granted thank you this case presents a number of important jurisdictional questions there are other jurisdictional questions that relate to article three and the plaintiff's eighty eight claims pacifically whether someone who has never done any business with the defendant has standing to sue  that defendant for a transformative injunctive relief but before i get into that the court's letter says indicate have indicated some concern about whether and to what extent those important article three questions are presented in this appeal and so i'd like to start the magazine judge did in fact talk about standing absolutely in her opinion and the question i really have for you is is did she decide the issue in the text accompanying that footnote where the judge in our case quotes at length a block quote from the district court in the chicago access living case and concludes that the plaintiffs here  a couple responses to that your honor because i do agree that is the that is the threshold question here is well doesn't preclude the court from considering these these issues on the contrary griswold we think it supports what we've called sort of the discretionary approach it recognizes that there are circumstances in a walk a tory appeal where the court of appeals may consider all there are issues including questions of article three standing that are that are say not within the the sort of primary article three standing in griswold was not inextricably intertwined with the question about arbitration and we believe our case let me ask you a question that so i you know i do you arguing that the only instance one other circumstance where the court can consider article three issues in the context of an airlock dettori appeal but our position your honor is that larsen is the better case to follow in this so i just i want to be clear that i'm not i'm not saying that that's that's discussion for about two or three paragraphs of the some majestic star casino case where the court distinguishes majestic star where the court this court considered article three standing for the st time in a lock to repeal because it hadn't been raised specifically addresses the question and then so this court asks is that separate order inexplicably intertwined with the order over which you have immediate appellate jurisdiction and so when there is no lower court order that is right if if if the district court rules in and denies a stay of arbitration under section three or denies compel arbitration under section four you know denies whatever else it would get you a section sixteen appeal and along the way reaches let's just say fifteen other role you know we don't have personal jurisdiction over this one player if we don't have you know this one dollar you know it was time barbecue that we can do whatever you want but there's fifteen other rulings it strikes me that the right analysis wouldn't be necessarily that all fifteen should be included in the in a lock for repeal nor would the analysis be that none of the fifteen can be in just kind of a baseline question on the law i mean i've laid out a few options that might not be all of them but what you think of those options sure i'll do my best answer on because i think that there's article three issues are kind of special right there the kind of court issues that this court must consider mandatorily article three issues you know parties can't waive tactical behavior can't prevent a court from reaching those questions and so they are they are between generous and i don't want to put a pin in that because i think it's important to remember we're talking about the power and authority of the court to act not a question like you know what is the proper standard of care in a negligence case and that may have been passed upon in the process of ruling on a motion to compel arbitration that you know is a true merits question but to answer your question specifically judgeships i think the answer would be in the text of section sixteen a section sixteen a of the federal arbitration acts says that in order denying a motion to compel arbitration under section three is immediately appealable now how this court interprets order whether it's a formal interpretation so the four corners of the of the document that and so anything that is formally within the four corners of that document may be the order that is up on appeal or the court may take a more substantive so is that what she addressed absolutely absolutely address that because she was asked to address however if you look at what she did st she could create even they have stopped right then that she addressed it simply the primary theory that has advanced for why plaintiffs here are equitably a stopped is not that their claims there are eighty eight dollars claims are are the basis or the terms of service are the basis of their idiot claims we argue that but the primary theory is that their standing argument is an assertion to this court that relies on the terms of service and then for that same for that reason they are opening up the federal courthouse doors on the back of the terms of service that they are then equitably a stopped to deny the rest of the terms of service including the arbitration provision so i don't view those as i view those as distinct theories for why the plaintiffs must be required to compel but the nd argument judge beatles on is not honor and i would encourage you to look at the motions would fall below why she chose to write her opinion in the order she did is sort of beyond my ability to clean from the the heart record but they are the position we have long advocated and the reason why i think ultimately griswold the equitable stoppel question here is an extra couple intertwined with article three standing is that we believe the only theory by which plaintiffs have article three standing is one that is that relies on our terms of service not the plaintiff have a different conditions and so the doctrine of equitable stoppel maybe i should point to the court too that you know in the pennsylvania's doctrine of equitable stoffel says that if an individual knowingly exploits a contract if the individual seeks the benefit of a contract or otherwise embraces the contract then that individual has to it has to be sort of bound to the entirety of the contract not just portions of it and so the argument that what we've i think put here and below that really hasn't changed is that plaintiff's theory for getting into federal court relies on the terms in service they've never used our app they have never signed up for this service and they have they've never requested a intertwined and it's that are so because they rely on the terms of service to to show the court that their deterrence alone theory works then they are exploiting the agreement to open the federal courthouse  and that is the type of exploitation that is referred to and that is in compass within the equitable stoppel doctrines that bind someone to accept all of the terms and conditions i mean let me let me posit this is a sort of counterfactual to help explain why we think that the question here actually is the basis for an equitable stop and i put this on my last letter so if your honour's are familiar with it i could cut short if the plaintiff had alleged explicitly in their complaint that they would never sign up for our terms and conditions right that they are opposed to arbitration and therefore they will never sign up for oberst terms and conditions then they would plainly not have a live case or controversy and so obviously they haven't said that in their complaint they've never they've never alleged that they will not sign up for this and so implicitly explicitly their basis for demonstrating a live case or controversy relies on their agreement to our terms and conditions and in addition the other component of the equitable stoppel piece and the reason i just don't think the court well i mean i'm sort of time myself up in knots here so they have this deterrence alone theory i'll talk in a few minutes why we don't think the deterrence alone theory is sound but of deterrence alone theory is sufficient under the courts that have recognized it says that that person is to be substance of the article three argument in griswold the article three argument as i understand it was that the l l c had dissolved and therefore did not exist to have standing it's just a question does this company exist does it not exist but the equitable stoppel question and they're turned on whether a beneficiary of a trust was in a position to rely on to be bound by contracts that the trustee had signed so substantively those two theories of why the plaintiffs in griswold lek standing and why the plaintiff  totally unrelated to each other here we in the plaintiffs strongly dispute the basis for plaintiffs article three standing if you agree with us that the basis for their standing is their reliance on the terms and conditions than we think specifically there's section three of the terms conditions which provides all the agreements to use and how you use the intellectual property if that's what plaintiffs are saying is the basis for their standing then they can ignore the other section of the terms and conditions that has the arbitration  that ok well so now i feel like we're moving in article three your honor but we think the app is relevant because the plaintiffs under under ordinary article three principles a person who has never met the defendant never used the defendant services never been to the defendant's building does not have a live controversy with that defendant they have no personal experience and in order to maintain a prospect of injunctive relief recall that the eighty eight is not provide damages remedy so we're not dealing with some sort of retrospective  purely prospective case they have don't have the concrete and particularized injury they are a concerned bystander who disagrees with policies but have at the end of the day just a generalized grievance and so they come forward to the court relying on a th circuit case that we think is ill founded but be that as it may rests on and assert something called the deterrence alone theory that says yeah i know we've never experienced tuber but we are we are injured still and therefore we get it well the question is therefore we have standing that's their conclusion and our point is well if that doctrine works it's not therefore you have standing it's there for you good to be treated like someone who is a neighbor user in every job or user in the united states agreed to the same standard terms you can do and those same standard terms and conditions include an arbitration agreement that requires arbitration of disputes like this one and so i'm not sure we're really squarely article not rape and in the past past tense but the other aspect of the other way this court is characterized pennsylvania's equitable stoppel standard is b is more than just seeking the benefit although we think that's what they're doing here they are seeking the benefit of our terms and conditions  benefit being you know to use our service and to get into court just like other users of our service but but this court has also said that if you knowingly exploit the contract in a judicial proceeding then you can be equitably to stop  just trace back your argument in you can you can take over for where you're at but let me just well let me just make sure that i'm keeping time with where you want if i understand what you're saying you're basically saying look planets need article three standing in this case the reason that they need theory that did they have standing is because you say look you don't pale and over on a street corner they could just try to hail a neighbor on a street corner and that would work then maybe they could have standing if you were wasn't wheelchair accessible but that's not how it works it's done through an very close but ok but at the very very final step of that judge phipps i think is where i have to clarify our position so you're right in describing however operates is not a taxi service or is not a publicly accessible building it is available only to people who have signed up for our app has intellectual property within the app and therefore provides a license to use that intellectual property only to people who are willing to submit conditions it is not that the terms and conditions themselves the ny plaintiffs some right that they claim under the a t o and that's where i wanted to clarify what you were proposing judgeships nobody has challenges that it was terms of conditions or discriminatory or that they even have anything to do with waves in fact as plaintiffs allege o offers the waive option in its app in many different markets it's that but the rest of your the rest of your point is our view yes they are claiming that they never signed up for the app that they have never even used the ap p because it doesn't provide them the service the the level of service that they think that the eighty requires and so normally under normal article three conditions a person who is just sitting in their house and has never gone to see the defendant never interacted standing and so what you're saying is why didn't you use the yeah if you use the app you have standing but if you use the app then you'd also be subject to arbitration agreement and you can he survive you can't avoid the operation agreement yet and ma it in court exactly that's that's the dilemma the plaintiffs themselves are trying to work around in this case and what we've argued and so that's that's why we think their standing theory fundamentally relies on whether they say it explicitly or not they are relying on arctic three doctrines of articles we standing by deterrence alone terry absolutely we think there are serious problems if a plaintiff has no personal experience whatsoever with the defendant and says i'm still deterred well you know we have there are plenty of cases to talk about circumstances we're fighting here but number two the court said perhaps the circumstances would be different if there was quote a categorical refusal and it raises questions because the parties didn't really argue this issue what the court means by categorical refusal we don't think a categor refusal could mean every a violation otherwise the deterrence doctrine does in fact swallow all of ordinary article three standing what we think the th circuit was referring to and that that paragraph that your honor cites is referring to something like an express an outright refusal to deal with a specific category of individuals akin to the one that gets used a lot example to get used a lot of the restaurant that uses the whites only sign in the door and you know the supreme court and other courts have recognized in a circumstance like that you know the defendant doesn't have to go in and then this isn't an article three contacts either so we're you know be that as it may we don't think that the seven circuits decision that  i mean at one level it's not i mean that you know a lot of places say we are categorically refusing to deal with people with with mobility difficulties our aisles just have to be a little too narrow for wheelchairs it's there we love you to still shop your aisles are just too narrow in so i mean isn't kind of the same thing you know and maybe you can go about getting your for your food from our store another way you know or your services from our i mean there's a little of that going on here too right isn't a point like hey look we aren't saying no we won't provide you with the way you were just saying you know our app doesn't give one and everything you have to order the only way that you can get our service is through the gap reason judgeships i think that in the ultimately here what the plaintiffs are complaining about is the lack of waves on the road in pittsburgh right that's what their case seeks they want us to find ways to guarantee wave availability they want us to provide ways of connecting them with wave drivers right and so that is essentially the exact same relief that was being sought in the th circuit case with the one difference being that in the chicago case the wave option was enabled within metropolitan chicago whereas in this pittsburgh case the wave option is not enabled we think that fundamentally the two cases aren't distinguished by the presence or absence of the wave option because the plaintiffs are seeking the exact same relief at the end of the day which is to transform how over operates within their local market by by providing or ensuring in some specific way a certain number of waves available on the road in a way for drivers to connect with them so th that the fact that the wave option is not enabled in the app and pittsburgh we don't think sufficiently distinguishes this case from the chicago case but even if it does even if it does we think that would mean that the seven circuits holding  article three standing means that a plaintiff does not have article three standing to challenge waive availability more generally now to plaintiff have standing to compel cooper to enable the waive options that would be the only sliver of this case that would be left if you sort of took the seven circuits logic i couldn't understand in other words how a plaintiff in a city like chicago where the wave option is enabled would be kicked out of court and able and not able to get comprehensive relief but in a city like pittsburgh where the wave option is not whether they are exploiting the agreement to demonstrate their article three standing it is not whether they are fundamental whether they are exploiting the agreement to demonstrate their claim the merits of their claim we think there's a small component of their claim on the merits they will ultimately turn on the terms of service but  but pennsylvania is article three using its means equitable stoppel doctrine you know it says that if you are knowingly exploiting the terms of the contract in order to pursue your relief then and we think that encompasses that pursue your relief stuff and compass is not just the twelve b six elements of your claim it also includes the theory that keeps you in the court where you are and so they chose to come to federal court and in order to be in federal court they need to have a concrete and particularized injury cross as your honor just pose the question the court has set aside in order for overs equitable stoppel argument to work the court has to decide what is the basis for plaintiffs article three standing is the basis the contractors the basis something else what gives them that injury and so when your honor says we're not going to consider it we can't consider article three standing i hear that is saying we're assuming that the plaintiffs theory of articles three standing is correct and that that therefore it takes most of the legs out of our equitable stoppel argument you know we've proposed one theory of article three standing the plaintiffs have proposed a different theory of article three standing our theory relies our theory argues that they rely on the contract their theory contends that they do not have to rely on the contract and so if you if you're saying we can't even consider this as a threshold matter then our equitable stop argument is almost impossible to pose because it's simply saying what the court will assume the plaintiffs have article resetting into the court of appeals and it's limited and so i guess is is is a is i'm thinking through your position we need standing right now for the relief softs the ending summers of the earth island wasn't  the st work to say it but when they said it i finally understood article three standing and it or at least this component of it and it says that we look when we evaluate articles free standing we look at the different types of relief that are sought you have to stand in for know that you're trying to link the two but but if we think about relief it starts with the fact that the only party before us is over who wants relief and plaintiffs don't want relief here so if they don't want relief on appeal it seems a little strange to look at their articles responding at this quick peak not later that may come well late so anything several responses just yet so number one is it's it feels strange to me to speak about goobers article three standing if there are questions about whether group or has appellate standing right as a was over the party who lost on the motion in the district court and thus is that the person to the part of the proceeding was the appropriate one to bring something up to the court of appeals but article three can i mean if i understand the f a a and you can bring the freestanding sections reclaim you don't need you don't need to be sued before you bring the sections were equal you don't need to be sued necessarily section four you don't need to be sued st for section four so the person that would invoke a person who was released under section four would say oh we have standing to get this really right and i demand that they need and so it strikes me that that's the end you would have to continue under section sixteen if you want to pellet review and now you're invoking section sixteen to get i think it sections were released but i wasn't sure if you also wanted section four really it's just  get the federal court over does not want to be in federal court so we not invoked the court's article three power in that respect in the in the way that the plaintiffs here have when they filed their claim in federal court in the st instance the section three motion is defensive affection section four motion is often said and so like other defenses that someone may raise during the course of someone else's proceeding we think that congress his decision or section sixteen to give this court interlock a tory appellate jurisdiction over the denial of that defense also brings up with that the question of whether the plaintiffs in the st instance should have been you know was it appropriate for them to come into federal court so i guess i resist the the inclination to compare this directly to section four because if they had never sued us in federal court i don't think oprah would be here on a section for petition trying to compel arbitration with them we don't think we have a real live dispute with people who aren't signed up for the a so if in fact the judge had already ruled them standing why did you not withdraw all of that motion because wouldn't it have been a little of the case so you would be asking her to decide something that's you know what you decide so the basis of the motion separate motion to dismiss the trade association because of it because it's not all of a person and has different standing considerations in this context and so the remainder of our motion is mrs told the six problems that the merits of the claim is so your honor as i've used a pittsburgh it says you're saying that you can't get a will to your client can't get wheelchair access to be a cool because the app doesn't allow and so why isn't that why isn't that in some way based f and their title three of you and i think it's actually appropriate to disavow the core of misnomers used by her about these claims these are not deterrence alone claims to her not abstract injuries plaintiffs allege that on specific occasions they missed events they've been late to events they've had to travel miles and wheelchair late at night when they would have used uber but would not because it was inaccessible and those are actual injuries and i think the  circuit was right when it gave the analogy of a person in a wheelchair who seeks to enter a building with stairs now no one has as the th circuit said no one is going to argue that person would need to attempt to climb the get i guess what i'm saying is what what's what's the difference it seems like we're going to really do it most of the yeah you have plaintiffs seek reasonable modifications to her services which means as they have started to do in other cities they could make modifications whether it's arrangements with wave drivers whether it is is taking steps to recruit persons for driveways there are all kinds of things that could do their point of said no problem with the caps necessarily a p  in your reason for standing is the stay here and so i guess my thought is is it your reason for standing here the the no way that your honor the reason for standing is the lack of accessible vehicles in the service and and beatings and example so you're saying it's a we take over at face value and there's some sort of additional steps plaintiffs have to take like like you know whether it's downloading the app making your reservation going out to meet the vehicle none of those including anything to do with the app would do anything whatsoever to make the service accessible but to fix the barrier what would do something to fix the barrier is a reason modification that would include having wheelchair accessible vehicles in the fleet so it's not necessarily related to be out and actually you know if the point of the reason the plaintiffs didn't download the app is because there are no accessible vehicles in the service so if there was one accessible vehicle in the service they asked the parties to say where you draw the line in terms of what level of service is acceptable and we you know that's a factual situation that's a factual debate and we're not here on on the facts at that point of the case yet but one thing the court did say is  not having any way of service whatsoever in pittsburgh is the equivalent of having a whites only sign on the door that they're essentially saying you know we can't serve you and plaintiffs here actually reached out to her you know they tried to take the only gesture that wouldn't be futile they reached out to the letter and asked we would like to use your service but it is inaccessible to us because we need a wheelchair accessible vehicles we were refused and that's why i mean no one level i mean look i mean i mean it may be the hype and i don't know how this type of cheese is out maybe it's maybe it's better for your adversary than you but but i think both of you have referenced the whites only sign in a window what if it was whites only and then an asterisk next to it subjects an arbitration you know you know it you know what do you have to do in that instance you have to say oh i didn't go because you know it's said whites only or do you have to go through the action of saying going on here because the at the point at which our folks decided they they were the mayor we're not going to use the service had nothing to do they hadn't they hadn't opened the terms of use they didn't there was no sign saying arbitration it was because the service was inaccessible they decided to reach out to hooper and ask for them to make a service or accessible so it would be saying you know to the manager of the restaurant please don't discriminate i see you have a sign out there that discriminates that's a situation where in the agreement hasn't reached his head but but but what if what if the sign said but he just i mean i'm thinking out i'm thinking this on the fly but what if it said whites only star subject to arbitration is someone this someone who has an arbitrated have standing to say look i i didn't want said star but we may we may change that policy subject for arbitration i mean i mean what's required st and he just looked at the sign and say well i got standing or you have to go through that process is it fair maybe to require people to go through pennsylvania law in arbitration under the toll brothers case where it says the burden rests on the party asserting the stoppel to stop the stand was just awful by clear precise and unequivocal evidence and that there may be no debate about that person having stand standing is not is not based on the arbitration agreement and i think that's where this is getting all confused standing is based on an injury that was caused by hoover that is regrettable and for here you have injuries there's no question plaintiffs ha been denied service and essentially that may be experience harm on particular days particular events when they could have used but didn't it's caused by hoover because hoover does not provide acceptable service and it is regrettable in court because there there's a reason a modification component of the a b a that allows plaintiffs to see changes the policies in provisions of the service unless it's an under burden to do so to make it accessible we have all those factors here everything is so your honor in theory if the plaintiffs had already experienced discrimination and they experience ongoing discrimination the eighty eight allows the person being subjected to discrimination to avoid a futile gesture so in theory that person who has already experience there already they already want to use uber and they want to use it on specific occasions and they can't because it's not acceptable in their city that person is already experienced an injury they're being discriminated against right now under twelve that person does not need to take any steps whether it's a phone call or whether it's a to get additional steps or or if downloading the app and the way out the way we look at in terms of how those are futile they wouldn't do a darn thing to create accessible service calling the number downloading the app making the reservation whatever that is whoever has already refused to provide accessible service in pittsburgh that's that's a problem and that's what you  called them they can do that the wheelchair user cannot that that that is that's the problem that's that's the client that is discrimination on the basis of disability and under title three of the person who is experiencing right now being subject r we see the circular nature of that concern with work where we are not living in a vacuum in that sense and we we are concerned about that generally ever that's not the issue that's not at issue in this case because plaintiffs are not relying service is conditional on a waiver of your right to proceed to a jury trial in federal court so your honor i do see a concern with that and i think there is an impediment there but i i think there is a difference in this case even if so even if that impediment existed there is a difference in this case because the point if the not one has already been injured they are not directly benefiting from the contract they are not seeking to exploit the terms of the contract in all the cases that you discuss whether somebody is exploiting the terms of the contract is usually a term of the contract somebody seeks to enforce and there is no term of the contract that are plaintiffs are seeking to enforce and backs also if you can not not not to deal with the contract at all so so and here i'm just going to i'm going make sure i can trace your argument just so so tell me if i've got to be wrong here what you're saying is that plaintiff's theory of c ending disavows any reliance on the terms and conditions of the contract it i made them demi before the district court but for today the question of the terms of conditional contract is not that's not a basis for standing or disavow and so we can't we can't get into what other terms like the arbitration cla to say like do we actually have jurisdiction at all to consider the merits here we've got this narrow sliver on a field just a motion to compel arbitration the merits are not at issue at all so this case doesn't doesn't contradict or fly in the face of larson and at that the fair point i just want to go back to judge ross went to to do better at taking away this i guess what i'm saying your honor is you don't have to walk that line between griswold and larson in this particular set of facts because the merits are not in order to evaluate whether or not you reach the issues that you're right again it's our position but if if the magistrate judge had reached if you could read the decision to  i and i i would raise the opposite of you know if if this reports one allowed to do their job particularly in a case like this where there's some confusion at best as to whether or not standing was actually moved on you could have an end run around the district court for whatever reason so say you know in the congo in the context of litigation a party really may realise that you know they they might have a judge that maybe look in some it might have heard bad things about the judge and they could sneak in pendent jurisdiction when it hasn't been says that that there are some you know that defendants deterrent based theory attacks on and standing don't work i mean it seems like if those attacks on standing fail is there down that theory of standing for your clients and the magistrate judge says no i won't let you shoot down that theory of standing for your client so i mean i guess my party you may be correct that that that your standing was was put on isn't the inference that you have standing for x r in fairness i mean the people that usually raises the any defense are the defendants plaintiffs usually don't walk into court and say hi the st thing we'd like to be was standing usually that comes in that well be one motion and say there's not jurisdiction because there is not stand and so it one level i don't think you can all or but i guess i'm saying why are you resisting taking the wind here when it feels to me like you want it feels like they said you don't have standing on a deterrence based theory and the magistrate says your thank you your honors and i'll be brief i appreciate the time you've given our case today mr seaborne acknowledged at the beginning that the larsen case was one where just a narrow sliver of the case was up on appeal and yet jurisdiction and said that we will do so only when it's an extra complainer twined as i tried to say at the beginning of my argument today i think we satisfy both standards by larsen standard clearly this is good for us you have to consider our country standing under larson griswold says you can see it when it's fin the two cases don't relate to one another they don't talk about each other i think there's a tension in the courts case law but the court if it doesn't agree with us that it's inexplicably intertwined then that tension is squarely presented and we think as you because it was a section for case and so a section for the f a a right and so the individual in that case raytheon was the one who opened the federal courthouse doors raytheon was the one who st came to federal court section three is a defensive federal arbitration act motion section four is an often supply one and so it makes sense to us and the raytheon case why the court would examine the article three standing of the person who st came to federal court but not so it can  other type of kates and that defendants as i just want to plain old ordinary stay in a case because you know the rd circuit or a higher you know the supreme court's going to decide this case but we don't say to that defendant ok you know yes that is exactly our position the stay motion here is essentially a defensive procedural motion for a stay and when a court grants a stay under the f a a section three the court also retains jurisdiction in order to enforce issues that arise during the arbitration to enter the award at the end of the case and so the court when it grants a a motion under section three is telling the world i've got this case it comes within the scope of my article three jurisdiction and i'm going to decide this case and so it is a procedural relief that we seek you know akin to where should this issue be decided but ultimately the issue that the court the federal court itself is retaining jurisdiction over the case and so a grant of authority  point that i think is critical to our view of why we succeed under griswold's approach he said this isn't going to be a direct quote i'm not a fast writer but something along the lines of if you accept goober's theory of standing it's an extra complainer twined with  equitable stoppel yeah he has a different theory of standing absolutely i don't dispute that his theory of standing is one that is not inextricably intertwined with equitable stoffel but ours is and so that is the ultimate dispute and if the threshold question we have a assert that the only basis for their standing is based on the terms conditions they say they have a basis of standing apart from the terms and conditions it's not possible we think to hypothesize one is correct or the other because that is the question ultimately before the court not mr se borne also said that he thinks this he has skills client has something more than a knowledge alone or more than a deterrence alone theory for satisfying standing in this case point the court to page thirty five dollars of his brief here where they say quote they need not satisfy additional requirements beyond showing that they are aware of the lack of waves and are deterred from using over because of that knowledge that's it that is the theory they played in their complaint and it's the theory that the district court and it's the theory that they continue to insist on  today he asked where do we draw the line where do we draw the line for what needs to be done i want to doesn't need to be done for a deterrent effect plaintiff well the theory of deterrence as a nd circuit acknowledged in the access living case is that a person need not expose himself to the discriminatory conduct the allegedly discriminatory conduct here is requesting waves but the plaintiffs here did not even get that far they not only didn't request ways they didn't sign up for the app they didn't create an account they even look on the app to see what's available on the app they stop several steps short so we're saying yes it's not required that they request a ride if someone signs up for the app someone creates an account and looks at it and says i can't request a ride where we would agree they don't need to hail generally doesn't work with people who haven't signed up for it to have for its service if they if they haven't shown a commitment to abide by our terms and conditions i don't think that that's the kind of outside the scope of work that that over done so so i would distinguish what they from post here non futile gesture available anything else they would have done would not have provided x not have made the service acceptable to them they actually wrote and said you don't provide accessible service in pittsburgh we need a  provide they've done they've they have a remedy but very and so i go back to the th circuit where the person is is sitting outside of the building is that person have to take any additional steps when they know there are stairs there you're there there was a request to go further than that my understanding is that what the complaint alleges is that they made a demand and then as says in the next sentence we did not we did not comply with that demand my understanding is that my client offered doing gaijin some kind of discussion and we played on this before but i mean is there is there any is there any question if if if for restaurants as you know whites only a person who isn't white would would have standing without having to try to go rest i think that's exactly the most logic a sure honor where the supreme court said the person needs to make an attempt needs to apply for the job before they could bring the suit article three standing requirements cannot be futile and so  if i can give maybe a better example to describe the difference between what's going on in this case i think and this is a hypothetical imagine that there's a golf club that you know has a requirement that only people who have you know two or three recommenders within the club can join the club and someone who is no no friends at the club finds out that the pool is inaccessible in a certain way and sends a letter to the club and says hey i'd like you to make a pool excess a ball and then maybe i'll go through the motions afterwards of making the friends in order to apply for membership to the club that's our analogy here is a service that is limited only to people who have satisfied the qualifications the qualifications are barry easy to satisfy their nondiscriminatory so this isn't judgeships the example of a restaurant that only hires white employees or a restaurant that serves only people of a certain race no one has ever complained that terms and conditions are discriminatory and or that we're somehow selective on that end and rather is so so this is like a situation where there is a neutral generally applied criteria for qualification to become a member and the plaintiffs thinking they can see further beyond the application process into what may or may not be available to them after they've applied choose not to get as close as they can to the allegedly discriminatory conduct and i would point the court to the three credit union cases cited in our briefs carrillo and griffen they're all eighty eight dollars cases they're all cases where disabled individuals tried to access the website of a credit  union and they found that it didn't work with the screen reader and so they brought a lawsuit in the th circuit the th circuit and the th circuit all held that because these plaintiffs could not be members of the credit union at the end of the day they didn't have the correct work history of that in a live in the right communities they didn't have families who had worked for various federal agencies or neutral criteria that the credit unions were limited to because these plaintiffs didn't meet those qualifications even though they personally experienced the alleged eighty  eighty eight the qualification that we seek here judge crouse is the agreement to all of our terms and conditions including the requirement that someone agree to arbitrate their disputes with us the eighty a is not above arbitration on the contrary congress in the a d f specifically encourage parties to arbitrate disputes that involve claims that i don't have the citation right of funny but there's a technical provision that specifically mentions arbitration in connection with the eighty eight so no we're not we're not  through the idea yeah yeah yeah if arbitration agreement is not found invalid that's exactly yeah many tech companies and today impose arbitration terms through their terms and conditions for a variety of business reasons we prefer the efficiency in the economy of that to long and drawn out litigation in federal court so give us a call so i mean we can have this deeper question that's behind the scenes which is is that you know every now and then arbitration agreements are deemed you know unconscionable or an enforceable or something like that and so we've got the deeper question that's not really in place here but it sounds to me like there's no de la either once plaintiff sign up for your app they're never come to federal or it seems like they've tried to go as far down the road as they can to get standing without signing up for your app and on the stand in question we've got this really if we get to it we've got this really interesting question of is that far enough or does your app reach out far enough to kind of grab them and say aha if you want standing you have to do this now you're arbitrating you're never going to get a chance that that's exactly the gambit your honor that the plaintiffs have undertook in this case and so for all these reasons and again with thanks for the time and the attention that the court is giving to this case we ask that the decision below either be reversed or that it be vacated in order to be dismissed for lack of jurisdiction thank you very much