if you reserved any rebuttal time please let me know when you approach the this case is about my lynn's efforts to avoid paying what it owes under a contract the reinsurance participation agreement with a part of the case in front of this court is relates to my lens my own efforts to avoid  arbitration under the contract the contract has an arbitration clause that says the parties will agree to arbitrate any and all dispute it says that the parties will submit to the american arbitration association rules or aaa rules and it also says that the parties will arbitrate in the british virgin islands or any place else that the parties agree to our papers have a detail background of of how we got here  d leading up to operas arbitration demands i won't pick up there but what i would like to pick up with is that once the demand for arbitration was made mylan asked for and received a benefit under the arbitration clause it asked to delay arbitration and to mediate which is the first step in the two step process set up in the arbitration provision opera consented the parties mediated in chicago it was unsuccessful and then twelve days later mylan files suit in the western district of tennessee a court it knew would not have jurisdiction to compel to compel it to arbitrate mylan then filed a motion to stop arbitration and okro filed a motion to compel and a motion to transfer under the r p s venue for i'm sorry form selection clause and the district court granted mileages motion and deny both of o pros we have opera has appealed on several grounds but the court need only reach one of them and that's the first of four points of light to make the arbitration provision has a delegation clause that the district court failed to recognize the arbitration clause or the arbitration agreement incorporates a aaa rules and the aaa rules contain the delegation language and the rules give the arbitrator the power to decide his or her own jurisdiction including consider questions of the validity of the arbitration agreement now the six circuit hasn't it dress that but the majority of courts and i want to say it's about six circuits considering what effect to give to the incorporation of the aaa rules hold arbitration is that the arbitration agreement is invalid but that's a question for the arbitrator because the delegation clause mylan never mentioned the delegation clause in its challenge it challenged only the arbitration agreement and under prevailing law challenging the arbitration agreement self is simply not enough and that's because the delegation clause and several will and so the f a applies to delegation clauses like it would any other contract and the courts have to enforce them if they're not specifically challenged now in two thousand and ten the supreme court said all this out run a center which holds that unless mylan specifically challenge the delegation provision which it didn't the court has to treat valid and enforce it and that's what ockers asking the court to do give effect to the parties intentions and turn questions of arbitron realty over to the arbitrator now this brings me to the second point i'd like to make that under in this regards the motion to compel under the f a a the district court only has only compel arbitration within its district and there was no arbitration set in the western district of tennessee now mylan disputes that the parties agreed to arbitrate in chicago so the district court ruled that it had no authority to compel arbitration even if it agreed with opera's arguments elsewhere and for that reason it denied the motion to compel as a stand alone ground wasn't the only ground but it was a stand alone ground now and instead of denying our paper show that the district court had three options it could have stayed the case it could have dismissed the case or could have transferred the case if this court versus the district court on the delegation clause i'm sorry if this court reverses the district court on the delegation cause argument the district court again will face the f a's venue geographic limitation and so what asking this court to do is to remand the case and order the district court to enforce the delegation agreement and opera will agree to arbitrate in the western district of tennessee or any place else that might i would like to go this gives effect to the to the arbitration provision agreement that lets the parties choose whether where they'll arbitrate now why do we need to give instructions to the district court as to what to do if we remain ended well i think that if also any place else the parties agree to and so are formulation is send this back to the district court to enforce a delegation provision we will give effect to the language that says whenever the parties agree ok but the other side has to agree with it that's right your hon well that's our fourth that's the fourth point i would make that we would like try to figure out what relief you want here yeah i think our primarily it is we want the delegation provision in forced like it should then the question is part of the problem the district court to enforce a district court to enforce the delegation provision i don't think i would have a choice about arbitrating if the only question then would be where to arbitrate and we will agree to any place they want to so if they want to go to chicago then the western district under your order would be able to transfer this to chicago or or dismissive that we could refile in chicago to compel but that's the purpose of my original question because this all involves some sort of dialogue that either does or doesn't lead to an agreement between the parties why would we get into that what normally we would tell the district court what to do if we thought the district or didn't understand or was unable or unwilling to comport with the law but we don't have any reason to believe that here he just in your opinion when a riot the first step that we correct the first and let the district court worry about it after that so we know that we'd be happy with that your honor the part of the argument that i filled in for you was i suppose anticipating how this court would view the the f a s geographic limitation which would still stand so maybe i put the cart before the horse there but the dell enforcing the delegation provision is the first step after that the arbitration agreement would come into effect and the parties would then you know i mean it would be compelled to arbitrate or at least the arbitration agreement would be held in forcible and so a district court could then compel and we would agree to go to any place that might want to go the court didn't make a decision on the merits of the transfer of venue did it simply denied it because it held the arbitration wasn't forcible so we reversed that and we don't know what the district court's going to do in connection with your motion it's it will be back before the district court on it it would be better for the district or the district the district court denied our motion to transfer not on the merits of the arbitration clause argument though that it did so on applying  this arbitration agreement is going to forcible now i think i think we dispute the analysis that mylan offered that the district court accepted i think i think we said that's wrong no we didn't specifically appeal that but we don't concede that  now so i've got to you also agree i mean if the parties don't agree on a location doesn't doesn't the district court have to just send the parties to the virgin islands because that's the one place that that that set out in the agreement look there was an agreement that miley disputes this but our position is there was an agreement arbitrate in chicago so we there are arbitrate there or the western district of tennessee which probably is best for my own but the district court can do and it can enforce that court really even required to send it someplace or is it simply at that point dismissing their appeal and then you have to refile someplace else where you think the average duration should occur to compel arbitration that's probably likely is not the way it works that would be like my time here you filed a motion to compel our attrition i mean we've got several things going on here we've got their motion to stay arbitration you responded by a motion to and also a motion to transfer the case to nebraska district court yes or no but are under no circumstances can this district court compel arbitration because where ever heard occurs it's at a different place unless because you'll have your time virgin islands everyone i've told this case about acts like why would you not want to go to the bridge first nolens i've heard is a very nice place to go and in a general sense i will say that i think the trace in is a good thing that's not  our contention here certainly the f a a says that there's a presumption that all betrayed is good state statute in a number of other legislatures throughout the united states though have looked at arbitration clauses in this particular type of setting where you've got a consumer of insurance like my trucking company who's buying workers compensation insurance and saying as a consumer in the insurance context we don't want insurance companies to essentially be able to use  clause as a weapon and i respectfully submit that that's what applied underwriters is doing in this case by requiring two things one a very inconvenient location for my client and to basically stacking a deck of who gets to decide dissent that's the whole issue here whether a federal judge in tennessee decides whether nebraska law allows arbitration of this dispute or whether the arbitrator's chosen by the parties are the ones to choose to decide whether the brassica law bars dispute and their argument is that this arbitration agreement is very very broad and thereby delegates to the the power to decide whether state laws would would bar go into arbitration we take issue with that and i think judge polls are kind of what a horror of the matter whether you know the district court looks at the arbitration clause or don't they i have met and they said we dispute that we want to see you want to skip some steps here as as i see it so let me focus on that and then get your response there may be a number of reasons why this arbitration clause itself is invalid but you didn't challenge that it could have been invalid because it's a it's against public policy because it somehow coercive and unfair form or whatever it is you didn't you didn't make any of the challenges that you need to make in order to cut off in order to a huge distinction in our case there is no specific delegation clause in that arbitration clause if you look at the right of center case there was a standalone a separate or betray sion agreement this is an employment contract and there's no to state statute in that context which says you can't arbitrate to begin with and and that particular situation the party that the employee that was trying to not go to arbitration stated that the under the overall contract it was unconscionable here or within the average patient reports on that and in this case and that respect seems to be controlled by run a center for my perspective with a charter but there's a huge distinction in the in the clause itself because first of all we said that there is no specific delegation clause within our arbitration clause in the reason is when you took take a look at what it says in our arbitration clause says the arbitrator has the ability to determine the enforceability of this agreement and in ising under this agreement any dispute or controversy all disputes exclusively are resolved by binding arbitration so how how could you be any more specific than that language where the specific delegation cla not i think if you look at the right of center case it actually helps us because in that case it says a party challenging the validity of a precise agreement or betrayed at issue the federal court must consider the challenge before ordering compliance without agreement and so the supreme court itself has stated that the question before us that is whether the delegation provision is valid and the delegation provision according to the supreme court is an agreement in and of itself to arbitrate so it's all one in the same it would not make sense nebraska's supreme court or the nebraska legislature to say in this context you cannot have an agreement to arbitrate but somehow you get around that and you still have to go to the b v i to have an arbitrator look at this issue on whether or not an  arbitration clause is valid we're not skipping any steps in a delegation provision and first of all we say that there is no specific delegation provision here but the court finds if there is then under the right a sort of language the district court is still supposed to make that gateway decision on whether or not the entire provision including any delegation provision is valid so i hear your words but but i don't know how how the party the news you signed this agreement ok and there's been no no's been no allegation of fraud duress coercion which would be a threshold question if you were saying you were coerced into signing this art that would be a district court decision but now how can you say it between the parties waiting in any way to the execution or delivery construction or enforceability of this agreement because that because that in and of itself your honor respectfully is invalid under nebras what it may be it may be but it but but the parties you and applied agreed to have an arbitrator decide that arbitrators can decide questions of law you agree with that don't you absolute but is it a legal contract that provision whether it's a delegation provision or the arbitration provision the supreme court has specifically said that applying when a center the purported delegation provision is an agreement itself to arbitrate and under brusca law that entire provision from from the beginning is a melody without going to the very arbitrator to decide how do applied nebraska law and if you know i think you had a sub sub argument that they may have waived this right isn't that arbitrator to decide but on the waiver issue we did not weigh that it was actually their argument to raise they didn't raise it at the magistrate level they only raised it for the first time during the objections and it was  something that we then responded to and also there was some comment about chicago you're saying essentially as a matter of law as a matter nebraska law the parties can't agree to have an arbitrator decide the question of the enforceability of the agreement true because under run a senator because it united states supreme court has said that the united states supreme court says that a delegation provision is in and of itself an agreement to arbitrate and also has stated that it's the the it's the court's decision to to determine on the front end whether or not that provision is valid and the court as already decided that under the brest a law that is on invalid and there's no way frankly that you can read that statute in nebraska any other way any agreement any agreement concerning or relating to an insurance policy other than a contract between insurance companies including insurance including reinsurance or invalid in from a public policy standpoint your honour's it would not make sense to require mollen to go to to b v i to have an arbitrator look at this when it's very clear that from the beginning the entire thing is is invalid the other cases frankly that applied underwriters decided do go to those situations where there is an agreement between two parties and one party is trying to not go to arbitration because of underlying facts of how the contract was entered into there was an in concert will hear it's just an illegal contract and the nebraska state legislature in a number of other legislatures have said in this context you can't use arbitration as a weapon to make them go someplace else and it seems like it would be frankly unfair and against public policy they don't have and the other part of that is you know if you go they're not really sure where they want to go frankly whether it's withers nebraska or chicago they're all over the place on where they want to go i think clearly the court was right that even though they didn't raise the issue about the motion to compel because they argue the motion to compel in the western district now they've shifted their argument and said that the district court didn't have authority to make that decision be that as may was their motion and they should have gone to to be in order to make that motion and i think the district court and why would they go the b v i otherwise if they're not in the erbitux ation hearing because i think it's clear under the venue statute or the venue section rather of the f a a section four is specific about where you can file motions to compel and circuit and other circuits of said it's the majority view that if you want to compel arbitration someplace as applied as wanted to do then you have to go to the jurisdiction where the arbitration would take place ok so that's ok so the transfer on the motion to compel would be transferred to the british virgin islands well they haven't asked for that yacht or would have asked for his somewhat perplexing is to transfer the case to nebraska but under their own argument if this court transfers the case to nebraska the nebraska case law according to them or the nebraska state court according to them wouldn't have the ability to compel arbitration either because it's not the jurisdiction where this was supposed to be brought the bottom line is your and your honor that these are all procedural issues we would like to get to the crux of the matter which is we paid eight million dollars in premiums on five point two million dollars worth of losses and they wanted an additional three point five to four point nine million dollars from my company we want to get to the bottom of that always procedural mechanisms at the at the end of the day again it's kind of a stall tactic to all the easiest way to get the frankly agreements of cohesion and that's again i think one of brassica doesn't want to have this arbitrated the other part of that is they've also stacked the deck and who gets to arbitrate it it's a group of industry professionals  twice at the lower court level and they have an appeal that here so frankly that's not before your honor they haven't conceded it but they have completely shifted their agreement or their argument here because frankly they understood that that was a loser in the lower cour that this is somehow reinsurance and therefore it was in the exclusion why would they have to appeal the decision that the district judge made if the district judge in fact didn't have the authority to make that decision because it was a question first properly presented to the average reader i thought your honor they should have made that argument before the district court should have asked the district court to just missed the case because the district court didn't have authority to do that they didn't do that instead they argued that the nebraska statute doesn't apply because it somehow reinsurance they slapped the name reinsurance on this agreement between my client and the insurance company and tried to say that that's why the very clear nebraska statute doesn't apply i don't understand when you say they didn't do that what why didn't they do what we're talking about now that we're making this an impenetrable sentence but why didn't they do what we're talking about here by virtue of filing their motion to compel the average trader to be the one that makes the decision on average ability if they're right about that whatever the district court said is irrelevant has none they didn't do that their whole argument that that's a question for council with their whole whoredom it has been basically didn't do that at the lower court your honor the whole argument was that the russkies state statute doesn't apply they lost their lives shifted their argument and they didn't preserve the area but it well the shift of the argument they made their motion they made the motion before the district court that isn't pop up here at the court of appeals then said about nebraska law isn't that irrelevant if in fact the decision is first properly made by the arbitrary no because again you go back to run a son though so somehow this is the district court's decision on something that the district court shouldn't have been decided then becomes binding upon the arbitrator no your own up is happy because again you go back and i think render center in the language is important and render center where it says if the puerto challenge is the village idiot of the precise agreement or betrayed it issue the federal court the federal court must consider the challenge before ordering compliance with that agreement and in this case that's exactly what happened the federal court made that threshold decision and looked at the the entire agreement including the delegation cla including the arbitration clause and based on that made the decision correctly when the supreme court said the question before us is whether the delegation provision is valid and you can't delegate that if the if the entire provision is valid is invalid you can't delegate that to the arbitrator that would be essential really getting around to brass the law by saying oh there's this delegation clause so even though a tracing provision is is illegal in this contract you can't use that as a weapon we're still going to make you go arbitrate and in this case frankly it leads to an absurd situation because the arbitrator is going to look at the clear statute and we're going to be right back to where we are in the in the state of tennessee on i think we understand thank you three minutes they're missing the thing about the missing steps that i think judge poster was talking about is rennison or talks about the severability of the delegation clause mylan has a mine is not talking about that they didn't talk about it in their papers the court's right it doesn't matter if the underlying arbitration and i'm not conceding that but let's say it is it's invalid if there is a delegation clause it's not challenge that severed out of that and it's not it's a stand alone contract that not it has none of the defects of the underlying conduct that's what rennison are stands for they don't get there at all because they didn't challenge it and rent a center talks about that if you don't challenge the delegation clause specifically you can't raise it in front of this court you can't raise it anywhere and  they didn't do that part of their argument is that there isn't a specific delegation clause in this agreement right well you that's their argument that's correct oh we're reading the language we repeated the language several of us did to your opposing counsel about all disputes and any disputes on so forth but is there a meaningful distinction then between the manner in which this contract seemingly is broad with respect to decides versus having a separate delegation cla well i suppose if there wasn't a aaa incorporation there might be although the breadth of the language here i believe gets you there but we also have the incorporation of the triple a rules and rule seven of the  so incorporating the aaa rules then you're saying they had to specifically challenge the the delegation clause and that's what they failed to do that's right and that's what right of center says you have to do you have to go after the delegation clause which they didn't do so whether they're right or wrong about the agreement itself is for that's been delegated to the arbitrator's and look my one has an address that anywhere it just wasn't on the radar but that's how we get there and i got forty five seconds i