[00:00:14] Speaker 04:
it says 10.

[00:00:17] Speaker 04:
Oh, so we're moving to 10.

[00:00:44] Speaker 03:
this court held that contract formation requires only a reasonably conspicuous notice of the terms and conditions.

[00:00:52] Speaker 03:
And we would submit that the notice in this case went above and beyond that test of conspicuousness for several reasons.

[00:00:59] Speaker 03:
First, the screen was not cluttered or busy.

[00:01:02] Speaker 03:
In fact, the only sentence on the screen discloses the terms and tells the user that by tapping play, she accepts them.

[00:01:10] Speaker 03:
The notice is directly above a button that is hyperlinked to the terms.

[00:01:14] Speaker 03:
The notice is directly below the play button for accepting the terms.

[00:01:19] Speaker 03:
A player cannot proceed and actually play the Game of Thrones game without clicking that play button.

[00:01:25] Speaker 03:
And all of this information is on a single screen that does not create any risk that a reasonable consumer could overlook.

[00:01:48] Speaker 04:
conspicuousness wrong.

[00:02:33] Speaker 04:
law, or even if theoretically the minor could, whether it's clear as a matter of law that the minor received a benefit and so couldn't disavow.

[00:02:45] Speaker 04:
So I would like – that's a long question.

[00:02:48] Speaker 04:
I apologize for it.

[00:02:49] Speaker 04:
But I'd like your position on what you believe the panel should do, hypothetically, if we were to agree with you, that the district court got reasonably conspicuous

[00:03:10] Speaker 03:
here.

[00:03:11] Speaker 03:
In fact, the language here tracks exactly the alternative language that this court said should be used in vermin by clicking play, you agree to that?

[00:03:20] Speaker ?:
I just wanted to be clear.

[00:03:22] Speaker 03:
Your Honor, the review is de novo on these issues, and we certainly agree with appellees that this court may affirm or reverse on these alternative grounds that were presented, and that there were three.

[00:03:38] Speaker ?:
court consider those in the first instance.

[00:03:41] Speaker 03:
However, if the court were to do that and not order this case to arbitration, I need to be candid, we would likely be right back before.

[00:03:49] Speaker 03:
So I could certainly see a more efficient path for the court to address it.

[00:03:52] Speaker 03:
We've briefed them.

[00:03:54] Speaker 03:
The one wrinkle is that plaintiffs have pointed out that the terms have since changed since the 2018 terms that were before this court.

[00:04:01] Speaker 03:
So that's one reason why we believe that the more efficient course would be remand so that there would be a more

[00:04:36] Speaker 03:
it we would submit that it's a question of law whether

[00:05:16] Speaker 04:
there's never going to be a class rep, right?

[00:05:18] Speaker 03:
Well, that's correct, Your Honor, and the way it would normally

[00:05:55] Speaker 03:
us, especially given the nature of this game and the nature of the people who play this game.

[00:05:59] Speaker 03:
In fact, four of the five named plaintiffs are adults.

[00:06:02] Speaker 03:
Oh, they certainly don't need the minor as a class representative if they were going to be allowed to proceed.

[00:06:06] Speaker 03:
That's correct, Your Honor.

[00:06:07] Speaker 03:
And I think that this affirmance issue was really, at the way at least it was argued to the district court, was primarily a way to get around the arbitration clause.

[00:06:14] Speaker 03:
In other words, even if we have a binding agreement, even if there was contract formation, the minor is not going to arbitration.

[00:06:21] Speaker 03:
The minor should remain in district court.

[00:06:40] Speaker 03:
And we did explicitly address that.

[00:06:41] Speaker 03:
Of course, it was addressed fully in the reply brief.

[00:06:43] Speaker 03:
It was not really argued in the district court.

[00:06:48] Speaker 03:
The district court issued a statement that said, you know, we're not going to be able to do this.

[00:06:54] Speaker 03:
We're not going to be able to do this.

[00:06:56] Speaker 03:
We're not going to be able to do this.

[00:06:58] Speaker 03:
We're not going to do this.

[00:07:02] Speaker 03:
exclusively on contract formation and in particular focused on this issue of conspicuousness.

[00:07:21] Speaker 03:
It concluded applying sellers that the problem was that the context of the transaction didn't have the app user creating an account as was the case in Blizzard and as was the case in sellers that would thereby communicate to the user

[00:07:43] Speaker 03:
under a de novo review because any app user understands that they are entering into um you know they're playing a video game that video game contains very valuable intellectual property for which my client has invested

[00:08:10] Speaker 03:
under the district court's view and agreement to arbitrate, that would mean that there are no rules whatsoever.

[00:08:15] Speaker 03:
The terms in this particular case involving an online game have rules of the road all the time.

[00:08:21] Speaker 03:
There's an end user license agreement.

[00:08:23] Speaker 03:
In other words, players can't screen capture images of these characters and then sell them online or use them for their own benefit.

[00:08:29] Speaker 03:
There's a code of conduct that prevents child exploitation, that prevents harassing conduct.

[00:08:49] Speaker 03:
That was another case involving an online game.

[00:08:52] Speaker 03:
And the court there expressly concluded that even though you had to sign up for an account, that wasn't material to the court's decision.

[00:08:58] Speaker 03:
What was material to the court's decision was that the transactional context was that the user, in that case a young boy, played more than 50 hours on this game, he interacted with players online, and he continued to interact with them.

[00:09:20] Speaker 03:
these players had an ongoing relationship.

[00:09:48] Speaker 01:
about if you do agree with the pellet on reasonably conspicuous notice, what then we would submit on further

[00:10:15] Speaker 01:
McGill rule and that these terms do not bind the minor plaintiff.

[00:10:20] Speaker 01:
We'll talk about reasonable conspicuous notice, but what is clear under Sellers and common sense that a child downloading the

[00:10:43] Speaker 01:
spending $6,000, they've actually signed away their right to arbitrate and all sorts of other limitations on their, on their rights to go to court.

[00:10:54] Speaker 01:
So, I'd like to jump right to a reasonable conspicuous notice in Berman.

[00:11:00] Speaker 01:
So, Your Honor, the Game of Thrones Conquest Warner Brothers provided

[00:11:14] Speaker ?:
users' attention drawn to.

[00:11:18] Speaker ?:
Here, a user's attention is drawn to striking graphics from the Game of Thrones HBO series, large huge fonts and Game of Thrones conquests, and a bright blue play button.

[00:11:32] Speaker 01:
Unmistakably, that is where the

[00:11:45] Speaker 04:
smallest font I've ever seen, by tapping play I accept the terms of use and acknowledge the privacy policy.

[00:12:29] Speaker 01:
When you say that, you're talking about privacy policy in terms of service.

[00:12:33] Speaker 01:
Correct.

[00:12:33] Speaker 01:
And also the sentence below, right?

[00:12:34] Speaker 01:
So in Oberstein, the court noted that there was blue text that captured the user's attention.

[00:12:41] Speaker 01:
In Berman, there was no blue text, there was no capital letters, there was nothing in the design of the screen that was directing the users to the terms.

[00:12:55] Speaker ?:
a little bit off about older men with glasses, making these decisions about what kids are seeing every day.

[00:13:07] Speaker 05:
And the law evolves from, this was very unusual maybe 10 or 15 years ago, but it's an everyday occurrence now that kids know how to work the internet, they know what they're doing.

[00:13:29] Speaker 05:
but linking online is something they do all the time.

[00:13:36] Speaker 05:
Correct your honor.

[00:13:37] Speaker 01:
Well certainly transactions have changed and this is

[00:14:05] Speaker 02:
letter problem, which is where the case law generally has evolved, where the arbitration clause is buried on page 13 of the 26-page single-point, 26-point font contract.

[00:14:23] Speaker 02:
As Judge Lassing points out, there's not much on this screen other than a couple of buttons, and under the play button, there is

[00:14:40] Speaker 02:
14 year old.

[00:15:32] Speaker ?:
Again, they pop up a screen and they see the terms play.

[00:15:36] Speaker ?:
And they also have no reason in this case to look below the bright blue play button.

[00:15:42] Speaker ?:
If you look to the context of transaction, what Oberstein and Sellers say, which is if a user is downloading a free software, a free application, they are less likely

[00:16:14] Speaker 02:
button to look at the privacy policy.

[00:16:16] Speaker 02:
That's it.

[00:16:18] Speaker 02:
Other than that, you know, it's go feed the dragon.

[00:16:22] Speaker 01:
Certainly, but it's not just

[00:17:27] Speaker 02:
They're just the two buttons, privacy and terms and conditions.

[00:17:59] Speaker ?:
while we can argue somewhat about conspicuous notice.

[00:18:56] Speaker 02:
There are boxes, there are...

[00:19:41] Speaker ?:
trial.

[00:20:24] Speaker 03:
Just very briefly, Your Honor, as in the cases that counsel submitted in their Rule 28 jail letter, this case calls for a very straightforward application of both Berman and Oberstein, and under those tests, the disclosure was reasonably conspicuous.

[00:20:38] Speaker 03:
We had discussed the equal footing problem that we would have if the court were to affirm the decision, but that's been fully briefed.

[00:20:45] Speaker 03:
We also didn't discuss one of the practical concerns, which is requiring users to enter personal information.

[00:21:09] Speaker 03:
issues would be very bad public policy.

[00:21:33] Speaker 03:
game.

[00:21:34] Speaker 03:
Feed the dragons for free.

[00:21:36] Speaker 03:
Their lawsuit is only on behalf of people.

[00:21:39] Speaker 03:
Your honor, I don't dispute the hunger of the dragon.

[00:21:44] Speaker 03:
You may have to pay.

[00:21:49] Speaker 03:
as your honor and you know dragons rule the realm however as someone who could tell you has played this game to learn about it for this case I'm not a big fan if I can confess although my clients listening I shouldn't say that you could play this game for free so my only point is the public injunctive relief wouldn't that benefit the significant percentage of