[00:00:13] Speaker 01: Thank you, everyone. [00:00:14] Speaker 01: The next case on calendar for argument is the Desert Financial Credit Union versus Cornell. [00:00:22] Speaker 01: Good morning, counsel. [00:00:23] Speaker 03: Good morning, your honors. [00:00:24] Speaker 03: May it please the court, David Norris for Desert Financial Credit Union. [00:00:28] Speaker 03: The district court misconstrued a single sentence in the Arizona Supreme Court's decision in Cornell to commit three separate legal errors. [00:00:38] Speaker 03: First, the district court erred by holding that Cornell altered the restatements test rather than adopting it. [00:00:45] Speaker 03: Second, the district court erred by holding that Cornell rejects the incorporation by reference doctrine. [00:00:52] Speaker 03: And third, the district court erred by denying desert financials modification under restatement section 3B based on the supposed lack of notice as to the opt-out when no opt-out is required under restatement section 3B. [00:01:06] Speaker 04: Would you go right into the second factor of the restatement test and tell us why you should prevail? [00:01:14] Speaker 03: And just so we're clear, by the second factor, do you mean a reasonable opportunity to reject the proposed change and reasonable notice of that opportunity? [00:01:25] Speaker 04: The notice, where you've got a hyperlink or a link that's taking you to terms and conditions. [00:01:30] Speaker 03: Do you mean incorporation by reference? [00:01:32] Speaker 01: Correct. [00:01:33] Speaker 01: The banner gave certain information, but then you had to go into a hyperlink to get the part that actually talked about opt out. [00:01:41] Speaker 01: Is that fair? [00:01:42] Speaker 01: Is that a fair reading of the record? [00:01:43] Speaker 01: That is correct. [00:01:44] Speaker 01: Okay. [00:01:44] Speaker 01: So I'm sorry. [00:01:46] Speaker 04: I didn't mean to usurp your question. [00:01:48] Speaker 04: No, you probably improved it. [00:01:51] Speaker 01: So then why is it that it was adequate notice if the banner, which was highly visible, did not include the language that she had to go into the link to find? [00:02:02] Speaker 01: That's my question. [00:02:04] Speaker 03: Sure, Judge Rawlinson. [00:02:05] Speaker 03: I would point the court to illustration six from the statement section three. [00:02:11] Speaker 03: And illustration six says that if you include information about the change in terms at the back of the monthly statement, that is a sufficient way, that is reasonable notice of the modification. [00:02:24] Speaker 01: So she had a physical statement. [00:02:26] Speaker 01: Correct. [00:02:28] Speaker 01: something on the back of that statement, that would be sufficient. [00:02:31] Speaker 01: So is it your argument that putting a link is the equivalent of putting a statement on the back of a physical statement, putting information on the back of a physical statement? [00:02:43] Speaker 03: That's correct, Judge Robinson, except for I would say Desert Financial did one better. [00:02:48] Speaker 03: Is instead of just putting something at the back of the physical statement, we put a bright orange and blue banner. [00:02:54] Speaker 03: at the very top of the first page of the statement that took up a third of the page and said, notice, we are changing our terms to change how we will resolve legal disputes. [00:03:05] Speaker 00: Illustration 6 says that that satisfies the notice requirement of A1. [00:03:11] Speaker 00: What about A2, which seems to really be the focus here? [00:03:15] Speaker 03: Well, it is true that Illustration 6 talks about A1. [00:03:18] Speaker 03: That's correct. [00:03:19] Speaker 03: But Illustration 6 is talking about the reasonableness of the notice of the proposed modification. [00:03:25] Speaker 03: And so if telling consumers, if just alerting them to the fact that there is a modification at all is sufficient if you put it at the very back of the proposed statement, then putting a bright orange banner on the top, alerting them that there's been a change, and then putting information about the opt-out through a link, which is equivalent to attaching it to the back [00:03:44] Speaker 00: A2 says that the consumer has to receive reasonable notice of the opportunity to reject the proposed modified term. [00:03:58] Speaker 00: Correct. [00:03:58] Speaker 01: The banner didn't have that. [00:03:59] Speaker 01: You agree. [00:04:00] Speaker 01: The banner did not give notice of the ability to reject the terms. [00:04:05] Speaker 03: I disagree with that. [00:04:06] Speaker 01: The banner itself. [00:04:07] Speaker 01: It was not written on the banner. [00:04:10] Speaker 03: Sure. [00:04:10] Speaker 03: I agree that within the four corners of the banner, the words opt out did not appear. [00:04:15] Speaker 00: Within the banner... Is there anything equivalent to opt out within the four corners? [00:04:19] Speaker 03: Well, I guess not to get tied up in semantics, but I guess what it means anything equivalent because there's a link that says if you want more information about the change in terms, [00:04:29] Speaker 03: click this link for that more information, as the district court correctly held, it could not envision how a reasonable consumer... For A2, you're relying entirely on material that they would find if they click through the link. [00:04:41] Speaker 00: There's no component of the A2 notice that's also in the banner. [00:04:46] Speaker 03: Correct, but that is our position on what the legal error in this case was. [00:04:51] Speaker 00: Illustration 6 in A1 is you've got something in the banner and the rest of it you'll find in the link. [00:04:59] Speaker 00: Here, nothing on the opt-out is in the banner. [00:05:03] Speaker 00: It's all in the link, and it seems to read the reasonable notice of opt-out requirement out of the test. [00:05:10] Speaker 03: I disagree for a couple reasons. [00:05:13] Speaker 03: One of the reasons being that the test for reasonable notice in the restatement [00:05:18] Speaker 03: for statement three, comment three, is the totality of the circumstances test. [00:05:22] Speaker 03: That's how you assess whether the notice is reasonable, is you look at the totality of the circumstances. [00:05:26] Speaker 03: That includes things like the clarity, the sequence, the flow of how the information is presented, the flow necessarily entailing. [00:05:34] Speaker 03: There is a flow of information, one banner or one disclaimer to another one. [00:05:38] Speaker 03: It talks about the totality of the consumer's interactions with the businesses and the ease and simplicity with which a consumer can identify [00:05:47] Speaker 03: the terms themselves. [00:05:49] Speaker 04: And Counsel, what is the standard of review here? [00:05:53] Speaker 04: Are we analyzing de novo, whether the totality is satisfied, or are we deferring to what the district court determined? [00:06:03] Speaker 03: I would say there's two, I would say two potentially separate questions, both of which are de novo. [00:06:07] Speaker 03: So the first question, which is our first point in this appeal, is the district court [00:06:11] Speaker 03: applied the wrong test, got the test from Cornell wrong. [00:06:14] Speaker 03: That is a question of law, pure question of law that's reviewed de novo. [00:06:18] Speaker 03: We know that the district court got the test wrong, or at least believed that Cornell changed the restatement test instead of adopting it, because that's what the district court said. [00:06:27] Speaker 03: The district court said Desert Financial satisfied the restatements test under Restatement 3 and the totality, but there's this additional requirement, and that's a pure legal error. [00:06:37] Speaker 00: But, you know, this was certified to the Arizona Supreme Court, and they get the last word, and not us, on what Arizona law is. [00:06:45] Speaker 00: And what the sentence says is, at minimum, [00:06:48] Speaker 00: reasonable notice requires that the initial terms or the notice of the proposed modification expressly indicate the consumer's ability to opt out. [00:07:00] Speaker 00: The notice of the proposed modification, the notice of the proposed modification is the banner, and the banner does not expressly indicate the consumer's ability to opt out. [00:07:12] Speaker 03: Well, I disagree that the notice of the proposed modification is limited to the banner. [00:07:16] Speaker 03: That's for Statement Section 3, Comment 3. [00:07:18] Speaker 03: that says what the notice is is assessed under the totality of the circumstances. [00:07:22] Speaker 03: It's not a single disclosure. [00:07:23] Speaker 03: It's the entirety of the disclosure. [00:07:24] Speaker 01: In your view, what constitutes the notice? [00:07:27] Speaker 01: The banner plus what? [00:07:28] Speaker 03: The notice is the information that Desert Financial provided to consumers. [00:07:33] Speaker 01: And what was that information? [00:07:34] Speaker 01: Be specific. [00:07:35] Speaker 01: Sure. [00:07:35] Speaker 01: In your view, what was the notice that was given of the change in terms? [00:07:40] Speaker 01: The banner? [00:07:42] Speaker 01: Correct. [00:07:42] Speaker 01: Plus what? [00:07:43] Speaker 03: Plus all of the information accessible via the link desertfinancial.com. [00:07:47] Speaker 01: So if Ms. [00:07:49] Speaker 01: Cornell had clicked on that link, what would have come up? [00:07:55] Speaker 03: It's the disclosure page at Desert Financial that lists the various disclosures applicable to the account. [00:08:00] Speaker 03: The statement of terms and conditions is the third link. [00:08:02] Speaker 01: And the opt out is where? [00:08:04] Speaker 03: So then if you go to the terms themselves, the opt out is in the dispute resolution provision, which is the specific section that Desert Financial told its members that they should review as part of this change to learn additional information. [00:08:18] Speaker 01: So Council, in my opinion, your argument would be a little stronger if you clicked on the link and another banner came up saying you have the right to opt out, or some similar language, but for the link to include [00:08:33] Speaker 01: a number of terms, the opt out provision [00:08:37] Speaker 01: But among them, I'm not sure that that's reasonable notice. [00:08:40] Speaker 03: I understand that, Judge Rawlinson. [00:08:41] Speaker 03: I'll say that the district court looked precisely at this. [00:08:45] Speaker 03: And what's something interesting about the district court opinion is that when talking about the notice of the proposed modification, whether there was a reasonable notice of the proposed modification, the district court looked at all of these factors. [00:08:55] Speaker 03: It looked at how simple and easy it was to type in desertfinancial.com slash disclosures. [00:09:00] Speaker 03: It looked at how easy it was to then navigate to the terms and conditions. [00:09:04] Speaker 01: That's not what the Arizona Supreme Court said. [00:09:07] Speaker 01: in terms of what reasonable notice is. [00:09:09] Speaker 01: That's the problem. [00:09:10] Speaker 01: You have to have expressed it. [00:09:11] Speaker 01: And if you have to navigate to get the information, I'm not sure that meets the definition of being expressed notice. [00:09:18] Speaker 03: Well, if you look at the dispute resolution provision, which the banner directs consumers to read, it says, read the dispute resolution provision. [00:09:25] Speaker 03: If you look at the dispute resolution provision, which again, the district court said he could not envision how a reasonable consumer directed to this provision by the banner could miss it. [00:09:33] Speaker 00: Correct. [00:09:35] Speaker 00: You would win if what this sentence says is that it requires that the proposed modification expressly indicate the consumer's ability to opt out, because you've met that here. [00:09:47] Speaker 00: The proposed modification clearly expresses the opt, but they said the notice of the proposed modification, which is something other than the proposed modification, and here it's the banner. [00:10:00] Speaker 03: Respectfully, Judge Collins, I disagree for two reasons. [00:10:02] Speaker 03: The first reason is that's not what the restatement, under the restatement, section three, the notice of the proposed modification is the information provided to consumers. [00:10:12] Speaker 01: Your counsel, we have to go with how the Arizona Supreme Court interpreted the restatement because that's what they said they were relying on to address this issue. [00:10:24] Speaker 01: When we as a court [00:10:27] Speaker 01: ask the state court to answer a question, we tell them we will follow your ruling. [00:10:32] Speaker 01: We are bound by your ruling. [00:10:34] Speaker 01: And so we are bound by the state court's interpretation of the restatement. [00:10:38] Speaker 01: And I understand that you have a different interpretation of the restatement, but we have to go by what the Arizona Supreme Court said. [00:10:45] Speaker 03: I understand that, but my position is that the error was construing this sentence as modifying the restatement test. [00:10:51] Speaker 03: And let me tell you why. [00:10:52] Speaker 03: This section, this sentence at issue, if you look at it, it cites Restatement 3A. [00:10:57] Speaker 03: That's the support for this sentence. [00:10:59] Speaker 03: It appears in Section 2B of the opinion where the Arizona Supreme Court is explaining all of the reasons why it is adopting the restatement. [00:11:08] Speaker 03: We adopt the restatement. [00:11:09] Speaker 03: This is paragraph 25, the beginning of Section 2B. [00:11:12] Speaker 03: We adopt the restatement because Restatement Section 3's position, I'm quoting here, merits our adoption. [00:11:18] Speaker 03: It sets forth sound, it's consistent with Arizona contract law and sets forth sound public policy. [00:11:23] Speaker 03: And so our position is it was error to construe a sentence, citing the restatement in a section about all of the reasons the Arizona Supreme Court is adopting the restatement. [00:11:34] Speaker 01: But here's the problem with your argument, counsel. [00:11:36] Speaker 01: If a court says it's adopted the restatement, it still maintains the right [00:11:42] Speaker 01: to interpret that restatement in a way that it is of the view is consistent with its law. [00:11:50] Speaker 01: So it doesn't have to adopt the restatement verbatim. [00:11:54] Speaker 01: It can adopt the restatement principles and then interpret those principles in such a way as to complement its law. [00:12:03] Speaker 01: And so that's how I see this sentence. [00:12:07] Speaker 01: It's not [00:12:08] Speaker 01: misinterpreting the restatement, it's just the Arizona Court's interpretation of how the restatement works under its law. [00:12:17] Speaker 03: There's no question, Judge Rawlinson, that the Arizona Supreme Court could have modified the restatement test, added a requirement. [00:12:22] Speaker 03: I don't disagree with that. [00:12:24] Speaker 03: The question is whether it did. [00:12:26] Speaker 01: We have to go by what it said. [00:12:28] Speaker 01: That sentence says what it says. [00:12:30] Speaker 03: Sure. [00:12:31] Speaker 03: And that sentence does not say that the notice of proposed, we're adding additional requirement to what the notice of proposed modification is. [00:12:37] Speaker 01: It doesn't have to say that. [00:12:38] Speaker 01: All it has to say is what it says. [00:12:39] Speaker 01: And that's the rule of law. [00:12:42] Speaker 03: But if under the restatement, if under restatement section three, comment three, what the notice is, [00:12:47] Speaker 03: is assessed under the totality of circumstance, if what the notice is looks at things like the clarity, sequence, flow of information, the simplicity with which you identified the terms, the totality of the consumer's interactions with the businesses, the restatement is saying the notice of the proposed modification is not one single disclosure. [00:13:05] Speaker 01: The Arizona Supreme Court considered all of that that's in the restatement and came up with this sentence? [00:13:11] Speaker 03: Yep. [00:13:11] Speaker 03: I agree. [00:13:13] Speaker 03: We are applying that sentence, I guess, is what I would say, Judge Rawlinson. [00:13:16] Speaker 03: And I would say is when you're looking at applying that sentence, which says, at a minimum, the notice of the proposed modification must have expressed notice of the opt-out, what the notice of the proposed modification is, is determined and adjudged by what the restatement says the notice of the proposed modification. [00:13:31] Speaker 00: I'm not sure I agree with your assertion that that sentence changes the restatement because, you know, under your view, you could just [00:13:43] Speaker 00: erase A2 and really nothing would change in the real world because so long as there is an opt-out in the agreement itself, the notice of opt-out is automatically satisfied. [00:13:56] Speaker 00: And then there's in the relevant discussion in the restatement, which is, is paragraph four and then the three examples, eight, nine, and 10, there's no example that supports what you're saying. [00:14:07] Speaker 00: I mean, there's none that goes the other way either, but it doesn't. [00:14:12] Speaker 00: Help us on this point. [00:14:14] Speaker 03: So one point, if I can answer the question, then reserve my time for rebuttal. [00:14:18] Speaker 03: I disagree that we're suggesting anything changes the restatements test itself. [00:14:23] Speaker 03: you obviously have to give reasonable notice under A2 of the right to opt out. [00:14:29] Speaker 03: And the district court in this case held that if the restatements test applied, we would have satisfied that test because the banner was so obvious, it directed to the terms, and then there was expressed notice in plain day, in all caps letters, you may opt out. [00:14:43] Speaker 03: You do not have to read this arbitration provision. [00:14:45] Speaker 03: The district court believed [00:14:46] Speaker 03: That was reasonable notice under A2. [00:14:49] Speaker 03: The district court just believed that there was this additional requirement that Cornell added. [00:14:52] Speaker 03: That's our position that that was the legal error, which this court reviews de novo, and I'll reserve the rest of my time. [00:14:57] Speaker 01: Thank you, counsel. [00:15:05] Speaker 02: Good morning. [00:15:07] Speaker 02: Your honors, may it please the courts. [00:15:08] Speaker 02: Good morning. [00:15:09] Speaker 02: Stephen Haskins for Eve Cornell. [00:15:13] Speaker 02: I agree with you on Section 3A. [00:15:16] Speaker 02: And I'm not sure if you want me to address it. [00:15:18] Speaker 02: If you would like me to address 3B, I can address 3B. [00:15:23] Speaker 02: Or if you don't want me to address 3B, I'm willing to submit. [00:15:27] Speaker 00: Well, would you respond to his argument that, look, it's clear that in assessing whether the notice is reasonable, you look at all the circumstances. [00:15:38] Speaker 00: And that test clearly applies both to A1 and to A2. [00:15:43] Speaker 00: Sure. [00:15:43] Speaker 00: And so that would suggest that you can look at both the banner and the attachment in assessing the reasonableness of the notice. [00:15:54] Speaker 00: What's your response to that? [00:15:55] Speaker 02: I just think you have to go right back to the Arizona Supreme Court. [00:15:58] Speaker 02: The Arizona Supreme Court was very clear about what express notice is in Arizona. [00:16:03] Speaker 02: Another Supreme Court may have come up with a different formulation of what reasonable notice might have been, but that's what worked for Arizona. [00:16:11] Speaker 02: Arizona created a law for Arizona, not just for this case, but for this case and all cases going forward, and that's what Arizona law said is the minimum that you have to do. [00:16:23] Speaker 02: And so that's my response, and that's what we've always thought 3A comes down to, is that [00:16:30] Speaker 02: the Cornell decision to find express notice, and they didn't get it. [00:16:43] Speaker 00: What is your response on 3B? [00:16:45] Speaker 02: On 3B, I think it's really just another textual issue. [00:16:51] Speaker 02: Section 3B says that a business can establish a contract for, quote, a reasonable procedure for the adoption of modified terms. [00:17:00] Speaker 02: But there's no real procedure in the initial terms. [00:17:04] Speaker 02: Desert just says notice will be provided by law, but it doesn't say how or when. [00:17:08] Speaker 02: And at best, if Desert is going to provide notice required by law, that means it has to satisfy Cornell. [00:17:14] Speaker 02: So right there, its 3B argument fails. [00:17:18] Speaker 02: There's an exception. [00:17:19] Speaker 02: to Section 3B, and that says if a business adopts a procedure in its additional terms, which it didn't do, but if it had, it can, quote, replace. [00:17:29] Speaker 02: Replace meaning swap out, do away with, change, take out and put back in. [00:17:36] Speaker 02: The reasonable opportunity to reject the proposed modification with a reasonable opportunity to terminate the transaction. [00:17:42] Speaker 02: That's not what they did. [00:17:44] Speaker 02: They did not attempt to replace, they attempted to create an opt-out. [00:17:48] Speaker 02: And having attempted to create an opt-out under 3A, they were within 3A. [00:17:53] Speaker 00: So under the opt-out provision, it would have been a termination? [00:17:56] Speaker 02: Well, the opt-out wouldn't have been a termination at all. [00:17:59] Speaker 02: The opt-out would have meant that the consumer would have continued staying with Desert, but not under that particular term. [00:18:06] Speaker 02: A termination is the opposite. [00:18:08] Speaker 02: A termination says, [00:18:09] Speaker 02: We don't want you to be our customer anymore. [00:18:11] Speaker 02: Of course, that's not what businesses really want. [00:18:13] Speaker 02: So, you know, they're generally going to do more opt-outs than terminations, and that's what Desert Financial did here. [00:18:19] Speaker 02: So we think Section 3B, their argument is really just sort of a post-facto argument, and Judge Lanzar recognized this, that they failed under 3A, they wanted to find recourse under 3B, and it's just not there because they didn't try to replace the opt-out. [00:18:35] Speaker 02: And honestly, that's all I have. [00:18:37] Speaker 02: I'm happy to read [00:18:38] Speaker 02: I'm happy to answer any more questions or yield. [00:18:44] Speaker 01: If there are no other questions. [00:18:45] Speaker 01: Thank you, counsel. [00:18:46] Speaker 02: Thank you. [00:18:47] Speaker 01: Rebuttal. [00:18:52] Speaker 01: We'll give you two minutes for rebuttal since opposing counsel was so generous with his time. [00:18:57] Speaker 03: Thank you, Judge Robinson. [00:18:58] Speaker 03: I appreciate that. [00:18:59] Speaker 03: I just have a couple points on rebuttal. [00:19:02] Speaker 03: The first of which is you just heard from opposing counsel. [00:19:06] Speaker 03: They don't dispute. [00:19:08] Speaker 03: their position, their construction of Cornell, is it changes the Restatement's test. [00:19:13] Speaker 03: And that's why I go back to the first error we contend the District Court made. [00:19:17] Speaker 03: That's what the District Court construed it as well. [00:19:20] Speaker 03: And that is an odd way to read Cornell. [00:19:23] Speaker 03: In a section about why the Supreme Court is adopting the Restatement because it sets forth sound public policy, in a sentence that cites to Restatement 3A, that is an odd way to read that sentence and that section of the opinion [00:19:36] Speaker 03: to alter the restatements test and add an additional requirement. [00:19:41] Speaker 03: The second point I want to discuss is briefly is 3B. [00:19:46] Speaker 03: There was a 3B modification procedure in the initial terms. [00:19:51] Speaker 03: The terms said that Desert Financial may update these terms and we will provide you notice. [00:19:57] Speaker 03: By continuing to maintain your accounts at Desert Financial after such changes occur, you agree to be bound by these changes. [00:20:05] Speaker 03: That expressly tells consumers that if they do not want to agree to a modification, they can terminate their accounts. [00:20:12] Speaker 03: That's why the Arizona Supreme Court in paragraph 17 determined that plaintiff, quote, was free to terminate her accounts with Desert Financial at any time. [00:20:22] Speaker 03: So the only other question then is whether 3A, the argument you heard today, that 3A and 3B have to be mutually exclusive because of this replace language. [00:20:32] Speaker 00: All 3B does is [00:20:35] Speaker 00: It doesn't derogate from A, it just says you can, the rule in A is modified, that you can replace the opt-out requirement and the notice of opt-out with a termination. [00:20:52] Speaker 00: But this doesn't invoke that because you don't have it as a termination in the language that is here. [00:20:59] Speaker 00: And so therefore, why is 3B relevant at all? [00:21:02] Speaker 03: I see my time's expired, can I? [00:21:04] Speaker 01: Please answer. [00:21:06] Speaker 03: 3b under Cornell under the sentence we've been talking about says that the notice can appear in the initial terms or the notice of the proposed modification and this was the error the district court made in saying well that that seems to go more to this citation that [00:21:24] Speaker 00: to the Miracle Pond case, but I didn't see where you're claiming that you fit Miracle Pond. [00:21:30] Speaker 03: This is the first paragraph of the Desert Financial's terms and conditions, the initial terms that plaintiff agreed to when she opened her account. [00:21:38] Speaker 03: It said Desert Financial may change these terms at any time. [00:21:41] Speaker 03: We will provide you notice when we do. [00:21:43] Speaker 03: By continuing to maintain your accounts at Desert Financial after such changes occur, [00:21:49] Speaker 00: Correct, but there's no opt-out there. [00:21:51] Speaker 00: In Miracle Pond, there was an opt-out included in the original agreement. [00:21:56] Speaker 00: And that's the point, is that you're outside, you'll meet 3A if you had it in the original with the opt-out, but you didn't. [00:22:05] Speaker 03: Well, respectfully, Judge Collins, I disagree that we needed to have an opt-out under 3B. [00:22:09] Speaker 00: The entire point of 3B is that... Maybe I'm confusing things, because I'm actually kind of going back to the 3A issue. [00:22:19] Speaker 03: Okay, so I mean, my view is under 3B, we have the procedure in the initial terms. [00:22:26] Speaker 03: It says you can terminate upon an update. [00:22:27] Speaker 03: That's why the Arizona Supreme Court said that she was free to terminate at any time. [00:22:31] Speaker 03: And with respect to the argument that they have to be mutually exclusive, that's inconsistent with the restatement, which says you may replace the opt-out with a termination procedure. [00:22:40] Speaker 03: Not that you have to replace the opt-out with a termination procedure. [00:22:43] Speaker 03: You can have both at the same time. [00:22:45] Speaker 01: That's not how this was presented, though. [00:22:46] Speaker 01: It wasn't presented as a termination. [00:22:48] Speaker 01: It was presented as a notice of change of terms. [00:22:53] Speaker 03: Well, correct. [00:22:54] Speaker 03: But under 3B, to Judge Collins' question earlier, you can't derogate from 3A, other than you can get rid of the opt-out with a termination procedure. [00:23:03] Speaker 03: As Cornell says, that termination procedure, the notice of that can be the initial term. [00:23:07] Speaker 03: So what I mean is we had to provide notice either way under 3A or 3B under the requirements of the restatement. [00:23:16] Speaker 01: All right. [00:23:16] Speaker 01: Thank you, counsel. [00:23:17] Speaker 03: Thank you, your honor. [00:23:18] Speaker 01: Thank you to both counsel for your helpful arguments. [00:23:19] Speaker 01: The case just argued is submitted for decision by the court.