protection and trespass violation claims against respond in turn were secretly you so called zombie cookies to circumvent privacy measures taken by mobile device users we are here because you see secretly secretly from the user difference between clear air and a noble review right yes ok and then the best i can find something that's comparable to this is the douglas case from the ninth circuit agreed ok but in that case and the and i think it was a curious decision the court found that clear air was as if it was a radical violation of  a contractor on principles of law that everybody should know here we've got we've got law that can go both ways so why is this that your best case or do you have a better air so i don't think there are a lot of cases on clear air on mandamus petitions related to arbitration orders i would tend to agree with that the douglas case is one but yes we would contend that we are in the territory of clear error here quite clearly there's a few ways of looking at that one is i'm laughing only because you're using the same terms of the same term always makes me smile so i don't know it when we see it is that what i know what i would point the even one case that if we apply california law and that's really one of the issues is whether or not new york law or california law did you find a case that was even close on the facts here to what we have where the court  found equitable a stop on that and applied the arbitration provision against the nonce not are allowed for the nonce signatory to claim the arbitration provision we did not your honor and  and new york give me the best case i think is your second circuit case that would that comes comes close if not the same as applying the same doctor and they have to be annexed related and there has to be that a wireless providers debt collector could not rely on the equitable stoppel doctrine quote even if the wireless providers expressly authorize the collection fees and likewise in lieu cv bay area from the district of connecticut that collector wireless now give me the case that you have to distinguish and and a new york law that counsel are relying on because they definitely want new york law to apply and that's their position that does apply apply new york law to me or give me that how you're going to distinguish that particular case so so i would point out two things first of all the most recent second circuit opinions on acquittal stoppel or sokol and ross both of them turn out against the non signatory in those cases a much stronger facts much closer to commercial disputes allegations of collusion cord needed misconduct in both of those cases and one case sokol where the contract was going to be the star of the show in some ways the where the party invoking equitable stoppel that was not a signatory also attempted to import the waiver of  class action and all the other other components which is i understand that to be the case here right is that is that turn wishes to import also the argument that th class action has been waived here i believe that would be their approach i don't know that we at the parties addressed that in the briefing below isn't that kind of important though indeed it would be your honor to your client certainly certainly to have it to have never agreed with the leading the defendant on anything have no written agreement whatsoever and yet be compelled in arbitration lose the only procedural mechanism that we could potentially use on behalf of these clients it would be more that would be more than a big deal certainly right now but i mean there are let's assume that we cannot find that this is clearly erroneous as a matter of law do you anticipate that you're going to find that attorney is going to basically present your your client with the argument you waived the way you as as a matter of equitable stoppel not only have you waive the right to arbitration but you have waived the right to a class action and you have and you are bound by every provision that sets forth the requirements for an arbitration i think that's a natural conclusion your honor that would be the arbitration provision in the customer agreement under which would be proceeding territory of clear error here there are quite literally four decisions from this court from two thousand and thirteen to present one of which was issued after the district court's order here all of which project equitable stubble under far more favorable facts it's hard to distinguish any of them and i'll run through them briefly and then reserve as much time as i can for a bottle but murphy direct t v really cannot be distinguished their equipment at least by the non signatory a stereo equipment leased from the non signatory best buy but it goes to what judge so reason pursuing and that is the baumann factors are there interactive and one of them does require that the error be clear does it have to be clear are there degrees of clarity depending on how catastrophic the consequences are for the person who's being subjected to arbitration we would certainly contend that's true here and i think part of the reason we can get a clearer error without much trouble here is that it's it's this is being decided early in the case this is not of some reason this is not a fact specific or fact intensive inquiry and one of the things the court notes when weighing these five factors together is that if there is no way to one day get this decision or get this order back in front of the court we're going to face real trouble and that's let's get to the fact is that this is an oddity in a way for me having been a district court judge for longer than well not on my to many twenty three years i often dismiss these matters you know if i grant arbitration deny arbitration whatever i dismiss and i don't stay it even though the federal arbitration act seems to require that they be state i and that's why i thought this was a bit odd i wasn't sure why reading the opinion why that occurred but then i started thinking well maybe it doesn't make a difference because you know there's only one case i found in the ninth circuit which is the stanford case that allows after arbitration and after the the issue of whether or not it should have been arbitrated in the first place could be reviewed to know as i see the difference here though as you allege and argued the douglas case the problem here is is that if your clients win an arbitration then as in douglas as the court made clear then they lose the right or may well lose their right because their claims are moot to be the representatives precisely ok so that's part of your issue on whether or not there's any remedy here if the if the and in fact the class action is imported into this whole thing right i think that's exactly right your honor there be no way to read equitable stoppel in this context in order for someone to be equitably stopped and thereby prevented from objecting to arbitration that person must have been seeking to take advantage of the contract and once you take advantage of the contractor bound by the all the terms of the contract i don't see that the plaintiffs here have sought to take advantage of the contract however they sought to take advantage of the country the district court first of all found that they did th is that they have to gain something there has to be something there otherwise otherwise following your scenario then anyone who was and an advertiser any advertiser could make a claim because they're  also mentioned in the contract they're a part of the contract they're part of the privacy provisions they could make the claim based upon equitable stoppel based on your theory that arbitration is required no class action right was different that's not all or theory it's not all that their theory is that under the test applied here which looks at the relationship between the parties for aizen and turn the issues re the contract and the issues raised the intertwined it relates agreement itself i couldn't find your client listed really either certainly not specifically because of course they did and verisign didn't enter into a contract with turn until much later by the way a totally independent contractor not an agent made clear in that contract no relationship other than they're there for making money and i but i'm looking at the provisions that present summarized and then the were is referred to the provisions in the privacy portion of the contract and i read it here and i'll try to summarize what i have but you may see third party advertisements your client ones and will just say devices so advertisements are chosen by companies that place advertisement on behalf of other third party advertisers what is that where is your client there on behalf of other third party advertisers is that is why it is so those how is it that a subscriber is to read that and understand that your client is somebody who is has this process and procedure in order to place a cookie put set aside these on the cookie situation place a cookie on the identification and to determine whether or not how they use what their advertising process is or their activity ever try using activity what they like and dislike her her this was to figure out that that's your client and that they are getting benefit from it somehow let me see if i can answer your question this way first of all the question that your honor is asking was not raised in the district court or on appeal but the interpretation of the agreement the application of the agreement the fact the petitioners agreed to these stoppel there is no rule that the party seeking to invoke at what it will stop will be named specifically don't i agree with that they don't have to be named but what i'm trying to do on the issue of the equity i'm sorry from the contract because i'm you have to try to do you have to determine whether or not it's equitable first of all i absolutely agree find your client or see within the agreement that your client exists there for the purpose of doing targeting and then from there whether or not the client could ever or or this subscriber could ever understand what process and procedure your client was engaging in and this is exactly the exercise of the district court went into there was a undisputed record for the district court of evidence put before the district court that was one objected to and under budget and no evidence came in before that from the plaintiffs they didn't seek to depose anyone they didn't seek to put any any additional evidence in of their own agreed agreed upon direct relief direct relief specifically to the claims that issue so the plaintiffs complaint raises to climes a deception claim under new york law and a trust best of shadows claims as your honor has just noted the plaintiff's claim that they didn't know who turned was the claim the complaint doesn't identify a single statement by turn turn we didn't have any connection here until verizon saw to deploy an advertising program subscribers in connection with that they vetted how it was done they worked with turn to get it done and they knew everything about how that was going to be done in the process of delivering that advertising it would not have worked had horizon not throughout the course of that agreement delivered to turn the you idea ages these identifiers along with the demographic information that verizon had to turn so that could turn could help as effectively a contractor for horizon fulfill that obligation that verizon and its subscribers had entered into this advertising function where cookies were described the fact that they would be placed on accessed so every bit of this stuff into claims that plaintiff plaintiffs are alleging here which are not abstract privacy claims they are a deception claim and they trespass claim the entire rubric for how those have to be analyzed come up in the context of the expectations set by their verizon subscriber agreements you know you still haven't must be suing to obtain some benefit from the contract what benefit are these suing to obtain from the contract they are seeking to enforce a no then alleged violation of their expectations under that contract i don't think i don't mean they're sued that way at all i read their suit is saying that you have done something they are not authorized to do by law and that they didn't sign up for it and there's nothing in the contract that provides them a quote benefit you've done nothing to benefit them you've done nothing but harm them actually i don't i don't get where you sit where you where you where you can get that they're suing to get a benefit out of a contract there's still you outside the contract all of their claims can't exist but outside of the contract they're there are entire release can exist in the sense that but for the contract you wouldn't be doing this because you've got a contract with rise but that is not our argument your honor that is absolutely not our argument and we would acknowledge that's not enough the test is that the claims must arise from the contract you know the test is not merely that to enforce by relying on the contract because you've got to show that there's the benefit is there or the reference point of their expectation interest neither of these two claims exist in the ether a deception claim must have some tethering it has some predi not in the contract one way or lugar will with respect it is in the contract the contract specifically discloses that third party advertising will occur that cookies will be placed and accessed you have their dispute is with the way that the that access was done the way those cookies were s and that is specifically agreed to something that will occur in arbitration and the district court had this record before him no one else submitted evidence and his claim is not clear error for the district court to have reached that result they actually there was a cause of action concerning what they were doing but they the scope of this agreement then because basically their advertisers and their advertisers that have been targeted and they have been sifted through by your client or others would they be able to assert the provisions of this contract that would require arbitration it's not in the record before the court but hypothetically speaking it doesn't sound like it based on the facts that have been alleged the critical aspect here is looking at the relationship of the parties the issues and that in the contracts and here the fact is that it is they've arising program verizon used their technology they worked intimately with turn to develop this this is not a circumstance where it's an individual advertiser seeking to place one ad this you know as you know i keep and maybe i'm going to give up here preclude claiming the benefits of a contract from simultaneously attempting to avoid the burden of the contract ok what benefit are they getting from you the the benefit they are seeking is under the contract i didn't say whether it's under the contract i asked what is the benefit but the test you just recited your honor with was a benefit under the contract and that's why i'm asking what the benefit is not what the contract is just tell me what the benefit of the benefit of the contract is the ability to assert the claim at this point the expectation and  i find this frustrating because i'm trying to figure out what benefit you have conferred and done on the job on the plate let me see if i can answer it this way the benefit that there is that they receive on the contract was the virus in service and that service included the advertising that they came with that service they agreed to that they agreed but you see but you see i don't think that here's the point you're trying to avoid it not it's not a benefit at all they hate it but sign a contract that says you can do the following things and i'll do the following things and i pay money well to the extent that the other side of the contract is doing things that benefit them i've agreed to it but that doesn't make it a benefit to me so yes they've entered into a contract the virus gets to do certain things but that doesn't mean that everything benefits them what they get a cellphone service and what arisan gets is the ability to do all kinds of advertising so getting the not sure i agree with judge fletcher on this benefits analysis but let's substitute varieties and for turn and assume that the case was only against for arisan wouldn't the answer be the same there's no benefit that they're seeking another judge fletcher's view of the doctrine as it applies here but in that case verizon clearly would be entitled to invoke the arbitration clause as the basis for resolving whatever the dispute here  is that the plaintiffs are bring your own it's precisely the point i was told i was trying to make a moment ago and i believe the response from judge fletcher was that there is some distinction between what can be done against the party to the contract and what a third party can already the benefit analysis doesn't really work here because the subscriber is still bringing a claim that arises from the subscriber agreement if i understand the benefit if there is one and it was we were trying to improve the horizon experience in using the internet by collecting data of site visits in order to supply the subscriber with a better rate of targeted advertising that the subscriber might be interested in that would appeal to the subscriber that would be one way to cast it but if the test were otherwise if a petitioner were always able to walk in and something that would be a benefit that they would obligated be obligated to arbitrate under the contract with the signatory but recast it as something that they don't like i don't like advertising or i don't like whatever it may be that challenged it's been accepted for the case and i think at this point this particular argument is not one that can amount to a reversible error under the clear standard you know i am taking a risk here but i think we all agree that it respect arises in the benefits that are clear in the contract with arise and they would be stuck and they were stuck and i understand they were originally sued arising and then they dropped the suit and then they brought it only against your client however the that tenuousness ten tenuousness of your client's relationship to this contract is where i have a problem hey there were benefits and as i agree with judge tom and there's benefits as they get targeted everybody knows you're going to get the advertisements but they get targeted advertisements and that's what's clearly explained or as clearly as possible if you don't understand their language in the agreement but they didn't get a benefit from a zombie cookie and that agreement that arrangement between arisan and turn was completely independent in contrast to the other cases that i've looked at i mean it is so independent that they spend an enormous amount of time in their agreement to make sure here we don't have anything to do with you we're doing something for you this is what you want and arisan was under no circumstances at least as far as the record we've seen aware that they had engaged in this this process or this this method of creating is on the cookie fact as i understand it from the record perhaps it's it this was discovered by some student at stanford so if i can respond to the very last point you've raised the undisputed record before the district court itself arise and was aware of all of this zombie cookie is a an attractive term but it's a rhetorical effort to make something sound scary that was just a technical reflection of verizon's own technology pharazyn developed a unique identifier header that was in their own network traffic that they disclosed but the point is don't take issue with their complaint doesn't take issue with it they then in gays do a third party to help them develop an advertising program for that cookies were part of that cookies are part of internet advertising that the cookie was reset in the same number was just a reflection of the fact that the network traffic identifier was the same at each time that there was nothing nothing negative or or frightening about that and it was nothing bad and i'll point you to the s c r three seventy three to three seventy six is expressly disclosed in evidence before the district court that he had the opportunity to weigh and evaluate that this knowledge that rising had awareness of of how this was integrated but i want to be i want to be clear about that one of our co counsel had represented different plaintiffs in a different court and had brought a different suite of claims more federal statutory claims than anything else against both entities we could raise our firm and never the other thing up the other no no i'll just carry off that for just one moment your honor and i think you made this point already obviously the analysis is different between arising and turn when there's an agreement to arbitrate there's an agreement to arbitrate we appreciate that when there's no agreement to arbitrate now we're into a very different