A California appeals court is teed up to decide whether plaintiffs suing Uber for a failure to extend its wheelchair accessible vehicle service to New Orleans have standing if they've never downloaded the app.

In a Zoom hearing Thursday, a panel for the U.S. Court of Appeals for the Ninth Circuit heard an appeal brought by Uber Technologies Inc. to reverse a district court order denying in part the company's motion to compel arbitration in an Americans With Disabilities Act case that alleges Uber is discriminating against two New Orleans plaintiffs who use wheelchairs by not offering its wheelchair accessible vehicles service UberWAV to users in the city.

However, the bulk of the argument centered on whether plaintiffs had standing to sue under the deterrent effect doctrine established by the Ninth Circuit, which determines whether a defendant's failure to comply with the ADA causes plaintiffs to experience continued adverse effects and deters them from using the service.

Bryan Killian, Uber's counsel at Morgan, Lewis & Bockius in Washington, D.C., said the ride-hailing company is facing suits throughout the United States from people who have never signed up for the app and therefore never agreed to the arbitration agreement within its terms of service.

"We have a word for people who don't download the app, they're not Uber users," Killian said, which seemed to elicit laughs from Judges Ryan Nelson and John Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit and U.S. District Judge Frederic Block of the Eastern District of New York.

Nelson repeatedly asked Public Justice's Karla Gilbride, who is representing the plaintiffs in the case, if the only reason the plaintiffs did not download the app was to avoid the arbitration agreement. Gilbride said that downloading the app would have been a futile gesture, since no wheelchair accessible vehicles, a service Uber dubs as UberWAV, would have been available and that being deterred from downloading is the injury.

"In full candor, I think you have a pretty good argument here," he said. "I just want to know is there anything here on futility? Do we need to look at the futile act and say there's some part of that act that would be discriminatory?"

Gilbride said downloading the app is a reminder that there's a service that lots of people can use, but they cannot. "It might not be humiliating, but it is futile if they know a service is not available to them."

Block seemed to side with Gilbride, asking Killian why demanding plaintiffs to download the app when there are no cars available to them isn't a futile gesture. "That seems to be epitome of a futile gesture," the judge said.

Killian said downloading the app is effortless and does not present a threat of discrimination.

"Think of a private golf club or university hotel," he said. "There are physical spaces where the owners and operators say those physical spaces apply neutral criteria on anyone that can come in." In Uber's case, the neutral criteria is downloading the app and accepting the terms of service and arbitration agreement.

Killian pointed to a case over UberWAV wait times and availability in Chicago from the U.S. Court of Appeals for the Seventh Circuit. On May 5, the judges held a district court order dismissing the case for lack of Article III standing, because the plaintiff did not download the app and does not have any individualized experience with Uber. Killian said he's set to make similar arguments in front of the Sixth Circuit in the coming weeks.

"I'm sure you know we don't create conflicts with other circuits unless it's absolutely necessary," Wallace said, asking Killian to alert the panel to any other relevant circuit decisions in the future.