[00:00:00] Speaker 01:
Good morning and welcome to the Ninth Circuit.

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Before we begin arguments, Judge Gould and I would like to thank Judge Collins for visiting with us from Arizona.

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It's really a pleasure to be sitting with you and it's a big help to the court.

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Thank you.

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Okay, we have a number of cases submitted on the briefs and I'll go ahead and do that right now.

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Sabedas versus Garland, Lenez versus Garland, and Vasquez versus Garland are all submitted of the briefs as of this day.

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The first case for argument is Walking Eagle versus Google.

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Council, whenever you're ready.

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And let me just check with Judge Gould, are you able to hear us?

[00:00:41] Speaker 01:
We can't hear you yet.

[00:00:50] Speaker 01:
How about now?

[00:00:52] Speaker 00:
Can you hear me?

[00:00:53] Speaker 01:
Yes.

[00:00:53] Speaker 01:
Now we can hear you.

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And can you hear us?

[00:00:57] Speaker 00:
Yes.

[00:00:58] Speaker 01:
Perfect.

[00:01:06] Speaker 02:
Go ahead.

[00:01:06] Speaker 02:
Thank you, Your Honors.

[00:01:06] Speaker 02:
May it please the court, Phil Frietta for the plaintiff appellants.

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I'd like to reserve three minutes for rebuttal.

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This case concerns application of Oregon's automatic renewal law and free offer law to YouTube's paid subscription services, YouTube TV, YouTube Music, and YouTube Premium.

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The automatic renewal law and the free offer law are designed to protect consumers from being enrolled without their consent and knowledge into automatically renewing subscriptions or subscriptions at the end of free trials.

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The district court made

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in our view, an error in determining as a matter of law that the disclosures that YouTube made, which we submit in our papers, are inadequate under the statutes.

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were adequate and would not mislead a reasonable consumer.

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On a Rule 12 motion, we'd think that was simply premature for the district court to do.

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We note, to begin with the, what we call the checkout page, and the best example of that to follow along on is probably page 111 of the record.

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That's the YouTube TV, a screenshot of the YouTube TV checkout page.

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So this page and our

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position violates the ARL in two respects.

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First, it fails to include material terms that are required by the ARL.

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So the ARL requires that a business like YouTube disclose in a clear and conspicuous manner a defined set of terms which include the cancellation policy.

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If you look at the exhibit or the screenshot reproduced at page 111,

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You'll note that a material aspect of that policy is missing, that being the seven day policy.

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That policy is incorporated in YouTube's terms of service that are applicable to all three named plaintiffs.

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YouTube argues in the district court agreed that that's not a cancellation policy, but a refund policy.

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The problem with that argument is it simply ignores the text of YouTube's own terms of service.

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This is not an issue of statutory interpretation.

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The Oregon law does not define what a cancellation policy is.

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It's an issue of contractual interpretation.

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Both terms of service

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that are referenced in our papers refer to this as a cancellation policy.

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The May 18 terms of service from 2022 that apply to Plaintiff, Walking Eagle, and Molina say- What did you think needs to be included in this terms here?

[00:03:54] Speaker 01:
I believe that- If I've got the right refund.

[00:03:56] Speaker 02:
So the statute requires that you disclose, quote, a description of the cancellation policy.

[00:04:01] Speaker 01:
Right.

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And it says cancel any time in your account no refunds for partial months.

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Yes, it's excluding the fact that you must cancel within seven days to receive the refund.

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That is not in there.

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That's incorporated in terms of service and called a cancellation policy.

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Moreover, the other problem, and perhaps the more apt problem, is that the- Well, it says if you cancel, you may be charged for the current billing period.

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So it suggests that sometimes you'll be charged a full amount, or sometimes you won't.

[00:04:38] Speaker 02:
It does say that, but it doesn't specify the seven-day rule.

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We think seven days is material.

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Furthermore, though, it includes... Seven days from what?

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From clicking the button to start trial?

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Yes.

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For free trials, my understanding is it's seven days from the beginning of the free trial.

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That's in the June 18 terms of service at paragraph two.

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And for non-free trials, it would be seven days from the beginning of the subscription.

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But perhaps more importantly,

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and what the district court overlooked, the Oregon statute requires that the information be disclosed in visual proximity to the consent to the offer.

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That's not done here.

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A hyperlink doesn't suffice.

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And I'd point the court to Attorney A versus Bed Bath and Beyond.

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It's a district court case from the Southern District of California, cited in our papers, 517 F sub 3rd, 1132.

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And in that case, the court held, interpreting the California ARL, which is substantively identical to the Oregon ARL,

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The terms themselves, not the access point to them, must be in visual proximity.

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A hyperlink does not suffice.

[00:05:50] Speaker 01:
Moving on to the clear and conspicuous.

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That's the one I had the closest questions on, the clear and conspicuous terms.

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Sure.

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So moving on to the clear and conspicuous angle.

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Clear and conspicuous is defined in the statute.

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And it's defined to require

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There's a number of... Right, so it sets... One of the rules is that it could set off from the surrounding text of the same size by symbols or other marks.

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So there's a gray line there, right above all those terms.

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Why is that not sufficient?

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Sure.

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I think that reading fails to incorporate the series qualifier rule, which is a fundamental canon of statutory interpretation.

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The context of...

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of a disclosure is relevant to its clear and conspicuous nature.

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So YouTube and the district court read the series as an or.

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If you do one of the three, you're OK.

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But I don't read it that way.

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I think you're right on the statutory reading.

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It has to be set off by surrounding text in a manner that clearly calls attention to the language.

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So assuming that I agree with you on the statutory interpretation, why does that not fit

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Because this gray line doesn't do anything to call attention to the terms below it.

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There's no bold, there's no heading, there's no contrasting typeface, but the fact that we're even having this discussion on a Rule 12 motion, I think, highlights the fact the district court's error.

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For this court or the district court to hold on a Rule 12 motion that a reasonable... Well, I mean, if you look at this page, there's very little

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writing on it right there's maybe what two hundred i don't count two hundred words on the whole page and then the terms are all set aside in a different you know it looks differently on the page i just don't understand why that's that's not clear that's not clear convincing are clear inconspicuous or quote calls attention to that language i don't believe it is your honor it's a smaller type font it's uh... that there's nothing in here that would indicate that this uh...

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is going to be an automatic renewing trial.

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You can imagine a website that maybe would have a bold header that says automatic renewal terms or something of that sort.

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There's no bold in here even.

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There's no contrasting typeface.

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The only colors are hyperlinks.

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I just don't think this is clear and conspicuous, but again, I think that that is a

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issue a fact that is inappropriate at this juncture.

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I note that our plaintiffs allege that it was not clear and conspicuous to the point that all three of them allege that they did not know that they were going to get automatically renewed and then they had difficulty cancelling, which is a whole other point of the ARL which I would like to get to but

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I'm going to try and get there.

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Secondly, you have the free offer law to move on to that law.

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That law is, for the most part, similar to the ARL and what it requires and our arguments are more or less the same when it comes to the checkout page.

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The one thing I would note is that the free offer law in subsections F and G, 2F and 2G, require that terms

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with which the consumer must cancel to avoid incurring a financial obligation and the consumer's right to receive a refund need to be disclosed.

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So I think the seven-day policy is particularly apt for the free offer law and was not disclosed at that point.

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And again, we do not believe that the inclusion of a hyperlink is sufficient.

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This Court

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has been very clear, and other contexts and other courts have been clear as well, a maze of hyperlinks is not a sufficient way to disclose information.

[00:09:27] Speaker 00:
My counsel, Judge Gold, if I could ask you a question.

[00:09:31] Speaker 02:
Yes, absolutely.

[00:09:32] Speaker 00:
Where the language says learn more, what would, if the hyperlink says learn more,

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What would they have learned if they clicked the link?

[00:09:51] Speaker 02:
That's not in the record before this Court, Your Honor.

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My plaintiffs understand that they clicked the link and they were unable to figure out how to cancel.

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That's what all three of them allege.

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But I don't believe that's in the record about what happens if you click that link.

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And again, I think discovery will

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further bear that out about what happened.

[00:10:11] Speaker 00:
Yeah, I think I asked the question because I hadn't been able to find out what would have happened if they clicked the link.

[00:10:23] Speaker 00:
And why is it not in the record?

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You didn't make it part of the record from your complaint.

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because your clients, you allege in the complaint that your clients tried to cancel but couldn't do it.

[00:10:43] Speaker 02:
That's correct.

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All three of my clients allege that they tried to cancel and could not do it.

[00:10:47] Speaker 00:
Okay, thanks.

[00:10:48] Speaker 02:
And I believe that that I'm glad your honor brought up that question because it leads me to the cancellation mechanism the district court held without reference to anything that YouTube provided a free and easy to use cancellation method I Don't believe that's in the record our complaint certainly doesn't say so our complaint is well wasn't there an acknowledgement letter Yes, there was an acknowledgement email, and then it didn't have how to cancel on there and

[00:11:15] Speaker 02:
The acknowledgement email did have a cancellation button.

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It did?

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Or, excuse me, it had a link to something that YouTube purports would be a cancellation button.

[00:11:25] Speaker 02:
But again, there's no evidence.

[00:11:26] Speaker 01:
Why wouldn't that be an easy way to cancel if you click on that link?

[00:11:29] Speaker 02:
Well, again, there's no evidence about what happens if you clicked on that link.

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All three of my plaintiffs say they couldn't figure it out, and their complaint is also filled.

[00:11:35] Speaker 01:
But they also didn't allege they never clicked on the link, right?

[00:11:38] Speaker 01:
Well, they couldn't find the link.

[00:11:39] Speaker 02:
Did they not receive the acknowledgment email?

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The email, as we allege in the complaint and through our papers, was not clearly and conspicuously laid out to allow a consumer to find it.

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And I would note that it's not just my plaintiffs who allege that.

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Our complaint is littered with consumer complaints of other individuals who say they can't figure out how to cancel YouTube.

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This is on paragraphs 30.

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30, starting at paragraph 30 of our complaints and going on and on and on, there are pages, almost five, six pages of consumer complaints of other consumers who say they couldn't figure it out.

[00:12:14] Speaker 01:
Is there any allegation of a consumer that clicked on the link on how to cancel subscriptions in the acknowledgement email and they failed to be able to do so?

[00:12:22] Speaker 02:
I'm not aware of that being in the record.

[00:12:25] Speaker 01:
If YouTube provides a way to cancel, why shouldn't they be held to following that method?

[00:12:37] Speaker 02:
what's first the there's nothing in the a r l statutory language that would require you to follow that method it says that you to needs to provide a timely and easy to use cancellation mechanism plaintiff malina for instance alleges that

[00:12:52] Speaker 01:
So he clicked on a link on a knowledge of an email.

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Why isn't that a timely and easy way to cancel?

[00:12:57] Speaker 02:
Well, Your Honor, one could imagine a link that would be a timely and easy way to cancel.

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I can imagine a link that would open up with a big screen that says, click here to cancel.

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I can also imagine a link that would open up to another web page where you'd have to scroll down to the bottom of the web page to find the cancellation button.

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And then even if you could find it, you'd have to click through another four or five prompts before you can cancel.

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That's not in the record here.

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It's premature to make this determination.

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I know.

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That's the problem.

[00:13:22] Speaker 02:
Go ahead, Judge Cool.

[00:13:23] Speaker 00:
Counsel, I was going to say your time's now used up except for a little under three minutes.

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Because I expect the appellees to offer some arguments as to why they think the cancellation provision was easy to use.

[00:13:48] Speaker 00:
I think maybe you should reserve some time.

[00:13:52] Speaker 02:
Yes, I would like to still reserve.

[00:13:54] Speaker 02:
Okay, thank you.

[00:13:55] Speaker 02:
Thank you, Your Honor.

[00:14:02] Speaker 03:
May it please the Court, Fred Rowley, Jr., for the YouTube and Google appellees.

[00:14:07] Speaker 03:
The District Court properly dismissed plaintiffs' claims under Oregon's automatic renewal and free offer laws.

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Despite advancing multiple challenges, plaintiffs have failed to identify any statutory deficiency

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in either YouTube's disclosures or the checkout pages is what the parties have referred to them as, or it's acknowledgement emails.

[00:14:30] Speaker 03:
I'd like to start out with a question that was posed by Judge Boumete about the clear and conspicuous requirement.

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I think the issue of statutory construction has arisen and was debated in the party's briefs because the plaintiffs took the position in their brief that the mandatory terms, so the four mandated terms

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can't be, quote, and I'm quoting from page 37 of their brief, the same size, color, and font as that of the immediately surrounding text.

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And that would suggest that you can't use one of the enumerated highlighting methods, say bolding or a different color, to apply to two of the mandated terms if they're right next to each other.

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And our position is simply that can't be right.

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you have to be able to use the enumerated highlighting methods to apply to more than one of the mandated terms, even if they're adjoining, if that accomplishes the objective of setting them apart.

[00:15:25] Speaker 03:
Okay, so now we turn to the YouTube TV checkout page, which

[00:15:31] Speaker 01:
plaintiffs counsel just before you move on.

[00:15:33] Speaker 01:
So I think your argument, though, is that the part the subclause, the clause of in a matter that clearly calls attention to the language is only refers to the last method, the set off method.

[00:15:45] Speaker 03:
Your Honor, we don't think that that issue is dispositive or we don't think it's really a load-bearing issue because it doesn't substantively change the enumerated methods.

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We do think that as a matter of statutory construction, it probably applies most clearly to the last one, but it doesn't matter.

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It doesn't change the substantive meaning.

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of what's required by the statute.

[00:16:09] Speaker 01:
As a statutory, I would tend to agree with you if it didn't have a comma after other marks, but that comma seems to suggest that in a manner that clearly calls attention, it goes back to all three prior methods.

[00:16:23] Speaker 03:
Yeah, I mean, I think it could go either way.

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Our position is that it most naturally applies to and modifies the word set off.

[00:16:31] Speaker 03:
But again, not load-bearing.

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I do think the more important point is the one that Your Honor indicated when we were talking about the YouTube TV disclosure, because there is a gray line that sets apart these terms.

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But more importantly, if you take a step back, this is not a disclosure that has a page of text with the mandated terms

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buried within.

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This is a disclosure that frames the mandatory terms in a text box with a black border and presents them in a structured format with different sections and with ample spacing.

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So right out of the gate, you have this disclosure that is set out and framed and focuses on the terms within.

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The recurring charges and the renewal term, and I'm referring here to the phrase, you know, base plan, free initially, free trial, and then the charges that arise once the promotional plan ends, those are set off in contrasting text.

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Some of it is bold, some of it is in plain text, but it's all within that gray box.

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Then we turn to the paragraph that the plaintiff is focusing on,

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that has the phrase cancel anytime in your account.

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The continuing or renewing nature of the subscription, which is one of the mandated terms, and the renewal term, which is monthly, those are set off in bold.

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You will be charged the price above monthly until you cancel.

[00:18:00] Speaker 01:
And then the... Yeah, the biggest problem though is that it's smaller font than everything else.

[00:18:06] Speaker 03:
No, I would say, I apologize.

[00:18:08] Speaker 03:
It's not in bold, but together with the cancellation policy, it's all in the same font.

[00:18:12] Speaker 03:
But it is set off by that gray line.

[00:18:14] Speaker 01:
I think you would have a much stronger case if all that was in larger font than everything else, but it's in smaller font, which I think creates, you know, makes it a much closer question.

[00:18:24] Speaker 03:
I do think that's why it is important to take a step back and look at the disclosure as a whole, because it is within this text box.

[00:18:31] Speaker 03:
It does have structure in organization.

[00:18:34] Speaker 03:
Those terms that are in this paragraph, three of the mandated terms, the one I just read, the one that identifies this is a continuing subscription, the renewal term and the cancellation policy are all in the same paragraph, and they are separated by that gray line.

[00:18:48] Speaker 03:
I would draw a comparison to the disclosure that was at issue in Hall, where the court was evaluating a text box, and I'll just quote from the opinion,

[00:18:59] Speaker 03:
The terms, quote, appeared in a text box highlighted in yellow with the bolded label automatic renewal notice displayed at the top.

[00:19:08] Speaker 03:
So you had a text box that said automatic renewal notice.

[00:19:11] Speaker 03:
Within the text box, the terms were in plain font and they were not differentiated from each other.

[00:19:17] Speaker 03:
They were all in plain font.

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There was one exception.

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The cancel term was in hyperlink, but all the other terms were

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in the same font.

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It did not invalidate that disclosure, and this court found no trouble upholding it.

[00:19:33] Speaker 03:
And we think that there's actually more structure and more organization in this disclosure, and therefore it satisfies the ARL.

[00:19:42] Speaker 03:
I'd like to turn quick.

[00:19:43] Speaker 03:
Yes, Judge Gould?

[00:19:45] Speaker 00:
The question I have is, given that the complaint alleged that the plaintiffs had tried to cancel and couldn't figure out how to do it, how do you deal with the argument that the cancellation provision is not easy to use?

[00:20:10] Speaker 03:
So, Judge, I turn to the statutory text.

[00:20:13] Speaker 03:
because what the ARL requires, it requires two things in the acknowledgement.

[00:20:18] Speaker 03:
First, you've got to provide information regarding how to cancel.

[00:20:23] Speaker 03:
Second, the business has to provide a toll-free number, an electronic mail address or an email address, a post office address in some instances, and then the key phrase is another cost-effective timely

[00:20:38] Speaker 03:
an easy to use mechanism for cancellation.

[00:20:41] Speaker 03:
And the problem here is the plaintiffs don't allege, they don't allege that they or any other consumer tried the method that is provided by the acknowledgement emails and that it failed or that it didn't work or that it was hard to follow.

[00:20:57] Speaker 03:
All that you see in the complaint, and I would point to paragraph 79 of the complaint, is customer complaints that are general about how hard it is to cancel.

[00:21:07] Speaker 03:
And as the district court noted, plaintiffs failed to allege using the cancellation method provided by YouTube in the acknowledgment emails.

[00:21:17] Speaker 03:
So there's no allegation, well, I tried to go to my account, or the settings page, or I tried to use these hyperlinks, and it didn't work.

[00:21:26] Speaker 03:
And in the absence of those allegations, there are no facts, as required by Iqbal and Twombly, and as this court explained in Whittaker, there's simply no facts

[00:21:37] Speaker 03:
that establish a plausible basis to infer that this statute has been violated, because there's no factual allegations about how the mechanism that YouTube actually offered in the acknowledgment that that mechanism was not in fact

[00:21:54] Speaker 03:
timely and easy to use, and the plaintiffs can't simply assume that.

[00:21:59] Speaker 03:
They can't just assume that it doesn't work or that it isn't easy to use, nor can they, as they suggest in their opening brief, just require Google, shift the burden, require Google to come forward and point to, quote, evidence concerning every step of the cancellation flow.

[00:22:18] Speaker 03:
That's plaintiff's burden to plead, and I would point to the other mechanisms

[00:22:24] Speaker 03:
that are illustrated and set out in the statute, email, or a telephone number.

[00:22:30] Speaker 03:
Those are, by the terms of the statute, permissible means of cancellation.

[00:22:36] Speaker 03:
Those methods might also involve multiple steps.

[00:22:39] Speaker 03:
If you call a 1-800 number, there may be steps to cancel.

[00:22:43] Speaker 03:
If what a plaintiff wanted to do is show that there was a problem with that method, they'd have to plead what happens when you use that method.

[00:22:51] Speaker 03:
The same is true here.

[00:22:53] Speaker 03:
If you're gonna use the statute permits you to use another method, if it's timely and easy to use, on its face, clicking through hyperlinks or going to your settings page, just objectively, is easy to use, and the plaintiffs have to plead facts to show why, that's not true.

[00:23:11] Speaker 03:
So the district court, we believe, got it right when they said that the plaintiff simply didn't meet their burden to challenge this method.

[00:23:20] Speaker 03:
And then I'll quote from the court's order, YouTube provides a cost effective, timely, and easy to use mechanism for cancellation through allowing users

[00:23:27] Speaker 03:
to cancel any time by following the hyperlinks.

[00:23:30] Speaker 03:
And it's not enough to just say, well, generally, I had trouble trying to do that.

[00:23:35] Speaker 03:
Or generally, consumers had other sorts of complaints about the method of cancellation.

[00:23:43] Speaker 03:
There was a reference in the plaintiff's presentation to the free offer law, too.

[00:23:49] Speaker 03:
The free offer law has this separate but related requirement that the business has to

[00:23:57] Speaker 03:
cancel if the plaintiffs made or used, used or made, sorry, reasonable efforts to use the procedures that are identified for that purpose.

[00:24:07] Speaker 03:
And we think the district court got it exactly right when the court concluded that plaintiffs, again, do not allege referring back to the acknowledgement email and following the steps explaining how to cancel.

[00:24:19] Speaker 03:
It's the same sort of pleading deficiency that you see with respect to their ARRL claim.

[00:24:26] Speaker 03:
The plaintiff also opened, my friend opened his presentation by referring to the cancellation requirement, that disclosure requirement, and the idea that it encompasses refunds.

[00:24:40] Speaker 03:
But the district court rightly concluded that, and I'll quote here, that ARL's definition of offer terms includes a description of the cancellation policy that applies to the offer.

[00:24:51] Speaker 03:
But it does not include a description of refund policies.

[00:24:54] Speaker 03:
And that's right.

[00:24:54] Speaker 03:
If you look at the plain text of the statute, there are four enumerated terms, and refunds simply aren't one of them.

[00:25:02] Speaker 03:
What the plaintiffs say is that the phrase cancellation policy necessarily refers to refunds, and in particular to this seven-day

[00:25:11] Speaker 03:
a refund policy that's in the terms of service.

[00:25:14] Speaker 03:
There's both a legal response to that and a factual response.

[00:25:17] Speaker 03:
The legal response is that the statute doesn't say refund policies.

[00:25:21] Speaker 03:
To the extent that the statute could even apply to refund policies, it would only be, given that the statute's purpose and focus is on automatically renewing

[00:25:33] Speaker 03:
or continuous subscriptions.

[00:25:35] Speaker 01:
What's your response to the argument, well, that this should be governed by Google's contract terms and that because cancellation is tied to refund that they should be disclosed together?

[00:25:47] Speaker 03:
What the meaning of the statute is and what cancellation policy means and the mandated terms, that's just a matter of statutory construction and pointing to the way the terms of service are in, because this is just a general refund policy.

[00:25:59] Speaker 03:
It's not specific to

[00:26:01] Speaker 03:
continuous or automatically renewing subscriptions.

[00:26:04] Speaker 03:
Just pointing to that doesn't change the nature of the problem.

[00:26:07] Speaker 03:
The more fundamental point is, and the district court recognized this, the statute calls for the disclosure of cancellation policy.

[00:26:14] Speaker 03:
And these disclosures say cancel any time.

[00:26:17] Speaker 03:
That is the policy.

[00:26:18] Speaker 03:
It's not qualified by the seven-day requirement or the requirement as set out in that policy.

[00:26:24] Speaker 03:
that the user or consumer not use the service.

[00:26:27] Speaker 03:
That's one of the requirements.

[00:26:28] Speaker 03:
Cancel any time is not qualified by that.

[00:26:31] Speaker 03:
So I think there's also a factual response.

[00:26:35] Speaker 03:
But I go back to the language of the statute, because as the district court noted, the statute requires a description of the cancellation policy, not disclosures of the complete policy.

[00:26:47] Speaker 03:
The word description has to be given weight.

[00:26:49] Speaker 03:
And when the disclosures say cancel any time, that is an adequate disclosure of what an adequate description of what the cancellation policy is.

[00:26:59] Speaker 03:
And even if it could be construed to apply to some refunds, and I don't think that's the right reading, but even if it could, it would only apply to the payment that continues the subscription service or the payment that renews the subscription service.

[00:27:14] Speaker 03:
It would not, it would not be.

[00:27:15] Speaker 03:
I think Judge Gould has a question.

[00:27:16] Speaker 03:
Oh, sorry, Judge Gould.

[00:27:18] Speaker 00:
I have a question.

[00:27:19] Speaker 00:
Sure.

[00:27:20] Speaker 00:
I'll ask Judge Blumenthal to give you a little extra time if you need it.

[00:27:25] Speaker 00:
Of course.

[00:27:26] Speaker 00:
Since I'm interjecting here, when your time's short.

[00:27:31] Speaker 00:
But was the complaint that was dismissed, was that the initial complaint?

[00:27:37] Speaker 03:
It was not, Your Honor.

[00:27:38] Speaker 03:
It was a second amendment complaint.

[00:27:41] Speaker 00:
Was there any issue raised with this record about the leave to file a third amended complaint?

[00:27:52] Speaker 03:
I don't know, Your Honor.

[00:27:54] Speaker 03:
I don't know whether a request was made for leave to file an amended complaint or there was a reconsideration motion filed.

[00:28:00] Speaker 03:
But this is not the initial complaint.

[00:28:02] Speaker 03:
The plaintiffs did have the opportunity to replete.

[00:28:06] Speaker 03:
And I'm sure that my friend will have a sense of whether they sought some kind of relief from the dismissal order.

[00:28:15] Speaker 03:
OK, thank you.

[00:28:16] Speaker 03:
Just to sew up and finish up on the cancellation policy.

[00:28:21] Speaker 03:
So to the extent that the statute could even be read to apply to some refund policies, the disclosure addresses them.

[00:28:30] Speaker 03:
The disclosure addresses what happens when you try to cancel in the middle of a term, and it addresses the payments that could continue a service or lead to automatic renewal of the service.

[00:28:43] Speaker 03:
It says in YouTube premium,

[00:28:45] Speaker 03:
Payments won't be refunded for partial billing periods.

[00:28:49] Speaker 03:
YouTube TV, it says no refunds for partial months.

[00:28:51] Speaker 03:
So there is information in these disclosures about refunds, even to the extent it is required by the phrase cancellation policy.

[00:29:02] Speaker 03:
But we think the district court fundamentally got that right.

[00:29:04] Speaker 03:
I would like to make one last note about the .

[00:29:08] Speaker 03:
.

[00:29:08] Speaker 03:
.

[00:29:08] Speaker 03:
We have one second.

[00:29:09] Speaker 03:
One second.

[00:29:10] Speaker 03:
So this proximity challenge that we heard.

[00:29:13] Speaker 03:
That was waived in the opening brief.

[00:29:17] Speaker 03:
The plaintiffs didn't present that challenge.

[00:29:19] Speaker 03:
They did in the district court, but it wasn't renewed.

[00:29:22] Speaker 03:
The focus when it comes to consent was on this idea that you needed to have check boxes next to or near the mandated terms, and the district court properly rejected that challenge as well.

[00:29:34] Speaker 01:
Thank you, counsel.

[00:29:46] Speaker 02:
Thank you, may it please the court.

[00:29:49] Speaker 02:
To respond briefly, first to the question Judge Gold had, there was only one decision on a motion to dismiss.

[00:29:56] Speaker 02:
There were amendments to the complaint prior, but none of them were in response to a motion to dismiss.

[00:30:01] Speaker 02:
The motion to dismiss was granted with prejudice, and we were not given leave to amend.

[00:30:05] Speaker 02:
So that's why we appealed the order.

[00:30:07] Speaker 01:
Did you request leave to amend?

[00:30:09] Speaker 02:
I believe we requested it in the brief, but I'm not certain.

[00:30:17] Speaker 02:
But moving on to the cancellation.

[00:30:21] Speaker 02:
I think there's two problems with my adversary's argument.

[00:30:26] Speaker 02:
The argument that the plaintiffs did not go through the methodology that you two provided or explained it in the complaint is kind of using a sword as a shield.

[00:30:36] Speaker 02:
If the plaintiffs alleged that they couldn't find the mechanism because it wasn't clearly and conspicuously disclosed, how were they supposed to then use it?

[00:30:43] Speaker 01:
Well, you haven't alleged that it wasn't described in the acknowledgment, right?

[00:30:49] Speaker 02:
Well, the acknowledgment describes that it was simply hyperlinked, which is insufficient.

[00:30:54] Speaker 01:
No, I mean, the statute says another cost-effective, timely, and easy-to-use mechanism for cancellation that must be described in the acknowledgement.

[00:31:02] Speaker 02:
Yes.

[00:31:03] Speaker 01:
So you haven't alleged that there was not an acknowledgement and that it didn't include a method of cancellation.

[00:31:09] Speaker 02:
A hyperlink is not a description, Your Honor.

[00:31:10] Speaker 02:
That's the position that we would take.

[00:31:12] Speaker 02:
And we think that the Dutcher versus Google case that we cite in our papers supports that.

[00:31:19] Speaker 01:
Wait, so you're saying that you agree that there was an acknowledgement, right?

[00:31:22] Speaker 02:
I agree there was an acknowledgment.

[00:31:23] Speaker 01:
And then that acknowledgment had terms on how to cancel.

[00:31:27] Speaker 02:
A mechanism had a hyperlink.

[00:31:29] Speaker 02:
It did not have terms on how to cancel.

[00:31:31] Speaker 02:
It had a hyperlink.

[00:31:32] Speaker 01:
OK, it had a mechanism for cancellation.

[00:31:34] Speaker 02:
Again, we don't know what that hyperlink would have brought, which brings me to my next point.

[00:31:38] Speaker 02:
I'd like to cite into the, and I believe to cite in our papers, recent case out of the Western District of Washington, FTC versus Amazon.

[00:31:46] Speaker 02:
And there, the district court held that in distinguishing this very case,

[00:31:51] Speaker 02:
that, quote, the court did not examine the complexity of the actual cancellation process once the consumer clicked on the link.

[00:31:57] Speaker 02:
So this case does not support Amazon's position.

[00:31:59] Speaker 01:
I mean, but that's the whole problem.

[00:32:00] Speaker 01:
You're not alleging what happens when you click on the link.

[00:32:02] Speaker 02:
I don't believe I need to allege that.

[00:32:04] Speaker 02:
I think I, and I, but finally, if your honors do think I need to allege that, I'd note that paragraph 32, some of the consumer complaints that we've referenced, our consumers, one says, I can't cancel my premium because the button does not work.

[00:32:17] Speaker 02:
I have followed the on-site directions.

[00:32:19] Speaker 02:
I can't cancel.

[00:32:20] Speaker 02:
I have followed these steps.

[00:32:21] Speaker 02:
But when I get to the pause or cancel page, I can't scroll down.

[00:32:24] Speaker 02:
So there are allegations in there.

[00:32:27] Speaker 02:
OK.

[00:32:27] Speaker 00:
Thank you.

[00:32:29] Speaker 00:
Council.

[00:32:30] Speaker 02:
Yes.

[00:32:31] Speaker 00:
So I have a question.

[00:32:33] Speaker 00:
Does your opening brief raise an issue about whether you should have been allowed to amend further?

[00:32:44] Speaker 02:
I do not believe that issue is raised in our opening brief, no.

[00:32:48] Speaker 00:
the way of circuit law saying generally if an issue's not raised in an opening brief, it's waived or forfeit.

[00:33:00] Speaker 00:
And so do you have any response to that?

[00:33:03] Speaker 02:
I'm not asking your honors to give me leave to amend.

[00:33:06] Speaker 02:
I'm asking your honors to overturn the order and remand the case for further proceedings.

[00:33:10] Speaker 00:
OK, thank you.

[00:33:11] Speaker 02:
Thank you.

[00:33:12] Speaker 01:
Thank you, counsel.

[00:33:12] Speaker 01:
This case is submitted.