-: SJC-13490.
William Good, the Uber Technologies Inc., and others.
-: Okay, Attorney Huston is first.
-: Good morning, may it please the court.
I'm Michael Huston of Perkins Coie
on behalf of the Uber defendants.
I'll address all of the contract
formation issues in the case.
Mr. Monson will be available to address any questions
the court may have about the claims
against the independent driver, defendant.
The Superior Court's decision refusing to enforce
the party's agreement in this case should be reversed
because it's contrary to this court's precedence
and contrary to the overwhelming weight
of authority in other states.
It is notable that plaintiff asks this court
to make this commonwealth an extreme outlier.
Plaintiff's brief does not cite a single decision
by any appellate court anywhere in the country.
-: We don't really have to go too far
to figure out what the relevant law here is, right?
It's Kauders and Archer, right?
Before we get into a speech,
why don't we focus on those, okay?
-: Certainly, your Honor.
I think that Kauders and Archer,
as your honor points out,
make clear the standard of contract formation.
And that standard clearly dictates
that this contract is enforceable.
The key point in the court's holding in Kauders
was that a clear and simple interface
conveys to a reasonable consumer
that they are the terms that are going to bind him.
And this type of "I agree" checkbox-
-: Well, it's not an "I agree" checkbox.
It's a "confirm" checkbox.
And hold on, I know it says "I agree and confirm,"
but it's not just I agree to one thing.
It's I agree includes privacy, it includes the age.
Going back to Justice Kafker's initial point,
the histrionics, the trickery on one side,
the sky's falling down on the other side, not helpful.
We're trying to really dig in here
and get this very important issue right.
And it's the totality of the circumstances
on reasonable notice,
and this is not a registration situation.
This is an update.
Someone's trying to get a ride.
They've got a message that says "update,"
and they want their ride.
And they can manage to get through all of that
without ever seeing the terms and conditions and find out
that this is actually an initial contract,
not when they're registering,
but when they're trying to get a ride.
-: So Justice Lowy, I think the most important thing
in the question that you just asked
is the suggestion that a person could get through
all of this without ever being aware
that they were agreeing to terms of use.
I just don't think that page 66 in the record,
which is the interface, makes that possible.
That was the key holding in Kauders.
The court thought that a person could click
and get all the way through the process without being aware
that there were terms to which there were gonna be bound.
But here, the whole point of the screen
is to call the user's attention to the fact
that Uber has updated the terms
on which we are offering the use of our services.
That's what terms of use are.
And then there's exactly the kind of language-
-: Terms of use.
Interesting choice of words, right?
Terms of use.
We're updating,
basically, we're updating our app terms of use.
Not any language typical
of you're entering into a contract, agree, right?
Whether it's enough or not, I don't know.
But it's not clear in the sense that you're arguing.
It doesn't say update.
After counters, basically, we have no contract with you.
Read these terms of this agreement and agree to them.
It's much more opaque than that, right?
-: Justice Kafker, respectfully,
no, I strongly disagree with that.
The biggest text on this page is,
we encourage you to read our updated terms in full.
-: Encourage.
-: We are urging Mr. Good to read these terms.
We want him to do so.
We're not trying to hide them.
-: But you just flipped verbs.
You went from encourage to urge.
And I think if you had that popup page
that says words that are far more prescriptive than just,
hey, it's almost aspirational.
"Hey, we encourage you to read it."
Stronger terms that says, "You have to read this,"
or, "We urge you to read this," or, "Read."
Just read the terms.
But when you say "encourage," that seems to be almost,
hey, you can or you can't.
-: Well, I think, your Honor, we can never force some,
we cannot physically compel someone to read the terms.
I think saying, "We encourage you to read our terms"
goes beyond what's required.
-: Well, you do it with your drivers, right?
Your drivers, you're not gonna be an Uber driver
unless you read these terms and agree to them.
The drivers know they're entering into a contract.
-: Respectful, your Honor, I think that-
-: Go ahead.
Let me just finish, lay out the question,
and I won't cut you off.
The drivers, we know that Uber knows how to clearly state
in an internet contract
that you're entering into a contract, agree to it.
What do we do with that when you don't do that
with customers and use much more
open-ended vaguer terminology?
-: So I have to respectfully take issue
with the premise of the question, because I think
that what the court's opinion in Kauders shows
and what the actual reality is that the interface
that drivers use to sign up, it's not identical,
but it's very, very similar.
And it has all the same- -: Please.
I wrote Kauders.
It's not the same.
It may be good enough for government work,
but it's not the same.
-: It's similar in this key respect.
Both involve a hyperlink.
Neither one involves
what the plaintiff says is required here,
which is actually forcing somebody
to read and review the terms.
They both present the terms by hyperlink.
-: I agree with you.
We did not say that you need to have a scroll,
whatever that terminology is,
scroll agreement where you have to scroll through the terms,
but we were clear that we wanted you to put in language
that put you on notice that you were entering
into a contract that's significant.
Not only are you agreeing to ride in the car
and you're giving up your right to sue Uber,
you're giving up your right basically,
if you get killed or raped, Uber's off the hook, right?
-: No, your Honor, respectfully,
that's not correct in a couple of respects.
First of all, I think any question
about the terms themselves
is expressly delegated to the arbitrator.
That's not what we're talking about here today.
We're talking about the standards of contract formation,
which is this court explained
are supposed to be the same for online contracts
as for all other kinds of contracts.
-: I agree with that part, but does your contract,
your contract doesn't take Uber off the hook?
If the driver rapes you
or the driver drives into a wall and kills you,
doesn't this contract say Uber is off the hook?
-: No, your Honor.
The first thing to say about that
is that if the claim involves sexual assault,
which of course this claim does not,
they're excluded from the terms.
It's not what this case is about.
Even in a case, I think we're talking about-
(indistinct)
and you get killed, can you sue Uber?
-: Mr. Good is gonna have the opportunity to take his claims,
his alleged negligence claims to an arbitrator.
And that's the proper forum.
It's a forum that the public policy of this state
and the Federal Arbitration Act supports
as a means of expeditiously
and efficiently resolving disputes.
The question in the case is,
did a reasonable person reading this screen at RA66,
would that person have known
that they were entering an agreement
and would they have known of where those terms were located
if they wanted to review them?
-: And here's the challenge.
It may well be that it's enough here.
It may well be that it's clearly enough
when you're registering with Uber.
But the issue that you just hit on is,
is the interface enough, in the context of this case,
in the context of this case, when you're not registering
and you're trying to get a ride,
is the update and the confirm enough
to give reasonable notice?
-: Well, respectfully, Justice Lowy,
it's not just the update and the confirm.
I think the court needs to look
at the entire interface together.
The key language in the interface
is the presentation of the terms of use hyperlink.
Not an obscured, not an odd little box,
a classic blue underlined hyperlink.
Everybody who lives in the digital world
knows what a hyperlink is and how it works
and how to click on it to get access to the terms.
It says, "We have updated the terms
on which we are offering the use of our services."
And it says, "By checking this box,
I have reviewed and agree to the terms of use."
That is the sort of solemn language
that this court in Kauders said
puts a regular user on notice
that they are entering an agreement.
The phrase "I agree" conveys I am entering an agreement.
And then just for good measure,
we have added the Confirm button,
which is just to make sure that somebody
doesn't inadvertently click the thing.
This way, you have to take two separate steps.
-: I know, but again, it may be enough in this context.
It seems clearly enough if it were a initial registration,
but it doesn't say what you say it says.
It doesn't say, "I agree to the terms and conditions."
It requires an acknowledgement of the privacy
and the age is 18.
It's just not that clean.
It well may be enough,
but I really don't see this case as a big, huge case.
I see this case in the context after Kauders,
whether the pop-up message when you're trying to get a ride,
when you're already registered is enough
to give you reasonable notice here
that you are entering into a contract
with huge implications.
-: I'd like to address your point
that this is an update situation.
-: My point is, doesn't it say that?
-: Sure, this is an update.
No, no. -: Not my point.
It's "we encourage you to read update."
It's just your words.
It's not my mine. -: No, no.
I just wanna address your honor's question
about the legal significance of that.
The point, I think, is that companies change the terms
on which they offer the use of their services all the time.
That's a good and healthy thing in the economy.
Companies need to be able, having made a contract
at one time to say, we're moving away from that.
-: You didn't make a contract.
We said you hadn't had one before.
-: I understand that, your Honor, but-
-: So you were starting from scratch.
Now, you may not have thought you were starting,
you may not want the user to know
you're starting from scratch,
but you had no binding agreement
with Mr. Good before this, correct?
-: As a matter of law, because of Kauders, that's true.
But I think if anything, that only means
that we're in the situation that I think
Justice Lowy referred to a minute ago
where this is the registration,
this is the new contract.
And I think that's the key point.
-: By the way, that'd be nice if that were what it said.
We have a new contract.
Agree to the terms or you're not gonna ride our cars.
That's not what it said.
-: And sorry to interrupt- -: Did I just,
that answer, then I'll defer to you.
-: Your Honor, we do business all across the United States.
Uber needs to have a uniform way
of conveying to its customers all across the country
that it has changed the terms on which it is offering
the use of its services moving forward.
That's the point of this.
We have updated our terms for using our service.
It wasn't like this was created specifically
to address Kauders and this commonwealth.
This is a national rollout of a new
contractual arrangement for all of our customers.
We need a way to do that that is coherent and uniform.
That's why you see language
that ordinary, regular people understand.
We've updated the terms on which we're using-
-: Ordinary, regular people do this all the time.
Apple, it says, "You're entering into a contract."
Agree, right?
I mean, you can do that.
The question is why you're not doing it more clearly.
And this may be clear enough.
Again, I'm not saying you're not,
but it's not perfectly clear.
And you know people are reluctant
to read these long things, right?
-: Yes, but I wanna make two important
points about that, your Honor.
The first is that the evidence strongly shows
and the evidence that this court relied on Kauders shows
that people don't read contractual terms
no matter what you do, even if you have a scroll wrap
that everybody agrees is basically per se enforceable.
They don't read it, even if you make people initial
every paragraph in mortgage documents.
People don't read it.
So I don't think that the legal rule here
can be based on a fiction about-
-: When you're entering into a mortgage,
you know that's a contract.
When you enter into a car lease,
you know you got a car lease.
When you enter into a Uber car,
not so clear exactly what you're agreeing to, right?
-: And that's the function, as this court explained,
of the language on this interface that says,
"I have reviewed and agree to the terms of use."
The point of that language is to call the user's attention
to the fact that they are entering an agreement.
"I agree to the terms of use"
means I acknowledge that I'm entering an agreement.
And as I think Judge O'Toole from the Federal District Court
in the Daily Fantasy Sports case pointed out,
the question is not whether the interface
could have been better or more clear in some respect.
The question is only whether it is reasonable notice.
It is not a conspicuous standard,
as the court made clear in Kauders.
Just reasonable notice.
Thank you. -: Okay, thank you.
-: Can I ask one more? -: Sure.
-: So this screen has been on RA 66
has been referred to as a pop-up screen.
I just wanted to ask a factual question.
Could Mr. Good book a car
without checking the box and clicking confirm?
-: No, your Honor.
As the record, I'm sorry.
-: So it was actually a blocking screen.
-: Yes. -: You couldn't go forward
without doing both of these things.
-: That is correct.
A user would've been confronted with this at the moment
that they were attempting to access Uber services,
which I think is the time when you are most likely
to cause somebody to focus on the term
as the Second Circuit explained in Meyer.
It was necessary for a person,
in order to access Uber services,
both to click on the box
attesting that by checking this box,
I have reviewed and agree to the terms of use
and acknowledge the privacy notice.
And then to take the further step of hitting Confirm.
That's very similar to the process that drivers use
as the court explained in Kauders.
There too, it's a hyperlink that says,
"Please acknowledge that you have reviewed and agree,"
but the person is not actually required
to click on the hyperlink. -: Can I follow you?
I have one after Justice Georges.
-: You're interested, huh?
Come on. -: Just with that
last point, chief.
You say that, but you almost make it seem
like it's a casual context when that arises.
You wanna ride home.
Mr. Good wanted to go home.
He'd worked all day and he'd wanted to just go home.
You make it seem as if that's the most opportune moment
to seize upon someone who wants to go home
that now is the time for you to sit back
and look at all of these terms and conditions.
Isn't that the worst time for you to sit back
and look at these terms and conditions
when you just wanna go to wherever you're going?
-: No, your Honor, I don't think so.
As the second- -: When would be?
-: When would be the worst time?
-: No, when would be a worse time
than when you're leaving a bar, you're leaving work,
you're late at night, you're tired,
and you just wanna go home?
-: So I think two points about it, your Honor.
The first is that it's not the case that Mr. Good
just agreed to these things on his way home
and then never had an opportunity to revisit it.
The accident that occurred in this case
was several days later.
He could have, at any time,
even if he was in a rush to get home and he was tired
and he sort of didn't know what he was doing,
the terms of use remain visible in the app at all times.
He could have pulled them up at any time
and reviewed them in the comfort of his own home, excuse me.
And then made a decision, "You know what?
Actually, I'm uncomfortable with those terms.
I don't wanna agree to them,
so I'm not gonna use Uber Services."
And that he could have done that.
So I think it's just not the case
that he was sort of rushed into a decision
and then minutes later, ended up in this auto accident.
That's not the factual reality.
But I think the more important legal point
is that the company has to make a decision.
We've changed the terms on which we're offering our service.
How should we go about providing that notice?
The superior court said, "Well, you should send an email
or give a person a phone call."
But I think ordinary people are much less likely
to pay attention to an email that just pops up
out of the blue one day from Uber saying,
"We've changed our terms."
Then if at the moment that I'm interested
in actually using Uber service,
Uber informs me, "We're changing the terms."
I think the latter, you tell a person
about the terms of the bargain
at the moment that they are interested
in accessing the service that is the subject of the bargain.
That's how companies do business.
And I think it would be quite dramatic
if this court was to say,
"That's actually not an acceptable means
of providing that notice."
-: Can I ask one question on actual notice?
So I'm gonna ask your opposing counsel about actual notice.
So what do we know about actual notice here?
He checked the box.
By checking the box,
I've reviewed and agreed to the terms of use.
You keep track of whether he checked the box,
but I take it your app could also indicate
whether you actually looked whether he checked.
You don't make that point.
You don't say that you've confirmed
that he read them, right?
-: So the record doesn't reflect whether-
-: Is that because you don't track that function?
-: I believe that that is correct, your Honor.
In truth, I don't know, and the record doesn't reflect it.
But that's my understanding that we do not keep records
of who clicks on a hyperlink specifically.
We keep records of who clicks.
-: What do we do with that fact?
'Cause that's- -: Yeah, sure.
-: 'Cause I'm gonna ask him, "Okay, you clicked the button
that said you read this," right?
You don't remember what you did.
Michael: Right.
-: They know you clicked the button,
but they didn't check whether you actually looked
even though they could.
So I'm just trying to figure out
where that leaves us. -: I appreciate the opportunity
to address it, your Honor.
Actual notice turns on an issue of fact.
Did or did not Mr. Good review these terms
before agreeing them?
That's a factual question.
We asserted in the trial court at RA53
that Mr. Good did in fact read these terms.
And we backed up that assertion with record evidence,
namely his own submission through this click wrap interface
that he had reviewed the terms and agreed to them.
I think that matter- -: He says that I,
although I don't remember what I did,
my habit is, in order to use these apps,
I click but don't look, which by the way,
99.9% of Americans are probably doing out there.
But again, we don't have record on that.
I'm trying to figure out what we do with the actual notice,
'cause that's dispositive of this case.
-: It is. -: If it's this,
if we have the information we can, we need to decide.
-: That's right, I think the first appellate
department in New York addressed this in the Wu case.
I would urge the court to take a look.
It's exactly the same situation.
The court's holding there is that on this question of fact,
we met our prima fascia burden
on a summary judgment standard
to put the factual issue in the record
with our assertion at RA53 backed up by the evidence
in the form of his own submission.
That met our prima fascia burden.
Then he has the obligation to come forward and contest that.
And many people do this all the time.
They say, "You know what?
I checked that box, but in fact, I didn't read it."
If he had done that,
it would've been a disputed issue of fact.
It would've precluded summary judgment on that ground.
But Mr. Good didn't do that.
All he said was, "I don't remember checking this box."
And then, as your honor points out, he said,
"It was my practice when I got advertisements,
popup advertisements online,
to quickly get rid of them."
I understand that, I do that too.
But this is the kind of solemn "I agree" language
that the court in Kauders said exists to put users on notice
that they're entering a contract.
This is not just like a promotional advertisement.
So I think the fact that somebody's habit was to click away
quickly from advertising does not suggest
that they were likely to take the same approach
with regard to solemn "I agree" language.
All we're saying is Mr. Good
has an obligation- -: It's not "I agree" language,
but anyway, okay, I get your answer.
-: Thank you. -: Thank you.
Attorney Monson?
-: Courts, the appellants are in line
with the different arguments that Mr. Huston rang.
And I'm not gonna read out,
and I'm not going to repeat all of them.
I did want to answer one of the questions
that I thought was directly on point
on the issue of the terms matter.
And in this agreement, it's not just "I agree to the terms."
It's "by clicking on the box,"
which is right next to this language,
"I have reviewed and agreed to the terms."
It's both telling you that when you click this box
right next to this terms- -: And keep reading
and acknowledge the privacy notice.
I am at least 18 years of age, right?
It's a little vaguer.
It doesn't just say "I agree to the terms of a contract."
Click.
It's different.
It's, again, more opaque.
-: I agree that there is additional language after that,
but I would offer to the court that there's no way
to read that next to a box that you've checked
and conclude that you're not agreeing to those terms
that are included in the hyperlink.
-: By the way, just on the contractual point,
so Uber's not off the hook?
They haven't put the whole burden on your client?
When I go through this contract language,
it's gonna allow an arbitrator to find Uber
liable in addition to your client for what your clients-
-: I don't have an opinion on that, your Honor.
-: Wait, what's the record say?
Have you read that?
-: I've read through the agreement.
-: Uber's not off the hook?
I'd like your take on that,
given that I thought they shifted
the whole burden to your client.
-: I don't see it as being shifted
the entire burden to my client on the language itself.
There is limitations of liability language in there.
-: And what is the limitation of liability for Uber
as opposed to your client?
-: I'm sorry, I don't know if I understand the question.
-: Did Uber leave you alone holding the bag
in this contract you want us to enforce?
-: There are some instances where Uber will be protected
from liability. -: How about for a car accident
that results in someone being a paraplegic?
-: I'm not sure, depending on the facts of the case
and how they play out, there's certainly different ways
around that liability language.
I'm here just representing Mr. Yohou.
-: Oh, I assume you have some,
you want us to enforce this contract.
I just wanna make sure I have your take
on what Uber is left.
Is Uber potentially liable in the arbitration,
or is only your client potentially liable
in this arbitration
under the contract you want us to enforce?
-: I think there are still ways
that Uber could potentially be liable.
There are different sets of facts that-
-: For this car accident. -: Yes, your Honor.
-: Okay, we'll read through that.
-: Thank you, your Honor.
I did also wanna discuss, I know I'm past my time-
-: Just want you to be careful what you wish for.
-: Understood, Your Honor.
We acknowledge the benefits that arbitration provides,
and that's what we're getting at here.
That's what we're interested in here.
We will fight the good fight
and defend our client on the facts
once we get to arbitration.
I know I'm past my time.
-: Yeah, you got 30 seconds, go on.
-: All right, I would just like to say
as far as the arbitration agreement
applying to my client as well, the language is pretty clear.
It applies to any third party
where the accidents involving the use of the Uber services.
I don't think even the appellant is challenging that
if this is an enforceable agreement
that it would also cover my client as well.
-: Okay. -: Thank you.
And Attorney Wessler.
-: Thank you, Your Honor, and may please the court.
Matthew Wessler on behalf of the appellate, William Good.
I just wanna, just a factual answer to your question,
Justice Kafker, on RA 80, you will see
this is part of Uber's contract.
-: Speak a little louder, sorry.
-: On RA80 of the appendix,
you'll see that there's a sweeping indemnity clause
in Uber's contract that by its terms,
attempts to hold Uber not liable
for any conduct arising out of the use of the service.
-: And that was my recollection as well.
-: Yes, correct.
So I would like to start with reasonable notice.
I understand you also have-
-: And you actually start
with actual notice. -: I will flip it
and start with actual notice.
-: Because that seems to me an issue on summary judgment.
Uber has come forward with evidence
that your client actually did confirm
having read and agreed to the terms of use,
and your client came back with, "I don't remember."
-: Sure, so let me start by saying
that in the briefing below,
Uber never actually made an argument
that Mr. Good actually read the contract.
Now, it points to this one sentence in it's brief
where it just quotes the language
that it included on this popup.
But to establish that a person actually read the contract,
what this court has said in Archer and in Kauders
is that there needs to be some evidence
that the person actually went to the page with the contract,
or at a minimum, interacted with the link in some way.
But that isn't what Uber put in front of the court
as part of its evidentiary burden.
Instead, all it did was point
to this checkbox language. -: What cases,
cause that's important. -: Yeah.
-: So we have said, again,
we're at summary judgment stage, right?
So there are cases that say you need to,
again, 'cause you won on summary judgment.
So I'm trying to get a sense
of what's gonna support your position
with these disputed facts, which is you clicked
on the "I reviewed the terms."
Your client doesn't remember what he did,
although he describes his past practice.
Uber, which has the obvious ability
to track whether he looked at the terms
hasn't done that and were kind of,
I mean, is that an issue that has to be tried?
'Cause somebody could dig into
whether this actually did happen.
Maybe, I don't know.
-: Yeah, so I don't think the issue has to be tried,
because number one, first and foremost,
it's Uber's burden here to come forward with evidence
actually demonstrating that the plaintiff
went to the contract.
Whether the plaintiff says- -: Here's their proof.
This issue didn't get a lot of attention.
We've got the recent Wu case from New York that was briefed
laid in the appellate litigation.
But here is the evidence that Uber has
that this actual notice, it's not complicated.
What they have is that your client confirmed
that he reviewed and agreed to the terms.
That's the evidence.
So where is the genuine issue of material fact
on actual notice?
-: Well, so I don't think that that's...
I would push back on the premise, Justice Lowy,
that that is evidence of Mr. Good
actually reading the terms.
-: "I have reviewed and agreed to the terms of use"
and he hits Confirm, so I'm not saying
that that evidence, if the case had to be tried
because it was contested
would codify a burden of persuasion,
where its summary judgment
or the analogy to summary judgment here,
and we've got uncontroverted evidence that he said
when he hit the Confirm button,
"I have reviewed and agreed to the term."
Where's the genuine issue of material fact on actual notice?
-: Well, to the extent that there is a genuine,
or to the extent that you're asking,
where's the contrary record evidence?
It's from Mr. Good's affidavit where he said,
"I don't remember reading the terms
and I, as a practice, wouldn't read the terms
and just click the box." -: If we put,
I'm gonna put aside, by the way,
that the evidence law in Massachusetts doesn't allow
habit evidence in personal circumstances,
and it would actually be a really interesting question
whether that would even be admissible
under our current common law.
I'm just gonna put that completely aside for the moment.
It's a big issue. -: Okay.
-: But that doesn't tell you what he did here.
What we have, the uncontroverted evidence
of what he did here is that he has agreed
that he reviewed the terms of use.
-: So a couple of things.
I mean, that language or something similar to it
was also present in this court's decision in Archer
and in this court's decision Kauders.
All of these popup windows or interfaces
have some kind of language that's similar.
And if that were enough- -: But I thought, again,
I may be misremembering Kauders.
We didn't have anything that explicit, right?
We have this Confirm at the end.
We have Done at the end.
This is more explicit, much more so.
-: Maybe for Kauders, but I don't think for Archer.
And if you go and you look at Archer,
there was very similar language there.
And what the court said there, in actual knowledge,
whether the plaintiff actually read the contract
was that issue in that case.
And what the court said was that's not
an actually read inquiry that goes to whether
there was meaningful assent under reasonable notice.
I think what you will find, if you look,
if you sort of canvas the cases on actually read
is that to meet their burden,
defendants or companies have to come forward with evidence
like a log demonstrating that the plaintiff
visited the website, or at a minimum,
as this court said in Kauders,
interacted with the link in some way.
The companies track all of this information
and have the ability to come forward
and show this person visited this website or this page
at this point in time on this day and this time.
And to free a company from that obligation
and instead to allow it to rely on just the click
of a checkbox, I think, would drastically lower the standard
of the burden for demonstrating actually red.
-: Can I ask you now to pivot where you wanted to start?
'Cause I'm really curious as to why a block screen
and a clipboard with a pencil with an X next to it,
a statement that "we encourage you to read
our updated terms in full,"
two blue clearly hyperlinks, one being the terms of use,
the empty checkbox with the "I agree" and "I review,"
"I reviewed" language next to it,
the smaller font that I'm at least 18,
you have to check the box in order to book the car,
and then you must confirm.
Why that is not enough in today's age for reasonable notice?
-: Sure.
So I think there's a couple of responses to that.
And I think I would start by saying,
in Kauders, I think this court identified a basic framework
for analyzing whether these interfaces are reasonable,
in particular, with Uber.
And I think the starting point that this court said,
you have to ask first and foremost
is whether the transaction
would be obviously contractual or not.
So is there some reason why the person would,
just as an inherent nature of the transaction,
be looking out for contractual terms,
extensive contractual terms?
In the absence of that kind of transaction,
where the transaction is not obviously contractual,
I think what this court said was what's required
at a minimum is that you put the terms of the contract
in front of the user, or in some way,
require the user to interact with the hyperlink.
Uber didn't do either
of those two things here. -: No, no, no.
I mean, here, it's available for the user
to interact with the terms of use.
-: Sure, but that- -: That in Archer was enough.
-: Well, so two responses to that.
First, that was also true in Kauders.
There was a link and a user could, in theory,
have clicked it just like here.
-: But that's why I said the totality,
that's why I read to you RA 66,
because it's the totality of what was presented
to the user at the moment that, in my opinion,
he is most likely to be focused
on what I'm agreeing to when I book a car.
Matthew: Sure.
-: Because in Kauders, it was done.
I've registered, I'm done.
Whereas here, its "I've reviewed
and I've agreed to the terms," checked that box,
and then confirm it. -: Right.
So a couple of responses.
I may just wanna get back to your statement about Archers,
because I think Archers is actually a really useful way
to illustrate why what happened here is ineffective.
In Archer, what GrubHub did was the very thing
that Uber didn't do here.
It created an interface that actually identified
as part of the link that what they were requiring
workers there to agree to was a contract.
It used the phrase "arbitration agreement" in the link.
It wasn't "terms of use."
It also required the worker, in that case,
to actually interact with the link.
They were required to click the link.
They couldn't proceed
unless they actually clicked the link
that said "arbitration agreement."
Now there was a dispute in Archer,
there's a footnote in Archer
where the court identifies a dispute.
Well, were you required to read the terms or not?
That's a dispute.
But at minimum, what's undisputed in Archer
is that the workers in that case
were actually required to click the link
before they could register their assent.
In this case, Uber did nothing like that.
All it required the user to do was to check the box.
It didn't require any interaction with the link.
And I think Justice Wendlandt and Justice Georges,
and actually, multiple of you on this court
during my friend's opening identified an additional problem
that bears on whether the notice was reasonable,
which is that Uber pushed out this popup,
and you identified this.
It's not just a popup.
It's a blocking popup at a point at which a user
is at his or her most vulnerable.
They're looking to get a ride.
They are not primed and ready to think
that what's going on is some kind of contractual assent.
-: Your client actually wasn't,
unless he was getting a ride that day.
It's five days later that he gets badly hurt, right?
So do we know whether he was getting a ride the day-
-: He was getting a ride.
In fact, the only time you would get this popup,
Justice Kafker, is when you were logging onto the app
to get a ride.
And as a reasonable user, it's not so much what happened
to Mr. Good in the particulars,
but the question this court has to ask is,
would a reasonable user, when they're looking to get a ride,
either because they're trying to go home after work
or they're running late to get to the airport
and they have to click this box
to get through to get the ride-
-: What else are you gonna focus
on the transaction other than when you use the service?
-: Oh, so I mean, we've identified other examples
of companies where what happens is,
there's an email that is sent out in addition to a popup
that says, "We are changing the terms of conditions."
You can look at Lyft.
What Lyft does is it sends out an email.
It also, as part of its interface, delivers a popup.
It's doing this since 2016
that actually puts the terms in front of the user.
-: Can I ask you another question?
Is it fatal or is it required
that the popup say the word "contract" or "agreement"?
Is "update" sufficient?
-: So I don't think there's any one factor
that is fatal or not.
I think it's a totality of the circumstances of inquiry.
But if you look at the way that other companies
have done this in cases that have come before you,
the cases that have come before
the district courts in Massachusetts,
I've not been able to identify any other case
that has just relied on the words "terms of use."
Almost all of them use some version of contract
or agreement as part of the link,
and I think that's significant.
This court in Kauders made this point I think quite well.
Reasonable users don't necessarily associate the phrase
"terms of use" or "terms of condition"
with extensive contractual obligations
that would require someone to sign their life away.
Lyft doesn't do that.
They put "agreement," and in fact,
if you were to go to the record in this case, RA80,
and you were to look at the first page of Uber's contract,
no user's required to look at this.
They don't put it in front of the user.
But if you go, what you'll see on the first page,
right at the top, it says "contractual relationship."
Further down on the first page,
it says, "Please read these terms carefully
because you are entering into a legal agreement with us."
But none of that is put in front of the user
on the interface popup that they are receiving
and are being asked to ascend to.
It's not an accident.
Uber's a sophisticated company.
They obviously read this court's decision in Kauders where-
-: There's some term on the internet about these.
We don't have sort of dark practices here.
We may have clever, you know,
but we don't have one of those where you're clicking one box
and it's actually doing the opposite.
I can't remember there's a term in the internet
contracting world where people do that.
We don't have that.
We just have sort of less than obvious.
They don't use the word "agreement."
They don't use the word "agree,"
except in sort of a subtler way.
But we haven't quite gone that far.
And Archer, I was just looking at the language in Archer,
by providing your electronic signature and clicking e-sign,
you're acknowledging that you have read, understood,
and agree to be bound by the terms
of any content or document provided here.
That's clear enough, right?
-: Right, and I'm not quite sure where you're reading from,
but if you read one sentence below that,
I think what you'll find
is that the court identifies and it says,
it goes on and says, in addition-
-: They were specifically informed they were signing-
-: They're signing, exactly, Justice Kafker.
And Uber could easily have done that here.
And I think you asked this question to Uber before,
and I see I'm out of time.
If I could just- -: I'm worried
we're not just dealing with Uber.
We're dealing with a world of internet contracts now
and how explicit they need to be
for all different kinds of things.
Is it because Uber's involved in a dangerous business
and it needs to be more explicit?
I'm just trying to get a sense of how we do all of this.
-: So no, I think the same standard applies
regardless of whether it's Uber or The Social Law Library,
which one of the amici on Uber's side pointed out and said,
"Oh, well, look at all of the ways in which designers
are gonna have to change their websites."
If I could just 30 seconds to respond.
This is not going to require any kind of sea change
in the way that companies do business.
As we've pointed out, virtually all other companies
follow what Discord identified in Kauders
as essentially the best practices, at least in some way.
GrubHub and Archer put the term contract
in part of the link and made people click it.
Lyft puts the terms in front of the user.
Why doesn't Uber do that?
It's not at all clear, but even if you were to look
at The Social Law Library website,
which helpfully, the defendant's amici
put on page 19 of its brief.
The Social Law Library puts the terms and conditions
in front of the user before,
asking that user to assent to them.
And I think what we're asking for here
is just I think a fairly straightforward application
of Kauders that doesn't and wouldn't require companies
at all to change the way that they design their websites
or do business, unless the court has further questions.