question of the scope of the arbitration agreement it was not empowered to decide because as the court itself i found that question was delegated to the arbitrator nd even if the mr gore had been  contract well he he said the the decision was actually ambiguous but he what he pointed to was that it was not unexpected or advertise a function of the lights a service there could be recordings that occurred when someone did not intentionally act a service to the record but it wasn't the subject of the contract at all that is provided by amazon and it's activated by voice and sort of pushing a button when someone says await word and amazon explains and discloses that the recordings are made when that happens and amazon also isn't this isn't the claim is in the claim that the judge wanted to go forward recordings that occur in the way or does not even been said it is but when that happens one that is a glitch in the system that amazon disclose up on i did i agree that i don't read any allegation that the plaintiff herself was was recorded and background how is there not an article freestanding you're sure i don't see the injury being alleged well that's a that's also a good point the complaint mentions briefly that the device can activate right but the complaint never alleges the plaintiff was recorded in such a circumstance it alleges that act activated when she acted bigger and reported and it may be taken as a whole you just did to the judges dividing them into a different the it into three parts so now you're claiming there is no standing when previously you they did the good they should all be taken together as a whole right arm motion was a motion to compel arbitration a threshold issue that's appropriate the breach is a stand alone as you did not state on questions of article three standing in our motion nor did we were bringing a motion to compel our tradition in the st instance which can dispose of the whole claim and then an arbitrator can decide hey claimant you have no injury you know you don't recover but the whole case in our view doesn't belong in our  it i see with you know the double lives argument you have made right i don't think that the claims fairly read stated a sever claim on her behalf but if the court is going to just aggregate those cla so i think we've already talked about how those planes were were split out improperly but what can't be reconciled is out of court treated the delegation cause here arbitration and of course incorporation by reference is valid it's a valid way to form contracts under both california and washington law and incorporation of the aaa rules as been held to be clear and unmistak think more fundamentally who can progress to create a different standard for incorporation by reference for arbitration then courts employ for other contract formation under california and washington law incorporation does not depend on sophistication and holding that it does for arbitration will treat arbitration as less desirable less fair other matters than that they're almost criminal nature and potentially unconscionable why is that a wrong analysis that we wouldn't apply it will stop will for claims that are almost criminal or unconscionable reason that she's bound by this arbitration agreement the well that maybe we could move on to this dispute why is this dispute why should it be compelled arbitration thirty and any  you know arbitration is favored and he questions about the flow of whether it just falls within an arbitration agreement must be resolved in favor of our treasure there's a presumption of hard for ability and only the most forceful evidence of an intent to for a moment why this dispute sure this dispute falls within the the scope of your profession agreement it is something that amazon discloses about how dispute to do with surreptitious recording which is not infecting any place in the country well that's where we just that was the court's reasoning and we we think the court had it wrong in that regard based on this record the complaint incorporates the amazon privacy for web site that explains how this technology works and that makes clear comes on the device to let you know and if it's on if it's set to make a tone when it's been activated it goes off and played it had this device in her home she was using and she had to have it on plugged in and active waiting for her commands and when a false wave occurs that is simply a part of the imperfect mid of the imperfect functioning of the not for intentional towards there is no rule that says arbitration is acceptable except for claims that my overlap with criminal conduct and when it doesn't doesn't dispute that doesn't allege otherwise so when she's using another amazon product in her own that her husband happens to have set up for the household as opposed are and she's invoking a service knowing that amazon is delivering that service each time she's using amazon services intentionally appeal this court's affirms decision is straightforward st it's about applying black letter contract law on contract formation when plaintiff is not a signatory and two it is about non erroneous factual findings on benefits or in this case a lack thereof to apply state law equitable stoppel principles i'd like to briefly begin with the reply brief where we did not have a chance to respond and amazon made some waiver arguments and i'd also like to talk a little bit about the rubbish opinion which would still be doing a really good start maybe you could start with one thing if i understand mr thirty one of the complaint paragraph twenty nine discusses the plaintiff being recorded when she spoke paragraphs thirty discusses plaintiff being recorded when somebody else in the room spoke and she didn't use the way word in paragraph thirty one is a catchall that says the plaintiff was recorded without consent without registration generically paragraph thirty seven sets forth all of the questions that are common for class certification purposes thirty seven b is generically about somebody being recorded using the way chord thirty seven c being in a room when somebody else use the way rip word and being recorded in thirty seven j as when nobody else was being recorded then in each of the counts it flat out says that plaintiff and class members were recorded and that that was permanently stored in analyzed in paragraphs  allegations include an assertion oh plaintiffs know where they were being recorded that's correct your honor the allegation for the plaintiff is that she was unaware and going back to the paragraph twenty nine plaintiffs was unaware that when she spoke awake word paragraph thirty plaintiff was also not aware thirty one plaintiff was not a registered a lexicon of cold or an amazon never warn we don't believe that it would you're our st equity requires a person invoking it to actually do equity in going back to the heart of judge beaton's question she was not a subject to the contract she was never asked to sign a contract that distinguishes a lot of defendants cases she was not presented terms of use that she may have clicked i agree and just didn't read them that this thing which is a lot of the other contracts in fact she was never asked to sign this contract and even generically the contract does not ask the account holder here most cases husband so buying generically a spouse a child or anybody else beneficiary theory well there's two pieces to that st we think the judge got it right being very generous with the direct beneficiary theory you st looked at the contract and said that sarah pitches recordings were not part of the contract that the husband signed not the wife number two found that there was no equitable of stoppel that would bind the wife to a contract in fact the judge went so far as to say the husband didn't agree to it under civil law a husband can't agree to have his wife illegally recorded and now we're one step removed where the wife is being a stopped to a contract that supposedly allowed the husband to illegally record the judge just found that that was an absurd result as a matter of contract law it's not necessarily going to the he got it right applying a test that is much more generous so the defendant's position than we think state law california or washington supports in fact in the when case decided by the th circuit are the plaintiffs actually plaid the choice of wa provision that was found in the contract that the plaintiff said he was not a party to and even there when said that's not enough we're one step removed from when nothing in our complaint references the terms of use nothing in our claims going forward is going to be reliant upon the terms of use and even in our complaint we didn't take the washington choice of wa provision and use that as a basis for any of our claims which when itself says there's not enough no one could be arbitrated to find all of the we believe that all of the cases that defendant has cited reserve the right for the court to decide whether a contract exists the arbitrator can decide issues in proper and amazon that is the only person who can bind the purchase because the registrant is the one who activates the account and there is no benefit to the pla well i think it's the st step to carrying the day your honor because i heard counsel at the end of his argument say that when she purchased a book or shoes years before the alexa was purchased she somehow was bound the court said that the c e o used did not govern he then looked at the t o u and said was that a contract between amazon and plaintiff and found that it wasn't and then he got to the question your asking whether or not equitable of stoppel principles applied and as a matter of contract law found that it did not apply to the only facts question that's before this court i think it's should be noted that the that amazon is the only party here who had a right under the federal arbitration acts section sixteen to actually appeal and that appeal right extended to an order and there is ation to be able to sit in front of this court in say all arbitrary military issues should be decided by the arbitrator except they didn't appeal to all of the facts situations they said it apparently was ok for the court to decide to send her intentional use claims that arbitration and they apparently said it was ok for the court to decide that the arbitrator should decide what happens when she's in a room and somebody else we believe that it does i mean we set out in the spirit of frankness to the court each of the uses the plaintiffs used we don't believe that she consented to the recording of any of those  conversations or interactions but moreover it doesn't stop with just the recording and these recordings are then shared with rd parties there listened to by other people and we believe that the used to push advertisements on plaintive and the household so the sara pitches recording itself doesn't and just when the words are spoken council then said well plaintiff can go into the account that's not true she's not the account holder she has no rights under this contract she has to go ask her husband to listen to what may have happened and that only then with her husband allows her access she find out in the leak what conversations are there and even then when they delete amazon reserves a right to keep whatever they think the point if the user wants will the get past the article three standing issue well number one if that is the only basis we can replete it and make that more direct we believe the one paragraph in that trilogy ending with the catchall that she didn't agree to be recorded under any circumstances whatsoever captures that sarah pitches use sarah pitches use is laid out in questions or be answered at class certification and we believe standing has been adequately ironically the fende and is saying she has standing because they're saying somehow she's bound to a contract and that all of her claims are silly under the contract so both amazon and us are caught in a catch twenty two there on your art of our three standing question yeah that's because of the odd way to just record broke up the claims i've actually trying to get versus claims so i guess i get the dilemma  i was just going to answer judgment day and say we think it's been multiplied procedurally because amazon had a right to appeal the entire order and it is kept from you two parts of that order with regard to what the judge decided and said that that's a finding that there was a contract we don't agree with that with regard to your standing point i would just reiterate that we can replete in fact if this court  affirms and allows us to go forward we're going to have to replay it because that's the only claim that's before the court and we will ripley to conform with the evidence i'm sorry judge rawlinson ok i was going to ask you this case is i think there are two th circuit opinions applying california law and the cases that were cited by the judge now the question i have for you is to fight me to below that found that the unconscionable any question relating to the contract prevented the direct benefits of stoppel that is one of the cases that the court relied on fairly heavily for finding that there was no contract and that equitable stoppel could not bind a non signatory to the contract well that is one part of it the other part is you cannot contract for an illegal act and basically what amazon is saying is that the husband agreed to the recording and b him agreeing to the recording as a signatory to the agreement he agreed that she could be recorded as well that's not a question of scope that's a question of what actually is part of the con whether or not there is a contract the case that he cited two with regard to the unconscionable of the of the contract as a whole and then would cite back to this court's analysis most recently in the ravitch vs directv on the application of equitable of stoppel in similar circumstances there it was just decided after our brief was filed it was not cited by amazon as the subject of a twenty eight  that contract was signed directv became an affiliate and was sued by plaintiffs in the plaintive argued that he was not bound by arbitration in this court looked and although it's a different setting  is the non signatory defendant who is attempting to apply at the same principles apply this court found that direct t v was not and is not a party to the contract and when did force it and found that direct t v s preferred reading would result in an absurdity of being bound into the future for services not yet purchased from a company not yet known that same absurdity would apply here under the c e o use because counsel saying plaintiff was bound before the alexa was purchased or maybe even it had been invented and it's also an absurdity here to say that she is bound by a contract that would illegally allow her to be recorded by anyone if it were the husband being asked by a rd party may i record your wife even without her consent he can say that this contract can't allow him to do it so i think judge eaton has asked the question in the last appeal and he started with a question here about what is the contract the contract is between the husband and between  amazon in what is being asked of this court is to now say that a contract which forms no basis for the claims before the court in a contract which confers no rights on the pla go in because she's not the account holder and then activate the account somehow finds her to incorporate by reference aaa rules there's no reason why she would even imagine that she court found a valid delegation clause and then the clock the courts said i'm going to engage in a scope analysis anyway because i think that there's something that troubles me about these claims as i haven't heard them scope itself assuming there hadn't been a delegation clause it is a mistake to do so find that the scope of an arbitration agreement must be limited to the scope of what the parties contract or the supreme court has held in the insurers and worse american express the rico claims must be arbitrated now clearly parties cannot contract for rico violations parties cannot contract for intentional towards or quas a criminal activity and yet those claims must go to arbitration the question if you're interpreting says so but it's not delegated is does the claim fit within the consent doesn't make any sense under this sort of law the wiretap laws in california for new invasion privacy privilege for courting people when they don't know about it if you tell them about it it's not illegal you're not telling them you're well we are depleting stations she she alleges she didn't know the question then is is this dispute won that can be arbitrated and the suggestion is the can't because particularly when it's criminal conduct and she didn't know could listen to well we don't know all the details of her relationship but if she's using her or her device in her home the notion that she had to demand it from her husband i don't is a technical question not a contractual question so it shows nowhere in that it says nowhere in the contract who can and who can not press the button i don't believe the contract says that so it the kids all share then any one of them can play back the recordings at any time it's on the website that that everyone is using any one of those household members and log in and access it now a stranger can you but it's you know it is