[00:00:00] Speaker 01:
Please be seated.

[00:00:03] Speaker 03:
Good morning, everyone.

[00:00:06] Speaker 03:
Once again, we're delighted to be sitting here in Pasadena. We would like to once again welcome and thank our colleague, Judge Fitzwater from the Northern District of Texas, who's sitting with us this week. Welcome and thank you, Judge Fitzwater. We'd also like to welcome all of the students and externs who are visiting us here today. We hope that this is an informative outing for you.

[00:00:30] Speaker 03:
The cases will be called in the order listed on the docket. The first four cases, Moordale-Kallax v. Blanche and Brown v. L.A. Department of Water and Power, United States v. Cannon, and United States v. Rodriguez-Ramirez, have been submitted on the briefs. The first case on calendar for argument is Dawson v. Target.

[00:01:01] Speaker 03:
Good morning, counsel.

[00:01:02] Speaker 01:
Good morning, your honors. It may please the court. Aileen McGrath for the defendant's appellants. I'd like to reserve three minutes of time for rebuttal, and I'll try to keep an eye on the clock. This appeal presents two issues that the district court got wrong. The first is whether Target demonstrated that the plaintiff, Mr. Dawson, would have encountered the Target app's sign-in and checkout screens that advised users of terms containing an arbitration agreement. It did by introducing evidence of what that checkout screen looked like to users making a purchase in the app in June 2024, as Mr. Dawson alleged, by showing that users needed to be signed in to their Target account to do so, and by showing what that sign-in screen looked like on June 2024 and for the 20 months prior to that date.

[00:01:50] Speaker 01:
And all of that was in addition to evidence showing the specific date that Mr. Dawson signed. signed into his Target account.

[00:01:57] Speaker 03:
Counsel, isn't some of the evidence you referenced evidence that the district court rejected?

[00:02:02] Speaker 01:
The district court rejected the last evidence that I referred to, Your Honor, and excluded evidence showing the exact date that Mr. Dawson signed into his Target account. I referenced that both because we think that the district court was mistaken to exclude it, but ultimately, it doesn't matter for the main point, which is that even putting that evidence aside, Target did what it needed to do to show that that was the screen that Mr. Dawson saw and therefore the screen that this court should consider, or the district court rather, should consider for purposes of conducting the reasonable conspicuousness analysis.

[00:02:35] Speaker 03:
Are we hearing summary judgment?

[00:02:37] Speaker 01:
Equivalent to the summary judgment standard, yes, Judge Rawlinson. And so, as I said, Target introduced evidence of what that screen looked like for 20 months before Mr. Dawson made his purchase, and that was enough for Target to make the showing that it needed to. The other error that the district court committed relates to the totality of the circumstances test, which dictates whether target screens provided reasonably conspicuous notice of the terms containing the arbitration agreement. There, the district court erred twice over by misapplying that test, first by entirely omitting the context of the transaction from the analysis, which here involves an ongoing and, in fact, a decade-long relationship with Target, and then by performing a bright line test kind of analysis, rather than looking at the screens as a whole, and the screens as a whole are uncluttered, they present the terms legibly and are fully readable, and the hyperlinks are both either underlined or highlighted in blue, making them readily readable to a user.

[00:03:40] Speaker 01:
All of that is a reason that we think that this court should reverse. I would like to return to the evidentiary question and specifically to the sign-in screen question. As I said, Target established that the sign-in screen in the opening declaration was the sign-in screen that Mr. Dawson saw. Plaintiffs disputed that or attempted to dispute that in their opposition, and ultimately, Target introduced evidence showing that that dispute was wrong, and Mr. Dawson did, in fact, sign in to his Target account.

[00:04:11] Speaker 01:
All of that, as I said in answering some of Your Honor's first questions, is ultimately beside the point, because on summary judgment, Targets simply needed to show by a preponderance that that was the sign and screen that Mr. Dawson saw.

[00:04:26] Speaker 00:
Council, what about the – I mean, I think a lot of what the court relied on was the visual depiction of the notice and how there's a gap between the areas of it. I mean, I was focusing more on the exit screen, the checkout screen. But in either event, you have this gap between it. And Dawson presented evidence that one would need to scroll down in order to see that hyperlink at the very bottom of, I think it was a sign-in screen.

[00:04:56] Speaker 00:
So why was that not sufficient for the district court to find that Target had not created a preponderance of the evidence?

[00:05:02] Speaker 01:
I think that dispute was limited to the checkout screen, Judge Sanchez. The question of scrolling arose exclusively with respect to the second screen and not with respect to the sign-in screen. The only dispute... about the sign-in screen, and maybe I can be more specific about why we think there was actually a dispute, is that Target had introduced evidence of what that screen looked like over a more than two-year period. That was undisputed.

[00:05:27] Speaker 00:
Also undisputed that a user needed to... But I mean, I know you put in evidence that it was from 2021 or 2022, but wasn't... Oh, no, that was for the account sign-in, for the account sign-up.

[00:05:42] Speaker 00:
Here we go. Sorry. No, go ahead.

[00:05:44] Speaker 01:
Go ahead. We are not taking a position that the account creation screen matters. We acknowledge that Mr. Dawson disputed that, and that's why we dropped it. The sign-in screen is quite different because Mr. Dawson never disputed whether he saw that sign-in screen during the relevant time period. He simply said, I don't recall whether I saw it in June of 2024. I understand I might have stayed signed in by clicking the keep me signed in But none of that is enough to dispute the main point, which is that at some point in that nearly two-year window, Mr. Dawson needed to have seen the screen.

[00:06:21] Speaker 01:
And that's all that Target needed to do to show that that was the screen that the district court should look at. And maybe I can turn then to the question of what that screen shows.

[00:06:30] Speaker 03:
Well, Council, before we leave that on the purchase, the order screen where you said you had to scroll up, was there any dispute regarding which screen was actually the screen? that was used on the date of the purchase?

[00:06:44] Speaker 01:
The district court seemed to think that there was. Our position is that there wasn't a dispute as to that because Mr. Dawson didn't dispute what the checkout screen looked like on the purchase date, which in our view is the relevant date. He introduced evidence of what the screen looked like on his iPhone. I understand there's some disagreement in the briefing about whether that declaration was intended to refer to the June 2024 purchase date as opposed to the April 2025 date when that declaration was prepared.

[00:07:15] Speaker 01:
That confusion is answered by plaintiffs briefing below where they made clear that that declaration was referring to the current version, quote unquote.

[00:07:24] Speaker 03:
But not the version on the date when the purchase was actually made?

[00:07:27] Speaker 01:
That's correct. To the extent that there was a dispute about that, the problem there is that the district court needed to resolve it. She couldn't simply credit Mr. Dawson's evidence over Target's. and say that the declaration that Mr. Dawson set forth identified the screen that he necessarily saw. Here too, I think it's ultimately beside the point for a few reasons. One is that I think even that checkout screen standing alone provided reasonably conspicuous notice, but that couldn't have been the only thing that Mr. Dawson saw.

[00:08:00] Speaker 01:
It's undisputed that he needed to be signed into a target account to place that order. So he would necessarily have had to see the sign-in screen at some point prior to making that purchase, either individually or together.

[00:08:14] Speaker 00:
But aren't you stretching it a little bit too far? Because the charging questions in June of 2024, suppose he signed in four months before.

[00:08:29] Speaker 00:
Why would he get reasonable notice four months earlier for that later purchase in time? I mean, isn't there a temporal element to this as well?

[00:08:39] Speaker 01:
Well, I think it ultimately doesn't matter for a couple of reasons. One is that even if he exclusively agreed to that sign-in screen four months earlier, that would have bound him to the operative terms. It's also undisputed that throughout this whole time period, Target's terms contained an arbitration agreement, the same arbitration agreement. And so whether four months earlier or day of, he would have agreed to an arbitration agreement. But in addition to that, the point is not just that he agreed to it on that date. It's that over the course of time, he saw cumulative screens.

[00:09:12] Speaker 01:
And that's something that under this court's precedent matters for purposes of the reasonable conspicuousness analysis. Even if those screens are not viewed in immediate temporal succession, he received repeated advisals. All of that bears on whether a reasonably prudent internet user would have at some point seen these terms.

[00:09:33] Speaker 00:
So why – I know one of the arguments you're making is that this is an ongoing relationship.

[00:09:39] Speaker 00:
Why isn't this better thought of as just a series of one-off transactions like going into a store and buying something? I mean in this modern era, you've got to register for all sorts of things that one wouldn't necessarily construe as an ongoing relationship.

[00:09:56] Speaker 00:
If he's going in and buying something, isn't it equivalent to walking into a store and buying it there? Why would someone think that you're agreeing to arbitrate disputes under those circumstances?

[00:10:07] Speaker 01:
I think under this court's precedent, it's very clear that this kind of relationship is a continuing one. And so to take the position that you're taking, Judge Sanchez, I think would undo what both California appellate courts and their circuit have said about a continuing relationship. And in particular, that a relationship exists when a user creates an account, when they download an app to their phone, or when they use that app to make repeated purchases. And that, I think, speaks most directly to the question you're asking me this morning.

[00:10:38] Speaker 01:
And that's what Keebaugh emphasized, is that even if you're looking at independent purchases alone, that's enough to evidence a continuing relationship. None of that about how the Target app works is disputed. And I do want to underline, as I know we argued in our briefings, and I'm sure the court understands, the district court didn't consider this factor at all. And that's not just a sort of ticky-tack omission in the district court's analysis. This is a really important part of the reasonably conspicuous notice framework.

[00:11:11] Speaker 01:
Neither this court nor the California appellate courts have ever found an advisal in the context of a continuing relationship to be insufficient. And I'm not suggesting that it's dispositive. In fact, the opposite. I think this court has made clear that This is a two-factor test where both prongs need to be considered alongside one another.

[00:11:32] Speaker 00:
Is there any case that you would cite for the proposition that if the district court doesn't consider context, that's reversible error?

[00:11:40] Speaker 01:
I think that was exactly the flip side in Keebaugh, where the district court only considered context, that it's reversible error here. I think the main point that I would make is that the context is essential to the reasonably conspicuous notice analysis. To the extent that this court is doing what I assume that it will do, which is to decide whether this case falls into the Berman, Chabola, Just Answer Cases side of the spectrum, as opposed to the Oberstein, the Ticketmaster cases, Kibah, Patrick V. Running Warehouse, deciding where it falls along the spectrum, taking the context of that transaction is essential.

[00:12:18] Speaker 01:
And in particular, I don't agree that the way to conduct that analysis is to pick out specific features. I think that this court has made clear. It's really looking at these screens as a whole and just looking at target screens and comparing them to the ones that have been found sufficient or insufficient. I think the answer is clear, but ultimately that kind of analysis needs to be conducted with the context of the transaction in mind.

[00:12:42] Speaker 03:
Counsel, is it your position that we should remand this case back to the district court to perform the proper analysis? Are you asking us to perform that analysis and under which you would prevail as a matter of law. What's your position?

[00:12:57] Speaker 01:
That's correct. That is our position, Judge Robinson. Which one? The reposition is this court should decide this question in this case as a matter of law. That's exactly what it did in Kibah when the court left out, the district court had left out one piece of the reasonably conspicuous notice analysis. This court simply answered it.

[00:13:15] Speaker 00:
But just to follow up, I thought part of your briefing was, well, if the court was siding with Dawson about whether you needed to scroll down, it should have conducted some type of evidentiary hearing, and here the court didn't connect a certain analysis. So it seems like some of your arguments do favor just remanding if you think that it was incomplete to just start over again.

[00:13:37] Speaker 01:
I think as to the legal analysis, no, we think this court should perform the reasonably conspicuous notice analysis. I think the only circumstance in which we think a remand for that kind of evidentiary hearing or other inquiry would be appropriate would be if this court thinks that Mr. Dawson's version of the checkout screen is dispositive as to affirmance, meaning you agree that the sign-in screen is out, you agree that as between Target's version and Mr. Dawson's version, his version matters, then I think a remand is appropriate.

[00:14:10] Speaker 00:
I mean, it kind of does because if you're only – let's say the sign-in screen is out because there's a lack of clarity about when he was signed in and we don't agree with you about just how many months passed. For the checkout screen, you do have two notices, but the first one at the top doesn't have any kind of hyperlink. It just says, you know, what does it say? It says terms and conditions may apply or whatever that happened to be. The only hyperlink is at the very bottom of the page. And if you don't have to scroll to that bottom in order to make the purchase, then there might be a problem with the conspicuousness of the notice.

[00:14:43] Speaker 00:
Correct? Correct.

[00:14:44] Speaker 01:
So we think that even if that's the only thing that came in, Judge Sanchez, and I know I'm approaching my time, but if I could give a complete answer to that question, hopefully. I think the reasons that we think that that screen is still enough are because there is that notice at the top, and because a reasonably prudent user, even if scrolling is necessary, would need to scroll to see, would scroll to see the advisal. Because in Mr. Dawson's version of the checkout screen, Scrolling is necessary to see other important information about the transaction.

[00:15:17] Speaker 01:
The advisor, of course, appears in a text box alongside the email address where the purchase confirmation is sent. I think a reasonably prudent user would look for the email address their receipt is going to. Same story with, again, if you look at his version, the credit card number that's being billed is also below the line and would require scrolling. That, too, I think a reasonably prudent user would need to scroll to see. And so here Even if scrolling is required, a reasonably prudent user would scroll not only because they've been told at the very top that they're agreeing to terms and not only because the context of the transaction is one that would put a reasonably prudent Internet user on a specially diligent inquiry notice of terms, but also because within that particular transaction, there are features that would require scrolling that any reasonable Internet user would be looking for and scroll to see.

[00:16:12] Speaker 03:
All right, thank you, counsel. You've exceeded your time. We'll give you a minute or two for rebuttal. Thank you.

[00:16:26] Speaker 02:
Good morning, and may it please the court, Shelby Layton for Appellee Dylan Dawson.

[00:16:32] Speaker 02:
Target had the evidentiary burden here to show two things. One, that Mr. Dawson would have seen the screenshots that it submitted in its declaration, and two, that those were reasonably conspicuous.

[00:16:49] Speaker 02:
There's three points that Target points to where Mr. Dawson could have formed a contract, and it failed to provide that evidence for any of the three points. First of all, it didn't produce any evidence that Mr. Dawson agreed to its terms when he created his account in 2014, which would be the natural time when you would think that someone would be assenting to a contract. Instead, what Target argues is that he entered into new contracts when he signed into his account and when he made a purchase.

[00:17:22] Speaker 02:
Do you dispute that, that those were new contracts?

[00:17:26] Speaker 02:
We dispute that any contracts were formed here.

[00:17:30] Speaker 02:
But I think the consequence of what Target is saying is that someone enters into a contract, a new contract, every single time they make a purchase from Target, every single time they buy a pair of socks.

[00:17:42] Speaker 02:
And what Target did is it submitted generic evidence here with its motion. It had evidence of when Mr. Dawson signed into its account. It had evidence of what the screen looked like when he signed in. It had evidence of what the checkout screen looked like for Mr. Dawson on June 14, 2024. And it just chose not to produce that evidence with its motion.

[00:18:07] Speaker 00:
How do you respond, counsel, to I think Target's argument is this wasn't new evidence in the reply. It was in response to the opposition that Dawson gave, and so it was appropriate to bring up at that point.

[00:18:21] Speaker 02:
It was, again, Target's burden here to produce with its initial motion the evidence that it had as to what the screen looked like for Mr. Dawson when he signed into his account. And when he signed into his what the screen looks like when he signed into his account depends on when he signed into his account. And Target had records of when Mr. Dawson signed into his account. Mr. Dawson did not have records of when he signed into his account. And Target chose not to produce that evidence with its initial motion.

[00:18:52] Speaker 02:
And then when Mr. Dawson asked for discovery to get at that question, Target opposed that motion for discovery. And the district court said, well, all agree with you, Target, as long as you don't submit new evidence on reply. And then Target sought to submit this new evidence on reply, and it wasn't an abuse of the district court's discretion to exclude that evidence given that entire context and strike a balance between what evidence was allowed, what discovery was allowed, and what evidence was allowed to come in.

[00:19:26] Speaker 00:
So let's say we agree with you that the court did not abuse its discretion in excluding that latter evidence. So what we still have is evidence that at some point Mr. Dawson signed in, and so he would have seen the sign-in screen, and at some point along the way he would have made this purchase that's in question.

[00:19:46] Speaker 00:
How do you respond to counsel's argument that he necessarily had to see a sign-in page at some point close enough in time to the purchase?

[00:19:56] Speaker 02:
The problem is that Target has a burden of showing what the sign-in screen looked like, for Mr. Dawson when he signed in. So if we don't have evidence of when he signed in, we don't know what the sign-in screen looked like. So they said, this is what the sign-in screen looked like between these dates, but without knowing when Mr. Dawson signed in, we don't know if he fell within those dates or not. And they asked the court to sort of speculate that there's sort of a certain period of time when he must have signed in, but there's no evidence of that in the record whatsoever, and that's not enough to meet its burden.

[00:20:30] Speaker 02:
That's not a reasonable inference that can be raised from the evidence that was presented? No, the only evidence they presented was that he had to have been signed in, there's an option to stay signed in, and here's what the screen looked like during these particular dates. That's not enough to conclude that Mr. Dawson signed in during those particular dates. And I think that's especially glaring where Target had evidence of when Mr. Dawson signed in and simply chose not to submit that with its motion.

[00:21:02] Speaker 02:
Are you saying signed in originally or signed in for the purchase?

[00:21:07] Speaker 02:
Just signed in in general. Yeah. Yeah. I mean, he had to be signed in for the purchase. Right. But the question of when he did that, when he's had an account since 2014...

[00:21:19] Speaker 02:
There's no evidence in the record as to that whatsoever.

[00:21:21] Speaker 03:
You're saying there's no evidence in the record as to the date of the purchase?

[00:21:25] Speaker 02:
There is evidence as to the date of the purchase, but it's undisputed at this point that he did not sign in on the date of the purchase. And so the question is, when did he sign in? And Target just didn't produce any evidence of that.

[00:21:38] Speaker 00:
Well, let's assume that he did see these notices. Why do you think the district court got it right that these were not reasonably conspicuous notices?

[00:21:47] Speaker 02:
Sure. So I'll take the sign-in screen first.

[00:21:52] Speaker 02:
And you have to look at the whole screen, the context of the transaction, and then the visual elements, which the court and sellers laid out five factors that you look at with the visual elements. The first factor is the size of the text and the color of the text as compared to the background that it's against. And the sign-in screen is small gray text on a white background, and it's much smaller than all the other text on the page. The second factor is the location of the text and its proximity to any box or button the user must click to continue use of the website.

[00:22:26] Speaker 02:
And I think this is the worst factor for Target here because the notice is all the way at the bottom, and it's separated from sign-in buttons by other buttons or links, like forgot password, use a passkey instead, what's a passkey, create your target account.

[00:22:43] Speaker 02:
And you don't have to read past the initial sign-in button to continue with the transaction. And that's exactly the situation in the Chiboya case. There, the user could enter their email address, and then the most obvious and natural next step was to click continue. And they didn't have to read further down the page where there were other buttons and then the notice of the terms.

[00:23:10] Speaker 02:
And then the third factor is the obviousness of any associated hyperlink. And here, the hyperlinks on the sign-in screen are blue, but that's the same thing that happened in Shibuya. And in Shibuya, the court said, even with the blue hyperlink, because this is spatially decoupled and because it's in small font that doesn't contrast with the background, we're still going to find that this is not reasonably conspicuous.

[00:23:39] Speaker 00:
So what about the checkout page where you have target terms and conditions, then target privacy policy, and then right below, you know, and then there's the total for the items and then place your order. Those aren't that far apart. What about that one?

[00:23:55] Speaker 02:
Right. So the checkout screen, again, it's a holistic analysis. And I think on the checkout screen, the factors weigh a little bit differently. I think the The size of the text and the color of the text is worse for the checkout screen. It's gray on a gray background, which is even harder to read. The hyperlink is worse. It's not in blue. It's just also in gray, which this court has found determinative in several cases.

[00:24:21] Speaker 02:
And then you look at the location of the text, and it is closer to the relevant button. It's still separated by the information about the order total and the...

[00:24:35] Speaker 02:
number of items. And then it also is on this separate gray background. And they've kind of added this shadow that makes the gray part look like it's behind the white part that has the red place your order button on it. And so the red place your order button draws your attention and invites you to skip over what's in that gray part that looks like it's set back from the white part. So I think even here, the location of the terms cuts in Mr. Dawson's favor.

[00:25:05] Speaker 00:
Did the district court make a mistake in not addressing context? Is that reversible error in your view?

[00:25:13] Speaker 02:
I don't think it's reversible error, but in conducting a de novo review here, the court should take into account the context of the transaction as part of this holistic analysis of whether there was reasonably conspicuous notice.

[00:25:27] Speaker 02:
Here, the context of the transaction cuts in Mr. Dawson's favor because...

[00:25:32] Speaker 02:
He had already created an account with Target in 2014, and that's when most people expect to enter into a contractual relationship is when they created an account.

[00:25:46] Speaker 02:
And that's what the court held in the seller's case where they said consumers expect to enter into a contract when they're signing up for an ongoing account, but not when they're purchasing a single item such as a pair of socks. And so what happened here, we're in a little bit of a, a weird situation because they haven't produced evidence of what happened in 2014. But a reasonable consumer in Mr. Dawson's position would assume that, okay, I entered into this contract or I created this account in 2014. It's probably governed by contractual terms.

[00:26:18] Speaker 02:
So now I don't have to be on the lookout for entering into a new contract every time I make a transaction to buy a pair of socks. And that's exactly, I think that's particularly relevant with the notice at the top of the checkout screen where it says it's governed by terms. I think the context of the transaction shows that he would think that that's referring to terms that he already agreed to when he became a Target account holder and not a new contract that he's entering into because he's buying a pair of socks.

[00:26:52] Speaker 00:
What about Oberstein, you know, the Ticketmaster case where you have to register and sign up and presumably you're buying tickets for future things, but that was found to be sufficient notice.

[00:27:07] Speaker 00:
How do you respond to that one?

[00:27:09] Speaker 02:
Well, so in that case, the visual aspects were very different. The warning, the notice was right next to the button that you had to click to proceed with the transaction. And it was in a contrasting font with blue underlined hyperlinks. So I think that's a very different case than this one where it's on this gray-on-gray font with gray hyperlinks decoupled from the buttons that you have to press.

[00:27:37] Speaker 00:
But do you agree this is an ongoing relationship?

[00:27:41] Speaker 00:
Is this not a one-off, or do the cases seem to suggest that this is more of an ongoing relationship because of signing into an account, downloading an app, and having continuous purchases?

[00:27:54] Speaker 02:
Well, the context of the transaction is case-specific. You can't have a bright-line rule about whether certain categories of things are not an ongoing relationship. Mr. Dawson had an ongoing relationship with Target here, but the question is whether that ongoing relationship cuts for or against him expecting that there are going to be additional contract terms. Don't our cases seem to

[00:28:17] Speaker 03:
trend toward if there is an ongoing relationship that it's more likely that there would be terms and conditions. Don't you think our cases trend that way?

[00:28:25] Speaker 02:
But those cases are talking about the creation of an ongoing relationship. So, for example, in the Keebaugh case, you're downloading an app for the first time and you're signing into that app for the first time. So you're at the beginning of that ongoing relationship. Here, the equivalent of that would be when Mr. Dawson created his Target account. And We would not dispute that the context of the transaction when he created his account is that he would expect that there would be contractual terms.

[00:28:57] Speaker 02:
But once he does that, once he creates an account, he assumes that that's governed by contractual terms, and he's not on the lookout for, okay, I'm going to enter into a new contract every time I sign in to my account because that account is already governed by the terms that I already agreed to.

[00:29:15] Speaker 02:
Or I'm not going to look for new terms every time I make a purchase because a reasonable consumer doesn't expect to enter into a contract each time they buy a pair of socks. That's what the court said in sellers. It said, you know, you expect to see contractual language when you're signing up for an account. You don't expect to see it when you're making a one-off purchase.

[00:29:38] Speaker 00:
What about our cases that talk about membership services or, you know, something? That's a little bit more of a continuous relationship or subscription service.

[00:29:48] Speaker 02:
Again, those are looking at the beginning of the relationship. So, you know, for example, in Shibuya, you're signing up for a membership with ClassPass right at the beginning. And so the question is, are you expecting terms when you have a membership at the beginning? And the court said, in Shibuya, the court said, maybe, we're not sure yet. But either way, it doesn't really cut for or against because this is still not reasonably conspicuous.

[00:30:19] Speaker 02:
And in the Blizzard case that Target cites where it is, there were several different versions of the terms of service. That case is very different than this case because the agreement at issue there was really a scroll wrap agreement.

[00:30:36] Speaker 02:
You would agree to terms when you created your account. And then each time the terms were updated, a big pop-up screen would pop up with a whole list of the terms and you had to click to continue with the account. And so that's very different than the situation. It's actually a very good example, I think, of what Target could have done here, which is require clear assent when somebody creates an account and then notify them if there's any updates to the terms.

[00:31:06] Speaker 02:
And instead, Target has not provided any evidence of that clear assent when Mr. Dawson created his account. If it had done that, we wouldn't be here analyzing the checkout screen and the sign-in screen because they could have had him check a box or do something else when he created his account.

[00:31:25] Speaker 02:
And so we ask that you affirm the district court. Thank you. Thank you, counsel.

[00:31:29] Speaker 03:
Let's have a couple of minutes for rebuttal.

[00:31:39] Speaker 01:
Thank you, Your Honor. And just briefly on reasonably conspicuous where my friend left off, I think Blizzard speaks quite clearly to the question of in what direction context cuts and how context is shown. Blizzard was unequivocally, the court found a sign-in wrap agreement. That case, like this one, involved an ongoing years-long relationship with multiple in-app purchases. The California Court of Appeal emphasized that that was an ongoing relationship and distinguished it from the kinds of relationships formed in cases like Sellers.

[00:32:15] Speaker 01:
And I think that case disposes of any questions about how context operates here. As to the question of whether there's any sort of multi-factor checklist, this court and Blizzard make clear there is not any checklist to follow for purposes of assessing conspicuousness. This court can and should look at these screens in their totality and with your own eyes and compare them to the ones that this court has found to be insufficient or not. And under that kind of inquiry, I think where this case falls in the spectrum is clear that it is sufficient.

[00:32:46] Speaker 01:
If I could just say very, very briefly on what I heard about burden, both the district court and what I heard from my friend on the other side emphasized Target's burden as a reason to justify excluding the sign-in screen. That cannot be right. Target's burden was, as Judge Rawlinson asked me earlier, the burden that's equivalent to summary judgment. That's a preponderance of the evidence burden. We satisfied it by introducing evidence that Mr. Dawson had to be signed in and of what that screen looked like for two years earlier.

[00:33:16] Speaker 01:
We did not need to introduce evidence of every interaction that we had, he had with the app. The district court said we needed to put it all in. That's just not the standard and it can't be the standard under what this court has said in Napke specifically about the equivalence to summary judgment. And what the FAA says, which is that these cases and contracts need to be decided the same way as any others. And there's no heightened burden that Target needed to satisfy here. And so for those reasons, we would ask this court to reverse.

[00:33:48] Speaker 01:
Thank you, counsel.

[00:33:50] Speaker 03:
Thank you to both counsel for your helpful arguments. The case just argued is submitted for decision by the court.