not did not attend the event they paid we're told six hundred seventy thousand five hundred seventy four dollars eighty six cents if you multiply it you get one million eight hundred fifty two thousand seven hundred twenty four dollars fifty eight cents add on some attorneys fees year two million not five million then yeah police say well what about extra expenses or people lost lodging reservations gas food i don't know what food has to do with it but they have all the information they had the addresses that they chose not to give it to the district court so our position is you would be and they have the burden of proof you would be so we're all speculating what above that two million dollars or so there would be in gammage is so our position is we don't even get close to the five billion dollars if i could turn to not assume and that's assuming the complaint applies to a nation like you do what you just said works on your view even if we assume the complaint applies to nationwide class right we believe in our complaint even though we talked about all people just on the straights again i drove massachusetts life can only have a class  so i don't believe a court should get to arbitration but let me discuss it i guess the first issue for you just before you do that i'm just sure there's how do we deal with the following problem there could have been some travel expenses in fact be surprising if there were no travel expenses that resulted from the change i would agree with that ok so what are we supposed to do then with respect to figuring out how reasonable it is or what reasonable probability there is that the travel expenses would be sufficient to kick it up but how do  suggest we approach that given your acknowledgement that once we accept that there are some travel expenses what are we supposed to do when the defendant says well here's a perfectly reasonable accounting of what those travel expenses would be  we would say they did give you a person a reasonable listing i mean they had the information it's not like somebody wanted it where they were on how the information about the plane tickets that had to be canceled or actual rooms that were booked those would be through the individual registrant's which of the people in your class so i'm just wondering well what you suggest we do in a case like this when there's certainly going to be expenses in addition to those  from the registration fee itself then we have the defendants as well there is reasonable to think they're going to seek this amount for each person who came but what do you suggest we do in response to that are you won't they do they go with somebody for example live you know west being they would have any added travel expense so they have they go where everybody lives if everybody and exactly the kind of mini trial the two were much the court's not supposed to and you can i think for the most part we were trying to find out from them where people live because i think if you know where people live you get a sense act on speculation so when you ask what are you supposed to do they have it's like any case they have the burden of proof they have some information that i believe would have made you ball or easier but they chose not to give you the information so you're stuck with that that would be our position i'm sure i should know this from the brief but i forget who was there any request  complaint reference the kind of expenses or damages that you would be seeking if i were qualified believe we've been a of we didn't say added we did ask for added  of doing that so no we didn't even try because i mean the issue is i guess the judge below did deal with the delegation issue or you're pleasantly ruled in our favor but i guess that would be the first issue for you you know whether the city think you can decide or whether everything goes to to arbitration and i guess we learned that the delegation clause is a matter of it's a matter of contract so i guess he had their supposedly three registered and then there's the further issue if you look at what might be considered the delegation clause it says i agree that all the spew controversies are claims arising out of of my participation i guess we would argue that that's that's for you even on the delegation the way they worded it they did word the delegation clause that any issue  scoop the arbitration clause that kind of issue is in fact for the arbitrator is that provided for in the beginning the rules of the self well again i think it something something like that and that's what i was getting abs that's what i was getting at before that since there has since we're dealing with this high standard of clear enough to stay couple evidence of intent it order to require issues can i ask you if you were do you think to say there's no contract at all yes if you win on that that would seem to get you out from under arbitration yes but you'd be forfeiting any right to recover into the contract well i believe i've heard chapter ninety three a we would be entitle to  flowing from unfair and deceptive practices so but if there was no contract what would be unfair deceptive about it there would have been just a statement saying we're going to have a place that we might move you decided to give money to a place that might move a race that might move the race move you gave the money what would be unfair to them i'm not saying it just it just seems a little odd for you to be pushing the argument that they had no obligation not to move the race in order to win on the arbitration issue because if they had no obligation not to move the race that would seem to undermine your complaint that anything bad happened to any of your runners like believe we could act on it we could get recover representations even if their present contract either chapter ninety three might just be just the representations though i guess would be what i mean i thought your argument was that there's no contract because the only right there was no representation other than the fact will do whatever we want that's why you say there's no contract yes so if that was the reputation we'll do whatever they want it just seems that that's going to have repercussions for the ninety might survive the conclusion that there was no contract and yet they retained retain all the registration treason you gave you your clients nothing in return yes i used up all my time so that i guess they'll be no rebuttal thank you guy just verify that you reserve two minutes so you that you do have two minutes rebuttal if you would like it you don't have to take it physically rigorous obstacle course events all over the country and like with other extreme kinds of sports skiing or walking the hudson the how in the white mountains people participants who sign there's a longer contract which includes the arbitration clause and the and the asian clause often includes a no refund provision and then there's another provision that they sign up for that specifically says you don't get a refund and in both instances there's a box and you have to click it and it says i agree and the text box scrolls that if you want to know what it is you're agreeing to you have every ability to do that can i just ask you about the no refund are you sure it's and it says i acknowledge that they meet the way modify or cancel but this is in the event of some kind of an emergency or cancellation need it's not simply any time that you know a complete discretion of the matter but there's  refers back to the main policy of the contract and that one is limited and i think for there to be consideration as i think we all know for law school courses you require merely a pepper corey require only a little something and in this instance i think it's important that one is a little something that your there has to be some kind of an emergency some kind of an event some kind of an instance that requires them to do something to move event was the emergency here the regency here was simply you failure to contract with the outfit in a rule at the time you took these people people's money well that's actually it's not in the record your honor but the fact is it's not because if this was a matter outside of letters control  events planner who claimed to have the ability to provide a place in a viral was stopped in the last minute by the town authorities and so we were left with an event planner who said we can use this site we work with wa banishment you can have your runners write all over it no problem and then with a week to spare it turned out that kind of already said we were not going to allow that event planner to do this and we were left with no place to go so it really it's all is that they're arguing but in the complaint they argue something very different the two classes that they're seeking one is that the people who participated i'm sorry didn't participate and they want their money back and any other incidental expenses but the other class which actually the larger class they specifically talk about added expenses including but not limited to gas food and or lodging and then in the in their damages their prayer for relief they see sportsmen of profits of ill gotten gains they talk about recision they talk about a permanent injunction i mean all of those things if we were enjoying for example to do other events this would bankrupt what is a very small new york company so the question of the amount in controversy is what person in the class who came here for the varies is that right we try to use an average joe that's correct yeah and so in his roughly speaking years allocating about one hundred fifty dollars of expenses to each person who came years to federal  change their flights and it costs and exaggerate points of dollar and just under a motion that's how you say it who knows how many are in one group rather than another so why isn't this just under most just literally speculation as to what the travel expenses that are fairly attributable to how many of those runners and the way that would get known is as the case develops and the court will have to flesh out actually how much damages they're seeking at which point you could remove well so what's the point for doing it now i don't quite follow your orders i think as i came over which your garage made a point you know this is not supposed to be about me but i'm not saying that i totally agree there's no many trial it's just a matter of you have the information you have now they have the information they have now looking at it right now one could speculate as to a high amount of expenses or a low amount of expenses but we're not supposed to speculate and so we could rather than having a mini trial just wait let the state court proceeding play out if it becomes clear that they are in fact seeking damages at that point you can remove well your honor again i think we have if we have met the kaffir requirements were entitled to be in federal court  what beyond speculation but i have you done with all respect i don't believe it's speculative and in that in that we are attempting to take the information at the beginning of the case that we have we know one thing for sure that people were going to all of them were planted you know but some of that expenses considerably more than they may now fly to portland they make light of boston they may have to do something different but i think the point was it was just so but your numbers work only if we had to be about one hundred fifty dollars to every single it we took what would be the case for an ordinary citizen who has to travel that much further then you assumed every single person who came had that much expense well used as an average we didn't assume it we said analysis that case price went back to the district court and this court finally said no you know we've got to do this upfront we're going to take a look at what the what the numbers are they may not be perfect we're not expecting it's not an onerous burden that's what imo she says  suppose most of the people who came to the race were from in state would that change how reasonable your calculation is from instate message yes no actually i think it would confirm it because it would be one more hour that  is the number for everybody you don't get the five million i'm not sure that's true but it was elsewhere about it so you haven't really because the reason i ask is because you have the information about where the people came from don't you you know when they signed on their address yes and did that you didn't put that in the record not europe so isn't that a problem why is that not a problem that's information you had most talks about the person seeking to show  with information that comes up in the context of that case of when do you when you need to file the notice but the court pretty clearly says that's not it's not an obligation for there to be sort of you know pulling out the records figuring things like you're supposed to and not onerous burden and only reasonable probability i don't hear that in this case of course the plaintiffs had an opportunity to say what they would have spent and what their expenses were and they put in although they put in other affidavits they say nothing about the costs other than the registration fee itself they say nothing about friends they say nothing about anything frankly there is no opposing factual information even though the plaintiffs information in their in their possession as well so we've got a one sided situation we're concerned about removal because of the thirty day clock and we put in the evidence that we have and the evidence is roughly this is how many people were able to of what we thought it would cost using reasonably available information as the thirty day clock ticks away so that we can be sure that we don't miss it otherwise the argument might be if we finally get this information we come forward to the court well you could have done that in the first thirty days so case develops and it becomes clear that your guess about the expenses they were seeking was correct would there be any bar to you removing at that point i think if this court holds that we could not meet that burden then presumably when now that we're in court but the fact was when we tried to do this we were concerned about the thirty day clock because we don't know what the court's going to do about whether we're timely or not let me just say  a couple of words about delegation issue and i think the court has already raised the point that section seven with all respect but rather section seven of a rules has always been section seven or at least always with respect relevant here  the consumer rules that he refers to used to be a consumer supplement that if your play but they just supplement it a section or seven a said the arbitrator gets to decide all of these issues of scope and once the consumer rules went into effect whether they're the ones that we use here whether there is a contract at all would be your position that that is an issue that should go to the arbitrator yes i think under buckeye where and many other cases you have to sever the arbitration clause itself and say is there is there some reason that arbitration clause itself that and i don't believe that there is any basis for that under this especially because the particular section of the contract that i was referring to includes this piece about no refunds occur in c or delay or cancellation so they are a christian clause is in fact has that consideration but in any event the point is that the clause there's no there's no basis to invalidate the clause which means that should go to arbitration they should go to arbitration on an individual basis thank you yes as a matter of law because since there's no right of opt out in massachusetts just put it aside with just whether the law was you get to decide who use suing on behalf of correct so i guess i'm just  is that complaint suing on behalf of only mass residents or is it suing against behalf of a broader class we did word it broadly i think all so i'm not going to tell you we did but as a matter of law what we wanted to do was just proceed on behalf of the ass residents but then if for some reason the case got removed me just to be really precise but under mass law i get there's no right of octo which would mean it would apply to all mass residents plus all non mass residents who had minimal contacts about the long arm statute but that the more accurate i believe that may be accurate i haven't put that in then i guess there just be a question when all of these people potentially have minimal contacts i mean the long arm stats and since they all had been in contact with a race that they were going to run in massachusetts from what i've seen i can just tell you i could be wrong but i don't think so generally it's just yes residents are part of state classes and i just haven't read the supreme court case recently that i could i could send you a specify what the rules are i think there are fifty types of rules their brief they talk about commercial well if it's crucial that there's a rule seven or if it's the new super rules period the lore of that state changed would you say that it was the law prior to the date of contract not the current law that would apply well if i might not try to evade your question for example if you had one of these delegation provisions that you say you know the average trace will be under these rules you either like attach a set of rules or you if it's permissible tell somebody to go look at rules online at least they have achievements to go what the rules are and i guess if the  rules aaa rules changed to be tallied they could arbitrate on the old rules because those were what are tash but at least the consumer knew what the rules were but i would i would think that as a matter of contract contract so that if we if we venture down the road that you want to go it seems to me we're we are at least taking a serious step in the direction of something more than just