[00:00:00] Speaker 05: case number 20-7081. [00:00:03] Speaker 05: Robert Weissman and Patrick D. Llewelyn, a balance, versus National Railroad Passenger Corporation, doing business as Amtrak. [00:00:10] Speaker 05: Mr. Joshi, for the balance, Ms. [00:00:12] Speaker 05: Amundson, for the envelope. [00:00:14] Speaker 05: A couple of excedrin. [00:00:17] Speaker 03: Good morning, Council. [00:00:20] Speaker 03: Council for Appellant, you may proceed. [00:00:22] Speaker 01: Thank you, Your Honor. [00:00:24] Speaker 01: Good morning. [00:00:24] Speaker 01: You may please the court. [00:00:26] Speaker 01: I'm Nandan Joshi for [00:00:28] Speaker 01: Plaintiffs Patrick Llewellyn and Robert Weissman. [00:00:31] Speaker 01: With the court's permission, I would like to reserve three minutes for rebuttal. [00:00:35] Speaker 01: Plaintiffs are Washington DC residents who use Amtrak's rail service for business travel. [00:00:41] Speaker 01: They filed this action to obtain rail tickets that would allow them to use Amtrak without entering into an arbitration agreement that Amtrak has made, a mandatory term and condition of providing rail service. [00:00:54] Speaker 00: the legal council, can I ask a question at the outset? [00:00:57] Speaker 00: I was a little puzzled. [00:00:59] Speaker 00: Before we get to standing, what is your merits claim? [00:01:03] Speaker 01: The merits claim is basically there's a statutory ultra various claim and constitutional claim. [00:01:09] Speaker 01: But the core of the claim is that as a component of the federal government, Amtrak cannot condition access to its services on a waiver of constitutional rights. [00:01:20] Speaker 01: So it's an unconstitutional condition. [00:01:22] Speaker 00: That would assume there's a waiver. [00:01:27] Speaker 01: Yes, that would assume that the arbitration agreement operates as a waiver of plaintiff's rights to go to court rather than to non-binding private arbitration. [00:01:42] Speaker 00: If that was not so, if there was no waiver of your right to challenge arbitration, should it come up? [00:01:53] Speaker 00: then what what what consequence is that if you're wrong on that? [00:02:00] Speaker 01: So if we're wrong on that we lose we should we would lose on the merits but the court below did not obviously did not reach the merits because the court believed that the district court believed that being required to enter into this contract which is the arbitration agreement is not itself a concrete harm [00:02:19] Speaker 00: You're not taking the position that the arbitration provision is per se illegal, are you? [00:02:27] Speaker 01: No, we do not take the position, for example, that the government cannot enter into arbitration agreements. [00:02:33] Speaker 01: Our theory is that our claim is that the government cannot condition access to rail service or any other service, for example, social security benefits or veterans benefits on [00:02:44] Speaker 01: waiver of a waiver of constitutional rights. [00:02:47] Speaker 00: Why do you puzzle? [00:02:49] Speaker 00: Why is there a waiver? [00:02:50] Speaker 00: I don't get it. [00:02:52] Speaker 00: I don't see how buying the ticket constitutes a waiver. [00:02:56] Speaker 00: I'm really mystified. [00:02:58] Speaker 00: I don't see any reason why you couldn't challenge the arbitration process if you ever got into that situation. [00:03:07] Speaker 01: Well, the arbitration here agreement here is set up under the Federal Arbitration Act. [00:03:11] Speaker 01: So that means arbitration is a matter of consent. [00:03:14] Speaker 01: If plaintiffs want to ride Amtrak, they have no choice but to give their consent to this arbitration agreement. [00:03:20] Speaker 01: It's not an optional feature they can choose or refuse and still ride Amtrak. [00:03:26] Speaker 00: But if it was illegal, you could certainly challenge it at the time it was imposed on you when you had a claim. [00:03:36] Speaker 01: Well, as we note in our brief, it's a little uncertain. [00:03:39] Speaker 01: I mean, the Federal Arbitration Act was not [00:03:41] Speaker 01: I think enacted with the contemplation that the government would use it against individuals, against the public. [00:03:47] Speaker 01: So it is a little uncertain whether we would be able to challenge it later if the plans were to give their consent. [00:03:55] Speaker 04: But of course, Council, we have to assume the merits, that you would be successful on the merits in order to test the threshold question of standing. [00:04:07] Speaker 04: Am I right about that? [00:04:08] Speaker 01: No, that's absolutely correct. [00:04:10] Speaker 01: And that's the problem with the district court's standing analysis. [00:04:13] Speaker 01: If the court were to affirm the district court, the plaintiffs would be forced to make the choice. [00:04:19] Speaker 01: They follow this lawsuit not to make, which is, do I write Amtrak, or do they write Amtrak, and give their consent to this arbitration regime, or do they avoid Amtrak altogether? [00:04:31] Speaker 04: All right, well, tell me why is that a forced choice? [00:04:34] Speaker 04: Maybe you can sort of step back and take us through your [00:04:38] Speaker 04: argument about standing and the injury that you think is occurring in this case? [00:04:46] Speaker 01: Sure. [00:04:46] Speaker 01: Well, it's a forced choice because they don't have the option. [00:04:48] Speaker 01: I mean, like I mentioned, Amtrak cannot impose arbitration on the plaintiffs unless the plaintiffs consent. [00:04:56] Speaker 01: The plaintiffs do not have the option of refusing consent and still taking the Amtrak. [00:05:00] Speaker 01: So Amtrak, if they are adamant that they will never sign on to the arbitration agreement, [00:05:06] Speaker 01: their only choices for interstate intercity business travel is to take some other mode of transportation. [00:05:14] Speaker 04: But you're sort of framing it in a way that is different from how we ordinarily think about these things. [00:05:20] Speaker 04: So let me, can I step back and kind of ask you what is your client's interest, concrete interest in [00:05:31] Speaker 04: riding a train that does not have a ticket attached to a mandatory arbitration provision? [00:05:37] Speaker 04: Do they have an interest in that that is something we've recognized? [00:05:42] Speaker 01: Well, you have recognized over the over decades, consumers have an interest in products and services. [00:05:49] Speaker 01: For example, the Consumer and Consumer Federation of America had an interest in purchasing Internet access service on terms that the consumer [00:05:58] Speaker 01: would have liked. [00:05:59] Speaker 01: The Chamber of Commerce in Chamber of Commerce versus SEC had an interest in purchasing mutual funds. [00:06:06] Speaker 04: All right. [00:06:07] Speaker 04: But state your interest in the same way. [00:06:09] Speaker 04: It's an interest in acquiring a product on my own terms. [00:06:14] Speaker 04: We said that. [00:06:15] Speaker 01: Yes. [00:06:16] Speaker 01: Yes. [00:06:16] Speaker 01: I mean, that was essentially Orangeburg versus FERC. [00:06:21] Speaker 01: The municipality there could acquire post-electricity. [00:06:25] Speaker 01: That wasn't an issue, but the municipality wanted better terms. [00:06:28] Speaker 01: that they thought they were entitled, they did not thought it was entitled. [00:06:32] Speaker 00: Council in Orangeburg, it really reduced down, although it sounds complicated, it really reduced down to the proposition that a South Carolina company would have to pay more for power from the North Carolina company. [00:06:52] Speaker 00: So it was a clear economic injury. [00:06:55] Speaker 00: So that's correct. [00:06:56] Speaker 01: And what we have here is it's not a price economic injury, but it is a cost on to the planet. [00:07:03] Speaker 01: So, for example, if they want to travel to New York on Amtrak before the arbitration condition, they would say pay one hundred dollars for a ticket. [00:07:10] Speaker 01: Now they have to pay one hundred dollars plus waive a right, which is the right to go to court. [00:07:15] Speaker 00: But if we were to conclude that there's no merit to the proposition, there's a waiver that that the ticket because [00:07:26] Speaker 00: My colleague is absolutely right. [00:07:27] Speaker 00: We have to clearly assume the merits before we decide the standing. [00:07:34] Speaker 00: But the Supreme Court has said if the merits are so weak, you could actually decide that too right at the outset as an exception to Steele Company. [00:07:45] Speaker 00: Now, so if we conclude there's no merit at all to the proposition that your client waives [00:07:55] Speaker 00: his right to challenge the arbitration agreement in the event there is a circumstance where it is imposed on him. [00:08:07] Speaker 00: What then happens to your standing? [00:08:11] Speaker 01: So I think there are two issues there. [00:08:13] Speaker 01: One is what the district court decided, which is that there's no concrete form at all. [00:08:17] Speaker 01: The second question, which was not an issue and has not been- No, I'm not talking about standing now. [00:08:21] Speaker 00: I'm talking about the merits. [00:08:23] Speaker 00: If we conclude there's no merit to the proposition that your client waived his right, but just by taking the ticket to challenge mandatory arbitration at the time, an issue arose. [00:08:40] Speaker 00: If we said there's no merit to that, then what's the consequence for standing? [00:08:49] Speaker 01: Well, if you conclude there's no merit to it, then that's a merit's decision. [00:08:52] Speaker 01: If you conclude that the merits are, I don't agree with this, but the merits are so frivolous that- That's right. [00:09:00] Speaker 00: You recognize that we can decide that based on the Supreme Court. [00:09:05] Speaker 00: And you were a little fuzzy about the notion that there's a waiver here just by buying the ticket. [00:09:13] Speaker 00: And I, for the life of me, couldn't understand why there's a waiver. [00:09:17] Speaker 00: If I bought the ticket and subsequently there was a dispute between [00:09:23] Speaker 00: the railroad and me and the railroad insisted on going to the arbitration. [00:09:30] Speaker 00: I couldn't imagine why I couldn't challenge that at that point on the ground that it was in an illegal clause. [00:09:36] Speaker 01: Well, it's certainly uncertain. [00:09:39] Speaker 01: We think it's uncertain whether that would hold up at a later date. [00:09:43] Speaker 01: First of all, once plaintiffs consent to the ticket, they can't challenge the fact that they made the arbitration. [00:09:51] Speaker 00: They can't challenge. [00:09:53] Speaker 00: they can challenge the grounds that the arbitration agreement is illegal. [00:09:59] Speaker 01: Right, but under the severability principle that Supreme Court's announced, the plaintiffs can only challenge the four corners of the arbitration agreement separate from the rest of the contract. [00:10:10] Speaker 01: Now, does that mean the plaintiffs can challenge the condition? [00:10:15] Speaker 01: So I'm not sure. [00:10:16] Speaker 01: Certainly Amtrak has put in no cases that suggest that's a viable challenge in response to our explanation why [00:10:23] Speaker 01: Section two of the FAA and the severability principle and the delegation clause really impose hurdles on the plaintiff's ability to challenge the arbitration. [00:10:32] Speaker 00: I see your point, but the key to your whole case is that you're forced to waive the right to challenge, just by buying the ticket, you're waiving the right to challenge the arbitration provisions in the future. [00:10:46] Speaker 00: If we thought that was without any merit at all, what does that do to your standing? [00:10:53] Speaker 01: So I think that's slightly with the waiver is the waiver of the right that they possess right now to go to court. [00:11:00] Speaker 01: That's where we can test protected by the constitution. [00:11:03] Speaker 01: So what the arbitration agreement does is force them to agree in advance that they will not, they will, they will sell their dispute in some other way. [00:11:12] Speaker 04: I'm sorry. [00:11:14] Speaker 04: Can I, can I just jump in because I know that you're sort of the core of the dispute is overstanding given [00:11:21] Speaker 04: what the district court held. [00:11:23] Speaker 04: And so what I'm trying to understand is the suggestion that you've made that there is some kind of a tangible or concrete cost anytime one's preferred conditions are not offered or don't exist. [00:11:42] Speaker 04: And I'm trying to test that. [00:11:44] Speaker 04: So what if, rather than the arbitration provision, [00:11:49] Speaker 04: The plaintiffs would like to ride Amtrak trains with blue arm rests rather than red arm rests. [00:11:57] Speaker 04: And Amtrak does not have any blue arm rested trains. [00:12:02] Speaker 04: And the plaintiffs say, I am being forced to ride in a car with an arm rest that is not my preferred color. [00:12:11] Speaker 04: Do they have a concrete injury? [00:12:12] Speaker 04: Because it's a cost, I suppose, to have to do that when they don't want to do that. [00:12:17] Speaker 04: Is that your argument? [00:12:18] Speaker 01: So I think that the, I think, well, it is a potentially an injury that Congress can elevate into a concrete form. [00:12:31] Speaker 01: The cases say an injury itself is not sufficient if it's not legally cognizable. [00:12:38] Speaker 01: And so if it's a situation like that where the specific interest being, [00:12:47] Speaker 01: it put forward does not have a legally cognizable basis. [00:12:51] Speaker 04: So what is the legally cognizable basis for suggesting that having to buy this ticket with an arbitration provision in it is an injury? [00:13:04] Speaker 01: Well, it's a contract. [00:13:05] Speaker 01: It's a binding contract on the plaintiffs. [00:13:07] Speaker 01: It's a purely economic matter. [00:13:11] Speaker 01: It is a cost on them. [00:13:12] Speaker 01: They used to have a right, but they no longer [00:13:16] Speaker 01: if the contract is enforced, but no longer have. [00:13:19] Speaker 01: And so, I mean, I don't think anything is this far removed from the situation of like an aesthetic injury, like the armrest example that you gave. [00:13:26] Speaker 01: I mean, this essentially reduces the value of the ticket to them because now- But only in their own minds. [00:13:33] Speaker 04: It doesn't reduce the value in the sense that they pay more physically in terms of money, right? [00:13:38] Speaker 04: They're just disappointed. [00:13:39] Speaker 04: They're sad. [00:13:41] Speaker 04: Or they're afraid of the risk that they might eventually have to arbitrate. [00:13:45] Speaker 01: Well, the risk of having to arbitrate is essentially economic in nature. [00:13:50] Speaker 01: This is not just a pure question of fear. [00:13:54] Speaker 01: If, for example, Amtrak offered a second ticket option that said you can pay $5 more, but if you decline the arbitration agreement. [00:14:03] Speaker 01: No one would question, I think, that $5 is an economic injury. [00:14:07] Speaker 01: The fact that they only offer one option to plaintiffs, which is take it or leave it, [00:14:12] Speaker 01: you accept this contract term or don't ride our trains is just as much of an economic injury to point us in that. [00:14:21] Speaker 04: But does it have to do with the nature of the term? [00:14:24] Speaker 04: Because it seems to me that every consumer agreement can be reduced to a contract. [00:14:29] Speaker 04: So it's really not substantively different because the contract, you know, so fine, Amtrak puts in its contract, you have to accept that we have red arm rests. [00:14:39] Speaker 04: and the person says, but I don't want that, right? [00:14:41] Speaker 04: So is it the fact that you're saying it's arbitration in the contract that is creating the harm? [00:14:48] Speaker 01: Well, certainly I think this is the easy case as it was in Orangeburg, and that is the terms of a contract that has a value to consumers. [00:14:57] Speaker 00: Well, you're focusing on the language in that case involving term, the use of the word term. [00:15:05] Speaker 00: But in fact, the holding in this case [00:15:08] Speaker 00: is that Orangeburg was going to have to pay more money. [00:15:13] Speaker 00: So you can't leverage that as my colleague is pointing out to any term anywhere. [00:15:22] Speaker 00: Let me give another hypothetical. [00:15:25] Speaker 00: Suppose Amtrak and its ticket states that if you go into the quiet car and you use a telephone, [00:15:36] Speaker 00: You will lose your right to travel and track for three months. [00:15:44] Speaker 00: Can you challenge that on the grounds that that's an unfair term? [00:15:52] Speaker 01: I would think so. [00:15:53] Speaker 01: That seems like a free speech challenge. [00:15:56] Speaker 00: You have a right to talk. [00:16:02] Speaker 00: in the quiet car? [00:16:03] Speaker 01: Well, whether you have a right or not is a merits question, but I think the standing there is pretty, pretty apparent. [00:16:08] Speaker 03: So you have standing. [00:16:10] Speaker 03: Hold on. [00:16:11] Speaker 03: I have two questions at once. [00:16:16] Speaker 00: Go ahead, Judge Silverman. [00:16:19] Speaker 00: Look, the point is, is it not that we wouldn't know at this point whether, let's suppose the term had said [00:16:29] Speaker 00: you would lose your right to travel on Amtrak for three months unless you had adequate excuse for speaking. [00:16:41] Speaker 00: Is your view that you could challenge that now? [00:16:48] Speaker 00: Or would the question be what would happen if there was a determination subsequently that [00:16:57] Speaker 00: either there was or was not good reason to speak as an emergency. [00:17:05] Speaker 01: So I think if the plaintiff had put in a declaration that says they intend to speak and they are have a legitimate fear that Amtrak would enforce a system that does sound like [00:17:17] Speaker 01: The merits would be a First Amendment question, but the standing is the violation of the constitutional right. [00:17:24] Speaker 00: May I make one other point? [00:17:25] Speaker 00: You would agree that ripeness and standing tend to intertwine. [00:17:29] Speaker 00: Both of you in your briefs recognize that. [00:17:32] Speaker 00: Sometimes the concepts overlap, don't they? [00:17:38] Speaker 01: Yes, no, we don't dispute that. [00:17:41] Speaker 00: Let me go and tell you about, you make a very strong argument [00:17:45] Speaker 00: that there's no way to distinguish the core of a product from something ancillary, which is what my colleague was pushing. [00:17:54] Speaker 00: And me too, with respect to something ancillary. [00:17:58] Speaker 00: Well, I call your attention to Abbott Laboratories and toilet goods. [00:18:05] Speaker 00: And it was to be sure a ripeness case, but it was constitutional ripeness really. [00:18:09] Speaker 00: And you can treat that as standing as well. [00:18:13] Speaker 00: And in Abbott Laboratories, the Supreme Court [00:18:16] Speaker 00: and toilet goods distinguish between primary conduct and something that was ancillary. [00:18:23] Speaker 00: Toilet goods was inspection regime, whereas Abbott laboratory was the label on a can. [00:18:33] Speaker 00: So the label on a can affected primary conduct. [00:18:36] Speaker 00: If you use that analogy over in this situation, wouldn't you conclude that the real product here is the transportation on [00:18:45] Speaker 00: Amtrak, that's the product. [00:18:48] Speaker 00: And the arbitration is like the toilet goods question of ancillary inspections. [00:18:57] Speaker 01: I would not consider any term that's mandatory. [00:19:03] Speaker 01: The plaintiffs do not have the right to opt out of the ancillary because that is part of what they are purchasing. [00:19:10] Speaker 04: Aren't all ticket terms mandatory? [00:19:12] Speaker 04: because you're not negotiating all of the conditions that are in the ticket, right? [00:19:18] Speaker 01: Right. [00:19:18] Speaker 01: But they don't all rise to a marriage challenge. [00:19:21] Speaker 04: How do we know? [00:19:21] Speaker 04: In other words, how do we know which ones give you grounds to claim injury when you say, I don't want to do that thing, and which ones don't? [00:19:32] Speaker 01: So I think the way to think about this is because concrete injury is an absolute article to explore, you could think about it in the sense of, [00:19:42] Speaker 01: Is this type of activity something that Congress cannot regulate? [00:19:46] Speaker 01: Because that is, and grants consumers a cause of action. [00:19:51] Speaker 01: Once you declare something a concrete injury, then it's out of Congress's hands. [00:19:55] Speaker 01: For example, Congress wants to prohibit arbitration agreements in employment contracts. [00:20:01] Speaker 01: If the district court's right, that's an ancillary term. [00:20:05] Speaker 01: Injured job applicants can't sue unless they enter into the contract, [00:20:10] Speaker 01: and have an imminent arbitration proceeding in front of them. [00:20:16] Speaker 04: I'm desperately trying to isolate the different factors here. [00:20:23] Speaker 04: So to me, cause of action and the merits are different than injury from the standpoint of determining whether or not you have an injury in fact for Article 3 purposes. [00:20:37] Speaker 04: You seem to be suggesting in your briefs and in your argument here this morning that you are injured in a concrete way if the desired product that you would like to purchase does not exist or is not being offered. [00:20:56] Speaker 04: It's enough to say, I want an Amtrak ticket that doesn't have an arbitration agreement or that I want to ride an Amtrak that has blue seats, not red seats, [00:21:07] Speaker 04: whatever it is, you say, if that is not being offered, you're injured from the standpoint of Article 3. [00:21:15] Speaker 04: And I don't understand that. [00:21:17] Speaker 01: Sure. [00:21:18] Speaker 01: And I get your point, Your Honor. [00:21:20] Speaker 01: So I think standing and injury and the merits are like 99.9% separate. [00:21:27] Speaker 01: But there is this very sliver of overlap that the cases talk about, where they recognize the existence of a de facto concrete injury that [00:21:37] Speaker 01: is legally inadequate unless Congress has elevated that injury into a cognizable injury. [00:21:46] Speaker 01: And I can read you from the Supreme Court's last recent decision in trans unions this last term. [00:21:52] Speaker 01: Congress may elevate the status of legally cognizable injuries, concrete de facto injuries, that were previously inadequate at law. [00:22:01] Speaker 01: So there is a whole universe. [00:22:02] Speaker 03: One of the things that I'm finding confusing [00:22:07] Speaker 03: is you're relying on a line of authority from this court, which talks about injury in the context of action by a federal agency. [00:22:26] Speaker 03: Here, the Supreme Court has said clearly Amtrak is not a government agency. [00:22:35] Speaker 03: Therefore, [00:22:36] Speaker 03: From my point of view, we're treating Amtrak as a private corporation for purposes of the type of individual claim of injury. [00:22:50] Speaker 03: Now, Congress has authorized Amtrak and created Amtrak for a specific purpose, but it left details to Amtrak and the discussion Judge Jackson has been [00:23:05] Speaker 03: having with you, you seem to resist on the idea that if you don't want the product as it's being offered in the market, that's an injury for purposes of Article 3. [00:23:23] Speaker 03: And I think our questions are getting at is we're trying to understand, I suppose, A, how under our authority, you have the type of injury [00:23:36] Speaker 03: that is required, and B, if you don't, then what authority are you relying on? [00:23:44] Speaker 03: And I understand your point. [00:23:47] Speaker 03: Giving up the right to go to court is not of the same nature as objecting to the color of arm seats or chairs. [00:23:58] Speaker 03: But I don't think you persuaded me at this point that either assuming [00:24:06] Speaker 03: our authority applies in this context. [00:24:10] Speaker 03: What we have required in defining the product and the cost, it seems to me is consistent with what the Supreme Court was talking about in the cases that Judge Silverman was just discussing with you. [00:24:26] Speaker 03: And I think that Judge Jackson was bringing in. [00:24:29] Speaker 03: And I understand you don't agree, but the question is, [00:24:34] Speaker 03: How does the court write an opinion consistent with our jurisprudence and the Supreme Court to get you what you want? [00:24:48] Speaker 03: And I haven't heard that answer yet. [00:24:51] Speaker 03: And we haven't even talked about imminence. [00:24:54] Speaker 01: Sure. [00:24:55] Speaker 01: Well, I think one example might be the Chamber of Commerce case. [00:24:59] Speaker 01: So that was an APA case where the chamber sued the FCC for their independent director rule. [00:25:04] Speaker 01: that was imposed on mutual funds. [00:25:07] Speaker 01: And this court held the chamber had standing even though they were not directly regulated because they could not get access to that product. [00:25:14] Speaker 01: The reason they have standing because they suffered a concrete defective injury in the unavailability of that. [00:25:19] Speaker 00: Did you happen to read the second case involving Chamber of Commerce which came back again, which Judge Rogers wrote? [00:25:28] Speaker 00: Did you read that case? [00:25:30] Speaker 01: I'm aware of one Chamber of Commerce case that was addressed in the briefs. [00:25:34] Speaker 00: Yes, but then there's a second one. [00:25:36] Speaker 00: The case came back up to the court and Judge Rogers explained the standing holding in the first case as based on an economic injury that the Chamber of Commerce as the investor was deprived of certain mutual fund possibilities of purchase [00:25:59] Speaker 00: particularly small ones because of the regulation. [00:26:03] Speaker 00: And as an investor, if you're deprived of the opportunities to invest in mutual funds because of this regulation, you're injured because you want to have a broad range for your portfolio. [00:26:19] Speaker 00: And indeed, she pointed out also there were direct expenses. [00:26:23] Speaker 00: So she explained Chamber 1 [00:26:28] Speaker 00: I thought in a brilliant fashion, if you'll forgive me. [00:26:32] Speaker 01: Well, my apologies. [00:26:33] Speaker 01: I don't think any of the briefs cited that and I was not, so I can't speak to chamber one. [00:26:39] Speaker 01: I'm happy to. [00:26:40] Speaker 01: Chamber two. [00:26:41] Speaker 01: Yes. [00:26:43] Speaker 03: Let's assume that our understanding of chamber one is that it turned on the increased costs. [00:26:50] Speaker 03: So the product was no longer available. [00:26:54] Speaker 03: All right. [00:26:54] Speaker 03: And so part of my [00:26:58] Speaker 03: question is, what is the cost to your client when it doesn't even allege that it potentially has a claim, much less that it has a claim that's definite in the foreseeable future, nor that, as Judge Silverman was exploring with you, that you would be barred [00:27:28] Speaker 03: from making the constitutional argument you're making now. [00:27:35] Speaker 01: So I think the cost is a purely, it's a contractual cost, right? [00:27:41] Speaker 01: It is a binding agreement. [00:27:44] Speaker 01: If the court says that individuals can be bound and not have standing, it can be forced to consent to being bound by a contract term and not have standing. [00:27:55] Speaker 01: that's, I mean, that would be the whole thing that that would, I think, if you were to rule, affirm the district court's decision. [00:28:03] Speaker 00: But I know there's no indication in your briefs or complaints or no indication, no law that you cite for the proposition that by buying the ticket, you've waived your right to contest arbitration. [00:28:22] Speaker 00: And if there was an incident [00:28:25] Speaker 00: which there was a dispute. [00:28:26] Speaker 01: The waiver is the waiver of the right to go to court. [00:28:31] Speaker 00: That right exists. [00:28:31] Speaker 00: Where I don't see that. [00:28:34] Speaker 01: That's what private arbitration is. [00:28:36] Speaker 01: You go to private arbitration. [00:28:38] Speaker 00: But if you claim that the arbitration clause is illegal, you could always make that claim in the future. [00:28:45] Speaker 00: Isn't that right? [00:28:47] Speaker 00: You said you've waived the right to make that claim by buying the ticket. [00:28:53] Speaker 00: I think that's absurd. [00:28:56] Speaker 01: under the arbitration agreement, at a minimum, if we make that argument, if we're allowed to make the argument, the arbitration agreement is illegal, even considering the severability principle, which doesn't look to the, which only looks to the four corners of the arbitration. [00:29:12] Speaker 01: That would still go to the arbitrator under the delegation clause. [00:29:16] Speaker 00: Not necessarily, not necessarily. [00:29:18] Speaker 00: If you argued that it was the arbitration clause was illegal, [00:29:23] Speaker 00: And you couldn't be concluded that you waived your right to make the challenge. [00:29:31] Speaker 00: So I think that's almost a frivolous argument. [00:29:34] Speaker 00: And if it is a frivolous argument, then we can dispose of this as the Supreme Court has advised us without assuming the merits. [00:29:46] Speaker 00: In other words, my colleague Judge Jackson is quite correct. [00:29:50] Speaker 00: We must always assume the merits. [00:29:52] Speaker 00: when we turn to standing, unless the merits are frivolous. [00:29:56] Speaker 04: Well, can we talk a little bit about eminence as a sort of separate standalone traditional criteria? [00:30:04] Speaker 04: So why is it that even if you have a protected interest in not being forced to agree to arbitration rather than trial, why is that an eminent [00:30:21] Speaker 04: injury in a situation like this, where, as Judge Rogers pointed out, there's no indication that your clients have a current claim that could either go to arbitration or trial, and they would have, you know, such a claim would have to arise, and then the Amtrak would have to invoke the provision, and then they would perhaps be in a situation in which they would be forced to arbitrate. [00:30:47] Speaker 04: How could that be eminence in any meaningful way? [00:30:50] Speaker 01: Well, it's eminent in the sense of plaintiffs do not want to give their consent. [00:30:56] Speaker 01: They have to consent before that whole regime even applies to them, and they do not want to do that. [00:31:02] Speaker 01: Now, if they don't want to do that, then that's something they have to make a decision at the time of travel. [00:31:06] Speaker 04: So you're saying the harm is being forced to give their consent [00:31:13] Speaker 04: and it's imminent because they're being forced to give their consent right now. [00:31:17] Speaker 01: Right. [00:31:18] Speaker 01: So if the arbitration condition were optional, you buy a ticket, you have this option of, you know, they could reject the arbitration agreement and then write amtrak, you know, being clear they have, they have control over their own legal destiny. [00:31:31] Speaker 04: I just feel like your theory, I hear you that this is important because it's arbitration and that's something that Congress may have elevated or whatnot, but [00:31:39] Speaker 04: Your theory of injury seems to undermine and undo all of the standing limitations, because in every case, one could say we want the state of the world to be different than it is as a result of the person of the defendant's action. [00:31:57] Speaker 04: and it's different right now. [00:32:00] Speaker 04: So we have an imminent injury. [00:32:02] Speaker 04: I don't understand how any limitation. [00:32:06] Speaker 01: No, I don't think so. [00:32:08] Speaker 01: I mean, let me give an example, perhaps something that I think everyone agrees is an injury, which is higher prices, right? [00:32:15] Speaker 01: So if the gas price of gas goes up 25 cents, that's a concrete injury on [00:32:21] Speaker 01: drivers, they have to pay more for gas. [00:32:23] Speaker 01: I don't think anyone would disagree with that. [00:32:26] Speaker 01: But you can't just go into court and say, I prefer lower gas prices, because that's not an injury that is legally cognizable under any federal law. [00:32:36] Speaker 01: Now, Congress passed a statute that said the price of gas has to be $3 and consumers can sue if it goes higher. [00:32:43] Speaker 01: Or if the consumer says the price of gas is higher because there's a violation of the antitrust laws, there's a price fixing [00:32:50] Speaker 01: That same price increase that was inadequate before now becomes legally cognizable. [00:32:57] Speaker 04: Here's what I'm worried about. [00:32:58] Speaker 04: I'm worried about your merger of the merits and this issue of injury. [00:33:03] Speaker 04: The way that you framed this now has an injury [00:33:07] Speaker 04: not in case A, because the person doesn't have a legally protected interest, meaning they don't have a claim, right? [00:33:16] Speaker 04: They couldn't win if they went to court because there's no cause of action or actual problem with having gas prices be higher. [00:33:26] Speaker 04: But in world B, they do have an injury because their claim is meritorious. [00:33:32] Speaker 04: And I've never understood those two to be connected in that way, such that you can claim an injury because you say, we're so right about the ultimate legal claim that we would like to make. [00:33:46] Speaker 01: So yeah, I apologize if I was unclear. [00:33:48] Speaker 01: The argument isn't that the plaintiff has an injury if the claim is meritorious. [00:33:53] Speaker 01: The plaintiff has an injury, for example, for higher gas prices. [00:33:59] Speaker 01: can tie that injury to a legally cognizable, something that it's protected under law or under the constitution in some way. [00:34:07] Speaker 01: It's not a huge barrier, but it does prevent plaintiffs from going into court and saying, I don't like the state of the world, which is the concern you were expressing. [00:34:18] Speaker 01: This court will not see those situations too often because any lawyer is going to tie an injury to a claim for release. [00:34:25] Speaker 01: And so the question of legal cognizability is not, almost never gets litigated as far as I've seen. [00:34:31] Speaker 01: However, it does prevent plaintiffs from simply going to court, having standing because they're dissatisfied with the options available in the marketplace. [00:34:42] Speaker 01: But it doesn't get. [00:34:43] Speaker 00: All right. [00:34:44] Speaker 00: Let me go back to one point. [00:34:48] Speaker 00: Suppose your client did not waive [00:34:56] Speaker 00: his right to challenge arbitration by buying a ticket. [00:35:03] Speaker 00: Would you have an injury? [00:35:09] Speaker 00: Our clients have an injury because of requiring to- No, just follow my question. [00:35:13] Speaker 00: Suppose buying the ticket did not constitute a waiver of your right to challenge arbitration should the event arise. [00:35:23] Speaker 00: Suppose that was true. [00:35:25] Speaker 00: Do you have an injury? [00:35:27] Speaker 01: I would say yes. [00:35:28] Speaker 00: I think even if that isn't a waiver. [00:35:33] Speaker 01: Well, if the court concludes, no, yes, because it's still a contract. [00:35:38] Speaker 01: They are still signing on the dotted line. [00:35:41] Speaker 01: And that has some meaning. [00:35:42] Speaker 03: Unless the court says- But your argument is that's unconstitutional. [00:35:47] Speaker 03: That's one of your arguments. [00:35:50] Speaker 03: I think it'd be helpful if we could hear for counsel for our police. [00:35:55] Speaker 03: And then we'll give you some rebuttal time. [00:35:57] Speaker 02: Thank you, Your Honor. [00:36:00] Speaker 03: Council for Appellee. [00:36:03] Speaker 05: Good morning, Your Honors. [00:36:04] Speaker 05: May it please the court, Jessica Ring-Amonson for Appellee Amtrak. [00:36:09] Speaker 05: Your Honors, for the reasons that you've been discussing, the district court correctly determined that plaintiffs do not have standing to raise their challenge to the arbitration clause. [00:36:18] Speaker 05: Unless and until Amtrak seeks to enforce the arbitration clause against plaintiffs, [00:36:24] Speaker 05: They simply do not have the actual and imminent injury necessary to satisfy article three. [00:36:29] Speaker 00: Let me follow up counsel with this, just what I was asking your colleague, your opponent. [00:36:38] Speaker 00: Would you agree that any person buying the ticket with the arbitration clause does not waive his or her right to challenge [00:36:54] Speaker 00: arbitration at the time it is invoked against them? [00:37:00] Speaker 05: Your honor, I would agree. [00:37:01] Speaker 05: And in fact, that's what every case that is cited in our briefs that has considered this question has held. [00:37:06] Speaker 05: So the Supreme Court in Monsanto, the Seventh Circuit in Board of Trade versus Commodity Futures Trading Commission, the Fourth Circuit in Jones versus Sears-Robach, the Ninth Circuit in Lee versus American Express, [00:37:20] Speaker 05: the 11th Circuit in Bowen versus First Family Financial, every time that plaintiffs have raised this sort of challenge that the inclusion of an arbitration clause violates their rights, the courts have told them you do not have standing or the case is not right unless and until the arbitration clause is in place. [00:37:37] Speaker 00: I'm asking a specific, a slightly modified question, which is you as the defendant in this case agree with my proposition that petitioners [00:37:50] Speaker 00: by buying that ticket has not waived their right to challenge the arbitration clause should an incident arise? [00:38:01] Speaker 05: We do not dispute that they could raise such a challenge. [00:38:05] Speaker 05: We do not believe such a challenge would be meritorious. [00:38:07] Speaker 00: That's a separate question. [00:38:09] Speaker 00: In other words, you're not taking the position there's a waiver by buying the ticket. [00:38:14] Speaker 05: No, Your Honor, they can certainly, anyone who wants to challenge an arbitration clause at any point is unconscionable or illegal can file a suit at that time. [00:38:22] Speaker 00: So here we have the unusual situation that the plaintiff in this case is asserting that by signing, by buying the ticket, he or she has waived his right to challenge the arbitration process should it arise. [00:38:39] Speaker 00: And yet the opponent says that's not true. [00:38:42] Speaker 00: We're not, we wouldn't claim that there is a waiver. [00:38:46] Speaker 00: So doesn't the case just go away? [00:38:50] Speaker 00: Well, your honor, to be clear- That's really a question, not for you, but that's more of a question for the other side. [00:38:56] Speaker 00: Right, so- But it's really important to note this, that the Amtrak has said, we do not take the position, we would never take the position, that simply by buying the ticket, the passenger waves [00:39:12] Speaker 00: his or her right to challenge the arbitration at the time that it's imposed. [00:39:19] Speaker 03: Well, let me just clarify something here. [00:39:21] Speaker 03: Let me play devil's advocate. [00:39:24] Speaker 03: I understand what you're saying in response to Judge Soliman's question, but I'm a little skeptical as I think is appellant that when, if ever, [00:39:42] Speaker 03: Amtrak invokes the arbitration clause against a claim that one of the appellants has against Amtrak. [00:39:55] Speaker 03: Amtrak will defend in part on the ground that you consented because you entered into this contract with us [00:40:07] Speaker 03: the time you bought the ticket. [00:40:10] Speaker 03: And you understood that if you wanted to ride our trains, then any claim that you might have now or in the future, in some way linked to that transportation that you bought with that ticket, [00:40:33] Speaker 03: would be subject to mandatory arbitration by a single arbitrator under the FAA. [00:40:44] Speaker 03: Amtrak's first line of defense [00:40:48] Speaker 05: Yes, Your Honor, you're correct. [00:40:49] Speaker 05: And that's what I was going to clarify. [00:40:51] Speaker 03: Yes. [00:40:51] Speaker 03: So how could you respond to Judge Silverman's question the way you did? [00:40:55] Speaker 05: However, Your Honor, what I'm saying is that what every case has held is that for purposes of standing, unless and until the arbitration clause is invoked against the plaintiff, that person does not have any actual or imminent injury. [00:41:10] Speaker 03: That's what those cases we're focusing on. [00:41:15] Speaker 03: There's no imminent injury. [00:41:19] Speaker 05: That's right, Your Honor, because there's at most as the cases have held a someday maybe hypothetical chance that the arbitration clause is ever going to be invoked against plaintiffs. [00:41:30] Speaker 05: So for example, plaintiffs with respect to imminence have not even alleged that they have any sort of concrete plans to travel on Amtrak, let alone that they will develop a dispute with Amtrak, let alone that that dispute would then, that Amtrak would then invoke the arbitration clause against you. [00:41:50] Speaker 00: Excuse me, counsel. [00:41:51] Speaker 00: I want to just follow up on Judge Rogers question because it's very good question. [00:41:56] Speaker 00: Isn't, I recognize [00:41:59] Speaker 00: that if there was a dispute down the line, Amtrak would argue the arbitration clause binds the plaintiff. [00:42:11] Speaker 00: That's perfectly legitimate. [00:42:13] Speaker 00: That's different from my question, which was, would you take the position that they waived their right to challenge the arbitration clause just by buying the ticket? [00:42:27] Speaker 00: In other words, if they went into court at that time saying the arbitration clause is unconstitutional, it is a statutory violation, X, Y, Z, it's fattening, whatever claims they make, you would not take the position that they waived their right to make a constitutional claim or a statutory claim by buying the ticket, would you? [00:42:53] Speaker 05: No, but we would likely claim that that belonged in arbitration. [00:42:58] Speaker 00: Right, of course you would. [00:43:02] Speaker 00: But their injury now is assertion that we would waive that claim just by buying the ticket. [00:43:08] Speaker 00: And I thought you correctly said, no, they wouldn't waive it. [00:43:12] Speaker 00: They could raise it later. [00:43:14] Speaker 05: They can raise it later. [00:43:15] Speaker 05: And as Judge Routers pointed out, we would defend against that by saying, no, this properly belongs in arbitration and you agreed to an arbitration clause. [00:43:22] Speaker 05: However, they have not waived their right. [00:43:24] Speaker 05: And that's exactly what all of these cases recognize, that in Board of Trade versus Commodity Futures Trading Commission, what they tell the plaintiff is that, [00:43:38] Speaker 05: you can, if and when an arbitration arises, you can seek to enjoin that arbitration, and that's why you don't have standing now and it's not ripe now. [00:43:46] Speaker 05: So that's what all of these cases are saying, is that in all of the cases where plaintiffs are just sort of trying to challenge the mere inclusion of an arbitration clause, the courts say you have to wait until that arbitration clause is enforced against you. [00:44:04] Speaker 05: And here it's a highly hypothetical chain of events under which that arbitration clause would ever be invoked against them. [00:44:13] Speaker 05: As to the two plaintiffs here, Mr. Weisman, for example, on sort of plaintiffs kind of desired product theory of standing, he does not even have that type of standing because he has already traveled on Amtrak subject to the arbitration clause. [00:44:34] Speaker 05: Mr. Llewellyn's claims are simply that he has a new job that may require him to travel to cities that are served by Amtrak. [00:44:45] Speaker 05: And then I would just refer the court in terms of its questions about eminence to Mr. Llewellyn's claims themselves, which are at JA 19, where he says that when he's choosing a mode of transportation, [00:44:58] Speaker 05: He considers a variety of factors, including costs, travel time, schedule, and personal convenience. [00:45:04] Speaker 05: In some circumstances, Amtrak may be the best choice for him. [00:45:07] Speaker 05: And in those circumstances, he would like to be able to travel on Amtrak without being subject to an arbitration provision. [00:45:14] Speaker 05: So there's not even immanence as to their desired travel on Amtrak, let alone the idea that a dispute would ever arise and the arbitration clause [00:45:27] Speaker 05: would ever be invoked against them. [00:45:30] Speaker 04: All right, but, Council, how do you distinguish cases like Consumer Federation of America on that basis? [00:45:39] Speaker 05: So, Your Honor, I think those cases are distinguishable on a number of bases. [00:45:43] Speaker 05: And I would start with what Judge Rogers pointed out just as an initial matter, which is that, of course, Amtrak is not an agency and is not subject to the APA. [00:45:52] Speaker 05: But sort of even setting that aside and assuming for purposes of these desired product cases that they're applicable in this context, [00:46:03] Speaker 05: You do have to consider the injury in light of the claims asserted and when you look at plaintiffs complaint the claims asserted are all about their loss of a constitutional rights by losing access to a judicial forum in the event a dispute arises. [00:46:22] Speaker 05: Their claims aren't even framed as kind of, I would like to actually purchase a product and the agency has acted arbitrarily and capriciously in denying me access to that product. [00:46:34] Speaker 05: But even assuming again, that their desired product theory of injury is what the injury is, as opposed to what's actually asserted in their complaint, which is the loss of an article three forum for judicial redress of grievances. [00:46:48] Speaker 05: The coalition for mercury free drugs case shows us that there are important limitations on even those desired product cases which are that what you have to what the agency's action has to do is to make the product not readily available or unreasonably priced. [00:47:06] Speaker 05: And as both Judge Rogers and Judge Silberman were pointing out with respect to both the Orangeburg case and the Chamber of Commerce versus SEC case, what's really going on in these cases is economic injury. [00:47:19] Speaker 05: That's really what's motivating the court. [00:47:22] Speaker 05: Here, there's no kind of suggestion at all that there's any kind of economic injury to plaintiffs. [00:47:29] Speaker 05: There's no suggestion that what Amtrak has done by instituting an arbitration clause [00:47:33] Speaker 05: has made the product either not readily available to plaintiffs or unreasonably priced to plaintiffs. [00:47:40] Speaker 04: All right, so if they change the complaint and it said something to the effect of Mr. Weissman does not want to be forced to drive or take other transportation, I'm reading from the paragraph eight. [00:47:54] Speaker 04: He now says which may be more inconvenient, but if they said if it was more inconvenient more burdensome more expensive with that would that give them standing. [00:48:04] Speaker 05: I don't think so your honor and I think it goes to the questions that you were posing to Mr Joshi, which were about [00:48:10] Speaker 05: any kind of limiting principle. [00:48:12] Speaker 05: If plaintiffs can simply allege that they would like a product to be as it is, they're simply different than as it is, there's simply no limiting principle whatsoever on their theory of standing. [00:48:30] Speaker 05: They've not only sort of not even alleged that travel is imminent, but the idea that they will then develop a dispute and that Amtrak will invoke the arbitration clause against them for purposes of that dispute is simply, as the cases have said, purely speculative. [00:48:50] Speaker 05: It's a someday or maybe type of injury that doesn't give rise to Article III jurisdiction. [00:48:58] Speaker 03: Anything further? [00:49:00] Speaker 05: If the court has no further questions, we ask the court to affirm the district court. [00:49:04] Speaker 05: Thank you. [00:49:07] Speaker 03: Thank you, council. [00:49:08] Speaker 03: Council for appellants. [00:49:10] Speaker 01: Yes, thank you, your honor. [00:49:14] Speaker 01: First of all, not every case has held that the plaintiff must wait until arbitration. [00:49:21] Speaker 01: The Bowen case, which we cited in our briefs, held that the plaintiff claimed that the [00:49:28] Speaker 01: arbitration condition is an unlawful condition on access to, in that case, credit, then that the plaintiff has standing. [00:49:35] Speaker 00: That's actually, I thought that case was brilliantly handled by the 11th circuit. [00:49:42] Speaker 00: And they draw the distinction between two parts of the case. [00:49:47] Speaker 00: One part where they recognize there is standing because you have to assume the merits, even though the merits are weak. [00:49:55] Speaker 00: And the second part, [00:49:57] Speaker 00: they indicate there's lack of standing. [00:50:00] Speaker 00: So they follow the point that Judge Jackson made at the outset, which is you always have to ask yourself the question. [00:50:08] Speaker 00: You have to assume the validity of the merits when you talk about standing. [00:50:14] Speaker 00: And that's what the 11th Circuit did, just dividing up two parts. [00:50:21] Speaker 00: Now, I have a problem that the case seems to go away. [00:50:26] Speaker 00: when your proposition is, your injury is, you are forced to waive the right, when you buy the ticket with that clause, you are forced to waive the right to subsequently challenge the legitimacy of arbitration when an incident arises. [00:50:44] Speaker 00: But you waive the right to do so. [00:50:46] Speaker 00: You've waived the right to argue that it's unconstitutional. [00:50:48] Speaker 00: You waive the right that it's contrary to statute. [00:50:51] Speaker 00: Council on the other side says that's not true. [00:50:55] Speaker 00: We would never take the position you waive the right to make those legal arguments. [00:51:00] Speaker 00: We would make the argument that the arbitration clause is legal and you're bound by it, but we wouldn't take the position that simply by buying the ticket, you waive your right to make this argument. [00:51:10] Speaker 00: So in that event, where's the dispute? [00:51:13] Speaker 01: So that's the nub of it though. [00:51:15] Speaker 01: The plaintiffs would be bound by it. [00:51:17] Speaker 01: If the plaintiffs win this case on the merits, they would not be bound by any arbitration. [00:51:22] Speaker 01: There's not a right in this case I can think of where the plaintiff is in a worse position because of the delay, but they would be here because they will be forced to enter into an arbitration agreement if they take Amtrak and then they- But counsel, what you haven't dealt with, it seems to me, and this is simply a matter of allegations, I understand. [00:51:41] Speaker 03: But as Amtrak pointed out, they handle a lot of claims directly without [00:51:52] Speaker 03: invoking arbitration. [00:51:54] Speaker 03: We don't know how, if your clients have a claim sometime in the future, whether Amtrak would choose to resolve it directly or invoke arbitration. [00:52:14] Speaker 03: That's one major problem, or that's two major problems. [00:52:18] Speaker 03: Then the third problem, it seems to me, is [00:52:23] Speaker 03: whether you ultimately prevail or not is a different question, but at least counsel for Amtrak has assured the court repeatedly today that it is not taking the position that the mere purchase of a ticket with an arbitration clause constitutes a waiver by your clients of their right to challenge that clause. [00:52:53] Speaker 03: And I understand your argument, citing some cases that under the FAA, there are limited challenges that you can make to arbitration. [00:53:05] Speaker 03: But the type of challenges you are arguing, namely that it's unconstitutional, that is not what I understand those cases to hold. [00:53:16] Speaker 03: And you haven't cited any. [00:53:17] Speaker 01: Well, yes, arbitration has not been used by the government against the public. [00:53:22] Speaker 01: So you're not going to have too many cases involving a constitutional challenge. [00:53:27] Speaker 03: I know you insist on referring to the government here. [00:53:32] Speaker 03: But at least the Supreme Court has not identified to the contrary. [00:53:39] Speaker 03: It has said that Amtrak is not a government agency. [00:53:44] Speaker 01: The Supreme Court has twice said that Amtrak is bound by the Constitution. [00:53:48] Speaker 01: They are a government agency to that extent. [00:53:49] Speaker 03: That's correct. [00:53:50] Speaker 03: But when Amtrak responds to a complaint and claim that your client may have in the future, it's not acting as the government, although you keep suggesting it is. [00:54:04] Speaker 04: Can I ask a question, Mr. Joshi? [00:54:07] Speaker 04: I know we're short on time, and I've been sitting here trying to figure out why I'm so confused by all of this. [00:54:13] Speaker 04: And I think it's at least conceivable [00:54:17] Speaker 04: that there are two different theories of injury that are floating around here, and I'm trying to understand which one you are claiming. [00:54:25] Speaker 04: On the one hand, you could have a theory of injury that we are injured because we do not have access to a product that we desire. [00:54:37] Speaker 04: And in that sense, [00:54:39] Speaker 04: You rely on the cases that seem to suggest that. [00:54:42] Speaker 04: And in that sense, the product we desire is a ticket without an arbitration clause. [00:54:47] Speaker 04: And all the stuff about how bad it is with respect to constitutional rights is just explaining to us why you desire to have this arbitration free, you know, this ticket without that clause, because all those things are terrible. [00:55:03] Speaker 04: But really I'm injured because I want this product and I don't have it. [00:55:09] Speaker 04: All right, that's one thing. [00:55:12] Speaker 04: I hear Judge Silberman actually positing a different theory of injury. [00:55:17] Speaker 04: It is, I'm injured because under these circumstances, I'm being forced to waive a constitutional right to try. [00:55:26] Speaker 04: And what he or being forced to waive my constitutional rights in some way. [00:55:31] Speaker 04: And what he's saying is, but what if what if the fact of the matter is that you're really not being forced to waive? [00:55:37] Speaker 04: Isn't this a frivolous case? [00:55:39] Speaker 04: Don't we just get rid of it on that basis? [00:55:42] Speaker 04: And so what are you saying? [00:55:44] Speaker 04: Are you actually resting on a desired products theory or on some theory related to [00:55:53] Speaker 04: the forced waiver of your constitutional rights? [00:55:57] Speaker 01: So it's the first one. [00:55:59] Speaker 01: The forced waiver is simply the context. [00:56:01] Speaker 01: But it's absolutely the first one. [00:56:05] Speaker 01: If we prevail on the merits, Amtrak would have to offer the plaintiffs here a ticket that did not have arbitration. [00:56:12] Speaker 04: All right. [00:56:13] Speaker 04: So if it's the first one, [00:56:15] Speaker 04: I say, but blue armrests. [00:56:19] Speaker 04: I say, you can't be right because the person who wants blue armrest as their desired product is not really injured, are they? [00:56:27] Speaker 04: And you then start talking about the constitutional right again and how arbitration is. [00:56:32] Speaker 04: So is there a difference in terms of the injury that you suffer in the desired product world based on the nature of the thing in that way? [00:56:46] Speaker 01: Well, certainly I think this case is a lot easier than the blue arm rest case because there is a contract. [00:56:55] Speaker 01: The plants are bound by that contract. [00:56:57] Speaker 01: Amtrak concedes the plants are bound by the contract. [00:57:00] Speaker 01: If they win, they would not be bound by that contract. [00:57:03] Speaker 04: But every consumer transaction involves a contract of some nature, right? [00:57:07] Speaker 04: Sometimes it's written, sometimes it's not. [00:57:10] Speaker 04: Amtrak could put blue arm rest in its contract. [00:57:13] Speaker 04: So that can't be your distinction, right? [00:57:16] Speaker 01: Well, the blue arm rest doesn't bind plaintiffs to anything. [00:57:20] Speaker 01: If the court wants to make a distinction there, that's one thing. [00:57:25] Speaker 01: But I mean, here the contract would actually have legal effect on plaintiffs. [00:57:30] Speaker 01: And I take your point that maybe that gamble pays off and the plaintiffs are never hauled into arbitration. [00:57:36] Speaker 01: But the only time they have to make that decision is when they buy the ticket. [00:57:40] Speaker 01: And they don't have the opportunity later to [00:57:43] Speaker 01: rethink their choice or say, well, now there's a dispute pending. [00:57:47] Speaker 01: I want to get out of this arbitration agreement. [00:57:49] Speaker 04: Except that's not what Judge Silverman says they do later. [00:57:51] Speaker 04: They can always say later this was not a good thing. [00:57:55] Speaker 01: On the best of scenarios, what I understood Judge Silverman saying is plaintiffs can raise a legal challenge in an Article III court, despite all the hurdles we mentioned in our brief, and get a de novo review of whether Amtrak's condition is constitutional or not or lawful or not. [00:58:12] Speaker 01: But that's a legal risk. [00:58:14] Speaker 01: The plan is, if they don't want to take that legal risk, the only option they have available is to not consent in the first place. [00:58:22] Speaker 01: And the only time they have to not consent is when they buy the ticket. [00:58:27] Speaker 01: All right. [00:58:27] Speaker 03: I think we have your argument. [00:58:29] Speaker 03: And we will take the case under advisement. [00:58:32] Speaker 03: Thank you. [00:58:32] Speaker 01: Thank you.