4DCA Division 3 Oral Argument - 2026/08/18 - Aug 18, 2026

argument

4DCA Division 3 Oral Argument - 2026/08/18

California Fourth District Court of Appeal, Division Three 1h 10m 8 chapters transcribed 1 month ago official recording ↗

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How does the court determine whether the arbitration agreement is a sign‑in wrap or a browse wrap?

Unknown 0:00

to the provisions in the agreement and that's at pages 86 and 7 excuse me 68 and 75 of the appendix we have two copies of the application one for each of the DBAs of the plaintiff and twice directly under that language with the black bar is the plaintiff's signature specifying that they agreed. So this is reasonably conspicuous. It's pointed out to the plaintiff and made plain to the plaintiff what they're agreeing to. And they clearly assented to it, again, by affixing a signature, a DocuSign-style signature. Based on all of the case law, in this state and the federal case law that we've cited as well in our brief. Again, because this is an FAA case, That is sufficient for incorporation by reference of all of the terms of what we call the agreement into the application and becomes part of the contract between the parties, just as though it was some provision in an insurance policy that was referring to some other document.

Unknown 1:27

Now, getting back to the... transactional context. There was no rush here. There were no distractions. There was no attempt to make any impulse sales to the plaintiff while they're supposedly trying to concentrate on reading this document and signing it. There is nothing that in any way undermined the ability of the plaintiff to read and understand this document. Now, the plaintiff, my colleague, misunderstands the record on a very important point here. They use the taxonomy that really applies principally to consumer type cases, but we'll use it here now for the sake of discussion of the types of wrap agreements. Is it a click wrap? Is it a scroll wrap? Is it a sign-in wrap? Is it a browse wrap? If this taxonomy were to be applied to this case, it would be denominated a sign-in wrap type of agreement because the plaintiff had to actually sign under this certification and agreement

Unknown 2:41

in order to continue and to receive my client's services, which they later did. And so this would be a sign-in type, not a browse wrap, as my colleague inaccurately suggests. Of course, browse wraps are often not enforced, and I assume that's the reason why that label is sought to be applied, but it's an inaccurate label. The plaintiff also concedes virtually the third point in this case, and that is whether or not the non-signatory to the parties' agreement can still take advantage of the arbitration provision. That has been conceded here, and so we won't trouble the court with it any further. And we ask the court to reverse and remand with instructions to grant the motion to compel arbitration. Thank you.

Unknown 3:48

I confess I lost track of time and gave him an extra couple of minutes, so I'm going to give you the same.

Bryce Vandimore 3:52

Actually, that tells into our question. I agree. This is my first time here, and I made the rookie mistake of assuming that the default was 15 minutes. I was not aware, or was my staff aware, of the fact that I needed to quantify how much of the 15 I would require.

Unknown 4:09

If you don't ask for a specific amount of time, the default is five. So that's why we've got you down for five. I'll give you 10 since I messed up on my time. Thank you so much.

Bryce Vandimore 4:19

Thank you so much. All right. May it please the court, Bryce Vandimore, correspondent, Abagaya Media, hoping. LLC. This appeal concerns the lifeblood of small businesses, the proceeds of its customers' transactions, and Avagai alleges that appellants took those funds and continue to hold them without justification. The agreement appellants invoke gives the servicers sweeping power over a merchant's reserves, limits the servicer's own liability, and restricts the merchant's remedies. In practical operation, Avagai submits that structure permits the servicers to take first and answer later, or in this case, not at all. The court need not decide today whether Avagai ultimately proves conversion, statutory theft, or breach, but it should not send those claims to a private forum until it answers the antecedent question that the law assigns to courts.

Bryce Vandimore 5:13

Did the parties clearly and unmistakably agree with an arbitrator? rather than a judge, would decide whether this arbitration provision is enforceable.