concepcion specifically stated that class arbitration was not even envisioned by congress in one nine hundred twenty five when the federal arbitration act was passed despite these truths a five year study by the consumer financial protection bureau establishes that the larger corporations of this great country have hijacked the federal arbitration act in a successful attempt at avoiding class wide liability for violations of state and federal federal regulations and it is that we're using that the issues raised mr keene as appeal are so important the first issue raised is whether or not ms kena has jurisdiction in front of this court to bring this appeal and we have jurisdiction for two distinct and separate reasons the first is found under the federal arbitration act itself specifically nine u s c sixteen a three which allows an appeal of any decision that is quote a final decision with respect to an arbitration now the united states supreme court in green tree versus randolph has already held that a final decision with regard to the federal arbitration act is satisfied by district court order that compels arbitration and dismisses the claims with prejudice which is exactly what we have in this case the district court order that's being appealed compelled arbitration and dismissed the claims with prejudice the only difference being that in this case miss king of had to file a rule fifty nine meet emotion to amend the original order to dismiss the claims the original order from the district court compelled the only difference for article three purposes it's a really big difference right because we've been normally a party doesn't have standing to appeal an action that the party asked the court to take correct judge there is a difference in that case but it is in those cases federal rule twenty three f allows the individuals to appeal is sort of cation or a decision that is adverse to class or cation and this case we never had that ability we could never we could never appeal hundred twenty four really right that's twenty four yet in congress like this is not a symmetrical thing because the statute is pro arbitration and it has a generally pro arbitration intent and so therefore you can appeal immediately the denial of a motion to compel arbitration but you may not appeal immediately the stayed or dismissed the case they specifically refused to do that the supreme court simply said that the fact that there was an order dismissing the case with prejudice was enough to satisfy the federal arbitrations act final decision rule was respect arbitration the second issue goes into jurisdiction under f r c p twenty three and in that under that statute or under that court rule the court of appeals may permit an appeal from an order granting or de class certification the microsoft baker which in a moment in footnote seven it specifically said that orders striking class claims are the functional equivalent to an ordered nine class or vacation and therefore people will under twenty three  in this case the court's order compelling arbitration also enforce the ban on class allegations meaning there is under no circumstance that mosquito could ever bring a class action against group one that is the functional equivalent of striking the allegations from the complaint the class had allegations just the same as in ordered nine class sort of the cation or just i'm sorry just the same as an order striking class claims is in the functional equivalent of an order denying class  both in order striking the claims and in order compelling arbitration and enforcing a ban on class actions makes it impossible for the plaintiff to bring a class action in any form they are both doing the same things therefore our case is the functional equivalent of an order denying class certification and should be appealable under twenty three f there is no precedent that i've aware of that from any district that says in order compelling arbitration and enforcing a ban on class actions is the functional equivalent under rule twenty three up as an order to nine classer of creation however does our argument that it should be and we believe that the supreme court in fact would find it the functionally equivalent as as an order to classification now microsoft the baker actually discussed this point in they say they reasoned that by removing the power of the district court to defeat any opportunity to appeal the drafters of rule twenty three f sought to provide significantly greater protection against improvident certification decisions than twelve ninety two b alone offered in this case group on stacked up of inserting the class sort of a class action ban into the arbitration clause makes it impossible for the district court or for the plaintiffs to appeal a decision that is adverse to class or because it makes it impossible for her to one even certify the class because there is a complete ban on class or of cation and t there is no precedent to date that says we should be allowed to go to the court of appeals on the rule twenty three of this tactic in turn does the exact same thing that rule twenty three off was designed to prevent which is give the district court the last say on a decision that is adverse to class or of there is there can be no doubt that in forcing a complete ban on class sort of cation is adverse to somebodies ability to certify the class it literally prevents them from doing so rule twenty three is supposed to take the power of the district court to have the last say on order such as that out of their hands and put it in the court of appeals hands that is why the group onst tactic subverts rule twenty three because it prevents us from coming to the court and actually appealing that decision so so again we have we have jurisdiction under the federal arbitration act and under federal rules of civil procedure twenty three have in addition our reasoning or the facts in this case do not offend the reason in microsoft the baker specifically microsoft the baker was worried one about piecemeal appeals the major difference between our case and that case is the fact that the plaintiffs in baker had the ability to first file a petition under twenty three f to appeal the denial of the class sort of cation we never had an opportunity whatsoever to bring a certification motion so we never had the ability to bring in to petition the court for an appeal under twenty three so there is no more piecemeal this this is the facts of our case and fight no more piecemeal appeal then and then an appeal under twenty three have because just like the appeal hundred twenty three if this court denies miskin as appeal she just goes back and she cannot continue as if it's an interlocutory appeal the case is over and that goes to the second concern in baker which was that the ruling or the tactic used in baker which was voluntary voluntary stipulation to dismiss the case after they already attempted a twenty three petition in that case the court was worried that it could allow multiple into locker tory appeals of the same issue that's a non issue on our case if we lose that appeal we cannot go back and simply continue on the case as if it was an i in addition the supreme court in baker was concerned that it gave the voluntary dismissal tactic used in baker gave plaintiffs exclusive control over the appeal we don't have that in this case either the district court could have is fifty nine emotion just the same as it could have been denied a petition under twelve ninety two b miskin it does not have the final say in this case and the district court in fact could have denied that so there is no exclusive control in addition the court in microsoft was worried that it only allows plaintiffs to appeal an adverse certification decision the in our case we're not dealing with technically not dealing with an adverse certification decision we're dealing with  decision to compel arbitration so in this case the defendant has an absolute right already to appeal under the federal arbitration eggs or the federal arbitration act so that concern as well is a non issue in our case they also the supreme court was also worried that it would the tactic used in that case would circumvent twelve ninety two bees to tears screening process we don't have that issue in this case either as i just previously said the district court could have denied the fifty nine he motion just in our case compared to all the others and the death neal theory that was discussed in microsoft you baker both the plaintiff and baker and the death nail theory in general they were they involve situations where it's either imprudent or it's  impossible for them to go to arbitration our case we are arguing that it is impossible for us to go to harbor impossible in those cases i mean that's the whole point it's economically impractical slash impossible and exactly the same way correct but we we do not we are not arguing that it's an impractical we're arguing that it's literally impossible was it literally impossible because the cost of going to get arbitrations makes it economically impractical which is exactly i mean i don't know whether you call it impossible or not what you are saying economically this cannot be done is exactly what the plaintiffs are saying in the death now set of cases that the supreme court in the biggest issue between those cases such as baker in our case is they have the ability to file a petition under twenty three up because there was a certification decision already made in that case in our case we don't have that ability because under twenty three up we should have the ability but and that's what we're arguing for certification of an interlocutory appeal that's the same idea if anyone thinks this thing needs to get heard right away you'll get her right away but it won't under the current precedent at least twenty three only says this order that it grants or denies certification which we have not done certification has never been an issue raised yet the only other issue the only other way under twenty three have to get to get a case into the court of appeals is as noted in footnote seven of microsoft  baker if the order that you're appealing to strikes class claims then it's considered the functional equivalent of an order denying class sort of occasion and therefore it's appealable under twenty three i think the disregard could have the disregard discretion right you think the fact is is that we couldn't appeal under twenty nine or twelve ninety two and if you give me one second because i believe groupon argued that exact point but the reason we couldn't appeal under twenty nine two is because all these because of the federal arbitration at the federal arbitration acts says that we can't appeal anything because if you lose a motion to compel arbitration you can appeal it but what you filed and i wrong about this that you filed in front of the district court for certification of an interlocutory appeal you know we did not for that while you're at this record denying it i'm sorry but the district court denied what it denied because of the federal arbitration act because this is what the main issue is the federal arbitration if the district court order i'm sorry i'm looking at the district court or court order which says is this the wrong you guys are keener vers yes right ok in the alternative plaintiff requests that this court sort of fine interlocutory appeal we did your honor but they didn't come to that conclusion because they granted our it that they didn't even if i'm remembering this correctly the district court didn't address that issue because not but it does it say the reason was because it was granting the fifty nine emotion to dismiss the case so it does not and anyway that wouldn't make any sense because the whole point is because your that wouldn't make any sense because here you're asking for immediate appeal of an order that is not final the reason the order be key not final was because they granted your fifty nine emotion yeah there's a non final collateral order and the question is whether the district court will neverthe of for immediate appeal yes it's a guy says no i won't because it's not that important i noticed my time's up it just came to me what our response was that if you were mine i could i could let you know there was the issue with that is that that gives the district court final say over an  order that adversely affects certification of a class that puts the keys in the district court's hands because this this order does adversely affect the decision on class or occasion it makes it impossible for us to bring classification that is in direct conflict with rule twenty three which as baker specifically points out was designed to take that power away from the district court that that was that is the big issue so thank  honor my name is scott shadi i represent the appellee group on inc may have pleased the court the substantive issue on this appeal was whether the district court's decision that ruling that there was an enforceable agreement between group on the plaintiff that included an arbitration clause was in forcible and the case should proceed in arbitration is supported by the record and this court could and will affirm if it reaches that issue but it need not reach that issue indeed may not reach this issue because there is no appellate jurisdiction over this case but we have the owners of the situation here where a plaintiff side stepped clear jurisdictional rules to try to engineer a manufacturer or an appeal appellate jurisdiction where there was no appellate jurisdiction plaintiff's actions are improper they're inconsistent with microsoft or says baker the principle set forth in that case they're inconsistent with article three case and controversy requirements and therefore we ask that you dismiss this appeal for want of jurisdiction for two reasons first of all there is no final order under section twelve ninety one is that as that term is defined that would allow the court to hear this appeal when the district court granted group on's motion to compel arbitration back on june twenty first of two thousand and sixteen granted motion to compel arbitration and state the case it is undisputed express language of the f a a that that is not an appealable order for months went by and plaintiffs filed this motion under fifty rule fifteen i need this as a set aside query whether that was even a proper mechanism given that there was no final judgment to be amended but at any rate they filed a motion to rule five fift hundred to modify the judgment to either certified unlock atory appeal or to dismiss the case because of this what they say is an impossibility so that would set up an appeal and you are correct that the footnote in the judge order made clear that whether you looked at it through the wins of the f a a or twelve ninety two because neither were specified in plaintiff's motion to amend there was no reason under the f a a it couldn't be appealed and in the twelve ninety two there was none of the  requirements were not triggered so in reliance on the statement that the plaintiff would not prosecute her individual arbitration the court granted the motion and dismissed the case with prejudice now that the point that the court did this made the point the plaintiff asked for the case to be dismissed judge again as you pointed out the case that we're here on the odd situation that there is an appeal of a dismissal that the plaintiff asked for the microsoft versus baker gives a statutory jurisdiction microsoft versus baker was a rule twenty three f case and maybe i'll take a bit of a side note here this is not a rule twenty three f case i checked the jurisdictional statement in the appeal the jurisdiction of this appeal according to the plaintiff is under twenty eight u s c twelve ninety one but what's more it's more important as your panel knows the rule twenty three f is implicated in the trial court with the request while the case is in the trial court with  permission filing in the appellate court asking for permission to raise the appeal that was not done here so it will rule twenty three f that discussion is really not relevant to any of the issues before the court but at any rate the baker case is in the baker case we had it's there's a long and tortured history but to cut to the chase we had class plaintiffs whose motion for whose class allegations were stricken and therefore in order to take an appeal they dismissed their claims and took it up and the supreme court held that that was improper and there are three parallels between baker in this case that justify or actually mandate that this court should deny jurisdiction the first is the primary problem with the with and so what plaintiffs are trying to do here just as the plaintiffs tried to do in baker is to sidestep the careful calibration in this case of congress with the f a a and in the case of baker with the supreme court with rule twenty three f so that's one reason there's a parallel that mandates dismissal the second is that this approach also causes the same problem baker which is the potential for multiple appeals the if this tactic were allowed and the corps were to allow an appeal and potentially revisit it and remand on the arbitration issue would be up on appeal here potentially up on appeal on twenty three f and then at the end of the case and as was the case in baker there's no reason why there should be the possibility in the judicial inefficiencies of multiple appeals and the third point i think judge harris you you raise this is is that there are options available to them that did not require this sort of procedural sidestepping  made that argument in a twelve ninety two context saying there's a good reason why this case needs to go up on appeal and they didn't do that the easier approach would have been that they could have tried this are arbitrated this case on an individual basis and we had this affidavit or declaration from ms kena saying that's an impossibility and judge harris i think you are right right on with your observation that's not in possibility maybe economically inefficient but i would even quibble with that and this is in the record the arbitration agreement between group kena says that groupon will pay all the costs of the arbitration the filing fees the arbitrary cost etc the only cost that would be incurred by the plaintiff would be their own attorney's fees moreover the default arbitration and this under this arbitration agreement is an arbitration on the papers they could choose to have it in person hearing so the opposite what would be involved in actually taking an arbitration under an individual case and getting it to a final judgment win or lose they got them would pay all of the fees involved in the arbitration and again i'll reiterate that the fall arbitration here is on the papers and so the easiest path in fact in the four month period between the time that the judge in or does just record in or his order anjanette is june twenty first of two thousand and sixteen and when they came up and asked for the modification conceivably they could have been through an arbitration on an individual basis win or lose we would not be standing here arguing about appellate jurisdiction we would be arguing about whether the whether the decision to enforce the arbitration clause was right or wrong but the fact of the matter is like baker there are opportunities available to do something other than this stream procedural sidestep to manufacture  stiction i want to i want to address one other point on this before moving forward is that in baker there's this i think i made the point that there was this is not a rule twenty three half appeal but there's this notion about something the statement in baker that a motion to strike class allegations is equivalent to a motion denying class certification that's not implicated here either what we have here has nothing to do other strike none of that has any relevance what has relevance is the fact that the supreme court has said a plaintiff cannot engine ear their own appeal or to put it the way you did did judge king a plaintiff cannot ask for their case to be dismissed and then appeal that dismiss the careful calibration to use their words that were set up so too does the plaintiffs action here try to sidestep the careful calibration of congress in the f a a where it says if you lose a motion to compel arbitration as a defendant you can  and if you if you win that cannot be appealed by the point of just before you leave the statutory argument that's your one question at least as i understand it there's a split in the circuits and our own circuit has cases going both ways on whether if it is not issue and i believe in the reach that in this case i don't think you have to reach that because in this case the district court will let me step back under the f a a the district court has the option i believe in the clear language to either stay and proceed and state excuse me the parties proceed in arbitration and stay the case retain jurisdiction so that if and when there's any kind of issue morning foresman of a judgment it comes back to this court but i believe that the and i don't think we're taking the position nor do i think we need the court needs to reach the issue of whether the court could have had he chosen to compelled arbitration and dismissed the case and under green tree versus randolph had they done that we wouldn't be having this discussion we would be talking about the substance of the appeal but that's not what the district did and when when fink that issue the plaintiff rather than either seeking a very formal twelve ninety two or if they really believe this three f theory seeking a twenty three half appeal or simply going forward with an arbitra on an individual basis on the papers and then taking it up once that was done this is i think their record in express my question right a big part of your argument right is that it would undermine the f a a to allow an immediate appeal in circumstances like this because the whole point of the day is that you can immediately appeal the denial of a motion to compel but not to grant we have cases going both ways on whether a district court can effectively do exactly that by dismissing the case instead of stating it forget whether or not a party asks for that but if the district court can in fact dismiss the case rather than staying it then the district court can engineer an immediate appeal contrary to the policy of the f so i'm wondering whether our decision in this case is necessarily going to bear on this other question about whether we just record is generally authorized to dismiss under these circumstances right your honor i don't i actually don't believe the court needs to decide that and  your questioner confused with what the addition to the section three which is the section that refers to stating the case one granted motion to compel i believe to be one is the section that refers to staying the case in b three is the option that it can be dismissed and in that green tree versus randolph that he chose not  to so as i said the court could dismiss of this appeal for finding no no appellate jurisdiction because there's no final order that could you could reach a statutory conclusion alternatively you could have there's a constitutional reason why issue first year i think a statutory issue would we think this would address the issue in operable i think it's preferable and and having dealt with that issue in the fourth circuit i know there's a strong preference for dealing with the statutory before the constitutional but if we have to get to the constitutional this roads versus dupont case which is on all fours and that case there was a class plaintiff who had claims that many of which were dismissed on summary judgment they just the only claim that was left was medical monitoring the classification motion and medical monitoring had been denied they dismissed the medical monitoring claim to take an appeal and this court found that under those circumstances you can't engineering when you give up your claim and there's a quote from that case that i would give up your advocating for class treatment in the manner necessary to satisfy article three standing requirements and that's what we've got is that that's the roads versus the pot case i can give you the citation it is six thirty six f third has given up in her argument that there's a case or controversy that has to be decided moreover i recognize that this is beyond the scope of this appeal but it's worth noting that the in the category of cutting off your nose to spite your face if somehow she were successful i don't know how she could ever be an adequate class representative of a class when she says that she has no interest in and proceeding on her individual claim but for article three argument as laid out in the papers and i noted in the  appellate argument you are focusing on the baker issue i can answer any questions but we think that in the alternative to the statutory reason for finding no apology or stiction that there is a good article three basis for dismissing the appeal as well finally on the substance of the appeal our papers cover all these issues we can answer any questions i think two things are worth noting one is that plane if it did not did not contest the creation of the contract there is you know concepcion leaves open the argument that perhaps state law there may be an argument that no contract was created that argument is not made here the argument is that there's a contract that exists and it's unconscionable so i think it's as you consider if you reach that issue i think it's important to no that has been no contract formation argument made here second there was no evidence submitted by miss keenan that the main argument there's a lot of arguments that the plaintiff makes the main argument is the font was too small it was too complicated to read there is no evidence submitted by miss kenya and she and she knows how to submit declarations because she did one of those in support of the motion to amend the judgement but there is no declaration and because there was no declaration and we didn't depose her taken in discovery saying i didn't understand what i was agree to i couldn't find it that sort of thing so as the absence of that argument that evidence once you get past those things concepcion in italian colors and the cases in that line of the supreme court's reasoning we think control the agreement was formed clear first of all this came as declaration never stated that she had no interest in pursuing her classes her case on an individual basis it said that it literally made it impossible for the district court's opinion made it impossible and if you think about the monetary value of her case it was the twenty five dollar or twenty nine dollar massage that she lost out on you're not going to find any attorney in the world that's going to take a case for thirty dollars and spend the time necessary to fight usury she didn't say she had no intention of arbitrating her claim no she had no interest in her claims she said that she had she could not do it district court the order of the courts is that she alleges she had no intention of arbitrating her claims because the cause of arbitration outweighs the example had it in this goes back to another point i wanted to make about the cost of arbitration in the fact that groupon claims they'll pay for everything under ten thousand dollars if they specifically state that attorney fees will not be paid the plaintiff's attorney fees will not be paid on an individual all of this came as costs were beacon would be covered however that's not the case that is why miskito would have an interest in going in fighting individual arbitration had it been possible had group on agreed to pay for all of our costs but the fact is she's never to find a new turn that's going to take a case for thirty dollars and fight it for free so she's going to end up having to pay those costs on an individual basis but that that isn't the biggest issue here the biggest issue here does relate to rule twenty three and his ability to to fight an adverse to sit or a decision that's adverse to class or vacation and brother counsel is correct again when he said that we did not file a rule a petition under rule twenty three there's numerous reasons for that one the fact that we've never had an ability to bring a motion to certify the class unlike baker who did bring a motion to certify the class the district court heard that issue and baker that issue was never raised in our case to rule twenty three up only allows appeal of in order that either grants or denies classification we have neither of those in this case so it is a literal in possibility for us to bring it under twenty three up in addition as noted again in microsoft the baker in footnote seven in order as in order  denying or striking class allegations is the equivalent to a a order of denying classification the supreme court has never said that in order compelling arbitration that includes a ban on class allegations is the equivalent of an order design classification this is an issue of first precedent but it is our argument that those two are the functional equivalent it is literally impossible for mosquito to bring her class allegations because the district court had in forced the ban on class arbitration and class actions and because of that it is the functional equivalent of an order denying class or vocation it is the exact same as an order striking class is found to be the functionally equivalent percent if it's the functional equivalent then why didn't you bring a twenty three f motion saying look this is the functional equivalent because there isn't is it a functional equivalent for purposes of the origami you're making here but not for purposes of bringing a twenty three f there is no president that says that it is a functional equivalent which is why we did not saying like either the argument works here and it works if you file a twenty three f motion or it doesn't work either place if you if you look at it in retrospect yes the argument would be the same it would be identical question about just article three standing i just don't as understand this sort of a matter of common sense how it is what is the retained stake in the outcome of this appeal well there is no claim left to be tried or arbitrated the claims are going on while there is because there and i apologize i'm not sure exactly of the president but there is precedent that says if a court of appeals has the ability to look at one issue they can look at all the issues that are there so if  court of appeals has the ability to look at jurisdiction they can also overrule all of the other issues in this case which would in turn overruled the district court's finding a bank are not finding of unconscionable and basically the fact that the just report found everything was overruling motion for summary disposition i mean essentially it would revive the claims on its own the if this is we don't have the case where the plaintiff reserves the right in their stipulation as they did in baker we don't have that case and here we never stipulated with  groupon to reserve the right to appeal or sorry to revive the client it will just naturally happen if it is overruled in this case and i don't believe that violates case or controversy in any way she still has a stake in her and her stake in this case is winning on appeal winning here just like your kind of caught between a little bit copy to iraq in her place right because if the claims are if the theory for constitutional three i'm sorry article three constitutional standard is all these claims will be revive those claims are automatically revived it would be the same as it is here and that's the the big issue here is that that group on stacked up of inserting this ban on class actions and class arbitration into the arbitration clause is doing something that the federal arbitration act was never intended to do which is block plaintiffs for bring in a class action lawsuit for violations of state and federal regulations and that's a real issue there is no ability under twelve or under  twenty eight u s c twelve ninety two there is no ability to appeal because the district court or there may be an ability to appeal but that gives the district court final say over an issue that adversely affects class certification and that is in direct conflict with rule twenty three which specifically states as again and baker they stated that by removing the power of the district court to defeat any opportunity to appeal the drafters of rule twenty three sought to provide significantly greater protection against improvident sort of decisions then twelve ninety two be alone offered our case our motion under fifty nine he does not subvert rule twenty three if as the plaintiff's tactic it allows the true purpose of twenty three have to come to fruition which is to give the court of appeals the last say on decisions that adversely affect class certification decisions and that's the main problem there is no avenue here yet in this there should be there should be an no other jurisdictional questions there was just another issue that he stated there was no evidence that mosquito had to provide some form of evidence in order to prove unconscionable that he or whether it was a loser if that's not true whatsoever the illinois  specifically state that all you have to prove for procedural or substantive unconscionably is one that the term is sofa difficult to find read or understand that you cannot possibly say that the plaintiff was aware she was reading it the fact that it specifically says you cannot possibly say that the plaintiff is aware that she was had notice of it that states right there that the plaintiff need not say they don't have notice of it you can come to that conclusion on your own by determining how difficult it read it was to read how hard it was to find you don't need any evidence whatsoever by the plaintiff's side of her saying she couldn't read it that's not an element of the procedure on const unconscionable it thank you thank you