[00:00:00] Speaker 00: Good morning, Your Honors. [00:00:01] Speaker 00: May it please the court, Brian Kussud, Venable LP, on behalf of the defendant appellant, Land's End, Inc. [00:00:06] Speaker 00: I'd like to reserve three minutes for rebuttal and I'll keep track of the time on my end. [00:00:10] Speaker 00: Thank you. [00:00:10] Speaker 01: All right. [00:00:13] Speaker 00: There's no dispute in this case that a contract was formed between Mr. Plata, the plaintiff, and Land's End, Inc. [00:00:20] Speaker 00: on November 16, 2022, when he purchased goods from Land's End's website. [00:00:26] Speaker 00: That's [00:00:26] Speaker 00: page 327 of the record paragraph 110 of the complaints, which asserts, among other things, a breach of contract claim against Land's End. [00:00:35] Speaker 00: So the only issue is, what were the terms of the contract that was entered into on November 16th of 2022, and specifically, whether those terms included Land's End's online terms of use? [00:00:47] Speaker 00: That, as I'm sure the court is aware, is governed- So what do we do with the broken link? [00:00:51] Speaker 00: Sure. [00:00:52] Speaker 00: Great question, Your Honor. [00:00:53] Speaker 00: So I think that a couple of thoughts on that. [00:00:57] Speaker 00: First, as I think we noted in our briefs, [00:01:00] Speaker 00: there's no case law that really addresses this specific issue. [00:01:05] Speaker 00: And I think that the record is clear in terms of the evidence on this issue, and the question is simply a legal question of what is the proper standard to employ in dealing with this kind of situation. [00:01:17] Speaker 00: The record shows that in March of 2023 and thereafter, there's evidence that the link, if you clicked on the link that's directly below the place order button, it would go to the, [00:01:31] Speaker 00: help center webpage for Lands End and not directly to the terms of use identified there. [00:01:37] Speaker 00: But there's no direct evidence that that occurred as of the date of purchase or immediately surrounding the date of purchase, which was four and a half months earlier in November of 2022. [00:01:46] Speaker 00: I think the problem with the district court's analysis and why it was clearly erroneous is that the standard that the district court basically adopted [00:01:56] Speaker 01: Wait, wait, are you saying something that's different than what you said below? [00:02:02] Speaker 01: Because I thought that below there wasn't really a dispute that the link was in fact broken. [00:02:10] Speaker 01: It wasn't a dead link, but it took you to the home page and then eventually if you can ferret out the terms of [00:02:16] Speaker 01: service, I think by typing it in or something like that, but it was a broken link in the sense that it didn't direct the user to the terms of service page. [00:02:29] Speaker 01: Is that a dispute now? [00:02:31] Speaker 00: No, and I apologize if I was unclear, Your Honor. [00:02:34] Speaker 00: Let me try to clarify further. [00:02:37] Speaker 00: I think the record is clear that as of March 28, 2023 and thereafter, [00:02:45] Speaker 00: If you clicked on the link that's below the place order button on Land's End's checkout page, it would go to the help center. [00:02:53] Speaker 00: I think you're referring to an argument that was made below which we are not making on appeal that [00:02:59] Speaker 00: If you got directed to the help center, you could also type in terms of use on the help center, and I think the word you used just now was ferret out the link, which I know is in some of the case law as well. [00:03:12] Speaker 00: We're not making that argument on appeal. [00:03:14] Speaker 00: I think the issue with the district court's decision with respect to this misdirecting hyperlink [00:03:20] Speaker 00: is that it's not tied closely enough. [00:03:23] Speaker 00: The evidence that it misdirected is not tied closely enough to the date of purchase. [00:03:28] Speaker 00: And if you think about it in the context of this class action, I think it kind of illustrates the point because this is a class action where the claims in the putative class goes back to June, July of 2020. [00:03:45] Speaker 00: And this has not been addressed yet below, obviously, but I think it illustrates the problem with the district court standard, if you don't tie this evidence closely to the date of purchase, is that you have a situation where we believe the notice that Lands End provides on its website is sufficient under this court's precedent to bind a consumer under an inquiry notice standard. [00:04:09] Speaker 00: So assuming that that's right, [00:04:11] Speaker 00: A contract would have been formed in July of 2020, say, if a consumer bought goods on Lands End's website at that time. [00:04:18] Speaker 00: But we're saying that evidence that the link misdirected in March of 2023 into 2024 somehow undermines or invalidates what would otherwise have been contract formation at the time of July of 2020. [00:04:33] Speaker 00: That's not a workable standard in our view. [00:04:37] Speaker 00: I think that if you... [00:04:40] Speaker 00: think about it in terms of this has not really been addressed in the case law. [00:04:44] Speaker 00: I'm not aware of any case that deals with this specific facts. [00:04:47] Speaker 00: But as I was trying to prepare for this argument and think about what would be a workable standard for working through these issues, I think [00:04:54] Speaker 00: workable standards would be a presumption that a link works, which I think is pretty consistent with how the inquiry notice standard has been applied in the courts, including this court's precedent, which can be rebutted, but I think the evidence to rebut that presumption needs to be tied much closer to the date in purchase than this, which is about a 130-day gap between Mr. Plata's purchase in November of 2022 and when there's evidence that the link misdirected starting in March of 2023. [00:05:23] Speaker 02: Is there evidence for how long it misdirected? [00:05:26] Speaker 00: There is evidence on the, that I believe Mr., my friend Mr. Dovel's firm put in below that it misdirected for a significant period of time. [00:05:37] Speaker 00: And I think that when our witnesses were asked about that, they described, I think it's pages 124 and 125 of the record, that [00:05:46] Speaker 00: they design, write the source code, test the websites, and make sure it's working, and then it goes live. [00:05:53] Speaker 00: And until they have counter-evidence to believe that there's a problem, they assume it's still working. [00:06:01] Speaker 02: And here, we did not have... I guess I'm thinking about your presumption argument, which makes some sense in terms of, let's presume it works until we know it doesn't. [00:06:10] Speaker 02: But the idea that [00:06:11] Speaker 02: I mean, you made the argument that the timing is too far removed. [00:06:15] Speaker 02: Well, that wouldn't make sense if it came up that it wasn't working and then a couple days later it was fixed. [00:06:21] Speaker 02: But that's not the facts here. [00:06:23] Speaker 02: So why would we be so concerned about this 120-day gap or 130-day gap or whatever you said it was? [00:06:29] Speaker 00: Well, I think the reason for the concern, Your Honor, from a policy standpoint at least is, and this goes back to the California Court of Appeals decision in Sellers and the other case law in this sign and wrap agreement context, is that the contract is formed when you click the button and make your purchase online. [00:06:50] Speaker 02: And... It gets to a different question that I have is, like, what do we make of the fact that we know in this record that this plaintiff never clicked the link? [00:06:57] Speaker 02: So does it even matter? [00:06:59] Speaker 00: So that's a great question, Your Honor, and this again is why, as I've been preparing for this argument and going through the briefs again, thinking through these issues further, I think that's why you need to have a standard along the lines of the one that I've outlined. [00:07:15] Speaker 00: And that's because if a consumer doesn't click on the link, and as is the case in this record, [00:07:23] Speaker 00: The data logs don't show an error with the link, and there were no complaints on or around the time of the data purchase in November of 2022. [00:07:32] Speaker 00: It's hard to see how a website provider could prove the effectively a hypothetical, right, that a consumer who never clicked on a link on the data purchase, if they had clicked on the link on that data purchase, the link would have worked. [00:07:51] Speaker 00: So that's why I think having some sort [00:07:54] Speaker 00: Rebuttable presumption is the way to address this kind of an issue, which again, I'm not aware of it coming up, so I appreciate that you're writing on a blank slate here in terms of trying to figure out what works. [00:08:07] Speaker 01: I think there's a couple of issues here and part of it had to do with the way that this was litigated because the way that I read the record and feel free to point out where I'm missing the analysis but the way I read the record is that because there was really no dispute, really a concession that the link in fact misdirected at the time, the district court made that factual finding. [00:08:32] Speaker 01: So then the question is if we find that the district court did in fact make a factual finding, [00:08:37] Speaker 01: that it was a broken link, then it becomes, I think, closer to legal questions you articulated, which is, can you manifest assent to something that really didn't exist, right? [00:08:50] Speaker 01: So it's kind of like a, I think of it as a two-step analysis, and now I know you're fighting pretty hard today against the notion that the district court made a finding, but as I read the record, [00:09:03] Speaker 01: There was a concession that the website misdirected and so the district court made that finding and I think it was well supported. [00:09:11] Speaker 01: So you're on the appeal and we reviewed those findings for clear error. [00:09:17] Speaker 00: Yes, Your Honor. [00:09:18] Speaker 00: I'm sorry, were you done with your question, Your Honor? [00:09:20] Speaker 00: Yes. [00:09:21] Speaker 00: Okay. [00:09:21] Speaker 00: So a couple of points to address what you've raised. [00:09:25] Speaker 00: I don't think there was any concession below that the link was not working on the date of purchase. [00:09:32] Speaker 00: We acknowledged below that the link was not working as of the end of March 2023 and thereafter. [00:09:41] Speaker 00: That's undisputed, no dispute on that at all. [00:09:45] Speaker 00: I know there was some argument in the brief about that we conceded that this link below the place order button wasn't an issue in the case and kind of removed it from the case. [00:09:54] Speaker 00: I don't think that that's correct. [00:09:56] Speaker 00: I direct the Court's attention to pages 20, 24, and 25 of the oral argument transcript in the record, as well as the District Court's decision itself, which didn't say we conceded this, but went through and decided the issue, along the lines of what you noted, Your Honor. [00:10:13] Speaker 00: And I think what the district court said is there's evidence that on March 28th, 2023 and forwards, the link was misdirecting. [00:10:23] Speaker 00: And there was no evidence of a change in the link between November of 2022 and March of 2023. [00:10:30] Speaker 00: And therefore, the court found it must not have been working on the date of purchase in November of 2022. [00:10:38] Speaker 00: We're not disputing that that's the factual finding that the district court made, but I think it's clearly erroneous because it's wrong as a legal matter because it's not a workable standard to allow a 130-day gap or a 200 or 300 or 400-day gap between evidence of a misdirecting link and the date of purchase effectively invalidate contract formation after the fact. [00:11:02] Speaker 00: That doesn't make sense. [00:11:04] Speaker 01: Whose burden is it to show that it was working on the date of purchase? [00:11:10] Speaker 00: I don't believe that that specific issue has ever been addressed in terms of who has the burden of proving this kind of a hypothetical, but I would expect that it would be our burden because it's our burden to show that there's an arbitration agreement by a preponderance of the evidence, Your Honor. [00:11:26] Speaker 00: And I think we've met that burden with the evidence that was put forward because the evidence that was put forward shows that there was a, that the data logs as of the date of purchase [00:11:39] Speaker 00: There were no errors or error messages, and there were no other evidence, complaints from consumers or anything else that would lead us to believe there was a problem. [00:11:50] Speaker 00: And in fact, even though I understand that the record shows starting in March of 2023, the link was misdirecting, we were not made aware of that until much later. [00:12:00] Speaker 00: And then at that point obviously took steps to fix it. [00:12:03] Speaker 00: I see I'm out of time, so I'll reserve my time for rebuttal. [00:12:05] Speaker 00: Thank you. [00:12:29] Speaker 03: Good morning. [00:12:30] Speaker 03: May it please the court, Gabriel Doble for the appellee Juan Plata. [00:12:34] Speaker 03: I'd like to start with the broken hyperlink because that presents a straightforward, clean way to resolve this appeal. [00:12:41] Speaker 03: To answer your question, Judge Nguyen, of who bears the burden of proof, it's the defendant. [00:12:46] Speaker 03: The party seeking to enforce the arbitration provision bears the burden of proof by preponderance of the evidence that an agreement was formed. [00:12:54] Speaker 03: And the district court found below that Lands' End failed to meet that burden. [00:12:59] Speaker 03: That's a factual finding that's reviewed for clear error. [00:13:02] Speaker 03: And here on appeal, Lands' End has come nowhere close to showing clear error, and that's true for several reasons. [00:13:10] Speaker 03: is that they conceded below that they have no idea whether the hyperlink was working back in November 2022. [00:13:17] Speaker 03: And on page 52 of our brief, we cite four concessions from them in the district court that they don't know whether the link was working. [00:13:27] Speaker 03: Those concessions were correct. [00:13:28] Speaker 04: So that's kind of, I mean, this is a little bit of a tough case because that's kind of always going to be true in some sense because, you know, these cases turn on, [00:13:38] Speaker 04: There's stuff that has to be met but ultimately nobody clicks on these things and so it's a sort of constructive consent issue. [00:13:46] Speaker 04: So you're rarely going to have any evidence of whether a hyperlink is working on a given day. [00:13:51] Speaker 04: And usually that's not an issue because there's no evidence that the hyperlink wasn't working on some other day, right, and that's what makes this case different. [00:14:00] Speaker 04: So what I guess what I'm a little bit concerned about is, [00:14:05] Speaker 04: I think the burden probably is on them but to tell, but to say that they have to prove affirmatively, maybe not in this case but generally that the hyperlink is working seems to really, that's probably an unprovable thing as your colleague on our side mentioned in the ordinary case. [00:14:23] Speaker 04: So what do we, what kind of rule could we have or how should the court look at this? [00:14:31] Speaker 04: You know, this case is different because there's a link that wasn't working for, [00:14:34] Speaker 04: At some other time, but is it that once once there is some evidence that a link isn't working at some other time? [00:14:41] Speaker 04: Didn't they have to show that it was working? [00:14:43] Speaker 04: And if that's the rule, then how much time? [00:14:46] Speaker 04: I mean, if it's seven years later, I mean, you see what I'm saying? [00:14:49] Speaker 04: I'm trying to figure out what the standard is. [00:14:50] Speaker 04: Well, it's a preponderance. [00:14:52] Speaker 03: It's a preponderance standard, Your Honor. [00:14:53] Speaker 03: So they don't have to show, beyond a reasonable doubt, that the hyperlink was working on November 16, 2012. [00:14:58] Speaker 04: But let's say there was no evidence that the hyperlink wasn't working. [00:15:02] Speaker 04: That seems to be the big thing. [00:15:03] Speaker 04: Then what would they have to show in that kind of case? [00:15:06] Speaker 03: Well, what usually happens in these cases and what happened here is that they'll submit an employee declaration stating that at the time of the purchase, the hyperlink sent to you. [00:15:15] Speaker 04: This is how we set up the hyperlink. [00:15:16] Speaker 04: It went to this page. [00:15:17] Speaker 03: Correct. [00:15:18] Speaker 03: Exactly. [00:15:18] Speaker 03: So there's some employee declaration stating that's the case and most of the time, that's enough. [00:15:23] Speaker 03: And they didn't have a declaration like that in this case at all or did they? [00:15:27] Speaker 03: I believe they did have a declaration like that in the district court. [00:15:30] Speaker 04: So now you have conflicting evidence that you got some employees saying that at the time it went here [00:15:35] Speaker 04: Is it six weeks later, I think? [00:15:36] Speaker 04: I'm trying to remember. [00:15:36] Speaker 03: It's about four months later when the council confirmed it was broken. [00:15:39] Speaker 03: Four months later then. [00:15:39] Speaker 04: It's not, there's evidence that it's not working. [00:15:43] Speaker 04: So, I mean, what... [00:15:45] Speaker 04: You could say they met their burden, right, because they said it was working at the time and the fact that it wasn't working four months later. [00:15:51] Speaker 04: I'm just struggling with what the standard will be. [00:15:55] Speaker 03: Well, like when any district court is faced with a preponderance standard, the court weighs the evidence on both sides and makes a ruling as to whether the party with the burden of proof has met that burden. [00:16:06] Speaker 03: And so most of the time, [00:16:08] Speaker 04: a an employee declaration will be enough to satisfy because because it's kind of unrebutted because it's unrebutted but it doesn't and so that's like i think that here here it's it is unrebutted if the declaration says that it's working at this time in the fact it's not working four months later there's a sense in which the declaration is unrebutted because they're talking about different timeframes well it's it's not unrebutted your honor because [00:16:32] Speaker 03: There's evidence that it was broken four months later. [00:16:36] Speaker 03: They don't dispute that. [00:16:37] Speaker 03: There's also evidence that there were no changes to the hyperlink between the time of the purchase and the time it was confirmed broken. [00:16:45] Speaker 03: That's in their interrogatory responses and it's in their deposition. [00:16:48] Speaker 03: So that is compelling evidence that the hyperlink was not in fact working at the time of the purchase. [00:16:53] Speaker 04: That's what bridges the gap, in your view. [00:16:56] Speaker 03: And I would add also that Discovery revealed that employee declaration to be baseless. [00:17:02] Speaker 03: We deposed the employee who made that declaration that the hyperlink was working. [00:17:07] Speaker 03: and he can see that he had no personal knowledge of that fact. [00:17:10] Speaker 04: And your view is that the fact that there weren't complaints about the hyperlink not working, et cetera, because nobody clicks on these things anyway and so why would you have complaints because like, you know, it could be broken and nobody knows because nobody's clicking on them? [00:17:26] Speaker 03: Well, we asked the deposition whether there were any complaints in 2023 or 2024 when the hyperlink was confirmed to be broken for over a year. [00:17:35] Speaker 03: And there were no complaints during that time either. [00:17:37] Speaker 03: There were no complaints at any time until May 2024 when counsel for my client notified the defendants that the hyperlink wasn't working. [00:17:46] Speaker 03: So. [00:17:46] Speaker 02: I want to shift gears a little bit from the factual question to a legal question. [00:17:51] Speaker 02: We have, you know, we are in constructive notice, constructive, yeah, I guess notice is the right word. [00:17:58] Speaker 02: And we have two requirements, a reasonable conspicuousness and then a manifestation of assent. [00:18:04] Speaker 03: this broken hyperlink situation which one which box does that go in the first box your honor reasonable conspicuousness correct because it's it's not just reasonable conspicuousness there are terms it's reasonable conspicuousness of what those terms are a consumer cannot be bound to terms if they don't know and they can't find out what those terms are and is there any cases that talk about reasonable conspicuousness at the [00:18:34] Speaker 02: I mean, I know there's no cases about a broken hyperlink, but I'm just trying to figure out if there are other. [00:18:38] Speaker 02: So say you click the link, and you got to the page that has the terms, and the terms were all in miniscule font that you couldn't hardly read. [00:18:44] Speaker 02: Do we have any cases like that that say we talk about reasonable conspicuousness at that level? [00:18:49] Speaker 02: Because my recollection is that all of our reasonable conspicuous cases talk about before you get to the link, or even if the link is conspicuous. [00:18:58] Speaker 03: I point the court to Sellers and specifically the discussion at the end of the opinion in Sellers from the California Court of Appeal where the court addresses the hyperlink in the mobile screen and that hyperlink linked to a page that did not contain the terms of use. [00:19:16] Speaker 03: It contained disclaimers and it contained additional hyperlinks in the disclaimers that sent the user to the terms of use. [00:19:23] Speaker 03: So the user clicked the link in the notice, they were sent to a separate webpage, and then they had to click another hyperlink to get to the terms of use. [00:19:30] Speaker 03: And the California Court of Appeals said that's not conspicuous enough because consumers cannot be expected to ferret out the terms. [00:19:38] Speaker 02: I think the district court analyzed this more under the manifestation of a cent aspect so in your view that was wrong it should have been in the other part of the analysis Forgive me if I'm wrong your honor I believe the district court found that also went to reasonable conspicuousness, and that's how we briefed it I believe that's the case, but I could be wrong about that my apologies I think the district court also had and you're probably right that it's a little bit of both it was a little unclear to me, but the district court also talks about [00:20:06] Speaker 02: We can't have a manifestation of assent if you were to click the link for the terms and they aren't there. [00:20:13] Speaker 02: And I've been trying to wrestle with that argument. [00:20:15] Speaker 02: One, do you agree with that sort of line of reasoning? [00:20:18] Speaker 03: If they click the link and they aren't there. [00:20:20] Speaker 02: Terms aren't there. [00:20:20] Speaker 02: So you can't have agreement to terms when the place where you're supposed to go get the terms, they aren't actually there. [00:20:28] Speaker 03: I agree with that, yes. [00:20:29] Speaker 02: So what do we do in a case where we know [00:20:33] Speaker 03: Mean as judge van Dyck has pointed out we can assume most of the time nobody ever looks at this But in this case we know they didn't look at it right that fact is Legally irrelevant to this case and lands and that fact is is legally irrelevant to this case the fact that mr. Plata Didn't click on the link and lands and conceded that it's illegally irrelevant at oral argument below at pages 26 to 27 of the record when we review that de novo If it's really relevant or not [00:21:00] Speaker 03: You would review it de novo, but they conceded the fact and a concession and the district court is binding on them. [00:21:05] Speaker 02: I'm not sure that a party can concede a legal fact or a legal proposition. [00:21:10] Speaker 03: You can concede facts. [00:21:11] Speaker 03: Fair enough. [00:21:12] Speaker 03: They at least conceded that they weren't aware of any case law that this mattered. [00:21:16] Speaker 03: And it doesn't matter because the reasonable conspicuousness inquiry is one based on an objective reasonableness standard, not whether any individual sees a notice or clicks on a link. [00:21:30] Speaker 02: I guess, and I think that's right, and so then it makes sense that you're saying that the broken hyperlink issue really should be analyzed under the conspicuous aspect and not under the manifestation of ascent aspect. [00:21:41] Speaker 03: I think it's a little bit of both, but I think it mostly goes to reasonable conspicuousness because the terms themselves need to be conspicuous. [00:21:49] Speaker 03: Consumers can't be expected to ferret them out. [00:21:52] Speaker 03: I'd also note that this fits more generally with inquiry notice under California law in which a person is only charged with knowledge of facts that a reasonable inquiry would reveal. [00:22:03] Speaker 03: And here, the inquiry that Land's End says Mr. Plata should have taken is to click on the hyperlink. [00:22:09] Speaker 03: But that inquiry would not have revealed the presence of the arbitration provision because the webpage didn't have the terms of use. [00:22:15] Speaker 03: It didn't have the arbitration provision. [00:22:18] Speaker 03: I'd be happy to answer any other questions on the broken hyperlink issue otherwise, I would like to turn briefly to the Conspicuousness of the notice itself in case the court does decide to reach that issue [00:22:33] Speaker 03: And I'll begin. [00:22:35] Speaker 01: Can I go back to the manifestation of a cent prong again because that requires that the consumer be explicitly advised? [00:22:45] Speaker 01: Did you make an argument that a broken link fails the explicit advisement test or analysis? [00:22:52] Speaker 03: We did not. [00:22:53] Speaker 03: We focused our argument on the reasonable conspicuous prong. [00:23:00] Speaker 03: But I think that I agree with Your Honor that it does also play into the objective manifestation of intent, the unambiguous manifestation of intent. [00:23:11] Speaker 03: And of course, this court can affirm on any ground that's apparent in the record. [00:23:18] Speaker 03: Turning to the notice itself and the conspicuousness of that notice, I'll begin with the observation that this is a messy area of law. [00:23:29] Speaker 03: each web page is different. [00:23:32] Speaker 03: It's a fact-intensive inquiry, and as the California Court of Appeal observed in Sellers, it involves inherently subjective views about what's more or less conspicuous and who the reasonably prudent consumer on the internet is. [00:23:48] Speaker 03: And so the best thing we can do for companies trying to figure out how to design their web pages [00:23:55] Speaker 03: is provide some measure of predictability by ruling the same way when the same factors are present. [00:24:02] Speaker 03: And here, as discussed in the briefing, there are several factors present in this case that have led this court and other courts to conclude that notices are insufficiently conspicuous. [00:24:15] Speaker 03: And one I'd like to highlight is intervening elements between the action button and the notice. [00:24:24] Speaker 03: And this played a heavy role in the court's decisions in Chabola and Godin, both of which had something in between the action button that the user had to click and the notice alerting them to the terms. [00:24:37] Speaker 03: By contrast, if you look at all of the cases of Land's End sites in this brief, all those screenshots where the court found notices to be sufficient, in each of those cases, the notice was directly above or directly below the relevant action button with no intervening elements. [00:24:55] Speaker 03: Here, there are intervening elements. [00:24:57] Speaker 03: There's text that says, secure checkout, learn more. [00:25:00] Speaker 03: That text is bolded, and it's set apart with a lock button. [00:25:03] Speaker 03: So it's actually more prominent than the notice itself. [00:25:07] Speaker 03: That's one factor where this court should rule consistently with its prior cases. [00:25:14] Speaker 03: Another is that the only indication of the hyperlink is underlining. [00:25:20] Speaker 03: And in Berman and in Sellers, this court and the California Court of Appeal, respectively, very clearly held that underlining alone is insufficient to alert consumers to the presence of a hyperlink. [00:25:32] Speaker 03: And on page 30 of our brief, we compare the design of the notice in this case to the design of the notice in Berman, and they are indistinguishable. [00:25:42] Speaker 03: So again, that's another reason, another similarity between this case and the cases where this court has held notices insufficient and a contrast to the cases where this court has held notices were sufficient. [00:25:56] Speaker 03: The last two factors I'll mention, the notice was in the smallest font on a busy page. [00:26:01] Speaker 03: much busier, I think, than the case's lands and sites, and even busier than the cases where this court has held notices insufficient. [00:26:09] Speaker 03: And finally, it was only on the last page of a three-stage checkout process, which is unlike the notice in Oberstein, where this court found it relevant that the notice appeared on each of the three pages of checkout. [00:26:23] Speaker 03: I'd be happy to answer any questions the court has about the broken hyperlink. [00:26:28] Speaker 03: about the sufficiency of the notice, about waiver or about unconscionability. [00:26:36] Speaker 03: Otherwise, I would just rest on the briefs and ask this Court to affirm the District Court. [00:26:41] Speaker 01: Thank you. [00:26:42] Speaker 01: Thank you. [00:26:52] Speaker 00: I just want to hit on a few points, Your Honors. [00:26:58] Speaker 00: On the notice itself, I think if this court looks at the prior decision in Patrick, which was a similar consumer transaction for apparel with this final checkout screen and a clear uncluttered screen and was deemed to be sufficient, we think this notice here is every bit as clear and conspicuous as the one in Patrick. [00:27:19] Speaker 00: And the advisal here is much more explicit than the one that was issued in Patrick. [00:27:24] Speaker 00: And I further note that under Sellers, [00:27:26] Speaker 00: part of the context of the transaction analysis looks at the claims that are at issue. [00:27:31] Speaker 00: The claims here are about Land's End's pricing, directly tied to the purchase itself. [00:27:38] Speaker 00: The claims in Patrick was a data breach class action, far more attenuated between the purchases that gave rise to the arbitration agreement and the underlying claims. [00:27:47] Speaker 00: This court still found arbitration was enforceable, and we think that that [00:27:54] Speaker 00: is probably the closest and most analogous of this court's precedent to this case. [00:28:00] Speaker 00: My colleague Mr. Doble referenced the Chabla and Godin decisions. [00:28:07] Speaker 00: Don't think those are really on point here. [00:28:10] Speaker 00: Godin is an auto renewal law case. [00:28:14] Speaker 00: The language that he's referring to that was in between the action button and the notice of the terms [00:28:19] Speaker 00: is mandatory language required under California's auto renewal law. [00:28:23] Speaker 00: That's not an issue here. [00:28:24] Speaker 00: And in Chabala, similarly, most of the decision was really about the ascent issue that Judge Wynn, you talked about in your questioning in the sense that it wasn't clear to the consumer [00:28:38] Speaker 00: what they were signing up for fully, and that was really what drove the decision in Chabala. [00:28:44] Speaker 00: That's not an issue here, and we don't think there's really any meaningful dispute that the advisal is sufficient for an unambiguous manifestation of assent here. [00:28:54] Speaker 00: Going back, the [00:29:00] Speaker 00: to the hyperlink issue. [00:29:04] Speaker 00: There was some discussion about a concession in the oral argument transcript pages 26 and 27. [00:29:11] Speaker 00: I think if you look at that in the record, it's not a concession to the extent that Mr. Doble is saying. [00:29:16] Speaker 00: It's acknowledging that there's no case law on this. [00:29:19] Speaker 00: There's nothing specific that addresses this kind of hypothetical where a consumer who didn't click on the link [00:29:27] Speaker 00: and then there's evidence later on that the link wasn't working properly, and how do you prove the hypothetical that if the consumer had clicked on the link, it would have worked on the date of purchase? [00:29:38] Speaker 04: I think it's difficult and gets into some... What about their point that there was no changes, that you haven't pointed any evidence, anything changed between the date and when we have some evidence that the link wasn't working? [00:29:53] Speaker 00: I see that I'm over, Your Honor, I'm just going to answer the question if that's okay. [00:29:57] Speaker 00: Please. [00:29:58] Speaker 00: It is correct that the evidence in the record shows there was no material changes to the pathway, the design of the website. [00:30:07] Speaker 00: If you look at pages 122, 124, 25, 164, and 65 of the record, that kind of shows what is in the evidence about this. [00:30:19] Speaker 00: But I think the larger answer to your question, Judge Van Dyke, is if we're going to have [00:30:26] Speaker 00: of this kind of hypothetical required, it has to be a workable standard. [00:30:30] Speaker 00: And given that there are thousands of customers coming to the website each day and placing orders and entering into contracts, we think any standard needs to be much more closely tied to the date of purchase than the 130 days here, because otherwise then you're basically going back in time to invalidate what would otherwise be binding contracts. [00:30:51] Speaker 00: If there are no further questions, thank you for your time. [00:30:54] Speaker 01: All right, thank you to both sides for your argument this morning. [00:30:57] Speaker 01: The matter is submitted.