be lacking let's start if we could your honour's with the dispositive provision you can find it in excerpts of record fifty six dollars it's part of a five page employment contract written in plain english and it is within those four corners in paragraph ten that the employment agreement as signed by the plaintiff expressly covers quote any controversy or claim relating to or arising out of her employment with the company or the termination which she signed your orders if you go on to the next page of your fifty seven you will see it explicitly forty her opportunity to consult with counsel and this is the same employment agreement your honour's that the plaintiff is for self relying upon when it comes to her substantive case she's alleging among other things that there was a breach of this specific binding terms of that employment agreement so in this case your honour's to let her escape the plane and otherwise controlling terms that employment agreement would amount to letting her pick and choose which terms should be enforced further terms that poses a problem that has not been presented in any of this quarter's knowing  question hi i'm not store anymore what now anyway what do you think it is i think it means you kick the tires of the general principles of contract incorporates by reference other rules are changing and so this court had a real concern about whether there was a valid contract formed on this point and in this context we understand according to be especially sensitive to whether arbitration has been agreed to employment agreement and i think judge respond if you asked an employee who just agreed that any employment created will be arbitrated does that mean that you have to arbitrate or statutory employment claims the natural answer i think from a lawyer and from a lay person would be of course that's among my employment claims and that has to be the rule your honor because if there were if we were in any if we were in california state court if we were in any federal court throughout the nation this or this language that has been agreed to yes in some sense in the agreement that the employees signed there was no reference to arbitration of a particular category of claims in ashby it then referred to the booklet and the booklet then sa included but of course throughout this whole thread of cases this court has not been especially concerned about the exact terms of the ancillary agreement incorporated by reference it's been focused on what's the what's in the four corners of what the employees time and in as tellingly there wasn't any particular specification of scope yet the court compelled arbitration we have an easier case because of what's so clear within the four corners what the employees sign and but but but it doesn't stop at ashby judgers after that you have the di leg case were judged by b who also was part of the ashby panel part of a unanimous panel including judges can and judge sima said when you had language that was far less clear in the language here the correct result was to compel arbitration in the diag case the language of the agreement actually said it was any dispute arising under the agreement so it would suggest if anything that it would be kind of contractual employment claims to be subject to arbitration  black letter law of arbitration agreements including the presumption favoring arbitration had no difficulties difficulties saying the statutory claim should be compelled for arbitration no less than any other that's on published i recognize what steps it was i believe it was title seven or i believe i will i will confirm that before i stand on it president of the day it is a non presidential case but i'm telling you my reading of the th circuit cases and i am fortified in that by the fact that three judges of the th circuit have agreed think this should be the easiest case for compelling arbitration because of what you cite that is undisputed about her sophistication is that as you know someone within the relevant industry but also her legal training but i also know judge smith that within the four corners of the employment agreement w opportunity to consult with counsel my friends for the other side so at the morrison decision of the six circuit decided on it also looked at this question knowing waiver not citing this court's precedents but their judgment that was looking at different factors how sophisticated is this plaintiffs how much opportunity was there to consult how clear is the provision if you look at all those factors you're on this is again and easy overwhelming case for compelling arbitration of the statutory claims no less than the others in fact the only way i respectfully submit that can prevail before this court is if there is some talismanic magic words requirement that says you have to reference the statutes and then the next case will say you have to reference the specific statute in the case after that will say this specific version of the statute notice that there was any contract being agreed to the only no the only thing that the employees signed was an acknowledgement that certain terms had been read and had been understood it was not an agreement contact contractual agreement the likes of what you have here which what you have  strictures along lines that we were talking about just responded to the extent that the knowing waiver doctrine remained where the court will say even more so in that than in the usual contract case we're really going to make sure that in an employee at fair opportunity to review the terms that were being statutory provisions the same legislative history that this court had relied upon for its knowing waiver decisions and say without overruling those cases but said essentially that's not the correct reading of title seven that when title seven refers to arbitration whenever consistently u c b loose consistent with the u s supreme court's decision apic consistent with the decision of the us supreme court in the kindred decision it should if it needed to overrule that precedent in order to reverse because i just  square with the foundational premises of this court knowing waiver the cases that said i don't think you need to reach them in order to reverse you i am pissed off because you have no in waiver and i think this court's recent decisions are especially clear about that spoken and our job is to read the th circuit cases there are five cancers that require in knowing waiver when civil rights claims are involved and i  and the employee must explicitly agree to waive a specific the specific right in question and if you look to see how that standard was applied you look to the not only into the nelson case in which the the court looked both to the acknowledgment form and to the underlying handbook which did refer to employment agreements and the court concluded page seven hundred and sixty two that that wasn't sufficient here that there must be a specific reference to the statute by name as we understand the cases and as we read the way those cases were in fact applied i've different th circuit cases there must be an explicit reference to statutory employment discrimination claims and unless there is an explicit reference at a minimum the statutory employment discrimination claims there is not a knowing waiver within the meaning of what is that about those that you feel is all the what does not well that was the reason your honor when you st started asking me questions that i was quoting from nelson and from the ria is because the agreements in this case have the same general reference to cases controversies disputes as was it at issue in run to riyadh and nelson in which prior panels of this court said there was no explicit waiver as required by these bases in these agreements in this case what you have is actually an even more clear cut example of an inadequate knowing waiver and that is because both in the offer letter and paragraph to the off letter paragraph ten does refer to any controversy or claim and then says pursuant to section not of a  d code which is now the finra rules so the parties and this is an independent reason why a firm and says required the pursuant to language the parties agreed to incorporate the limitations  rd there is this language the judge responding pointed out that says the parties can agree but as judge hiker said and this is page twenty his understanding was th ms older did not at the time have notice and did not understand that employment described statutory employment discrimination claims had to be arbitrated one of these provisions now if you look at this is a contra that's tiger made a threshold mistake that he concluded that pursuant to incorporated only the procedures of the n a s d rule that can't be it can't be for three reasons one pursu to means in accordance with it wasn't limited and seizures two pursuant to is a term of art the parties used as a court before the offer letter paragraph and use the exact same s soon to language as section nine and rd and i'll point you to the paragraph in the finra rules and the disclosure statement right after the one we're talking about a paragraph that says whistleblowers are there would be a meaningless construction of the federal rules because it would mean that if zoeller had a whistleblower claim pursuit of the federal the rules she would have to arbitrate on a procedural provisions but the rules say she can can if this panel weren't required as it is without an on bond case decision to apply the five previous cases there would be a separate and independent ground  contractual understanding grounds for reaching the same result and a minimum this should be a real man to judge tiger to determine what the parties contract meant but the threshold argument is that this panel is bound by the prior rulings of this court which say that language like was included in the offer letter and the confidentiality agreement any case or controversy pursuant to is not an explicit reference to we came to the conclusion of how the law was going to be with these trade cases that were going around though any case that's inconsistent with loose forward is no longer binding on us and you've been seven claim this is a completely separate issue this is what is that we're not seeking to preclude arbitration what the panel did in these other five cases is require a heightened standard for no one waiver of the right follow that mimic let me get to those based any case after lose for it is fine we'd like to hear but the one is correct correct and i absolutely agree with your reasoning judge  after loose forward and ashby not only held what it did but it needed loose forward recognizing that the panel on ashby knew about loose forward did not conclude  was inconsistent with this analysis and the rd reason is the news forward it fell refer to prudential versus lie the st of the th cases loose forward at indicated that its decision was perfectly consistent so i completely agree with you that on bond decision a vis horn had overruled the line of cases i was relying upon that would be binding but in fact it didn't it specifically referred to one of those cases in a positive way and a subsequent three judge panel of this court in the aspi case and two thousand and fifteen acknowledged that its decision was not inconsistent with loose th and again i pointed out that the court could reach the same result as a matter of contract i mentioned the form you for the for documents the attorney's understanding there was also the summons case the summons cases it just for court case was not bound by the simmons case which decided about two years before the zoeller signed her agreement but in terms of the parties reasonable expectations of the time the summons case made very clear just report agreement to arbitrate statutory claims so that body of knowledge that the parties had at the time was sufficient as an alternative basis for going where the prior five decisions of this court require this court to go  so it's immaterial in that sense and it was deciding that there was no waiver under the facts as i explained the nd point i think there's there's common ground here honors that you decide this case based on the explicit terms that were presented in the employment agreement and agreed to you don't need to read minds you don't need to you know go through a trial to decide what is the contract means here again or those expressed terms you are fifty six dollars paragraph it covers the arbitration agreement that that the employees these statutory employment the rd point the federal rules don't intrude upon this equation they don't alter it in the least the district court so ruled in doing that he aligned himself with every court that has looked at this i'd point specifically the financial case that explain why that those in rules that govern the procedures for the arbitration are that have no bearing upon this even before you get to the presumption favoring arbitration and with all due respect mr rubin he has no case no case it goes his way on this last judge was this forward loose forward combines i think in just the way your honor was suggesting with the supreme court's latest instruction and here i would point to the is to have manifested a clear intention to displace the arbitration act that's what you need from the congress and when you look at the loose case you see this court noting that there was no such intention in the arbitration act in fact just the opposite is it was written to be basically have a superfluous provision of the contract if you then said it's the pin rules that specify the scope of the arbitration so you can't possibly look to that on this question even if you did as you were pointing out what the federal say is just as a default here's what finra would the ashby case in two thousand and fifteen where this court was compelling arbitration without needing to revisit the knowing waiver requirement at all wasn't urged to do that in the case and it had no occasion to do that in the case and i know better than to tell your honour's how it works with this court's precedent but of course the drive by ruling that simply cites prior precedent without examining that precedent in light of intervening precedent that has no bearing on what this court would confront if it gets to the question of whether the was referring to as use cases that we essentially eliminated through our in bank case it was would your honor i think it is really the only thing that i understood mr rubin to say about these voters bas ically two things st the court there had cited it knowing waiver process it did and it did that in a way that i read of agnostic it wasn't reaching the question whether this precedent still stood it was just laying down its holding and its rationale or not and when you look at the rationale that this court adopted on bong and you compare that against the rationale for the knowing waiver cases specifically as to titles that and they just don't reconcile and i would urge the court to look carefully at that because i think you're absolutely right in your question judge was that really the