker, respectfully,
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no, I strongly disagree with that.
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The biggest text on this page is,
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we encourage you to read our updated terms in full.
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Encourage.
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We are urging Mr. Good to read these terms.
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We want him to do so.
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We're not trying to hide them.
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But you just flipped verbs.
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You went from encourage to urge.
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And I think if you had that popup page
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that says words that are far more prescriptive than just,
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hey, it's almost aspirational.
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"Hey, we encourage you to read it."
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Stronger terms that says, "You have to read this,"
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or, "We urge you to read this," or, "Read."
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Just read the terms.
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But when you say "encourage," that seems to be almost,
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hey, you can or you can't.
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Well, I think, your Honor, we can never force some,
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we cannot physically compel someone to read the terms.
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I think saying, "We encourage you to read our terms"
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goes beyond what's required.
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Well, you do it with your drivers, right?
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Your drivers, you're not gonna be an Uber driver
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unless you read these terms and agree to them.
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The drivers know they're entering into a contract.
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Respectful, your Honor, I think that-
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Go ahead.
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Let me just finish, lay out the question,
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and I won't cut you off.
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The drivers, we know that Uber knows how to clearly state
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in an internet contract
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that you're entering into a contract, agree to it.
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What do we do with that when you don't do that
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with customers and use much more
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open-ended vaguer terminology?
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So I have to respectfully take issue
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with the premise of the question, because I think
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that what the court's opinion in Kauders shows
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and what the actual reality is that the interface
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that drivers use to sign up, it's not identical,
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but it's very, very similar.
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And it has all the same-
Please.
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I wrote Kauders.
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It's not the same.
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It may be good enough for government work,
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but it's not the same.
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It's similar in this key respect.
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Both involve a hyperlink.
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Neither one involves
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what the plaintiff says is required here,
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which is actually forcing somebody
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to read and review the terms.
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They both present the terms by hyperlink.
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I agree with you.
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We did not say that you need to have a scroll,
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whatever that terminology is,
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scroll agreement where you have to scroll through the terms,
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but we were clear that we wanted you to put in language
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that put you on notice that you were entering
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into a contract that's significant.
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Not only are you agreeing to ride in the car
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and you're giving up your right to sue Uber,
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you're giving up your right basically,
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if you get killed or raped, Uber's off the hook, right?
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No, your Honor, respectfully,
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that's not correct in a couple of respects.
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First of all, I think any question
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about the terms themselves
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is expressly delegated to the arbitrator.
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That's not what we're talking about here today.
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We're talking about the standards of contract formation,
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which is this court explained
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are supposed to be the same for online contracts
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as for all other kinds of contracts.
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I agree with that part, but does your contract,
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your contract doesn't take Uber off the hook?
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If the driver rapes you
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or the driver drives into a wall and kills you,
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doesn't this contract say Uber is off the hook?
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No, your Honor.
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The first thing to say about that
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is that if the claim involves sexual assault,
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which of course this claim does not,
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they're excluded from the terms.
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It's not what this case is about.
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Even in a case, I think we're talking about-
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(indistinct)
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and you get killed, can you sue Uber?
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Mr. Good is gonna have the opportunity to take his claims,
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his alleged negligence claims to an arbitrator.
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And that's the proper forum.
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It's a forum that the public policy of this state
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and the Federal Arbitration Act supports
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as a means of expeditiously
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and efficiently resolving disputes.
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The question in the case is,
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did a reasonable person reading this screen at RA66,
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would that person have known
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that they were entering an agreement
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and would they have known of where those terms were located
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if they wanted to review them?
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And here's the challenge.
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It may well be that it's enough here.
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It may well be that it's clearly enough
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when you're registering with Uber.
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But the issue that you just hit on is,
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is the interface enough, in the context of this case,
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in the context of this case, when you're not registering
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and you're trying to get a ride,
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is the update and the confirm enough
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to give reasonable notice?
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Well, respectfully, Justice Lowy,
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it's not just the update and the confirm.
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I think the court needs to look
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at the entire interface together.
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The key language in the interface
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is the presentation of the terms of use hyperlink.
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Not an obscured, not an odd little box,
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a classic blue underlined hyperlink.
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Everybody who lives in the digital world
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knows what a hyperlink is and how it works
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and how to click on it to get access to the terms.
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It says, "We have updated the terms
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on which we are offering the use of our services."
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And it says, "By checking this box,
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I have reviewed and agree to the terms of use."
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That is the sort of solemn language
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that this court in Kauders said
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puts a regular user on notice
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that they are entering an agreement.
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The phrase "I agree" conveys I am entering an agreement.
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And then just for good measure,
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we have added the Confirm button,
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which is just to make sure that somebody
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doesn't inadvertently click the thing.
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This way, you have to take two separate steps.
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I know, but again, it may be enough in this context.
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It seems clearly enough if it were a initial registration,
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but it doesn't say what you say it says.
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It doesn't say, "I agree to the terms and conditions."
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It requires an acknowledgement of the privacy
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and the age is 18.
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It's just not that clean.
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It well may be enough,
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but I really don't see this case as a big, huge case.
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I see this case in the context after Kauders,
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whether the pop-up message when you're trying to get a ride,
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when you're already registered is enough
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to give you reasonable notice here
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that you are entering into a contract
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with huge implications.
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I'd like to address your point
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that this is an update situation.
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My point is, doesn't it say that?
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Sure, this is an update.
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No, no.
Not my point.
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It's "we encourage you to read update."
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It's just your words.
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It's not my mine.
No, no.
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I just wanna address your honor's question
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about the legal significance of that.
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The point, I think, is that companies change the terms
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on which they offer the use of their services all the time.
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That's a good and healthy thing in the economy.
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Companies need to be able, having made a contract
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at one time to say, we're moving away from that.
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You didn't make a contract.
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We said you hadn't had one before.
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I understand that, your Honor, but-
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So you were starting from scratch.
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Now, you may not have thought you were starting,
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you may not want the user to know
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you're starting from scratch,
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but you had no binding agreement
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with Mr. Good before this, correct?
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00:11:48.630 --> 00:11:50.850
As a matter of law, because of Kauders, that's true.
267
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But I think if anything, that only means
268
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that we're in the situation that I think
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Justice Lowy referred to a minute ago
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where this is the registration,
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this is the new contract.
272
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And I think that's the key point.
273
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By the way, that'd be nice if that were what it said.
274
00:12:05.280 --> 00:12:07.410
We have a new contract.
275
00:12:07.410 --> 00:12:12.410
Agree to the terms or you're not gonna ride our cars.
276
00:12:12.870 --> 00:12:14.592
That's not what it said.
277
00:12:14.592 --> 00:12:17.010
And sorry to interrupt-
Did I just,
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that answer, then I'll defer to you.
279
00:12:19.800 --> 00:12:23.550
Your Honor, we do business all across the United States.
280
00:12:23.550 --> 00:12:26.310
Uber needs to have a uniform way
281
00:12:26.310 --> 00:12:29.670
of conveying to its customers all across the country
282
00:12:29.670 --> 00:12:32.730
that it has changed the terms on which it is offering
283
00:12:32.730 --> 00:12:35.280
the use of its services moving forward.
284
00:12:35.280 --> 00:12:36.660
That's the point of this.
285
00:12:36.660 --> 00:12:39.810
We have updated our terms for using our service.
286
00:12:39.810 --> 00:12:42.240
It wasn't like this was created specifically
287
00:12:42.240 --> 00:12:44.160
to address Kauders and this commonwealth.
288
00:12:44.160 --> 00:12:46.650
This is a national rollout of a new
289
00:12:46.650 --> 00:12:49.380
contractual arrangement for all of our customers.
290
00:12:49.380 --> 00:12:52.770
We need a way to do that that is coherent and uniform.
291
00:12:52.770 --> 00:12:54.060
That's why you see language
292
00:12:54.060 --> 00:12:56.280
that ordinary, regular people understand.
293
00:12:56.280 --> 00:12:58.140
We've updated the terms on which we're using-
294
00:12:58.140 --> 00:13:00.960
Ordinary, regular people do this all the time.
295
00:13:00.960 --> 00:13:04.230
Apple, it says, "You're entering into a contract."
296
00:13:04.230 --> 00:13:05.160
Agree, right?
297
00:13:05.160 --> 00:13:07.140
I mean, you can do that.
298
00:13:07.140 --> 00:13:11.130
The question is why you're not doing it more clearly.
299
00:13:11.130 --> 00:13:12.990
And this may be clear enough.
300
00:13:12.990 --> 00:13:14.850
Again, I'm not saying you're not,
301
00:13:14.850 --> 00:13:17.913
but it's not perfectly clear.
302
00:13:19.500 --> 00:13:21.570
And you know people are reluctant
303
00:13:21.570 --> 00:13:24.960
to read these long things, right?
304
00:13:24.960 --> 00:13:26.340
Yes, but I wanna make two important
305
00:13:26.340 --> 00:13:27.173
points about that, your Honor.
306
00:13:27.173 --> 00:13:29.520
The first is that the evidence strongly shows
307
00:13:29.520 --> 00:13:31.830
and the evidence that this court relied on Kauders shows
308
00:13:31.830 --> 00:13:33.840
that people don't read contractual terms
309
00:13:33.840 --> 00:13:36.450
no matter what you do, even if you have a scroll wrap
310
00:13:36.450 --> 00:13:39.030
that everybody agrees is basically per se enforceable.
311
00:13:39.030 --> 00:13:40.860
They don't read it, even if you make people initial
312
00:13:40.860 --> 00:13:42.930
every paragraph in mortgage documents.
313
00:13:42.930 --> 00:13:43.800
People don't read it.
314
00:13:43.800 --> 00:13:45.840
So I don't think that the legal rule here
315
00:13:45.840 --> 00:13:46.890
can be based on a fiction about-
316
00:13:46.890 --> 00:13:49.108
When you're entering into a mortgage,
317
00:13:49.108 --> 00:13:50.220
you know that's a contract.
318
00:13:50.220 --> 00:13:52.290
When you enter into a car lease,
319
00:13:52.290 --> 00:13:54.210
you know you got a car lease.
320
00:13:54.210 --> 00:13:57.720
When you enter into a Uber car,
321
00:13:57.720 --> 00:14:00.360
not so clear exactly what you're agreeing to, right?
322
00:14:00.360 --> 00:14:03.630
And that's the function, as this court explained,
323
00:14:03.630 --> 00:14:05.947
of the language on this interface that says,
324
00:14:05.947 --> 00:14:09.210
"I have reviewed and agree to the terms of use."
325
00:14:09.210 --> 00:14:12.510
The point of that language is to call the user's attention
326
00:14:12.510 --> 00:14:15.247
to the fact that they are entering an agreement.
327
00:14:15.247 --> 00:14:17.190
"I agree to the terms of use"
328
00:14:17.190 --> 00:14:20.340
means I acknowledge that I'm entering an agreement.
329
00:14:20.340 --> 00:14:22.470
And as I think Judge O'Toole from the Federal District Court
330
00:14:22.470 --> 00:14:24.690
in the Daily Fantasy Sports case pointed out,
331
00:14:24.690 --> 00:14:27.270
the question is not whether the interface
332
00:14:27.270 --> 00:14:30.480
could have been better or more clear in some respect.
333
00:14:30.480 --> 00:14:33.570
The question is only whether it is reasonable notice.
334
00:14:33.570 --> 00:14:35.430
It is not a conspicuous standard,
335
00:14:35.430 --> 00:14:37.500
as the court made clear in Kauders.
336
00:14:37.500 --> 00:14:39.633
Just reasonable notice.
337
00:14:40.980 --> 00:14:41.813
Thank you.
Okay, thank you.
338
00:14:41.813 --> 00:14:43.323
Can I ask one more?
Sure.
339
00:14:44.910 --> 00:14:49.680
So this screen has been on RA 66
340
00:14:49.680 --> 00:14:51.943
has been referred to as a pop-up screen.
341
00:14:51.943 --> 00:14:55.680
I just wanted to ask a factual question.
342
00:14:55.680 --> 00:14:58.830
Could Mr. Good book a car
343
00:14:58.830 --> 00:15:02.400
without checking the box and clicking confirm?
344
00:15:02.400 --> 00:15:03.233
No, your Honor.
345
00:15:03.233 --> 00:15:04.740
As the record, I'm sorry.
346
00:15:04.740 --> 00:15:06.780
So it was actually a blocking screen.
347
00:15:06.780 --> 00:15:08.760
Yes.
You couldn't go forward
348
00:15:08.760 --> 00:15:10.950
without doing both of these things.
349
00:15:10.950 --> 00:15:11.783
That is correct.
350
00:15:11.783 --> 00:15:14.760
A user would've been confronted with this at the moment
351
00:15:14.760 --> 00:15:17.400
that they were attempting to access Uber services,
352
00:15:17.400 --> 00:15:20.100
which I think is the time when you are most likely
353
00:15:20.100 --> 00:15:22.080
to cause somebody to focus on the term
354
00:15:22.080 --> 00:15:24.330
as the Second Circuit explained in Meyer.
355
00:15:24.330 --> 00:15:26.310
It was necessary for a person,
356
00:15:26.310 --> 00:15:28.440
in order to access Uber services,
357
00:15:28.440 --> 00:15:31.320
both to click on the box
358
00:15:31.320 --> 00:15:33.360
attesting that by checking this box,
359
00:15:33.360 --> 00:15:35.877
I have reviewed and agree to the terms of use
360
00:15:35.877 --> 00:15:37.350
and acknowledge the privacy notice.
361
00:15:37.350 --> 00:15:40.530
And then to take the further step of hitting Confirm.
362
00:15:40.530 --> 00:15:44.010
That's very similar to the process that drivers use
363
00:15:44.010 --> 00:15:45.360
as the court explained in Kauders.
364
00:15:45.360 --> 00:15:47.767
There too, it's a hyperlink that says,
365
00:15:47.767 --> 00:15:50.760
"Please acknowledge that you have reviewed and agree,"
366
00:15:50.760 --> 00:15:53.070
but the person is not actually required
367
00:15:53.070 --> 00:15:55.333
to click on the hyperlink.
Can I follow you?
368
00:15:55.333 --> 00:15:57.360
I have one after Justice Georges.
369
00:15:57.360 --> 00:15:58.193
You're interested, huh?
370
00:15:58.193 --> 00:15:59.520
Come on.
Just with that
371
00:15:59.520 --> 00:16:00.813
last point, chief.
372
00:16:02.038 --> 00:16:04.530
You say that, but you almost make it seem
373
00:16:04.530 --> 00:16:09.030
like it's a casual context when that arises.
374
00:16:09.030 --> 00:16:11.250
You wanna ride home.
375
00:16:11.250 --> 00:16:13.410
Mr. Good wanted to go home.
376
00:16:13.410 --> 00:16:17.130
He'd worked all day and he'd wanted to just go home.
377
00:16:17.130 --> 00:16:20.760
You make it seem as if that's the most opportune moment
378
00:16:20.760 --> 00:16:24.300
to seize upon someone who wants to go home
379
00:16:24.300 --> 00:16:26.790
that now is the time for you to sit back
380
00:16:26.790 --> 00:16:29.790
and look at all of these terms and conditions.
381
00:16:29.790 --> 00:16:32.820
Isn't that the worst time for you to sit back
382
00:16:32.820 --> 00:16:34.860
and look at these terms and conditions
383
00:16:34.860 --> 00:16:37.320
when you just wanna go to wherever you're going?
384
00:16:37.320 --> 00:16:38.550
No, your Honor, I don't think so.
385
00:16:38.550 --> 00:16:40.553
As the second-
When would be?
386
00:16:42.012 --> 00:16:43.513
When would be the worst time?
387
00:16:43.513 --> 00:16:46.180
No, when would be a worse time
388
00:16:47.130 --> 00:16:49.770
than when you're leaving a bar, you're leaving work,
389
00:16:49.770 --> 00:16:51.630
you're late at night, you're tired,
390
00:16:51.630 --> 00:16:53.010
and you just wanna go home?
391
00:16:53.010 --> 00:16:55.050
So I think two points about it, your Honor.
392
00:16:55.050 --> 00:16:58.830
The first is that it's not the case that Mr. Good
393
00:16:58.830 --> 00:17:01.350
just agreed to these things on his way home
394
00:17:01.350 --> 00:17:03.690
and then never had an opportunity to revisit it.
395
00:17:03.690 --> 00:17:05.310
The accident that occurred in this case
396
00:17:05.310 --> 00:17:07.170
was several days later.
397
00:17:07.170 --> 00:17:09.060
He could have, at any time,
398
00:17:09.060 --> 00:17:11.220
even if he was in a rush to get home and he was tired
399
00:17:11.220 --> 00:17:12.870
and he sort of didn't know what he was doing,
400
00:17:12.870 --> 00:17:16.230
the terms of use remain visible in the app at all times.
401
00:17:16.230 --> 00:17:18.210
He could have pulled them up at any time
402
00:17:18.210 --> 00:17:21.000
and reviewed them in the comfort of his own home, excuse me.
403
00:17:21.000 --> 00:17:22.380
And then made a decision, "You know what?
404
00:17:22.380 --> 00:17:24.510
Actually, I'm uncomfortable with those terms.
405
00:17:24.510 --> 00:17:25.740
I don't wanna agree to them,
406
00:17:25.740 --> 00:17:27.900
so I'm not gonna use Uber Services."
407
00:17:27.900 --> 00:17:30.000
And that he could have done that.
408
00:17:30.000 --> 00:17:31.980
So I think it's just not the case
409
00:17:31.980 --> 00:17:34.350
that he was sort of rushed into a decision
410
00:17:34.350 --> 00:17:37.200
and then minutes later, ended up in this auto accident.
411
00:17:37.200 --> 00:17:38.760
That's not the factual reality.
412
00:17:38.760 --> 00:17:41.010
But I think the more important legal point
413
00:17:41.010 --> 00:17:43.470
is that the company has to make a decision.
414
00:17:43.470 --> 00:17:46.470
We've changed the terms on which we're offering our service.
415
00:17:46.470 --> 00:17:48.660
How should we go about providing that notice?
416
00:17:48.660 --> 00:17:51.420
The superior court said, "Well, you should send an email
417
00:17:51.420 --> 00:17:53.760
or give a person a phone call."
418
00:17:53.760 --> 00:17:57.930
But I think ordinary people are much less likely
419
00:17:57.930 --> 00:18:00.360
to pay attention to an email that just pops up
420
00:18:00.360 --> 00:18:02.317
out of the blue one day from Uber saying,
421
00:18:02.317 --> 00:18:03.690
"We've changed our terms."
422
00:18:03.690 --> 00:18:06.810
Then if at the moment that I'm interested
423
00:18:06.810 --> 00:18:08.940
in actually using Uber service,
424
00:18:08.940 --> 00:18:11.280
Uber informs me, "We're changing the terms."
425
00:18:11.280 --> 00:18:13.770
I think the latter, you tell a person
426
00:18:13.770 --> 00:18:15.390
about the terms of the bargain
427
00:18:15.390 --> 00:18:17.250
at the moment that they are interested
428
00:18:17.250 --> 00:18:21.090
in accessing the service that is the subject of the bargain.
429
00:18:21.090 --> 00:18:23.010
That's how companies do business.
430
00:18:23.010 --> 00:18:24.990
And I think it would be quite dramatic
431
00:18:24.990 --> 00:18:25.897
if this court was to say,
432
00:18:25.897 --> 00:18:28.320
"That's actually not an acceptable means
433
00:18:28.320 --> 00:18:29.757
of providing that notice."
434
00:18:30.847 --> 00:18:32.670
Can I ask one question on actual notice?
435
00:18:32.670 --> 00:18:37.670
So I'm gonna ask your opposing counsel about actual notice.
436
00:18:37.710 --> 00:18:42.330
So what do we know about actual notice here?
437
00:18:42.330 --> 00:18:44.103
He checked the box.
438
00:18:45.570 --> 00:18:46.530
By checking the box,
439
00:18:46.530 --> 00:18:49.260
I've reviewed and agreed to the terms of use.
440
00:18:49.260 --> 00:18:52.020
You keep track of whether he checked the box,
441
00:18:52.020 --> 00:18:55.890
but I take it your app could also indicate
442
00:18:55.890 --> 00:18:58.980
whether you actually looked whether he checked.
443
00:18:58.980 --> 00:19:01.500
You don't make that point.
444
00:19:01.500 --> 00:19:03.570
You don't say that you've confirmed
445
00:19:03.570 --> 00:19:05.340
that he read them, right?
446
00:19:05.340 --> 00:19:08.280
So the record doesn't reflect whether-
447
00:19:08.280 --> 00:19:11.640
Is that because you don't track that function?
448
00:19:11.640 --> 00:19:13.620
I believe that that is correct, your Honor.
449
00:19:13.620 --> 00:19:16.230
In truth, I don't know, and the record doesn't reflect it.
450
00:19:16.230 --> 00:19:18.960
But that's my understanding that we do not keep records
451
00:19:18.960 --> 00:19:22.997
of who clicks on a hyperlink specifically.
452
00:19:22.997 --> 00:19:25.920
We keep records of who clicks.
453
00:19:25.920 --> 00:19:27.690
What do we do with that fact?
454
00:19:27.690 --> 00:19:29.010
'Cause that's-
Yeah, sure.
455
00:19:29.010 --> 00:19:31.770
'Cause I'm gonna ask him, "Okay, you clicked the button
456
00:19:31.770 --> 00:19:33.810
that said you read this," right?
457
00:19:33.810 --> 00:19:35.850
You don't remember what you did.
458
00:19:35.850 --> 00:19:36.750
Right.
459
00:19:37.590 --> 00:19:40.650
They know you clicked the button,
460
00:19:40.650 --> 00:19:43.710
but they didn't check whether you actually looked
461
00:19:43.710 --> 00:19:44.700
even though they could.
462
00:19:44.700 --> 00:19:46.020
So I'm just trying to figure out
463
00:19:46.020 --> 00:19:47.700
where that leaves us.
I appreciate the opportunity
464
00:19:47.700 --> 00:19:49.110
to address it, your Honor.
465
00:19:49.110 --> 00:19:53.310
Actual notice turns on an issue of fact.
466
00:19:53.310 --> 00:19:57.000
Did or did not Mr. Good review these terms
467
00:19:57.000 --> 00:19:57.833
before agreeing them?
468
00:19:57.833 --> 00:19:59.340
That's a factual question.
469
00:19:59.340 --> 00:20:03.420
We asserted in the trial court at RA53
470
00:20:03.420 --> 00:20:06.510
that Mr. Good did in fact read these terms.
471
00:20:06.510 --> 00:20:09.390
And we backed up that assertion with record evidence,
472
00:20:09.390 --> 00:20:13.650
namely his own submission through this click wrap interface
473
00:20:13.650 --> 00:20:16.710
that he had reviewed the terms and agreed to them.
474
00:20:16.710 --> 00:20:18.930
I think that matter-
He says that I,
475
00:20:18.930 --> 00:20:20.190
although I don't remember what I did,
476
00:20:20.190 --> 00:20:23.700
my habit is, in order to use these apps,
477
00:20:23.700 --> 00:20:26.433
I click but don't look, which by the way,
478
00:20:27.270 --> 00:20:30.753
99.9% of Americans are probably doing out there.
479
00:20:32.550 --> 00:20:34.020
But again, we don't have record on that.
480
00:20:34.020 --> 00:20:35.790
I'm trying to figure out what we do with the actual notice,
481
00:20:35.790 --> 00:20:37.920
'cause that's dispositive of this case.
482
00:20:37.920 --> 00:20:41.010
It is.
If it's this,
483
00:20:41.010 --> 00:20:44.010
if we have the information we can, we need to decide.
484
00:20:44.010 --> 00:20:45.420
That's right, I think the first appellate
485
00:20:45.420 --> 00:20:47.700
department in New York addressed this in the Wu case.
486
00:20:47.700 --> 00:20:49.350
I would urge the court to take a look.
487
00:20:49.350 --> 00:20:51.000
It's exactly the same situation.
488
00:20:51.000 --> 00:20:54.210
The court's holding there is that on this question of fact,
489
00:20:54.210 --> 00:20:56.520
we met our prima fascia burden
490
00:20:56.520 --> 00:20:58.770
on a summary judgment standard
491
00:20:58.770 --> 00:21:01.020
to put the factual issue in the record
492
00:21:01.020 --> 00:21:05.220
with our assertion at RA53 backed up by the evidence
493
00:21:05.220 --> 00:21:07.047
in the form of his own submission.
494
00:21:07.047 --> 00:21:08.940
That met our prima fascia burden.
495
00:21:08.940 --> 00:21:12.600
Then he has the obligation to come forward and contest that.
496
00:21:12.600 --> 00:21:14.430
And many people do this all the time.
497
00:21:14.430 --> 00:21:15.270
They say, "You know what?
498
00:21:15.270 --> 00:21:17.970
I checked that box, but in fact, I didn't read it."
499
00:21:17.970 --> 00:21:18.803
If he had done that,
500
00:21:18.803 --> 00:21:20.340
it would've been a disputed issue of fact.
501
00:21:20.340 --> 00:21:22.530
It would've precluded summary judgment on that ground.
502
00:21:22.530 --> 00:21:23.970
But Mr. Good didn't do that.
503
00:21:23.970 --> 00:21:27.720
All he said was, "I don't remember checking this box."
504
00:21:27.720 --> 00:21:29.647
And then, as your honor points out, he said,
505
00:21:29.647 --> 00:21:32.790
"It was my practice when I got advertisements,
506
00:21:32.790 --> 00:21:34.950
popup advertisements online,
507
00:21:34.950 --> 00:21:37.020
to quickly get rid of them."
508
00:21:37.020 --> 00:21:38.730
I understand that, I do that too.
509
00:21:38.730 --> 00:21:42.270
But this is the kind of solemn "I agree" language
510
00:21:42.270 --> 00:21:46.140
that the court in Kauders said exists to put users on notice
511
00:21:46.140 --> 00:21:47.370
that they're entering a contract.
512
00:21:47.370 --> 00:21:50.190
This is not just like a promotional advertisement.
513
00:21:50.190 --> 00:21:52.860
So I think the fact that somebody's habit was to click away
514
00:21:52.860 --> 00:21:55.290
quickly from advertising does not suggest
515
00:21:55.290 --> 00:21:57.540
that they were likely to take the same approach
516
00:21:57.540 --> 00:22:00.840
with regard to solemn "I agree" language.
517
00:22:00.840 --> 00:22:02.700
All we're saying is Mr. Good
518
00:22:02.700 --> 00:22:04.830
has an obligation-
It's not "I agree" language,
519
00:22:04.830 --> 00:22:06.870
but anyway, okay, I get your answer.
520
00:22:06.870 --> 00:22:07.770
Thank you.
Thank you.
521
00:22:07.770 --> 00:22:08.603
Thank you.
522
00:22:10.500 --> 00:22:11.553
Attorney Monson?
523
00:22:14.280 --> 00:22:17.490
Courts, the appellants are in line
524
00:22:17.490 --> 00:22:19.080
with the different arguments that Mr. Huston rang.
525
00:22:19.080 --> 00:22:21.090
And I'm not gonna read out,
526
00:22:21.090 --> 00:22:22.650
and I'm not going to repeat all of them.
527
00:22:22.650 --> 00:22:24.720
I did want to answer one of the questions
528
00:22:24.720 --> 00:22:27.330
that I thought was directly on point
529
00:22:27.330 --> 00:22:29.700
on the issue of the terms matter.
530
00:22:29.700 --> 00:22:34.140
And in this agreement, it's not just "I agree to the terms."
531
00:22:34.140 --> 00:22:36.300
It's "by clicking on the box,"
532
00:22:36.300 --> 00:22:38.647
which is right next to this language,
533
00:22:38.647 --> 00:22:41.580
"I have reviewed and agreed to the terms."
534
00:22:41.580 --> 00:22:44.400
It's both telling you that when you click this box
535
00:22:44.400 --> 00:22:46.260
right next to this terms-
And keep reading
536
00:22:46.260 --> 00:22:48.360
and acknowledge the privacy notice.
537
00:22:48.360 --> 00:22:50.370
I am at least 18 years of age, right?
538
00:22:50.370 --> 00:22:52.920
It's a little vaguer.
539
00:22:52.920 --> 00:22:55.770
It doesn't just say "I agree to the terms of a contract."
540
00:22:55.770 --> 00:22:56.603
Click.
541
00:22:58.410 --> 00:22:59.243
It's different.
542
00:23:00.510 --> 00:23:03.060
It's, again, more opaque.
543
00:23:03.060 --> 00:23:05.190
I agree that there is additional language after that,
544
00:23:05.190 --> 00:23:07.800
but I would offer to the court that there's no way
545
00:23:07.800 --> 00:23:09.720
to read that next to a box that you've checked
546
00:23:09.720 --> 00:23:11.790
and conclude that you're not agreeing to those terms
547
00:23:11.790 --> 00:23:13.140
that are included in the hyperlink.
548
00:23:13.140 --> 00:23:15.603
By the way, just on the contractual point,
549
00:23:16.470 --> 00:23:17.970
so Uber's not off the hook?
550
00:23:17.970 --> 00:23:20.420
They haven't put the whole burden on your client?
551
00:23:21.810 --> 00:23:24.180
When I go through this contract language,
552
00:23:24.180 --> 00:23:27.540
it's gonna allow an arbitrator to find Uber
553
00:23:27.540 --> 00:23:31.563
liable in addition to your client for what your clients-
554
00:23:32.580 --> 00:23:35.442
I don't have an opinion on that, your Honor.
555
00:23:35.442 --> 00:23:36.780
Wait, what's the record say?
556
00:23:36.780 --> 00:23:37.920
Have you read that?
557
00:23:37.920 --> 00:23:39.783
I've read through the agreement.
558
00:23:41.059 --> 00:23:42.990
Uber's not off the hook?
559
00:23:42.990 --> 00:23:44.160
I'd like your take on that,
560
00:23:44.160 --> 00:23:45.960
given that I thought they shifted
561
00:23:45.960 --> 00:23:47.460
the whole burden to your client.
562
00:23:47.460 --> 00:23:48.960
I don't see it as being shifted
563
00:23:48.960 --> 00:23:51.420
the entire burden to my client on the language itself.
564
00:23:51.420 --> 00:23:53.550
There is limitations of liability language in there.
565
00:23:53.550 --> 00:23:56.820
And what is the limitation of liability for Uber
566
00:23:56.820 --> 00:23:58.233
as opposed to your client?
567
00:24:00.510 --> 00:24:02.430
I'm sorry, I don't know if I understand the question.
568
00:24:02.430 --> 00:24:07.430
Did Uber leave you alone holding the bag
569
00:24:08.190 --> 00:24:10.923
in this contract you want us to enforce?
570
00:24:12.720 --> 00:24:15.510
There are some instances where Uber will be protected
571
00:24:15.510 --> 00:24:18.300
from liability.
How about for a car accident
572
00:24:18.300 --> 00:24:21.060
that results in someone being a paraplegic?
573
00:24:21.060 --> 00:24:22.980
I'm not sure, depending on the facts of the case
574
00:24:22.980 --> 00:24:25.080
and how they play out, there's certainly different ways
575
00:24:25.080 --> 00:24:26.823
around that liability language.
576
00:24:29.055 --> 00:24:31.440
I'm here just representing Mr. Yohou.
577
00:24:31.440 --> 00:24:33.480
Oh, I assume you have some,
578
00:24:33.480 --> 00:24:35.520
you want us to enforce this contract.
579
00:24:35.520 --> 00:24:38.790
I just wanna make sure I have your take
580
00:24:38.790 --> 00:24:41.610
on what Uber is left.
581
00:24:41.610 --> 00:24:45.630
Is Uber potentially liable in the arbitration,
582
00:24:45.630 --> 00:24:48.420
or is only your client potentially liable
583
00:24:48.420 --> 00:24:49.660
in this arbitration
584
00:24:50.640 --> 00:24:54.120
under the contract you want us to enforce?
585
00:24:54.120 --> 00:24:55.560
I think there are still ways
586
00:24:55.560 --> 00:24:57.300
that Uber could potentially be liable.
587
00:24:57.300 --> 00:24:59.310
There are different sets of facts that-
588
00:24:59.310 --> 00:25:01.800
For this car accident.
Yes, your Honor.
589
00:25:01.800 --> 00:25:03.400
Okay, we'll read through that.
590
00:25:04.320 --> 00:25:05.153
Thank you, your Honor.
591
00:25:05.153 --> 00:25:07.830
I did also wanna discuss, I know I'm past my time-
592
00:25:07.830 --> 00:25:10.770
Just want you to be careful what you wish for.
593
00:25:10.770 --> 00:25:12.660
Understood, Your Honor.
594
00:25:12.660 --> 00:25:16.423
We acknowledge the benefits that arbitration provides,
595
00:25:18.450 --> 00:25:20.220
and that's what we're getting at here.
596
00:25:20.220 --> 00:25:21.840
That's what we're interested in here.
597
00:25:21.840 --> 00:25:22.980
We will fight the good fight
598
00:25:22.980 --> 00:25:25.800
and defend our client on the facts
599
00:25:25.800 --> 00:25:27.153
once we get to arbitration.
600
00:25:28.200 --> 00:25:29.190
I know I'm past my time.
601
00:25:29.190 --> 00:25:30.570
Yeah, you got 30 seconds, go on.
602
00:25:30.570 --> 00:25:31.860
All right, I would just like to say
603
00:25:31.860 --> 00:25:33.270
as far as the arbitration agreement
604
00:25:33.270 --> 00:25:35.940
applying to my client as well, the language is pretty clear.
605
00:25:35.940 --> 00:25:37.290
It applies to any third party
606
00:25:37.290 --> 00:25:40.740
where the accidents involving the use of the Uber services.
607
00:25:40.740 --> 00:25:43.350
I don't think even the appellant is challenging that
608
00:25:43.350 --> 00:25:47.040
if this is an enforceable agreement
609
00:25:47.040 --> 00:25:49.800
that it would also cover my client as well.
610
00:25:49.800 --> 00:25:50.920
Okay.
Thank you.
611
00:25:50.920 --> 00:25:54.401
Thank you.
612
00:25:54.401 --> 00:25:55.573
And Attorney Wessler.
613
00:25:55.573 --> 00:25:57.840
Thank you, Your Honor, and may please the court.
614
00:25:57.840 --> 00:26:01.440
Matthew Wessler on behalf of the appellate, William Good.
615
00:26:01.440 --> 00:26:04.890
I just wanna, just a factual answer to your question,
616
00:26:04.890 --> 00:26:07.470
Justice Kafker, on RA 80, you will see
617
00:26:07.470 --> 00:26:09.510
this is part of Uber's contract.
618
00:26:09.510 --> 00:26:11.310
Speak a little louder, sorry.
619
00:26:11.310 --> 00:26:13.320
On RA80 of the appendix,
620
00:26:13.320 --> 00:26:16.350
you'll see that there's a sweeping indemnity clause
621
00:26:16.350 --> 00:26:19.380
in Uber's contract that by its terms,
622
00:26:19.380 --> 00:26:22.050
attempts to hold Uber not liable
623
00:26:22.050 --> 00:26:26.007
for any conduct arising out of the use of the service.
624
00:26:26.007 --> 00:26:27.810
And that was my recollection as well.
625
00:26:27.810 --> 00:26:28.650
Yes, correct.
626
00:26:28.650 --> 00:26:32.010
So I would like to start with reasonable notice.
627
00:26:32.010 --> 00:26:33.150
I understand you also have-
628
00:26:33.150 --> 00:26:34.204
And you actually start
629
00:26:34.204 --> 00:26:35.325
with actual notice.
I will flip it
630
00:26:35.325 --> 00:26:36.533
and start with actual notice.
631
00:26:36.533 --> 00:26:41.533
Because that seems to me an issue on summary judgment.
632
00:26:41.640 --> 00:26:43.920
Uber has come forward with evidence
633
00:26:43.920 --> 00:26:46.800
that your client actually did confirm
634
00:26:46.800 --> 00:26:50.160
having read and agreed to the terms of use,
635
00:26:50.160 --> 00:26:53.490
and your client came back with, "I don't remember."
636
00:26:53.490 --> 00:26:56.550
Sure, so let me start by saying
637
00:26:56.550 --> 00:26:59.790
that in the briefing below,
638
00:26:59.790 --> 00:27:02.490
Uber never actually made an argument
639
00:27:02.490 --> 00:27:06.540
that Mr. Good actually read the contract.
640
00:27:06.540 --> 00:27:09.300
Now, it points to this one sentence in it's brief
641
00:27:09.300 --> 00:27:11.650
where it just quotes the language
642
00:27:12.690 --> 00:27:15.480
that it included on this popup.
643
00:27:15.480 --> 00:27:20.480
But to establish that a person actually read the contract,
644
00:27:20.640 --> 00:27:23.790
what this court has said in Archer and in Kauders
645
00:27:23.790 --> 00:27:25.890
is that there needs to be some evidence
646
00:27:25.890 --> 00:27:30.240
that the person actually went to the page with the contract,
647
00:27:30.240 --> 00:27:34.103
or at a minimum, interacted with the link in some way.
648
00:27:34.103 --> 00:27:37.230
But that isn't what Uber put in front of the court
649
00:27:37.230 --> 00:27:39.840
as part of its evidentiary burden.
650
00:27:39.840 --> 00:27:41.550
Instead, all it did was point
651
00:27:41.550 --> 00:27:43.620
to this checkbox language.
What cases,
652
00:27:43.620 --> 00:27:45.180
cause that's important.
Yeah.
653
00:27:45.180 --> 00:27:48.660
So we have said, again,
654
00:27:48.660 --> 00:27:50.610
we're at summary judgment stage, right?
655
00:27:50.610 --> 00:27:55.123
So there are cases that say you need to,
656
00:27:57.030 --> 00:27:59.340
again, 'cause you won on summary judgment.
657
00:27:59.340 --> 00:28:01.800
So I'm trying to get a sense
658
00:28:01.800 --> 00:28:04.770
of what's gonna support your position
659
00:28:04.770 --> 00:28:07.770
with these disputed facts, which is you clicked
660
00:28:07.770 --> 00:28:11.940
on the "I reviewed the terms."
661
00:28:11.940 --> 00:28:15.450
Your client doesn't remember what he did,
662
00:28:15.450 --> 00:28:18.330
although he describes his past practice.
663
00:28:18.330 --> 00:28:21.150
Uber, which has the obvious ability
664
00:28:21.150 --> 00:28:23.200
to track whether he looked at the terms
665
00:28:25.080 --> 00:28:28.860
hasn't done that and were kind of,
666
00:28:28.860 --> 00:28:32.550
I mean, is that an issue that has to be tried?
667
00:28:32.550 --> 00:28:35.040
'Cause somebody could dig into
668
00:28:35.040 --> 00:28:37.863
whether this actually did happen.
669
00:28:38.820 --> 00:28:39.990
Maybe, I don't know.
670
00:28:39.990 --> 00:28:43.410
Yeah, so I don't think the issue has to be tried,
671
00:28:43.410 --> 00:28:45.630
because number one, first and foremost,
672
00:28:45.630 --> 00:28:49.860
it's Uber's burden here to come forward with evidence
673
00:28:49.860 --> 00:28:53.401
actually demonstrating that the plaintiff
674
00:28:53.401 --> 00:28:55.890
went to the contract.
675
00:28:55.890 --> 00:28:59.610
Whether the plaintiff says-
Here's their proof.
676
00:28:59.610 --> 00:29:01.800
This issue didn't get a lot of attention.
677
00:29:01.800 --> 00:29:06.800
We've got the recent Wu case from New York that was briefed
678
00:29:07.350 --> 00:29:10.650
laid in the appellate litigation.
679
00:29:10.650 --> 00:29:14.160
But here is the evidence that Uber has
680
00:29:14.160 --> 00:29:17.190
that this actual notice, it's not complicated.
681
00:29:17.190 --> 00:29:21.930
What they have is that your client confirmed
682
00:29:21.930 --> 00:29:25.590
that he reviewed and agreed to the terms.
683
00:29:25.590 --> 00:29:27.750
That's the evidence.
684
00:29:27.750 --> 00:29:31.440
So where is the genuine issue of material fact
685
00:29:31.440 --> 00:29:32.910
on actual notice?
686
00:29:32.910 --> 00:29:34.950
Well, so I don't think that that's...
687
00:29:34.950 --> 00:29:37.320
I would push back on the premise, Justice Lowy,
688
00:29:37.320 --> 00:29:41.070
that that is evidence of Mr. Good
689
00:29:41.070 --> 00:29:43.807
actually reading the terms.
690
00:29:43.807 --> 00:29:47.880
"I have reviewed and agreed to the terms of use"
691
00:29:47.880 --> 00:29:50.650
and he hits Confirm, so I'm not saying
692
00:29:51.870 --> 00:29:56.870
that that evidence, if the case had to be tried
693
00:29:58.950 --> 00:30:00.730
because it was contested
694
00:30:01.710 --> 00:30:04.710
would codify a burden of persuasion,
695
00:30:04.710 --> 00:30:06.390
where its summary judgment
696
00:30:06.390 --> 00:30:10.470
or the analogy to summary judgment here,
697
00:30:10.470 --> 00:30:15.367
and we've got uncontroverted evidence that he said
698
00:30:16.410 --> 00:30:17.947
when he hit the Confirm button,
699
00:30:17.947 --> 00:30:20.910
"I have reviewed and agreed to the term."
700
00:30:20.910 --> 00:30:24.900
Where's the genuine issue of material fact on actual notice?
701
00:30:24.900 --> 00:30:27.600
Well, to the extent that there is a genuine,
702
00:30:27.600 --> 00:30:28.650
or to the extent that you're asking,
703
00:30:28.650 --> 00:30:31.200
where's the contrary record evidence?
704
00:30:31.200 --> 00:30:33.693
It's from Mr. Good's affidavit where he said,
705
00:30:34.537 --> 00:30:36.330
"I don't remember reading the terms
706
00:30:36.330 --> 00:30:39.450
and I, as a practice, wouldn't read the terms
707
00:30:39.450 --> 00:30:40.604
and just click the box."
If we put,
708
00:30:40.604 --> 00:30:42.210
I'm gonna put aside, by the way,
709
00:30:42.210 --> 00:30:44.940
that the evidence law in Massachusetts doesn't allow
710
00:30:44.940 --> 00:30:47.430
habit evidence in personal circumstances,
711
00:30:47.430 --> 00:30:51.120
and it would actually be a really interesting question
712
00:30:51.120 --> 00:30:53.130
whether that would even be admissible
713
00:30:53.130 --> 00:30:54.570
under our current common law.
714
00:30:54.570 --> 00:30:58.170
I'm just gonna put that completely aside for the moment.
715
00:30:58.170 --> 00:31:00.333
It's a big issue.
Okay.
716
00:31:00.333 --> 00:31:03.930
But that doesn't tell you what he did here.
717
00:31:03.930 --> 00:31:05.910
What we have, the uncontroverted evidence
718
00:31:05.910 --> 00:31:09.690
of what he did here is that he has agreed
719
00:31:09.690 --> 00:31:13.473
that he reviewed the terms of use.
720
00:31:14.396 --> 00:31:15.840
So a couple of things.
721
00:31:15.840 --> 00:31:18.390
I mean, that language or something similar to it
722
00:31:18.390 --> 00:31:22.290
was also present in this court's decision in Archer
723
00:31:22.290 --> 00:31:24.240
and in this court's decision Kauders.
724
00:31:24.240 --> 00:31:27.900
All of these popup windows or interfaces
725
00:31:27.900 --> 00:31:30.450
have some kind of language that's similar.
726
00:31:30.450 --> 00:31:33.270
And if that were enough-
But I thought, again,
727
00:31:33.270 --> 00:31:34.860
I may be misremembering Kauders.
728
00:31:34.860 --> 00:31:38.670
We didn't have anything that explicit, right?
729
00:31:38.670 --> 00:31:41.520
We have this Confirm at the end.
730
00:31:41.520 --> 00:31:42.933
We have Done at the end.
731
00:31:44.400 --> 00:31:48.390
This is more explicit, much more so.
732
00:31:48.390 --> 00:31:50.730
Maybe for Kauders, but I don't think for Archer.
733
00:31:50.730 --> 00:31:52.080
And if you go and you look at Archer,
734
00:31:52.080 --> 00:31:54.990
there was very similar language there.
735
00:31:54.990 --> 00:31:58.740
And what the court said there, in actual knowledge,
736
00:31:58.740 --> 00:32:02.880
whether the plaintiff actually read the contract
737
00:32:02.880 --> 00:32:04.620
was that issue in that case.
738
00:32:04.620 --> 00:32:07.180
And what the court said was that's not
739
00:32:08.145 --> 00:32:11.520
an actually read inquiry that goes to whether
740
00:32:11.520 --> 00:32:13.950
there was meaningful assent under reasonable notice.
741
00:32:13.950 --> 00:32:16.290
I think what you will find, if you look,
742
00:32:16.290 --> 00:32:18.570
if you sort of canvas the cases on actually read
743
00:32:18.570 --> 00:32:21.090
is that to meet their burden,
744
00:32:21.090 --> 00:32:23.580
defendants or companies have to come forward with evidence
745
00:32:23.580 --> 00:32:27.480
like a log demonstrating that the plaintiff
746
00:32:27.480 --> 00:32:29.490
visited the website, or at a minimum,
747
00:32:29.490 --> 00:32:31.320
as this court said in Kauders,
748
00:32:31.320 --> 00:32:34.410
interacted with the link in some way.
749
00:32:34.410 --> 00:32:37.560
The companies track all of this information
750
00:32:37.560 --> 00:32:39.720
and have the ability to come forward
751
00:32:39.720 --> 00:32:43.770
and show this person visited this website or this page
752
00:32:43.770 --> 00:32:46.590
at this point in time on this day and this time.
753
00:32:46.590 --> 00:32:50.370
And to free a company from that obligation
754
00:32:50.370 --> 00:32:53.550
and instead to allow it to rely on just the click
755
00:32:53.550 --> 00:32:57.750
of a checkbox, I think, would drastically lower the standard
756
00:32:57.750 --> 00:33:00.360
of the burden for demonstrating actually red.
757
00:33:00.360 --> 00:33:02.880
Can I ask you now to pivot where you wanted to start?
758
00:33:02.880 --> 00:33:07.767
'Cause I'm really curious as to why a block screen
759
00:33:07.767 --> 00:33:12.600
and a clipboard with a pencil with an X next to it,
760
00:33:12.600 --> 00:33:14.520
a statement that "we encourage you to read
761
00:33:14.520 --> 00:33:16.740
our updated terms in full,"
762
00:33:16.740 --> 00:33:20.670
two blue clearly hyperlinks, one being the terms of use,
763
00:33:20.670 --> 00:33:23.647
the empty checkbox with the "I agree" and "I review,"
764
00:33:23.647 --> 00:33:26.700
"I reviewed" language next to it,
765
00:33:26.700 --> 00:33:29.340
the smaller font that I'm at least 18,
766
00:33:29.340 --> 00:33:32.310
you have to check the box in order to book the car,
767
00:33:32.310 --> 00:33:33.870
and then you must confirm.
768
00:33:33.870 --> 00:33:38.870
Why that is not enough in today's age for reasonable notice?
769
00:33:42.840 --> 00:33:43.673
Sure.
770
00:33:43.673 --> 00:33:47.396
So I think there's a couple of responses to that.
771
00:33:47.396 --> 00:33:50.280
And I think I would start by saying,
772
00:33:50.280 --> 00:33:54.150
in Kauders, I think this court identified a basic framework
773
00:33:54.150 --> 00:33:57.270
for analyzing whether these interfaces are reasonable,
774
00:33:57.270 --> 00:33:58.620
in particular, with Uber.
775
00:33:58.620 --> 00:34:02.010
And I think the starting point that this court said,
776
00:34:02.010 --> 00:34:03.960
you have to ask first and foremost
777
00:34:03.960 --> 00:34:06.540
is whether the transaction
778
00:34:06.540 --> 00:34:08.880
would be obviously contractual or not.
779
00:34:08.880 --> 00:34:13.083
So is there some reason why the person would,
780
00:34:13.920 --> 00:34:15.960
just as an inherent nature of the transaction,
781
00:34:15.960 --> 00:34:17.970
be looking out for contractual terms,
782
00:34:17.970 --> 00:34:19.880
extensive contractual terms?
783
00:34:19.880 --> 00:34:22.170
In the absence of that kind of transaction,
784
00:34:22.170 --> 00:34:24.930
where the transaction is not obviously contractual,
785
00:34:24.930 --> 00:34:28.410
I think what this court said was what's required
786
00:34:28.410 --> 00:34:32.640
at a minimum is that you put the terms of the contract
787
00:34:32.640 --> 00:34:34.743
in front of the user, or in some way,
788
00:34:35.880 --> 00:34:38.763
require the user to interact with the hyperlink.
789
00:34:39.630 --> 00:34:40.800
Uber didn't do either
790
00:34:40.800 --> 00:34:42.690
of those two things here.
No, no, no.
791
00:34:42.690 --> 00:34:46.410
I mean, here, it's available for the user
792
00:34:46.410 --> 00:34:49.410
to interact with the terms of use.
793
00:34:49.410 --> 00:34:51.690
Sure, but that-
That in Archer was enough.
794
00:34:51.690 --> 00:34:53.700
Well, so two responses to that.
795
00:34:53.700 --> 00:34:56.190
First, that was also true in Kauders.
796
00:34:56.190 --> 00:34:59.040
There was a link and a user could, in theory,
797
00:34:59.040 --> 00:35:00.660
have clicked it just like here.
798
00:35:00.660 --> 00:35:02.580
But that's why I said the totality,
799
00:35:02.580 --> 00:35:04.650
that's why I read to you RA 66,
800
00:35:04.650 --> 00:35:07.170
because it's the totality of what was presented
801
00:35:07.170 --> 00:35:10.890
to the user at the moment that, in my opinion,
802
00:35:10.890 --> 00:35:13.710
he is most likely to be focused
803
00:35:13.710 --> 00:35:16.170
on what I'm agreeing to when I book a car.
804
00:35:16.170 --> 00:35:17.250
Sure.
805
00:35:17.250 --> 00:35:20.370
Because in Kauders, it was done.
806
00:35:20.370 --> 00:35:22.650
I've registered, I'm done.
807
00:35:22.650 --> 00:35:24.630
Whereas here, its "I've reviewed
808
00:35:24.630 --> 00:35:27.180
and I've agreed to the terms," checked that box,
809
00:35:27.180 --> 00:35:29.070
and then confirm it.
Right.
810
00:35:29.070 --> 00:35:30.090
So a couple of responses.
811
00:35:30.090 --> 00:35:33.120
I may just wanna get back to your statement about Archers,
812
00:35:33.120 --> 00:35:35.790
because I think Archers is actually a really useful way
813
00:35:35.790 --> 00:35:38.910
to illustrate why what happened here is ineffective.
814
00:35:38.910 --> 00:35:41.610
In Archer, what GrubHub did was the very thing
815
00:35:41.610 --> 00:35:43.803
that Uber didn't do here.
816
00:35:45.390 --> 00:35:48.750
It created an interface that actually identified
817
00:35:48.750 --> 00:35:52.830
as part of the link that what they were requiring
818
00:35:52.830 --> 00:35:56.160
workers there to agree to was a contract.
819
00:35:56.160 --> 00:35:58.500
It used the phrase "arbitration agreement" in the link.
820
00:35:58.500 --> 00:36:00.060
It wasn't "terms of use."
821
00:36:00.060 --> 00:36:03.600
It also required the worker, in that case,
822
00:36:03.600 --> 00:36:05.280
to actually interact with the link.
823
00:36:05.280 --> 00:36:06.930
They were required to click the link.
824
00:36:06.930 --> 00:36:08.490
They couldn't proceed
825
00:36:08.490 --> 00:36:10.080
unless they actually clicked the link
826
00:36:10.080 --> 00:36:11.910
that said "arbitration agreement."
827
00:36:11.910 --> 00:36:13.440
Now there was a dispute in Archer,
828
00:36:13.440 --> 00:36:14.460
there's a footnote in Archer
829
00:36:14.460 --> 00:36:16.140
where the court identifies a dispute.
830
00:36:16.140 --> 00:36:18.210
Well, were you required to read the terms or not?
831
00:36:18.210 --> 00:36:19.140
That's a dispute.
832
00:36:19.140 --> 00:36:22.050
But at minimum, what's undisputed in Archer
833
00:36:22.050 --> 00:36:24.450
is that the workers in that case
834
00:36:24.450 --> 00:36:26.760
were actually required to click the link
835
00:36:26.760 --> 00:36:28.890
before they could register their assent.
836
00:36:28.890 --> 00:36:32.490
In this case, Uber did nothing like that.
837
00:36:32.490 --> 00:36:36.270
All it required the user to do was to check the box.
838
00:36:36.270 --> 00:36:38.250
It didn't require any interaction with the link.
839
00:36:38.250 --> 00:36:40.770
And I think Justice Wendlandt and Justice Georges,
840
00:36:40.770 --> 00:36:43.560
and actually, multiple of you on this court
841
00:36:43.560 --> 00:36:48.150
during my friend's opening identified an additional problem
842
00:36:48.150 --> 00:36:51.150
that bears on whether the notice was reasonable,
843
00:36:51.150 --> 00:36:54.120
which is that Uber pushed out this popup,
844
00:36:54.120 --> 00:36:55.830
and you identified this.
845
00:36:55.830 --> 00:36:57.000
It's not just a popup.
846
00:36:57.000 --> 00:37:00.030
It's a blocking popup at a point at which a user
847
00:37:00.030 --> 00:37:03.060
is at his or her most vulnerable.
848
00:37:03.060 --> 00:37:04.800
They're looking to get a ride.
849
00:37:04.800 --> 00:37:07.350
They are not primed and ready to think
850
00:37:07.350 --> 00:37:11.730
that what's going on is some kind of contractual assent.
851
00:37:11.730 --> 00:37:14.043
Your client actually wasn't,
852
00:37:15.930 --> 00:37:18.870
unless he was getting a ride that day.
853
00:37:18.870 --> 00:37:22.050
It's five days later that he gets badly hurt, right?
854
00:37:22.050 --> 00:37:25.680
So do we know whether he was getting a ride the day-
855
00:37:25.680 --> 00:37:26.580
He was getting a ride.
856
00:37:26.580 --> 00:37:28.830
In fact, the only time you would get this popup,
857
00:37:28.830 --> 00:37:31.830
Justice Kafker, is when you were logging onto the app
858
00:37:31.830 --> 00:37:32.910
to get a ride.
859
00:37:32.910 --> 00:37:36.330
And as a reasonable user, it's not so much what happened
860
00:37:36.330 --> 00:37:38.550
to Mr. Good in the particulars,
861
00:37:38.550 --> 00:37:40.470
but the question this court has to ask is,
862
00:37:40.470 --> 00:37:43.800
would a reasonable user, when they're looking to get a ride,
863
00:37:43.800 --> 00:37:46.260
either because they're trying to go home after work
864
00:37:46.260 --> 00:37:49.080
or they're running late to get to the airport
865
00:37:49.080 --> 00:37:51.060
and they have to click this box
866
00:37:51.060 --> 00:37:52.890
to get through to get the ride-
867
00:37:52.890 --> 00:37:54.440
What else are you gonna focus
868
00:37:55.734 --> 00:37:58.830
on the transaction other than when you use the service?
869
00:37:58.830 --> 00:38:01.440
Oh, so I mean, we've identified other examples
870
00:38:01.440 --> 00:38:02.850
of companies where what happens is,
871
00:38:02.850 --> 00:38:06.210
there's an email that is sent out in addition to a popup
872
00:38:06.210 --> 00:38:08.370
that says, "We are changing the terms of conditions."
873
00:38:08.370 --> 00:38:09.990
You can look at Lyft.
874
00:38:09.990 --> 00:38:12.270
What Lyft does is it sends out an email.
875
00:38:12.270 --> 00:38:16.200
It also, as part of its interface, delivers a popup.
876
00:38:16.200 --> 00:38:18.180
It's doing this since 2016
877
00:38:18.180 --> 00:38:20.970
that actually puts the terms in front of the user.
878
00:38:20.970 --> 00:38:21.930
Can I ask you another question?
879
00:38:21.930 --> 00:38:23.910
Is it fatal or is it required
880
00:38:23.910 --> 00:38:27.690
that the popup say the word "contract" or "agreement"?
881
00:38:27.690 --> 00:38:29.400
Is "update" sufficient?
882
00:38:29.400 --> 00:38:31.920
So I don't think there's any one factor
883
00:38:31.920 --> 00:38:33.420
that is fatal or not.
884
00:38:33.420 --> 00:38:36.150
I think it's a totality of the circumstances of inquiry.
885
00:38:36.150 --> 00:38:40.080
But if you look at the way that other companies
886
00:38:40.080 --> 00:38:42.570
have done this in cases that have come before you,
887
00:38:42.570 --> 00:38:44.340
the cases that have come before
888
00:38:44.340 --> 00:38:46.860
the district courts in Massachusetts,
889
00:38:46.860 --> 00:38:49.890
I've not been able to identify any other case
890
00:38:49.890 --> 00:38:53.250
that has just relied on the words "terms of use."
891
00:38:53.250 --> 00:38:57.510
Almost all of them use some version of contract
892
00:38:57.510 --> 00:38:58.890
or agreement as part of the link,
893
00:38:58.890 --> 00:39:00.300
and I think that's significant.
894
00:39:00.300 --> 00:39:03.870
This court in Kauders made this point I think quite well.
895
00:39:03.870 --> 00:39:07.301
Reasonable users don't necessarily associate the phrase
896
00:39:07.301 --> 00:39:10.440
"terms of use" or "terms of condition"
897
00:39:10.440 --> 00:39:12.600
with extensive contractual obligations
898
00:39:12.600 --> 00:39:16.380
that would require someone to sign their life away.
899
00:39:16.380 --> 00:39:17.610
Lyft doesn't do that.
900
00:39:17.610 --> 00:39:19.290
They put "agreement," and in fact,
901
00:39:19.290 --> 00:39:23.370
if you were to go to the record in this case, RA80,
902
00:39:23.370 --> 00:39:26.850
and you were to look at the first page of Uber's contract,
903
00:39:26.850 --> 00:39:28.830
no user's required to look at this.
904
00:39:28.830 --> 00:39:30.600
They don't put it in front of the user.
905
00:39:30.600 --> 00:39:33.630
But if you go, what you'll see on the first page,
906
00:39:33.630 --> 00:39:37.410
right at the top, it says "contractual relationship."
907
00:39:37.410 --> 00:39:39.090
Further down on the first page,
908
00:39:39.090 --> 00:39:42.000
it says, "Please read these terms carefully
909
00:39:42.000 --> 00:39:45.840
because you are entering into a legal agreement with us."
910
00:39:45.840 --> 00:39:49.140
But none of that is put in front of the user
911
00:39:49.140 --> 00:39:52.440
on the interface popup that they are receiving
912
00:39:52.440 --> 00:39:55.410
and are being asked to ascend to.
913
00:39:55.410 --> 00:39:56.700
It's not an accident.
914
00:39:56.700 --> 00:39:59.040
Uber's a sophisticated company.
915
00:39:59.040 --> 00:40:02.013
They obviously read this court's decision in Kauders where-
916
00:40:04.080 --> 00:40:06.390
There's some term on the internet about these.
917
00:40:06.390 --> 00:40:08.310
We don't have sort of dark practices here.
918
00:40:08.310 --> 00:40:10.527
We may have clever, you know,
919
00:40:10.527 --> 00:40:13.620
but we don't have one of those where you're clicking one box
920
00:40:13.620 --> 00:40:15.470
and it's actually doing the opposite.
921
00:40:16.710 --> 00:40:19.200
I can't remember there's a term in the internet
922
00:40:19.200 --> 00:40:21.680
contracting world where people do that.
923
00:40:21.680 --> 00:40:22.650
We don't have that.
924
00:40:22.650 --> 00:40:27.650
We just have sort of less than obvious.
925
00:40:29.100 --> 00:40:31.020
They don't use the word "agreement."
926
00:40:31.020 --> 00:40:33.120
They don't use the word "agree,"
927
00:40:33.120 --> 00:40:36.810
except in sort of a subtler way.
928
00:40:36.810 --> 00:40:38.850
But we haven't quite gone that far.
929
00:40:38.850 --> 00:40:42.450
And Archer, I was just looking at the language in Archer,
930
00:40:42.450 --> 00:40:45.390
by providing your electronic signature and clicking e-sign,
931
00:40:45.390 --> 00:40:48.150
you're acknowledging that you have read, understood,
932
00:40:48.150 --> 00:40:49.830
and agree to be bound by the terms
933
00:40:49.830 --> 00:40:53.040
of any content or document provided here.
934
00:40:53.040 --> 00:40:55.260
That's clear enough, right?
935
00:40:55.260 --> 00:40:57.660
Right, and I'm not quite sure where you're reading from,
936
00:40:57.660 --> 00:40:59.880
but if you read one sentence below that,
937
00:40:59.880 --> 00:41:01.080
I think what you'll find
938
00:41:01.080 --> 00:41:03.300
is that the court identifies and it says,
939
00:41:03.300 --> 00:41:05.820
it goes on and says, in addition-
940
00:41:05.820 --> 00:41:07.710
They were specifically informed they were signing-
941
00:41:07.710 --> 00:41:10.080
They're signing, exactly, Justice Kafker.
942
00:41:10.080 --> 00:41:13.500
And Uber could easily have done that here.
943
00:41:13.500 --> 00:41:16.080
And I think you asked this question to Uber before,
944
00:41:16.080 --> 00:41:17.430
and I see I'm out of time.
945
00:41:17.430 --> 00:41:19.350
If I could just-
I'm worried
946
00:41:19.350 --> 00:41:20.520
we're not just dealing with Uber.
947
00:41:20.520 --> 00:41:23.920
We're dealing with a world of internet contracts now
948
00:41:25.355 --> 00:41:27.570
and how explicit they need to be
949
00:41:27.570 --> 00:41:29.270
for all different kinds of things.
950
00:41:30.510 --> 00:41:34.420
Is it because Uber's involved in a dangerous business
951
00:41:36.180 --> 00:41:39.480
and it needs to be more explicit?
952
00:41:39.480 --> 00:41:42.540
I'm just trying to get a sense of how we do all of this.
953
00:41:42.540 --> 00:41:45.180
So no, I think the same standard applies
954
00:41:45.180 --> 00:41:49.440
regardless of whether it's Uber or The Social Law Library,
955
00:41:49.440 --> 00:41:53.527
which one of the amici on Uber's side pointed out and said,
956
00:41:53.527 --> 00:41:56.250
"Oh, well, look at all of the ways in which designers
957
00:41:56.250 --> 00:41:58.140
are gonna have to change their websites."
958
00:41:58.140 --> 00:42:00.513
If I could just 30 seconds to respond.
959
00:42:01.890 --> 00:42:05.310
This is not going to require any kind of sea change
960
00:42:05.310 --> 00:42:06.930
in the way that companies do business.
961
00:42:06.930 --> 00:42:10.230
As we've pointed out, virtually all other companies
962
00:42:10.230 --> 00:42:12.690
follow what Discord identified in Kauders
963
00:42:12.690 --> 00:42:16.230
as essentially the best practices, at least in some way.
964
00:42:16.230 --> 00:42:19.260
GrubHub and Archer put the term contract
965
00:42:19.260 --> 00:42:21.720
in part of the link and made people click it.
966
00:42:21.720 --> 00:42:24.630
Lyft puts the terms in front of the user.
967
00:42:24.630 --> 00:42:26.370
Why doesn't Uber do that?
968
00:42:26.370 --> 00:42:28.290
It's not at all clear, but even if you were to look
969
00:42:28.290 --> 00:42:30.000
at The Social Law Library website,
970
00:42:30.000 --> 00:42:32.970
which helpfully, the defendant's amici
971
00:42:32.970 --> 00:42:35.010
put on page 19 of its brief.
972
00:42:35.010 --> 00:42:37.770
The Social Law Library puts the terms and conditions
973
00:42:37.770 --> 00:42:39.180
in front of the user before,
974
00:42:39.180 --> 00:42:41.010
asking that user to assent to them.
975
00:42:41.010 --> 00:42:43.320
And I think what we're asking for here
976
00:42:43.320 --> 00:42:46.920
is just I think a fairly straightforward application
977
00:42:46.920 --> 00:42:49.920
of Kauders that doesn't and wouldn't require companies
978
00:42:49.920 --> 00:42:52.950
at all to change the way that they design their websites
979
00:42:52.950 --> 00:42:55.773
or do business, unless the court has further questions.