that far obviously the arbitrator got it but what's the other side's contention that there was a contract i guess the other side's contention is that anybody that they sent these materials to implicitly agreed she also they they put in evidence of some conversation that they had with her on the phone she acknowledges that she got the membership can she acknowledges that she paid the bill the first year and then the second year where pay a lot of attention to every line item on a credit card bill important thing to me is to make sure that i get my bill paid on time rather than to sort out every billing and she did not notice that there was an entry for m w i essential she didn't notice that she didn't know what it was and she certainly conclude that there was no contract no agreement to arbitrate now if judge haas referred to the arbitrator the question of whether there was a contract that was error as it was a question for her to decide if she decided it herself as the defendants contend that was an error because there was a genuine issue of material fact as to whether there was in fact a contract on undisputed facts on the very undisputed that that ultimately led the our richard to conclude that there was no contract hearing of any kind no evidence rehearing which we were entitled to issue the order compelling arbitration and the order compelling arbitration was in order that acknowledged planets of planets argue she did not know she had thousand i would intend that means no meeting of the minds and no contract just continues that in essence she challenges the validity of the whole contract and not specifically the arbitration agreement accordingly this is an issue for the arbitrator and not the court i don't see how you can read death reason way as an order that is doing anything other than referring to the arbitrator the question of contract formation now there are instances where it's appropriate to do that if i mean you're not saying  think a court could make a determination that that by virtue of her actions that she had agreed to arbitrate but there are still other issues that would be elected arbitrator well that is i think a statement that directing the parties to proceed to arbitration in accordance with the terms of the agreement and we didn't get the hearing and we didn't get a finding that the question is not an issue but we got was a finding that is a question for the arbitrator to decide now the statute goes on and general contractor however you slice it whatever an avenue you want to go down in terms of interpret in these things it seems to me the order has to be reversed there was a genuine issue material fan it was a question to be tried either by the court could proceed on behalf of a class in the claims that issue here are small enough that there's no economically viable way to prosecute a case like this on behalf of one individual to get her seventy or eighty dollars back it's got of the on the half of a share the expenses of litigation and the supreme court has recognized that satisfaction of one individual name plaintiffs claim doesn't preclude for their prosecution of the action on the half of the classic now another consideration is quite frankly the what if i was to take it hypothetically what if what if i were to say that all right the that judge has ruled and said that this case you know that there's an arbitration agreement because the arbitration  then but and then your client prevailed but you don't agree with everything there but that was decided then you have the issue of the arbitrator said i wasn't referred the class certification so i can't decide that that comes back and then we get into all that so let's say if i accept your argument that you never got a venue for the class certification why isn't the remedy then just to refer that that that back for a determination by an arbitrator clean slate if if the determination is that it should have an arbitrator the only question is are be debilitating on behalf of the class then the remedy i would think would be to send it back to the arbitrator for the arbitrator to decide whether stanford ought to be able to proceed on behalf of the class quite frankly because that's the question for the hour because what you're really asking course is to vacate the entire app arbitration and start all over again why would be perfectly happy to keep the i arbitrated then i think you set aside the entire judgment below and we start over again before the district court if you were to find that it was proper proper for the judge to refer the matter to the arbitrator and it is proper for it to be arbitrat there then the question of whether we ought to be able to intervene somebody like the smiths in the case to proceed with the case is a class action and there are all kinds of procedural issues that come into proceedings like this in terms of statutes of limitations and and that sort of thing so it is and i submitted that's reversible error in order for the case to be now those i think are the two big issues in the appeal there are a number of other matters such as whether  and that case is currently pending in the california state court it went up on appeal sanford's claims were held to be barred by the california court of appeal on the ground that the judgment in this action has raised you to conduct that the court reminded trying to prosecute it on the half of a narrower class against west only in california state court would make far more sense to have all of the claims before the federal court that we started out than to be litigating in multiple forms i see i've got about four in their class action counsel's strategic decisions in this case first the issue of whether the court determined there was a contract she did the arbitrator looked at that at that decision and so that's the only way to read it  no and the reason is another decision they made never works put in evidence of a contract they chose not to put any evidence in to controvert this showing in your honors if you go to the well i am wondering in your definition of a hearing can't you have a theory on people submit everything in writing well absolutely you are but that the law is absolutely clear in every jurisdiction including the ninth circuit that if the plane if the moving party puts in evidence from which you can reasonably infer a contract it is incumbent on the other side to controvert that with evidence not just a complaint in order to have a right to a hearing the judge cites on the second page for a decision that if the collar accepted the and that's not enough under the case law if the under the tender case which we cite in our briefs that one sided uncontroverted showing is sufficient and that is the basis on which the court sent us the number one the court did decide there was a contract this judge has said she's entitled to that presumption because she cited the proper case law which was dependent on the an existence of a contract and therefore you're entitled to conclude that she was basing her decision on the standards set forth in those cases and the judge or judge of burns cited the supreme court decision in city things that the judge said of the proper case law cited the evidence she's entitled to the presumption that she did the right thing so she decided the issue she probably decided without a trial because they chose not to put in evidence well i guess that the one issue that concerns me more is what i was talking about in terms of whether the class certification  and i can't see that you know i mean i can see his argument is that that no one decided class certification and there isn't anywhere on the record that i can see where someone went through the factors that are required to go through per class certification so how do you know if one person says you have to get the other person says that you have to do it and we never provide seven with the venue what but there's something that you know that that doesn't seem right about that as i tell me that i will get around that i think it will sound a little more again when you see some of the strategic decisions that were made by talent when member were moved to compel only the individual claims and moved to strike the class allegations the response of the talent was no arbitration at all we don't think that can be any arbitration they never asserted that they wanted an arbitration on a class basis they never asked for moved for class kitchen for arbitration they simply opposed arbitration not surprisingly the district court therefore said i'm sending what was asked of me by number of words now that i think on the contract i'm only sending over the individual claims and i am dismissing the class claims from the case and that was the status when it came to the arbitrator now basil there's some uncertainty as to what the plurality plus justice stevens decision are constituted holding of a majority in that case but those not stand for the proposition that where class claims are no longer in the case when they reach the arbitrator but the arbitrator somehow has an obligation to revisit it or or an ability to revisit it and it's certainly whatever it holds doesn't stand for the proposition that a plaintiff who goes all the way through the process of litigating to finality for individual claims can somehow do a review in arbitration or in a court once it's done honor goes to two additional decisions they made their fatal one when the judge upon finding an arbitration contract sending her individual claims arbitration dismissing the classed names dismissing the claims against a clear i'm also not going to stay this pending the arbitration the only thing left before me she said is then is the after the arbitration if you come back either for an order to confirm or vacate the award or you can come back and get a judgment for failure to arbitrate and under the random greentree random supreme court decision that is the final decision under sixteen eighty three of the arbitration act and therefore they had to appeal t t thirty days within its issuance and they failed to do so and therefore it's too late to challenge a court opinion even if it isn't too late you're wrong they say in their reply brief well gee if it wasn't a final decision we had to wait for a final judgment in order to appeal this class issue and she's claiming the judge was wrong on the class issue he said that's not correct but assume for a minute that's their argument that's not true that they could not appeal until final nihilist certification and they chose not to pursue that remedy they claim it was the death knell to go forward with their individual claims in arbitration obviously it wasn't because they did but assuming that was their position that is precisely in the chamberlain v for ninth circuit decision this is precisely the paradigm situation where someone is supposed to assert an appeal under twenty three f and they say if you don't hear my appeal from the dismiss of the class claims or refusal to certify i don't have a remedy i can't go forward they didn't do that thanks cho and they know this is very sophisticated class counsel they hate went forward with the individual arbitration the claim now it's too late there's court's decision that there is a contract so that we deduce now that a new class of the contract every individual would have to have a court determination that they had a contract or didn't have a contract because otherwise they can't be  arbitration and that's why it's too late now for there's a try and have a class is never three valleys the court has to make a determination as to whether the current absolutely and that's why the judge did it with respect to  point and the only issue was that was moved from which there was a motion to compel arbitration was as to her claims and did not purport to make the decision as to anyone else and nor did the arbitrator because the last claims have been dismissed and again no which is your argument and all i hear here i suppose is some sort of world consensus that is that the theory under which it's then followed your honor by the standing of the materials that set forth all the terms as well as the arbitration clause itself and much like the tinder case we saw her failure to send them back or do even read the materials was enough to establish that there's a contract in addition to the uncontroverted testimony that the process between west and member works in the ordinary course of business was after receiving any consent to the offer after an acceptance of the offer and a verbal consent on the phone you were enrolled and the we got it they said that doesn't raise a genuine issue the court probably determined that there was a contract with an arbitration clause here they didn't put in the affidavit years later in the clinton affidavit where she goes i don't recall if i received anything i don't recall again even if he had done that at the right time it would not of the enough together here and so we're here today because of the sit ins they made along the way as to not putting in evidence of contract and therefore ending up with arbitration of the individual claims of the point that not seeking classification from the court as to the arbitration or pinup that issue and so only her claims were sent not appealing the issue directly because it was  case the court made clear that if the decision of the court if the order takes care of the merits of the claims all the plain before the court either by way of dismissal or compelling arbitration and the only thing left the only thing left is a dealing with the motion to vacate or confirm the award that is a final decision because the merits part of the case is over with that court  ones they cite that weren't final decisions because they either some claims were not sent arbitrations others still before the court or be the core issues a story and says i have i think there's more to do here than just the judgment forth to be told again and again the only thing this court will consider is either a motion to vacate or confirm the award or to enter a judgment for failure to arbitrate everything else  few thousand to send the individual claims arbitration and dismissed the class allegations because she determined those hadn't been asked to be sent arbitration no one had asked them to be sent and therefore she dismissed  so the only thing now pending as she said in order was you come back after arbitration on the average ration of work that they went to the arbitrator and they didn't like the hour that the arm chair was following her decision they went back to the court and this filed a motion for class  supposedly in arbitration she says you can't do this that issue is moot i dismissed that a year ago you can't come back here the only thing you can come back here for is to get the own ward confirmed or  judgment and now apparently sanford wants to come back and litigate i think litigate against us again in this case but we think that the july two thousand and two dismissal of west was absolutely proper and that we are out of this case that we were dismissed your honor because the district court found it is undisputed that west didn't mail any of them materials that issue in this case and the district court found this properly the section three thousand and nine only applies to parties that mail and ordered merchandise and the plaintiff's argument on appeal is the policy argument they say well if section three thousand nine and only applies to parties that actually mail and not the harveys that don't cause the cause the mailings th these parties can get away with it but that's a policy argument that's best addressed the congress the statute itself expressed levi's only to people who mail their other their other sections of the statute the same postal reorganization act that apply to people oriented advertising so when congress wanted to go behind the party they actually did the man link and establish well we don't think it's a private right of action which i guess you might but that the statute clearly expressly flies only to parties the mail and ordered merchandise it's undisputed that we get in if congress had wanted this tactic to apply to people who use agents or cause mailings of the it would have said so just as they did in other some sections of the same statute so we that that was the basis for the district court  dismissal i would know the other there's another issue statutory issue which is that the statute applies to merchandise this is the arbitrator found that this wasn't merchandise the only two decisions that are cited kipper men and cattle car both  support our support west here they dealt with materials that were mailed that were offers or descriptions of offers which you have here is a mailing that is part of a trial offer that describes the terms of the membership th intangible that is not itself a merchandise and they get definition in which i mean our grief is that merchandise excludes intangibles so just looking at the statute it was absolutely correct for us to be dismissed because there was no mailing and there was no merchandise well we're only going to look at that you have to have some affirmative evidence of legislative intent in order to imply a private right of action kitterman didn't do that with came from and said was we find no evidence of legislative intent to imply a private right of action but a private right of action would make sense here all be compatible with the statute alexander has made clear that that the federal judiciary is not going to reach out and create private rights of action where congress didn't do it now the two post alexander the sand of all cases that deal with the question of whether section three thousand nine applies a private right of action one of them the is told was news t v rodale which is a to arbitration about dismissing the class action causes that you know the class action causes of action what happened exactly well what happened exactly was that the order referring the matter to arbitration answered our argument that it would be unconscionable clause does not prevent them from proceeding as a class action and quote now at the end of the order she says based on the reasoning above the court grants defend case indicate that the class action allegations were also dismissed and therefore the arbitrator could not allow the matter to proceed on behalf of the class so why did that happen was that before the arbitration according to according to the district court that happened in the order of bring place obviously his argument is that george has found there was a contract and what's your response he's basing it on the oral consent on your failure to respond if she found that there was a contract particularly when the moving papers that if she contends that she didn't enter a contract that's good enough was in their reply if they came back and said oh no you didn't put an affidavit in gotcha everybody knew that was our intention and the orders recites it that's our contention judge that you can also live please just argued will be submitted for decision and we will hear argument in the united states versus mayor