sorry excuse me thank you if it was possible that reserved two minutes of my time for rebuttal with the horse commission and start with the jurisdictional question of this court asked in his or her right before briefing we believe that there case or that fact finding a place that they're going forward that's what it wanted to do we of course believe the reason given our brief that arbitration proper is a matter of ones but we are you know strongly received a court order they submitted a joint status report that purported to go right into class certification and the merits and discovery in those being so that's what we've been going on in the district court absent the state that has been so that i think the order is a little unclear on what exactly it was doing there i think that there was a question about whether a jury or a judge could resolve those issues but again under the statute and under this rigid president identified in him even if they had said i am contract but that knowingly in that test is flexible and pragmatic it doesn't turn on the non signatory detailed knowledge of the contractual provisions doesn't turn on their sort of intimate involvement with its creation in terms on fairness there must been a contract it must been exploited then we don't take those kinds of assertions as creating a genuine good material fact so i think a good example of this case would be the get around case called hope or where one brother used the car rental app sign up for a rental car to drive them both home for thanksgiving months later the other brother had said he knew about the car company but he didn't have any detailed knowledge of the circumstances situation and so it was fair in that case  that we know it from the sort of the record of what actually happens he's been know that his mother again by hypothesis submitted the information they contain both of their contact information may i finish of ellie bill hanson if the court allows i'd like to address jurisdiction st and the merits pretty our understanding is that  circuit reasoning in van dusen is clear that where a denial of a motion to compel arbitration is really i think quote unquote establishing a decision decision making mechanism not finally summary judgment on an affirmative defense they need to establish that the contract exists without any remaining disputes the fact they failed to carry that burden there are disputes of fact and then the district court properly that because plaintiffs had requested a jury trial on that issue that it couldn't be resolved on the papers it couldn't be resolved by the judge acting as the fact finder it would have to proceed to trial in a case like this where i think that you know the d c circuit may have succumbed to the tyranny of labels i don't think the title of the ruling dictates this court's jurisdiction i think it's the effect the substance of the ruling so whether it's denied providing you know a rare in a locket tory appeal certain rulings that i petition to compel here we don't have an order or deny and petition we have an order denying a motion defendant failed to carry their burden on this motion but a final ruling on the merits the petition hasn't been reached and cannot be reached until a jury resolved the disputed questions of fact so while we understand it gin reached  demonstrates that as explained in van dusen you know the policy of this appeal and the f a a right to appeal in general is to have this type of issue ruled quickly in early in the case and that plaintiffs would need some discovery before that jury trial could happen plaintiffs entered a schedule in the court below defendants meanwhile appealed and then move to stay the proceedings so that that discover in that jury trial couldn't happen pending this appeal so here we have i think the opposite of the expeditious jury trial that the f a a contemplates we've got delay we've got the risk of serious appeals even if this is remanded and then we get to the jury trial defendants will no doubt appeal again so we think that the better policy supports the reasoning of van dusen that where a ruling like this just sets out t process doesn't finally determine the issue the petition on the merits this court lacks jurisdiction the sentence will always be able to appeal after the jury trial that determines these issues finally let me make sure that my understanding of views the record and were discussed as the court below yes judge both sides at the hearing on the motion to compel arbitration agreed that any factual disputes would go to a jury after discovery but after the ruling denying the motion to compel and the parties proceeded to enter a schedule for that discovery leading up to that jury trial defendants then appealed to this court and then filed yet another your own i would say that you know in part for as to the tune decision decision from the d c circuit which takes a sort of categorical approach that you know any order any denial of any motion related  to warrant jurisdiction out of the d c circuit rationale i do agree with you know this court's instructions in van dusen that it's they can't be categorical there are certain denials of motions that do not constitute final denials of the petition petition it's only upon the denial of that petition after the jury trial that this court would take jurisdiction i have a question regarding the formation of the contract and help me out  small that defendants couldn't even reproduce it in a brief without magnifying it dramatically no no reasonable person would be expected to recognize this fine print on the last page of a survey well below a brightly colored large font distracting buttons that in the fine print varied in that you know paragraph of fine print that there was some reference to terms and that in those terms maybe there was a reference to arbitration so we think that you know while the court was clear and correct to hold that there is a genuine dispute a fact as to whether anybody ever click this button defendants don't have evidence they said just trust us we've introduced numerous declarations of people whose experience contradicts that just trust us evidence from defendants but as i think we briefed fully below but the court below did not reach because the court you know held that there was no click of the button to begin with even if someone did click the button it would still not create a contract because of the presentation here under of a long line beginning with when barnes and noble there are quite a few cases from the th circuit other circuits that we've cited you know this is a you know an obscured if it was designed it was designed to obscure the notice it was not clear and conspicuous as is required you also have the color you also have it on the last page of a survey that says no logging required we respect your privacy click for your free results nothing indicating that this process would result in a contract we also have that disclosure the language itself well below the large green button that says click here for your free results the cases that defendants rely on usually have a checkbox or have the language up in similar font as the button or above here anybody that went through and actually click through wouldn't realize and wouldn't have clearance because notice so that's an alternative bases should this court take jurisdiction it's a matter of judicial efficiency or economy it might make sense to me and remand to have that act finding take place before this or addresses the issues raised and so we're not strongly opposed to that course of action we just don't think it's compelled