good morning and may it please the court my name is gavin martin's and i represent appellant twenty twenty communications in this appeal twenty twentieth's arbitration agreement contains an express class action waiver and the recent supreme court decision an epic systems is undeniably established that such class action waivers are completely enforceable and totally valid and so the class action waiver in epic the exact same wording is the one in this case where it has the phrase to the extent permitted by law or whatever you know that wasn't don't you think that makes a difference i don't think so your own i think that what matters here is that the agreement including the class waiver is in forcible to the maximum extent to the maximum extent permitted by law or whatever yes your honor and under the current epic systems  law that you know to the maximum extent permitted by law establishes that the class action waiver isn't forcible under the maximum extent permitted by law as it does that is the maximum extent include both state and federal law court on a preliminary injunction no your honor that that appeal has been dismissed the panel in that case determined that it was an interlocutory appeal that it did not have jurisdiction to hear so the case has been sent bifurcated when we have these two proceedings both as i understand it concerning the same question of law what is the distinction here why are we in this posture yes your honor the current case is a direct appeal or a motion to seeking the district court to declare the rights of the parties and to enjoy any class of the traces from proceeding according to the terms of the emmy that's my that's my confusion i suppose to why we're in this p or why why wasn't this just kept in one proceeding well you're out of this proceeding stems from an arbitration i understand that and thus when the arbitrator issued his clause construction  posture while different and your honor is correct that many of these issues are similar and it's important though to note that the gateway issue of arbitron belittle which is central to this appeal  comes to the court directly because we have an arbitrator who is deciding that improperly that he has the authority to decide the availability of crap of class of a trace and what exactly is your argument isolate with gr precision here is your argument that the arbitrator lacks jurisdiction to decide the class arbitration issue or is your argument that the arbitrator interpreted the clash of attrition language correctly or incorrectly yes your honor i think that both of those issues are a play but as your question directly the first issue that you raise is the principle issue here because we don't get to the second issue unless a court issues both are in this proceeding yes you want do you want this court yes or i thought though that only the second issue was presented to a judge the bride below you just proceeding well you know i have to first issues only before judge means my no your honor both issues were present its judgment but i can understand your confusion reading reading judge mcbride's order in this case affirming the arbitrator's clause construction or he does not address the gateway issue even though that issue was presented to him as part of the motion to vacate was not because judge means has it will just be pride may very well have deferred to judge means on that issue but but the arbitrator and by extension judge mcbride in confirming the arbitrator's award did not have authority to even reach the merits of the class of the true billet he issued until that first judicial issue of whether the parties would clearly no mistake it will be delegated that issue to the arbitrator the been decided if you don't know that this is somewhat of a awkward vehicle to reach the first issue given that the bride didn't really address it vehicle but i believe that the reason it's awkward is because the arbitrator acted outside of his jurisdiction that's the the principal reason that we have these gateway issues of which are abilities so that we're not in this awkward position so th court who's deciding the gateway issue and then that appeal can go forward but when you have an arbitrator that overstepped his bounds and decides that issue then we have no choice but to be in this awkward position did you request the stay in there are some eighteen eighteen defendants and blevins again i don't know how we got in this position did you were i mean was there any you simultaneous requests for a stay or for consolidation or something so we don't we're going to got the cart before the court well your honor like as i mentioned we certainly requested that stay in the arbitration because we don't want the arbitration to go forward until a court has decided that gateway issue of class  ability and if if that decision is made by judge means in the blevins case then that would be fine and we certainly have asked the arbitrator to not move forward until a court can decide that it now would seem that amenable to having the blevins court decide the issue first the problem is is that the arbitrator is moving forward with a class proceeding and what we can't have is a class proceeding leapfrog the decision on the gateway issue or elsewhere in the same position that a very similar position that the court and seventh circuit just decided in him i think i understand twenty twentieth's kind of in a jam and trying to figure out whatever can do so i addressed a case that was in a very similar posture to this one and it addressed both the epic systems issue yet that system's decision was decided while the appeal was pending from the district courts affirm affirm of the gateway issue and now this is leapfrog ahead of it i'm just i'm just going to stand how we're in this fight here i don't i came in stand how the parties allowed this to happen while your honor as i mentioned before i believe to answer your question while we are in this posture we can't have this class proceeding continue on the track that it's on without a court determining it's not going anywhere and while this is on appeal to a yes your honor it is the sense you know since the epic systems decision has absolutely well judge means or this court you want i don't do to submit that this court has the ability to decide that issue of jurisdiction especially now in light of epic systems i mean there is no basis in law for twenty twenty to be forced into a class of a trace and now that epic systems has been decided and there is an express card that you have any case that has this procedural vehicle concern that i am after getting authority that says that  the vehicle problem that i have is not a problem well i believe the harrington case addresses guy on that case is in the same posture is ours i don't recall it having this sort of not aware of any case that has those dual proceedings what i was trying to address is that the harrington case does through this arbitration appeal mechanism decide that the jurisdictional issues you put it that gateway issue must be decided by a court in this i'm not i'm not suggesting a federal course can't do this i'm suggesting that the claim hasn't been presented to mean we can't grant relief in a breach of contract food if it's a tort case right well i understand you're out of my point is that  that claim has been presented here just like it was in harrington that through the appeal of an arbitrator's award the harrington court decided that that jurisdictional issue could be reached and did reach it and ordered that the you want this panel to if nothing else stay the ongoing arbitration yes your honor if nothing else i would say yes i believe that in light of epic systems  you said the parties agreed on that yes and i want to know the exact agreement yes or no the parties agree that to the maximum extent permitted by law that's an oversight or did not have the authority to join proceedings in a class a collective just to save time i have the language here in front of me which is the parties agree the fist agreement prohibits the arbitrator from consolidating the claims of others into one person being to the maximum extent permitted by law this means that an arbitrary arbitrator will hear only individual claims and does not have the authority to fashion a proceeding as a class or collective action that's one that's the language i assume you realize that is the link but there is no grima between the parties on the procedure were this that they would move or could move to appeal or vacate an arbitrator's decision in a court federal or state in ten county texas so to that extent they have agreed t i'm sure you will agree that arbitration is a matter of contract or agreement it's not something that people have to do unless they agree to it certainly i agree that you're wrong and and that and they agreed to the language that that i just quoted and yet we have an arbitrator proceeding with a class action that's got to be an absurd result based on what the party said i disagree with that your honor i think given the case the clear binding authority on the arbitrator at the time that the decision was made and that's the relevant inquiry here and the language of the arbitration itself he interpreted the arbitration agreement in line with binding law and that if you look at his causes or who you know you all have class away from the agreement twenty twenty understood that this was a contentious issue at the time they drafted their twelve attrition agreement and so what they did was they said well we are only going to have a class waiver to the extent that is permitted by law  permitted by law without tells me is the parties agree that they do not want conference or traditions and that the only time they will have it is when the law forces them to do it i don't that's not how i read it and certainly that's that's open to interpretation w in rendering as clause construction and under binding supreme court authority certainly court you know dozens of cases from this court when he does that whether right or wrong whether he made a mistake whether you disagree i disagree counsel for  let's look at the congressional provision i have already read what the provisions are let me just tell you that one of the ways our approach cases that come before us is that my my antenna goes up any time  delta queen steamboat and they cited it three times and you didn't mention it delta queen which has stood the test of time and continues to be cited by record after thirty years says an arbitrary action contrary to express contractual provisions will not be respected and that's exactly what we have here it's an arbitrary action contrary to express contractual provisions of under delta queen which is still binding law in the circuit and you didn't refer to it again but i'm not referring to it i have to i have to assume that you see it as adverse effect already that you don't want to highlight but anyway what do you do with delta queen or your honor i think we did address reading as a whole it's clarified by the language to the max of extent permitted by law in the ninth circuit at the time numbers that in the statute and the statute as we want x we actually want x result for long as it doesn't violate the constitution doesn't permit a class waiver so we have to read it to permit a class to proceed and that's exactly what he decided to i don't think we can safely just ignore his interpretation of the language in the agreement that he relied upon because this is unlike cases for example where they relied on by by the appellant is unlike any style meals in this exactly like oxford a case of this record to side with said this may be a crazy result we made everyone in the courtroom may disagree with at least arguably interpret ignore the parties agreement and apply the law as he understood it on the day that he did it and there's no question that he did if you look at the would you acknowledged it would be pretty weird waste of time to let the crawford proceeding with an arbitration move forward under this class arbitration theory only for them to learn that judge means has found no jurisdiction whatsoever and  appellate proceedings that the armchair has no business doing this then the crawford arbitration would've been a complete waste of time that's not the fair right i don't think that's i think that's a question that's not really proper in this context because that's not actually asking you to knowledge common sense something i think that's not properly i would frame the issue that way how i would frame it as did the arbitrator look at the language of the agreement self and construe and interpret the language of the agreement self to determine that he had jurisdiction to resolve class arbitration agreement to determine whether he has or she has jurisdiction over an issue in the first instance that also is subject to the same deferral standard where an a an arbitrary action contrary to express can trachsel provisions will not be respected and so i mean that there's no equivocation about this language in the agreement that the parties signed so again there was this language where twenty twenty heads when they drafted the agreement they recognized that there were jurisdictions in which a class waiver was illegal and so they essentially said if we're in a jurisdiction where this would be illegal for that it's not a class waiver it's only to extent permitted by law and by implication this is exactly the language that you are trying to look at constru said that this recognition where they they recognize that it may be a league all and if it's illegal then it's not going to be valid or we're not going to have a class waiver if that's exactly what he decided it would be were it to read it that way or you know you don't dispute that which would be binding this proceeding pursuant to the or betray sion agreement and there's a second one in the second circuit both of those cases whole that an intervening change of law by itself is not a basis to vacate an arbitration award so in other words an almost identical procedural posture to here where the losing party in arbitration the law changes and it was a california supreme court case that changed the law there was a placement of that proceeding or give way the losing party in the arbitration it was a clause construction class clause construction issue about class over to reality and the ability to proceed in a class proceeding and the wolf court said we were we can't go back now and say and apply the laws that exist now to what happened six months or a year ago when the arbitrator is actually rendering his award all we can do is look to see did the arbitrator interpret the party's agreement in line with what he understood the law to be at the time that he renders a word that that essential function of arbitration arbitration is not court twenty twenty wanted this to be an arbitration we will proceed in arbitration they lost and now they're saying well now we wish we never were not a trace and now we want to have the court decide this issue that we that both issues are before us today both the good the arbitrator have the power to decide arbitration class arbitration and second to that was not interpretation correct i think i heard you say th yeah i would as i said i think earlier i would frame the first issue slightly different as i think the issue as they're both before us today was a point in some context but i think the context that it's before you they're both in the same in the same context the question is did the arbitrator look to the language in the agreement to determine or interpret the agreement to determine that he had the jurisdiction rather than do you think that he had jurisdiction to do it so you don't think it's a gateway issue them you don't think that this language in the clause is a gateway issue evidence of the parties agreement indicate that the parties it's expected or had agreed that an overtrick and resolve the issues of the issue isn't is it a gateway issue or not in my mind i think the issue is do the parties agree to arbitrate arbiter abil thing you have a traitor does not have the authority to do concentrations to the maximum extent provided by law what's the difference between these two provisions room one talks about power one talks about authority why can't we mind and that's why they're in court you recall it yes it was coming and that's where that the record i'm sorry where is that in the record where is that that they're unhappy in their own that's why they're my question is you are saying that twenty twenty was happy with the agreement and now they're not so that's why they're in court in other words there there does they wish they hadn't entered into it so now they're trying a different tact and they're in court and i'm simply asking you is that in some affidavit or out of asia as if your interpretation that is my answer well in the future you might in the future you might want to confine yourself to the record and not to your opinions about the state of mind of  blevins crawford in a consolidated proceeding and they're claiming ironically they're claiming there can't be anyone is that it's irrelevant what they want or what they thought were going on with the doc and i'm just suggesting to you as a lawyer when you're arguing in an appell i'd like to quickly address the point that it doesn't really matter here whether this is a gateway issue it absolutely matters it's probably the most important thing here and as judge hope pointed out this is a power question and it doesn't matter whether the arbitrator arguably interpreted the agreement if the parties never gave him the power to make that interpretation to begin with and  there's no deference that's due to the determination of that gateway issue and there's no definite only clause you rely on as i understand it to say that it's a game where you issue is the clubs at issue there is no separate clause or if there is  an issue of class of which ability is a gateway issue has found that in fact it is and that issue therefore must be decided by the courts so while there is there is no provision in the agreement that says this is a gateway issue the case law make that decision well if this court now decides that all it's going to do is stay the arbitration then you know that relief in and of itself you know would be a acceptable it's not what we're looking for here what we're looking for because we believe the issues arrive is first a determination that on that gateway issue of arbitron bill that he must be decided by a court in the first instance and that court will determine whether there clear a number stake of all evidence that the parties have delegated it to the arbitrator but the arbitrator can't make that decision in the first instance and that gateway issue must be decided by a court at some point as we've said before and we believe that this court right now can decide that it should and should decide that issue but if if the court disagrees and determines that it would rather let that issue play out in the blevins matter and wait for that issue to be final and then a absolutely twenty twenty absolutely wants to arbitrate according to the terms of the arbitration agreement and the real sticking point here is that gateway issue and the first options case from the supreme court one thousand nine hundred five and also the oxford case and footnote to both noted that when you're dealing with a gateway issue of arbitron realty but there is no deference that goes to the interpretation by the arbitrator so the oxford case is not directly on point in the oxford case the parties specifically agreed to allow the arbitrator to determine the gateway issue of class over ability and then the court dropped in footnote to th specific description of what would happen had the parties not agreed to allow the gateway issue to go to arbitration and it noted that that determination of the gateway issue of arbiter ability if an arbitrator were decided were to decide it would not be given any difference that the court would review that decision de novo and the first options case from the supreme court one thousand nine hundred five said the same thing he didn't use the words de novo it said that the review would be independent but the point is the same that when an arbitrator decides a gateway issue of arbiter ability a power question that is not do any difference because that is an issue that a court must decide now if a court decision clear yes