unfair and the prevention of unfair and deceptive practices in response to the making petition for flyers rights in this case the department simply failed to offer any adequate explanation for why it would not in any way address the concealment by air carriers and their seat of passengers about the rights of international passengers the compensation for delay in international air travel under the montreal convention at the outset since the government is question and standing of flyers rights to bring this challenge i'd like to address that st briefly our contention is fires rights has associational standing to challenge the department  select members of the governing body they do provide most of the financing for the organization and they do guide the activities of the organization because flyers rights  suggestions well here is what i'm getting at is the functional equivalent argument you know you've identified two members in those declarations although they say the black supporters i mean i may support a lot of things but i'm not a member of necessarily that organization so you say you have fifty thousand members and think of the standing cattle ration that there are tens of thousands of individuals that you say fifty thousand members last supporter well the members who or who find it those of the members who finance provide the majority of financing for the receive information in communications from the from the organization who charge for that sort of yelp because no mandatory use and again this is this is not dissimilar and then the situation that the organization a speech for a discrete group of people who are invested in it and somewhere you who supported financially who use guides the organization that we have control we have no information so i thought well it's self evident that you are an association that that has standing so then we get to court and your was on us to show that we had individual members who suffered specific concrete injuries and that's undisputed and so on the to acquire did at least one of the members of this fifty thousand dollars suffered a concrete the injury the individual who had seven  behalf of the members that members don't agree with if you don't have that if you don't have any governance or you don't have any members that have any authority then the question becomes are you really representing the anybody in this particular matter the same again the same is true if found true in the american association of retired persons which is the largest membership they want knowledge to be one of the most powerful than in the united states and the judge found district judge in that case and that that they did represent the interest of the standing issues raised you have another case pending before the score you have another case and the before this court we do expertise is not is not deprived of the no information about his rights and the montreal convention i guess your theory is that if you were off on a lark you'd go bankrupt because people would cut off with the a p i in not saying anything more than it did you have enough to go on so that you know i don't see where the violation of the a p a is in this gun it's not the brevity of the response that's the issue it's inadequate it's that the assertion in that one paragraph is that the carriers are adequately disclosing their passengers their compensation rights is simply not support it when they also say that challenge to the final issue the fact that you have this case and it doesn't so what makes me wonder is whether the proper forum for the complaints that you're raising before us would would have been in a challenge to that particular rule making i was fishing foods entirely separate will make in which would almost other woman now whether they did you didn't submit comments and then ultimately your view is that what the agency has required is i petition where there is another proceeding that's covering the same territory and you can file comments participate or when he comes out with  basic of concern to you that the airlines are not properly disclosing that international passengers have a right to recover damages for delay because again our petition i think was already pending at the time this this other proceeding was taking place doesn't matter that our president agency doesn't have to duplicate  that's true but they did it but in this case but they had what they did come up with was was you know was not adequate and was not a very good reason i shall have to that's a very good reason to bring in a p a challenging that rule to participate in their own making and to bring a challenge to today article three of the mako convention requires the very disclosure that the government has required here and that is of the limitations on liability is there anything in the montreal convention that you can identify that requires article three it's not parity and that's complying with article three of the montreal convention your argument seems to be that we need an even bigger just closure but i wanted to ask you is there something in the montreal convention that began nothing in the convention that requires that addition i'm not asking whether it's good policy or anything like that as to that that's your argument what they've done is it's not that it's compelled by the convention and that it's unfair and deceptive right how can they if the government a unfair and deceptive requires certain mental components not accidental right requires an intent to mislead and the government has approved the disclosures that they've made yeah why isn't that sufficient grounds to determine that whatever these airlines are doing it's not unfair deceptive because the there is nothing in that language that a prize is the passengers of the nature existence of their rights in the on the part of the airlines to do the disclosure of the government approved a sufficient basis that unfair or deceptive that's a very strong language it's unfair and deceptive that language but they also contain lots of other provisions that purport to limit the airlines liability concealing the fact that there are passenger rights to begin with purport to limit the airlines liability in ways that are completely contrary to the montreal convention to which the department's response and it is the average passenger supposed to know that so what i understand basically you want something the pictures in the record but we noted in the response that we have updated our fly rights web page right a section of the leg and then there's a there's a chemical the name of the moment of the other web page and the fly rights web page just state that you airlines with the agent car in park to your hypothetical i apologize or to their position for rule making so the agency's response to the petition for rule making was that it reviewed the contracts of carriage reduce the montral convention requirement article three for which in effect just three requirements be written notice that it may government and that it may limit life built in that it may govern tells you and i think you were getting at this with my friend that you may have some rights there and so the d o t saw that that was existant and continued to be existent in the contracts of carriage of all the airlines they reviewed as judge millette discussed with my friend will suit you could look at your feet ticket for example i know but suppose my ticket was a ticket has to by regulation says what the convention requires there are limitations what i'm asking for is instructs anybody who is suffering it damages from of the way to file a claim with the airlines of airline denies it the go to small claims court in regard yes your honor and i think that's what i was trying to describe with but that's that's the government's website not a and not the airlines no but the montreal convention only requires the airlines to provide written notice and written notice of the existant of the convention and that it may cover and that it may limit liability and the airlines are doing that in their contracts of carriage and under fourteen c f r two hundred and twenty one dollars which is part of what was being updated in the ongoing relief that it's now complete but the airlines have to provide that same notice that the montreal convention may s website that will provide additional information to international law also the montreal convention right if you have a no no no i understand that but i know i'm not a lawyer i don't have access to conventions i may go to the public library to look at it i may go and google something like that but all i'm getting at is if they want further information i thought the regulation that deceptive practices come under forty one thousand seven hundred and twelve dollars says the secretary may if she deems it be in the public interest so it's got a double discretion d o t had plenty of discretion here and that's what would distinguish it from the prior flyers on the explanation behind the position including a line there's insufficient evidence of consumer confusion what is the test for consumer and fusion is it what a reasonable person would it reasonable airline passenger have been aware of their rights been able to figure out their rights so i think that test that they were looking at is flyers rights as presented evidence of some individuals contacting them because they were confused about rights we've looked at what's in the contracts of carriage are they meeting the montreal convention and we've looked at whether the airlines are following the regulations and  here nobody even lawyers knows what their rights are or what they can do and there's no simple place to discover this and your website is not that helpful and so i'm trying to figure out on what basis you decided there was no consumer confusion as to what the petitioner was seeking passengers ability to uncover of their rights to obtain compensation from airlines and in light of delayed certain circumstances so their petition repeatedly frames that in terms of their rights to delay compensation under the montreal convention and we think that providing them with the notice that's required by the convention so that they can go to the convention and look for the primary source of their rights is sufficient to what will happen what will the convention tell you it will tell you that you may be entitled to delay i do wan can sue for more than the montreal convention provides if you bring a separate action not based on the montreal convention isn't that correct for international flights of internet where the montreal convention  is active so between two montreal convention countries my understanding is that it would limit the airlines liability absent some sort of other contractual provision you had that i don't think that's correct i think of for wrongful death action we have a case  business is there for someone to understand that they can get money when the convention talks about special drawing rights i never heard that phrase and if i had read that i  wouldn't know that means money i mean really i think if the i think there's a want to get back to what started this and that is on what possible basis do you think people can figure out and they have a right to get money damages just for delay if you know i hasn't done everything possible to avoid it so i guess i would start with the yorks he has the discretion and if it determines that asking about that that is to say that the secretary did not believe that the evidence we've been presented regarding consumer confusion warrants the secretary exercising her twice over discretion that she may engage in rule making if there are deceptive if she also determines in the public interest that there is a just doesn't say it would be against public interest or anything like that she says there's just there's not sufficient evidence of consumer station which i mean is we don't think there's a problem it means consumer confusion rulemaking on this issue so the secretary's going presented with the evidence of flyers rights has about i'm so that's going to how they came to that conclusion it was a test pilot we think because nobody's arguing here that the contract of carriage the signs of the airport are disclosing the affirmative rights no one's referencing article nineteen it was an i get the conversation doesn't require it i'm not asking about that this is a separate argument about you there's a problem d o t we've got a problem in the real world people haven't got a clue don't ask them during the montreal convention because nobody knows what a special drive is ok it was just a little line there and the whole bunch of stuff about more limitations of liability there's newspaper articles they didn't the emails were the universe of confused people they were illustrations of confused people i mean trying to figure out and find your own website is just sort of us one liner ask the airline and then go to court that's not particularly helpful your honor i don't think that the statute or the i guess i should start with the statute requires d o t to engage in rule making they're asking not arguing at all interior you trying to understand what their how  here yes there's not sufficient evidence for me to do it here is on the next page i think it's five hundred and forty four of the day where we address that we're currently engaged in rule making related to both the way for passengers and the for baggage and so we were asian happy about what the conclusion and i want to take that one expert testimony i want to study it for i think the best way i could frame it is the secretary said looking at the evidence on the record i don't believe it and it both airlines for america that this is yeah my friends in a couple of interesting things during his argument one in response to a question i believe from judge randolph he said the drawing you need to sign up to receive their info that looks a lot like get members d e a where this court said high times magazine which needed to sign up by paying for a subscription was not sufficient to create standing the court has also noted that belonging to a facebook page and promote the rights of homeless people and we reach out to homeless people who provide services to them we talk to them about what they want they don't pay dues because they're homeless how would they establish of those issues and it's all they can do each day to struggle to get by they don't have time to be picking c e o s but they are all and care about homelessness issues thanks talkers meetings they have a forum for getting together and figuring out what what do we want to tackle now that wouldn't be enough your honor the forum and the talking about what we want to tackle now if the organization is responding to those needs that might be and that's exactly what they have here they say we hold our folks and that's what drives we we pull our folks and that's what drives our decisions presumably it was pulling information from folks here that said let's complain about delay issues they haven't really described who they poll again they told us at the time they poll the people who are their members are members less supporters the people who signed up for an email list the court has said that signing up for a passive i think was the phrase used in sorenson a passive email list is not as they had there was  elements i mean they say that their primary funding comes from their members less supporters or they have to use the magic word members or straight comes from their folks their people are the ones who are there in the now and the ones who are saying there isn't you know what problems are you encountering let us know you know that you want to address so and i think our cases are close to requiring magical words about understood i think i would step back and say st the associational standing test for a traditional association would be that you have aimed you have a member who could sue in their own right and that you represent their interests and that it's germane to your cause and they are necessary here if you're going to go for the in dish of membership for that st prong where you show an individual member or in this case a person with the addition of membership who could sue in their own right part of the problem here is that the initial affidavits from mr de beer mr lax failed to show that mr  disha membership we raised that issue they came back with an affidavit from their president that says nothing about mr to be here or mr lax and so they haven't identified an individual with the ambition of membership who has standing and this is what would distinguish says he's going to fly again internationally do you have to do that for protection for all making or not i don't know the answer to that at the minute if he's recently now been informed what his rights are not going to flying internationally i'm just trying to figure anyone that signs up for an email we don't know of anyone who calls the hotline is also a member we don't know how one disassociates from their organization but well over time and so unless the court has other questions we would ask you to dismiss the petition for lack of standing or if you reach thank you just briefly the seven emails were just examples the department in its decision said that the basis for its decision was a review of the contracts of carriage of u s carriers revealed there was adequate notice were guarding the availability of compensation our point was that the contracts a carrot on their face show that's not true they're affirmatively deceptive a misleading and with respect to the notice that th or advised that the provisions of an international treaty as well as the carriers own contract of carriage may be applicable to their entire journey the applicable treaty governs and may limit their liability of carriers to passengers for death or personal injury and of passengers or back it's what in the world and that language tells anybody doesn't even identify with treaty if you wanted to look it up online that you have rights for the compensation for delay what is the nature of those rights should be and and to one that says i'm carrying out economic regulation the department of transportation shall consider a number of factors preventing unfair deceptive predatory and a competitive practices no question that's