you may please the court my name is steven blonder i represent access living and ronnie patrick i'm here today asking that you reverse judge shot and allow ronnie patrick an access living to fi amended complaint to proceed with their claims this case involves a fundamental issue in the new economy whether businesses thought such that were created after nine hundred and ninety when the eighty to eighty eight went to a fact are covered by the statute we brought this case because hoover a modern day transportation service which is surpassing all the other transportation services around and companies like it whether it's lift and others are engaging with on line apps and take the position that they're not subject to the civil rights laws such as the a d a s because they don't operate out of a physical location and they're simply an electronic exchange matching one person to another and they're not actually providing any service we believe that that's an error judge schon fact also found out that we don't sol i don't understand that you should be before us now if i understand correctly this case is before us on an argument that your clients had not established ending and that the amended complaints were not didn't change that i think we need to address that rather than other issues that might or might not be relevant on remand i don't understand who are even to be contesting points are now making so let's let's get to what's the reason we're here  thank you judge easterbrook and we believe it's involved in the analysis because one of the necessary findings to allow us to amend our complaint is that we can state a claim with the necessary component of that claim being that liberal would be subject to the a b a so in runyon this must say counsel stating a claim and standing are different things you can choose what you wish to address but if you don't address the point on which you lost you can see the difficulty that's right you're up in runyon this court talked about the presumption in favor of giving plaintiff one opportunity to a man and the liberal amendment standard especially court's opinion it talks about originally a plaintiff whose original complaint has been dismissed should be given least one opportunity to try to amend before the entire action is dismissed here judge shodan not permit that one opportunity to  at judge shah's original decision and when he i hope you will deal with the ground on which the district judge said of course one can amend the complaint but this amendment that's what you need to address and we believe that the amendment does cure the problem because finally you're getting to what matters and i'll deal with access living st and then ronnie patrick and i understood the district court's reasoning you can correct me if i'm wrong mr bonner to to simply be that the alleged injury injury in the proposed amended complaint to the entity plaintiff's access limine is not direct enough about remedies are available to such person about subject reasonable grounds cited to any person who is being subjected to discrimination on the basis of disability in violation of the chapter or is reasonable grounds for believing that such persons about to be subjected to discrimination a person as defined in the statute involving both an individual or an entity that's kind of carries through the statute so the issue is was someone discriminated against and for access living the answer is yes because for access living it was on access living as a federally chartered organization which is designed to enable disabled people to live an independent life and what we played in our complaint which should be taken as true for purposes of this motion is that access living has differently abled or disabled people who are work force which is what is required to do and those individuals could not be transported to places such as do the grassroots organizing to meetings through they had to use alternative means which was raised additional resources and cost additional resources to access living so in that sense access living living says that no edition or discovery would be needed but it's not clear to me that that is a correct different to tween original complaint and proposed amended complaint what was different was we alleged that ronnie patrick for example in addition to traveling within the city within goobers service area also would go to a restaurant in berlin or other places if having gauge in any meaningful discovery in the case they would have taken ronnie's deposition and they would have found out that she travels both in the city and out of the city so there's nothing new about it other than it being stated their number one number two in terms of prejudice any prejudice hears of labor's own making you know hoover very defend of lee told judge shop oh most a year ago into the case that they were going to engage  big discovery battle because they want to avoid the issue of are they a travel service or a public accommodation they predicted they would do it and they did it they didn't go forward with a single deposition in the case they didn't push any discovery their strategy was t defend and obstruct and then later they change strategies and more than a year into the case they filed the motion that led to the dismissal of the complaint so this was the st opportunity that access living and ronnie patrick had to amend their complaint they sought to take it it wasn't that access living or ronnie in any way delayed or deferred trying to putting the facts or issues in play it was a choice of goobers own making by the way they defended the case that led to that result judge scott or in terms of your questions about going to we go to to judge scott or judge rogan or the camera at your end piers to give us a wonderful view of the ceiling if there's some chance you could point it down toward it's hard enough for the lawyers a little lower and you're smiling face will be in view all right thank you but we're still only seeing the upper half of your requiring additional cost nd way access living was discriminated against those frustration of mission which here is directly tied to bring its people to do the advocacy and ensure independent living for it's for people who are disabled so and that sense that's just living fits directly within the statute under who can assert the claim here why ok can i can you would you mind if i press you on that a bit that's fine so in and eighty two or one hundred and eighty two right to be one of the provision congress worded that in terms of the i'm going to excise some words just to get to the operative words the denial of equal services right there's there's no allegation here that you know you've been denied a corporate access living that is has been denied a corporate account or that you know and like some of the examples that come through in the other cases that folks that are not disabled or wheelchair bound or are not able to use birth or anything like that and my sense is that that's i know you'll disagree with it but that's what led the district court to say it's indirect it's not direct the district court went into an indirect analysis i think that is probably what led the district court to get into the indirect route now right it's about it's not direct to the corporation it's indirect because it is that the discrimination the ledge discrimination is occurring these are the you know the folks that are that are in motorized wheelchairs that are employees or volunteers or what have you well but it's direct access living as well because access living had to expand additional resources that couldn't be used for other things it was access living based on the makeup of its workforce that was discriminated against by over because access living again taking our allegations as true access living had to bring the additional resources transports people for example t meeting with consequence like a disparate impact argument rather than a disparate treatment argue that goober treats access living trust like any other firm but as a result access living ends up with higher costs of doing such a disparate treatment argument at all it would be judge because the same way we look at the basic eighty eight statute take a disabled person for whom we were treating everyone the same disparate treatment or different things i'm trying mr question to start it sounds like you're just asserting that disparate treatment and desperate impact are all the same that but that's not the supreme court is not supreme court night ruth you but it can be the same in certain instances such as here where again is access living take a company for example that we don't have this law covered disparate impact claims on the law covers discrimination does it cover disparate impact i don't believe directly it would based on that pocket i believe this is a disservice to say that he and it's based on what just based on the pocket itself if you had just an isolated issue but i believe here access living operates through some ploys the same way any other company does or any other entity so the fact that access living can't transport its people to do their job is discrimination against access living means to be subject to discrimination what would be a limiting factor for an entity like access level in other words can you give me an example of w example had members if you will or employees who were all over the country and let's assume you had a building in hawaii which was not handicapped accessible and so if outside the scope of access living's employment one of the people who are employed by a try to go into that building and couldn't because it wasn't accessible that would be example where access living would not be subject to it the fact that simply someone's an employee of access living wouldn't or a member of access living would not give it a claim because it's not subject to discrimination it's not affected by discrimination so that would be the best example i can come up with on the spot where the limiting factor if you will i mean subject to is not a defined term in the statute so we use the commonsense definition which and we've given the webster definition which means affected by i mean there's a series of other definitions which would all be the same but the fundamental issue is is someone affected by discrimination for ronnie patrick she was affected by discrimination in two ways one she's a motorized wheelchair user herself and nd her husband is a motorized wheelchair user ronnie can sometimes transfer to a non wave vehicle her husband never can so ronnie there has standing and injury the rakli because she herself cannot transfer i'd like to reserve the remainder of my time for a bottle since we spent a lot of time already on the cause of action question i proposed to start there with your honor so it's important to make clear that access living is suing in this case only for itself it is not asserting you know an organisational or an association is standing on behalf of its members it is claiming a direct injury to itself and so the question arises under section twelve thousand one hundred and eighty eight is access living its self being subjected to describe subjected to has a clear and accepted meaning it means a direct and personal object of discrimination mr wander has cited in his reply brief a definition of subjected to is as meaning affected by that's not the definition i see when i look at the dictionary the primary definition of subjected to cause to put up with and i think a simple example would i would demonstrate to the court why his definition is much broader than what we think of as the actual meaning well jeck to do or why has not been the subject more to transport its employees and volunteers around the city and not be able to it would seem to do anything in the suburbs sure your honor so i think the subjected to discrimination in this context is a question of who is the who is requesting the rides to the app and then it's from our read of the complaint access living is simply paying for that on the back and the people who are requesting these rides are what they call their grass roots advocates so they're volunteers people who do not have a sort of agency relationship with access living and so you know this is appears to be a situation where access living has a budget for transporting people  around those people are requesting rides and according to the allegations of the complaint are paying too much for them the subjects of the discrimination as they've alleged it are the individuals in the wheelchairs who are not requesting rides through mr killen stepped outside of the facts of this case if you know mind to just give me a hypothetical of where an entity you know a corporation like this can can invoke one to eighteen on the basis of the association discrimination protection hypothetical that the double known requirement be satisfied i think a classic example would be where an entity wants to lease a building for its employees and when the building owner sees that there are disabled employees or disabled individuals associated with or who are working with that entity the owner of the building says i'm not giving you this lease i'm not going to just your courts example exactly and i think that's that is a kind of a heartland example here but in the reason our case is different is access living has not alleged as your honor noted earlier that it has an over corporate account or that it has ever attempted to request rides itself instead what the allegations are and in fact there's no allegations that anyone has attempted to request a ride right this is the failure to request rides because that it so suppose hypothetically and i'm not suggesting only asking the example to try to find the legal line not suggesting they would ever do anything like this ok but suggest a ride sharing company who or anybody else offered corporate rates for transportation services just kind of you know flat fee corporate accounts for a certain number of rides a month or what have you and did chose to charge more for companies that employed a certain percentage of individuals that you know were in motorized there's and everybody knows you know a company writes a letter that says we're you know and two companies here right next to each other and one has a higher corporate monthly fee than another and facts are known and in your honour's hypothetical the corporation has created an account with ruber and has gone through this process and they've got it on the app right if they've got it on the app then i think that there is a much stronger case that there's been something subjected to ok how's that functionally really any different here you don't you don't have a monthly corporate account lee happening like this but isn't access living saying that you know over the course of a month we're going to incur x in costs in x is higher than we otherwise would have to well i think i think it's a critical difference your honor is that there in your hypothetical the corporation has attempted to enter into or has entered into a relationship with hooper and has requested services for itself but it while there may be it may feel like a fine distinction when the individuals are the ones who are and the individuals are the ones who are requesting rides and that entity is simply in the back you know in the ether in the back end providing reimbursement that may be sort of an article three injury which is the argument that access d living has articulated in this case that they are as an article three matter suffering an injury in fact because they have to pay more money but it's through this reimbursement relationship and so when congress wrote the cause of action to be individuals subjected to discrimination that subjected to is a direct and personal denial of a benefit and so you know this this sort of indirect reimbursement relationship that that goober has set up i think that access living alleges in this case is critically if congress intended a person with disabilities to suffer to qualify for relief under the ada how would you answer that the americans with disabilities act that's a case where the supreme court in a non disability and non standing non cause of action sense addressed the question of whether the you united states government could seek a remedy on behalf of black individuals who did not apply for a job at a racially discriminatory corporation and in that case the court said if in that situation if the united states could prove that the process of applying for the job was humiliating and would have led to the certain rejection of that individual that that then the united states could obtain recovery on behalf of those the state class of individuals and so there's been some cases i think largely out of the th circuit that's the link between the two as it has to be the humiliation of certain rejection and although i think question gets a little bit more to the potentially to the questions of standing access living has not demonstrated to the court at least i don't think has put forth an argument other than that in its brief that downloading the app creating an account and checking the scene wait times is somehow a humiliating act we think this is much more like the th circuit's fox versus baltimore case where the th circuit held that having to put your name on a waiting list was not humiliating because it doesn't involve the sort of interpersonal relationships the connection where a person could be subject to that kind of humility and so i do wonder whether yeah when you say that the discrimination by association of no help to title three do you mean to say that if it were driver refuses to pick up a woman who is married to a man with a it's simply well if i were speaking about access living your honor yes ok because x because in your hypothetical as i understand it the woman is requesting a ride and the driver's saying no for a reason related to a disability here access living has not ever requested a ride it is simply in the background providing reimbursement and therefore has not been subject to discrimination which i thought it takes me to the point i thought i wanted to highlight this provision a one to one in eighty eight is the only cause of action in forty two u s c where congress used the phrase subject you were subjected to in the cause of action itself there are many into discrimination substantive prohibitions throughout forty two u s c that say no person shall be subjected to discrimination on the basis of race or on the basis of ethnicity and then when congress wrote the cause of actions for those other prohibitions wrote them much more broadly wrote them to say that any person aggrieved by a violation of the may bring an action or any person injured by that and so congress wrote the cause of actions for the other any discrimination provisions of forty two u s c to include and tities like access living who allege in article three injury as a result of someone else's discrimination but in the congress chose to write the cause of action very narrowly and it is limited only to individuals who have been subjected to discrimination and because just disability is in the statute defined in a personal way it's undisputed that an entity a corporate entity cannot have a disability within the meaning of the day and so only when an corporate entity satisfies one t in paragraphs eight thousand one hundred and eighty four elsewhere in the proposed amended complaint access living alleges that it would experience increase costs and what have you but that's not enough it's still indirect it did not try it didn't go further exactly and try to set up a corporate account or arrange a corporate contract with the defendant that word or anything else you know more direct like that yep that is that is where we should sort of rest alternately on judge shah's denial of the motion for leave to amend as to access living access i mean did it make out a cause of action in its st complaint and its amendments in the proposed a minute complaint didn't close the gap as mr blonder has continued to argue in his brief to this would they would be able to run with that we would if they followed the new complaint your honor we would have hard defenses and other arguments that we could raise in connection with that it is hypothetical  go back several years access living could have done many things differently they could have attempted a derivative rd party standing on behalf of members but they chose not to do that they could have said at the outset that they thought this case was about not just the city of chicago but the entire suburbs and the hundreds of cities that surround the city of chicago but they did not do that if they filed a new complaint we would take up in response to that with defenses we think we have a connection with it unless  it seems to seems to me you're saying if they had done that it would be fine what i'm saying your honor is that it would be a different case and they went down a path that they chose to  standing theory in a cause of action that was limited to the associations own injuries and nothing derivative of the scope of the case the court only needs to address that aspect of judge denial of the motion to amend if the article three standing in the cause of action question there is no need to get into whether or not it was an abuse of discretion to deny the amendment in connection with that we do believe though that the court correctly and reasonably denied that that  amendment but i'd like to spend a few more moments if i can on the question of ms patrick's article three standing because we haven't discussed that today and it is of a pillar of the district court's decision that needs to be address the court held that ms patrick has not alleged article three injury in fact and we believe that there are four key allegations in the complaint that show that the district court was correct that she does not have an ongoing injury that she does not have a certainly contending concrete  she needs a car that can handle a motorized wheelchair and so the question with eighty percent of somebody is still something and we have to she has to close the gap though your honor so we have closed the gap with what well being injured on a number of days is an injury  episodic need for wheelchair accessible vehicle so efficient the fact that she doesn't always will get an accommodation doesn't make it speculative while you're on or what made it differently would one day out of three hundred and sixty five dollars tells you that the damages might be small it doesn't tell you that there's no injury no i disagree because that one day maybe a year on where she doesn't need to to be transported in other words a day where she has difficulty getting into a i prefer to transport via wave may not be one of those days where she wants to take one of these future trips we have to take her at her word at the in the allegations of her complaint she says that she would like to use waves to take to go to meetings but she didn't tell us when those meetings are how frequent those meetings are and she told us it you would like to go to a restaurant with her and that she would like to go with her husband directs a motorized wheelchair or to correct and i think but but your honor to show that to meet the about one day a week my arthritis is so bad i can't get around except with x correct does she have to file a complaint a dental crying one day that will be not only bizarre no but but if she also says your honor that i might only need to use a vehicle a couple days a year ms patrick alleges that she is a city dweller and that she may not need to use motorized vehicles to get around a lot we we're left to close the gap that's my point it's a vague allegation or a sometimes need to and the point is with someone who has an episodic disability as she alleges she needs to allege a little bit more to get over from the possible future injury to the certainly impending i want to add two other facts there are two other allegations that are important to this number number three is that she alleges that this is a case about wait times being too long and so the question will be on the day when she sometimes needs a wave assuming it's also a day where she wants to go to the temple or go to a restaurant or have one of these on specific meanings what's the wait time going to be on that day all of this sounds like to just to discuss to argument that longer wait times is not discrimination substantive it's not an argument about standing no it is because ok well my last point on this aspect of the speculative ness in the future injury or honor is to point out simply that ms patrick also has never downloaded the app as never created an account and has never logged on even to see what the wait times actually are now the other half of article three injury in fact requirement not only is that it be certainly impending but the other component is that it become creep in particular eyes and so if your honour's aren't with me that she has failed to make out he certainly impending injury then the question still is is her future injury here concrete and particularized and for three reasons we think that the deterrence there is she has articulated that is not plausible number one  crook thank you very much you're welcome fact that goober was not available paragraph seven to the end of the proposed amended complaint discusses she have knowledge that a rod was not available when she's never tried several ways your honor number one access livy of which miss in fact provide service when people want to provide a right to question i'm asking is why not download the app track and say on tuesday november rd i needed to get from here to there there wait time was much too long it wouldn't work for me one she would guarantee that's never been done she has not actually download the app she's aware that goober takes the position there's an arbitration provision in the app and once you download it they take the position you can't bring that claim into a court so that number one i don't doubt and i don't ever get it i don't you know behaving strategically in an effort to avoid a contract doesn't sound like the ground of stand number two would been futile because she had seen the map downloaded by other people showing no way vehicles being about will so she took one her knowledge from the meeting with that with goober to having her proposed where she had to go to the meeting and had to use other means to get to the meeting to accomplish what she was doing the law recognizes few tile joshers and we talk about humiliation point and that was kind of were councils going before and teamsters response times for people who needed wheelchair transport not that it simply refused to accommodate those requests it's actually both your honor paragraph four thousand three hundred and forty five the complaint we talk  about for example forty two before the filing of this lawsuit ronnie saw images of hoover's app showing that there were no wheelchair accessible vehicles available under bush travel service at her home address paragraph forty three you know the same thing so we're discrimination it could be discrimination based on whatever the facts meet the as to why that person can't get a ride for example if there's a racial issue if there are some other issue but that's not the case this case is a disabled  wanted to use hoover saw the app and saw that there were no vehicles available that's the allegation here and that's the claim separate and apart from what we're what we're discussing here the article three injury or lack thereof with  miss patrick there's a separate she has a separate claim right the statutory claim gets and you evy that as it's separate and apart didn't have anything to do with what we were just talking about gifts the associational claim three associational clementi on her husband's circumstances yes and that doesn't that just circles the wagon right back to what we were talking about in the st half of the argument correct we'll go back to social claim where it's known that her husband can't travel outside of using a wave vehicle it's her husband she wants to travel with him whether it's a restaurant or time hold so it was a whole direct indirect they're not telling her under no circumstance will we give you a ride because you're married to somebody that has a motorized wheelchair it's not that but if she can't travel with her than a lease if you can't support your people in a car so different than you can't put your people in a building thank you we ask you a verse of history or thank you very much counsel the case is taken under advi