compel arbitration the court issue on appeal as whether the plaintiffs sole remaining claim arose under the party's contract in which case it must be individually arbitrated or alternatively whether it sounds only for and which case the plane just may proceed in court our position on this question is simple it's a contract claim the plane just claimed the club claim base harms them by failing on one occasion to provide them with access trust functioning digital currency court to just for ease of reference to age of the august th teen version and that's it you are to forty one dollars all of the plaintiffs in this case entered into that user agreement well before the launch of support for training in a bit quiet area and a light client all of which are other forms of digital currency so this argument that plaintiffs have in their opposition that there's some sort of st time exception actually applies directly to the launch of support for a new forked currency and if it works currency is simply a new digital currency that spins off from a preexisting currency and that's what happened here a big fork currency accounts accounts if i could interrupt your going to whether the contract was breached and so if you could take a step back that's would be helpful you know we have a fair amount of discussing how we decide whether a dispute arises from a contract or not and we have quite well established case file that we have to figure out whether the claim and we're now talking about one claim relates to the interpretation of performance of the contract itself we're trying to get at the essence of the contract so could you speak to that why does this claim absolutely correct that where claims require interpretation of the contract they arise under the contract now are that is that there are a number of provisions of this contract including the overarching purpose of the contract but a couple of really really important examples that off lag the plaintiff's claim that point bases negligence in launching support for big cash on the g eight x exchange caused errors in the ninety one and those trading rules are incorporated into the user agreement and those actions say that all traders will have all and equal real time access to market data and something so let me take a step back and try it this way because you're going deep into the weeds and what the contract requires and i appreciate that and i do think this is a starting point we bet we require as we look to whether we have to be interpret the contract and figure out whether the performance itself as is is at issue so my i mean this wasn't trying to be a trick question i do think that there's a there there is that but again back to the st point of the analysis the other cases we have could arise out of this bit of a contract but may not arise out as you had a contract and they've gone through quite a number of them and where we have said their parties have a contract but a tort claim existed it seemed to me there was always another statutory claim another foothold for the court to say oh no that one arises out of the oil pollution control act i mean you've read the same cases too and i don't see anything like that here any other foothold at least there isn't now and so my question is what do we do about the fact that when the when the district court was looking at this there was a california statutory claim it's since been dismissed but i think now this is the only remaining claim and there really isn't anything else any other way for the agreement to arise except from this contract or at least if i were in your shoes that would bring my position and opposing counsel have a chance to do to address that when the district court was ruling there was a statutory claim so what should we do about that were decided at exactly the same time the district court found that the allegations with respect to the u c l claim were entirely different than the allegations at issue and the negligence claim that the court was looking at whether there were some allegations about insider trading and whether coin base had given its insiders its employees access to information ahead of time to allow them to to get a leg up on training when support was launched that allegation has nothing to do with the negligence claim and i think to the extent it under it if that's the basis for the claim they don't think it affects the court's analysis here at all  other theory had to do with market manipulation and that the district court again found it that that theory of market and manipulation was implausible and did not support it you see all claim but also found that that had nothing to do with the negligence claim the negligence claim the district court cabined that to deal with these allegations of the the timing of the launch announcement how much time there was before the launch and  bitcoin castrating a man it was already in existence the same user agreement incorporating the same trading rules or the older versions of the digital currency and the contract in this provision that you point to contemplating future currencies that the company might also make a market all of which were contemplated in the agreement at the time brady made that's exactly right you ok st the facebook case was decided under new york law so there was no discussion about or prediction about how the california supreme court might rule on a question what duty there when judy exists in a situation like this involving a finally because the facebook i p o involved a stock that was going to be regulated and was regulated by the f c c there were statutes and foreigners that explicitly applied to the launch of training on the nasdaq exchange there's no regulation and no statute like that here the only document we have to look to that governs the party's relationship is the user agreement and the trading rules and the parties negotiated  contracts to create the mini universe for themselves that involves their own allocation of risk that how it worked the california supreme court in cases like ehrlich and applied of women has said need to be respected in order to maintain that boundary between contract because i don't want to get too much time in your position is that those dating rules were clearly hyperlinked and that they are incorporated but if we were to decide that that's an issue is it is it your interpretation or your position of the district  that the trading rules were incorporated and i don't think we've taken the position here that the arbitrator would need to decide whether the trading rules were or were incorporated and i think likely would be ok piers here's agreement at sixty seven this is part three of the user agreement section two point one yet i know you are that is your position that it just is on its face and just i don't want to take up a lot of time and over time b but your position i think is because we're familiar with the agreement that there hasn't been a ruling there's not a colorable claim otherwise you're just going for the way that you're relying on the terms of the agreement themselves is that we are relying on the terms of the agreement themselves duty that arises independent of the contract to wash support for a new and digital currency in some specific way that's not certainly not found in the common law and so our best argument is that the j else digital currency because it clearly contemplates the fact that for her and that new currencies are created out of old birds so are you asking us to read this contract one way that do that that did not happen here is that the but the point is the point is we have to figure out whether that was a torrid or breach of contract we understand it didn't happen i don't think that's disputed so that is really getting to the essence of it  and i asked can i just ask you to focus on what the district court did do which is rely on a case i'm trying to pronounce and i hope is by a contra and i'm not sure that i'm pronouncing that correctly so that case that you know i think in the district  stop blocks case was not cited to the district court i don't think he had the benefit of that but but he relied on by a contract and then of course the california court of appeal as you know very well as as limited by a conscious so and specifically directed that it should have all should be limited to contracts where a rd party is injured and i don't know what your response to that is the district court didn't have a chance to respond my response to that is the your st argument but we are trying to figure out what california law is and stop loss is certainly an expressed limitation of buy a condo is it not well objects no presumably only applies where the parties a i both of them noted that the conscious application is limited to situations where a transaction between the defendant and another part of another was intended to directly affect the plane to a  party whose economic loss was a foreseeable consequence of the defendant's negligence and in geo committee it says it observed that more recent case had been reluctant to extend be a make you get to that if you can show that this was outside of the user agreement a but you have to show that as well and so i was trying to figure before we get to the merits you know you have a hurdle here i think well you're on it we're missing something very important st of all there's just two things one is the st is i don't know that we shouldn't be having this discussion on this issue i think that it is a issue of  and that is what has to make a decision whether you want to go with what will the supreme court of the california supreme court decide i don't think it's necessary because i think if you look at the clear provisions counsel if we do think it's assuming that the trading rules are incorporated let's assume that this new currency had been traded for more than a year on the digital exchange and some disruption occurred causing wild fluctuations in the price of the currency and coin base shut down trading and a dispute in your client loses money as a result of that with that claim be subject to but something happened in the marketplace that caused a wide fluctuation in price and the company for whatever reason shut down the exchange for a period of time causing a loss to your client would that  of the problem is your use of the word announced you were advertising that's not what it was it was an e mail that specifically went to every single customer where they write all that but the word is customer those customers are folks who all have user agreement not contacts is what it is i asked them what you think they didn't do i'm just trying to figure out why you think that wasn't a breach of their contractual obligation because it's not in the contract they know it's not in the contract and that's why they used something you didn't say what we're going to look at the philosophy we're going to look at the prices we're going to make sure the asset doesn't disappear which these could this is a host of different factors which are nowhere in the keep wrenching the user agreement it looks like the g docs trading rules in section one point one two discuss the potential for slippage and in some cases significant significant slips which i outside of the in supreme of good at it's just kind of hard to reconcile when the user agreement expressly discusses slippage and it's kind of exactly what you guys are alleging when you all are doing your legend here how this would all outside of arguing that because the arbitration provision is narrow that the entire contract needs to be interpreted narrowly that's not what the th circuit case law holds and it's certainly not supported by any how law fornia precedent the court last look at the contract just as it would any other contract to determine whether it applies to the claims in this case regarding the provision of an orderly market and the  complete dysfunction on the market but the contract itself promises to provide a functioning digital currency exchange so there has to be a breach of contract claim there there's just simply no way to divorce the two and i think the slippage point that you brought up contract is it a garden variety slippage or is it massive as they cite in the complaint and he decided it was something more than the slippage referenced in the trading rules that's simply not consistent with