of and deference to parties right to contract and the other on the other hand is the acknowledgement and recognition of important public policies and ensuring the contract provisions do not undermine those policies or deprive a party  point the essential purpose of the washington securities act is to safeguard and protect washing investors the scott human body is a fundamental public policy and consistent with such a policy the beneficial protection not you can't be waived me jump in on that because i'm concerned about the supreme court's most recent guidance to us in atlantic marine which says that if a form selection causes because there are so many non waiver clauses in state statutes whether they are is contrary to the direction we got from atlanta of it that would and undercut that direction well i would say that it does not in the reason is atlanta ring does not address that issue specifically it does talk about the nature of the analysis in the circumstances in the framework of looking at challenges to form selection causes it does not hypothetical is accurate which is that if you have state determinations that certain protections for its residents are not we have a ball then you cannot have a circumstance where those get waived by a contract and by way of example if the district court is affirmed here what we're doing essentially is creating a road map for how one can deprive washing residents of state security back protections i mean it would be a foolish promoter or issue or who didn't come up with and sell in washington with a form selection that says state tax which does not have the protection that washington does that's what would happen and i would say that the unusual circumstances referred to like bream are precisely those where a legislative body  it there are there are there is no supreme court decision on point and i'm not aware of there being a specific case that actually says here's what alegria hold this is why fundamental policies of the state are those exceptional circumstances i'm not sure that that fits i am aware of the the bail decision addresses this your honor and it basically i think holds that where you have non we have a bull claims that the court in looking at the enforcement of forms like sion has to look at the choice of law that the intersection exist where there non wave about were claims that are wave a ball then it's a different analysis and in this relates a little bit to the question you've asked your honor which is the courts especially in california have looked at a lot of different statutory provisions and seen some are not waive all and some are by way of example a claim under the unfair competition statute seven hundred two hundred is way the ball but other claims for example you're dealing with deference to international law and trade agreements and there's actually a subset of the law in this area where you're dealing with international trade agreements and the analysis of a little bit different and i think that the riches court actually its decision turned on exactly that point the court said that if they were to hold otherwise quote the reach of united states securities laws would be unbounded and they were concerned about the idea of trying to impose u s securities laws on the rest of the world i think with a very different circumstance where we're talking about the  difference between states within the united states and the deference to those states determination about public policy and so they're going to richard's it's a different horse similarly it actually tracks with the demo or d m a case which also dealt with an international agreement and the application of the call for german law i believe and the court's analysis there was triggered on two things one the underlying claim was a weevil statute seventy two hundred claim and b the law called for by the contract was german law and so the court was concerned again about the kind of interference with international trade agreements and foreign law that i would say is more of a bitch or it's campaign is a different beast altogether so the district court imposed a number of i guess alleged conditions on its dismissal are those conditions binding on a california court in any way i don't know your honor i mean i worry about whether they are not i have no reason to in the brief caus counsel represent that california court would likely apply washington law i have no idea about how one can make that argument either legally or factually and i know for new court could declare the choice of law provision to be contrary to you know public policy in california and apply the washington law instead could may i suppose they could hypothetically i'm not aware of actually any case i've seen which california court has said we're not going to force the california choice of law and i think actually the inverse for california courts at the client to enforce other jurisdictions because a conflict of california but not the example you're giving and all the superior court is an involve the latter all involve non reviewable statutory claims and each instance the court to say ok we've got a nonlethal claim and they were to look at what the alternate jurisdiction accounts for and make that analysis and if there is a risk that the plaintiffs are not  able to have redress in their jurisdiction we're not going to force the clause well here we have called california law we have no evidence no factual basis no legal basis to say that  the california law provisions will be applied here to these particular claimants the issue is the extra torture tauriel application of the california statute recognizing mind that the underlying conduct here case there was a judicial opinion on point i think is that right so there was a judicial opinion on point that out waiver the court found that your shoe of waiver can be determined either by statute or by judicial determination and they look to a prior case which found that the claims that issue window had been determined on we've will by prior is there anything on the washington securities act that that takes  well so it has a standard no waiver provision i mean that's what concerns me because there are so many state statutes that have that and i'm concerned as i mentioned of atlanta but i'm wondering if there's any washington state court that say as a matter of public policy this has what we have here is we have a form selection clause that points to california not to washington the claims there raise your relate to the stock purchase agreement they relate to the investment in the advanced child health care and that california does provide an adequate form but what's wrong with the theory of opposing counsel that it is an exceptional case where relating to public policy which is pretty much what's left after atlanta rain when there is when the state legislature has seen fit to put in it that these protections are not way football why doesn't that trump the contractual form selection class versus the land says that page five eighty three that the choice of does not go for the improper state in other words finally in washington does not give the plaintiffs that right it's that's the first thing there's no state law advantage because you fly you file here if so everyone  another state which says no way will privilege to get out of the the state in which they agreed to go to this no one number two is that miss cow is not saying that they've waived their state security claims  there is no there's no proof that that under choice of law now says the california court would apply california law and more importantly the issue about waiver is the public policy of protecting individuals who invest in and purchase securities california public policy and washing public policy are almost identical in those issues so that's i think a look at the plain language of the california statute and apply the choice of law provision is there anything other anything else to do for the court other than to dismiss the case the california court right no your honor that they would maintain the case because miss cow agreed to the conditions set forth by  would be improper for her to take the position one could argue that's the law of the case that's in that situation so turning to want to questions your honor raise which is whether or not how does a waiver clause undercut the atlantic green decision it does and what they said in lack marine is there is no there is no evidence that a virginia court  stands that the people who bought these securities in the state of washington could apply that could make their claim under the washington security choice the law analysis in this case my client cannot deny that the law applies but they haven't addressed the issue and on the washington lies so they can assert awash in law claim there is no evidence in the record or any authority that says california would not assert washington law they go through the same chain it was a law analysis turning to the issue of what would you make the argument in the case of the choice of law provision is  make the argument that the choice of law provision is not valid and can't be applied based on the court order i would say yes turning to the issue of doe one though one involves a virginia  that rejected class actions did not allow them to start a class action and also limited the remedies that's not the situation here california allows individuals who purchased securities to circling so though one is not a political and it's four years before atlanta so it's prior to that precedent number two the issue of relationship between the choice of law in the form selection clause and there was a discussion of bail which is a district court decision massachusetts what the court said the disc court said first of all we recognize there is difference in decisions in this circuit about this issue but what we see is that massachusetts has less fewer remedies than they do in california and number ito is a choice of law case it's a state law case choice of law case and determine whether or not japanese law or washing law applies in the choice of law analysis the court decided that washing law applies so addressing the issue of non way with that has not been decided so as the leg maureen case said absent except exceptional circumstances the form slushing clause should be enforced i'd like to point out that there are contacts as the court noted with california that is in other words changing the discussion this is not localized the concern in washington that's how it's been represented in fact the it's a cayman island corporation that's doing business in china that the president is a california resident the contract was signed in stock purchase agreement signed in california the appellants are credit investors they came down to california they signed agreement and they agreed that the place of dispute would be california they knew when they entered into the that if there was later about their acquisition of two point eight million dollars of the stock they would handle this case in california they have now tried to get around that and played around that issue their complaint actually references the stock purchase agreement if you look in paragraphs ten twenty nine and three point five there are references to the stock purchase agreement if you are in the stock purchase agreement make certain representations of warranties the funds will be used for medical centers that there have existing licensing and permitting that there was serious seed funding received and financial statements are accurate the complaint says all those are not true so this complaint does arise out of the stock purchase agreement so it's not a local currency localized concern and does relate to the stock purchase agreement turning to the issue of what is the supreme court say when it issued a langrune about the burden of proof it put the burden of proof on the party who's challenging a valid florham form selection clause and there is a high burden and there are three things the courts that number one that we're going to  controlling weight that there's no choice of law privilege if you violate a form selection clause so i repeat that there's no choice of law privilege so it's finally here doesn't give you that benefit so the first question is is there an adequate alternative form in california yes in order not to have an adequate alternative form has been no remedy that's the luck decision there is a remedy for them they can file suit it's not a better remedy and that would be the deem a case the talks about just because you can do better in california or in washington than california doesn't mean that's a reason that's on adequate form that's the same thing the case involving germany and which i believe is i don't have that case in fro holidays so first of all is an adequate form yes as i said earlier this is about choice of law this is not about choice of choice of forum and california public policy likewise protects investors from fraud and deception and california is adopting the same strong public policy language as washington in other words the california courts can indicate washings public policy of protecting investors who purchase  stocks and finally your honor we believe that the court your honors condition this dismissal to protect the appellant's they just didn't dismiss this case and say  good luck they said no one can argue that california law is not political so you cannot use the statute to get out of it number two you must be subject to the jurisdiction of california number three you cannot or you must accept service of process and finally you can argue that statue of limitations has expired so for purposes of protecting the appellant's they receive that from the district court they will not be deprived of their day of court and when it comes to the public interest factors which they were the burden of proof is on them to argue didn't address the public interest factors they didn't discuss whether or not there was congestion in santa clara county this is a localized interest this is not a localized dispute as i said earlier and finally as i said with the supreme court in atlantic marine construction courts in california have the ability to enforce washin law that with today's modern technology there's an interest in holding parties to their bargain the public policy the washing washing public policy california public policy united states public policies in force valid form selection clause california is an adequate for and enforcement of this clause the form selection clause as noted by the us supreme court in lagrange decision furthers the vital interest of justice thank you very much thank you very much is challenging form selection by filing in a non contractual form that the plaintiff's private interest factors are not accounted for by the court and analysis that's different from the public interest factor than let agree distinctions between those two and what the court here said was that because atlantic green holds that therefore washington state public policy would seem to have no bearing on whether the parties valid bargain for form selection caution apply in other words the district court did not even engage in the analysis that i think misconstrued is like marine secondly we have courts conditions in the order do not require ms cow to weave any rights under california law that order says simply that she won't take the position that california law does not apply right this gets at the concern that we are to kill a bit of it has never been resolved for the court or anywhere else about the total application but that's a separate question as you recognized about whether a california court is in any way bound by what ms cow can't argue secondly if i am down in california and i'm representing this cow i'm going to come into court i'm going to say this contract has a choice a lot there's no washing secures that claim and by the way california statute does not apply to the washington residents and washing conduct dismissed case that's what will happen that's what i would argue and there is no