morning everyone we have four argued cases on the calendar today and we have one submitted case submitted case is the united states be right let me begin this morning by thanking judge ramos who sitting with us from the southern district we're very thankful we have a busy calendar up here and we're very thankful when our district court judges help us get our work done so thank you very much good to have you here  n i've been told that council is present in all the cases to be argued this morning so i'm going to dispense with reading the calendar think we're ready to hear our st case american family life assurance  flag and which terms the socialists have no meaningful choice but to accept you say that it precludes you from your clients from pursuing claims in any forum at all that would be paragraph related to the employment related to this agreement in arbitration and the nd one says you can't bring anything specified can't claims breach of contract or claims involving willful malicious or fraudulent conduct by  to make the argument now since you didn't make it below assuming that we agree that the provision is unconscionable the provision that limits the statutory claims that could be made is in the provision several  that the whole agreement is tainted with provisions that precludes the socialists from federally pursuing their claims and that is substantially favorable and unreasonably favorable to the stronger we have to take them for their truth in order to assess that they say something relevant when they say that the people who are this were them are unable to afford the arbitration you're asking us to take them for their just dismiss it without any evidentiary hearing we didn't have any discovered it we didn't have any evidence really hearing nothing at all and we asked for discovery and now supply mental submission as well but we haven't received it claims other question please is there any contractual provision in the dream it's that precludes the f like associates from selling behalf of other companies look to me like a non exclusive agreement this is so for all those expenses and they will start making great money and they went to obtain those licenses with the specific intention of going to work for ups like they didn't intend to just become insurance agents generally selling insurance in the state of new york and when they did com and they will present it for the st time with this agreement and this signing of this agreement was done in the incredibly rushed and high pressure manner and therefore they have it again that we ask the courts the judicial notice to sell them out very clearly if there was an electronic signatures affleck manager who controlled the process of the a morning may please the court as your owners evidently are well aware in order to defeat the arbitration provision and set forth in their respective agreements are required to demonstrate that the arbitration provision in the contract was both procedurally and substantively unconscionable and they failed in both respects  it was their burden with respect to procedural unconscionable a t to demonstrate that there was both unequal bargaining power and that there was a lack of meaningful choice on their part in signing the agreement and that's a function of new york law which must be applied to the analysis under new york law that issue of lack of meaningful choice would require some showing that affleck had utilized high pressure tactics or deceptive contract language to in the contract that coupled with the alleged unequal bargaining power as your owners have already noted these gentlemen are not employees of affleck they were independent sales when you address paragraph ten point seven i mean i'm troubled by this limitation of liability because it does seem to prevent the says she is from raising a host of potential statutory claim some of which would be employment related  some of which might not be require employment as a precondition and as your adversary says even to the extent that something requires employment it's a matter that's litigated whether someone's an independent contractor and e federal statutory and state statutory claims your honor i think section ten point seven one has to be read together with the entire contract under general contract construction principles which would include section ten dollars which specifically contemplates that causes of action involving claims under federal state local laws including statutes would be subject to arbitration under the agreement so you start with the premise that the contract in the  st paragraph of the relevant provision expressly recognizes that those claims would be arbiter of all claims the limitation of liability language also specifically contemplate contract and in this case and that's what's relevant the draft compliant the draft class action complaint that the appellant's sought to file which we sought to compel the arbitration involves  the in every instance the appellants were asserting willful malicious and fraudulent conduct on affleck's part so they are by under the terms of this contract it's very clear that any statutory claims they are seeking to unconscionable because they are not raising any claims that would trigger it well i believe the analysis would begin with that st step have they satisfied the st burden to show procedural unconscionable cases under new york where you can believe that once if they got over that hurdle we were talking about substantive unconscionable ity in this instance it would turn on these a balance their claims whether their statutory claims could could or should be brought  and as one of your honor's noted there is a severability provision in this contract we do think that the contract term ten point seven one is an enforceable provision which is not  arbitrator or the court it should be an arbitrator's question but if an arbitrator of the court found that it was an improper provision for any reason it several all and would not need to be enforced in the arbitration provision otherwise could be enforced but again i'd like to call out what has already been observed that any unconscionable any argument on the basis of section ten point seven one was waived below it was never raised analysis for procedural unconscionable and your honor and respectfully the allegations we've just heard from opponents counsel by and large are not part of the record in this case not only were they not part of the record in the eastern district of new york because the affidavits upon which they rely were submitted in a separate action in a district court a proceeding where neither the appellant's nor the apple e the issue would be mr baker and mr burrell and and what were the circumstances under which they signed their agreements if you choose to look at the affidavits which were fine in that middle district ga case by mr and they simply events that mr baker mr burrell are anxious to start selling out flight products and they chose not to read fully their contracts before they signed there is no testimony by affidavit even in the middle district ga case from either gentleman describing a process whereby they were ripped precluded from reading their contracts or even asked for a further opportunity to review them in detail before signing that's just not part of their affidavit testimony what is being requested here and that would be improper would have been improper on the part of the eastern district new york to have taken judicial notice of the truth of those allegations in an affidavit which wasn't before it properly so they c consideration of this was pretty truncated as i understand it correct me if i'm misunderstanding the record it was three pages or four pages to address substantive and procedural unconscionable your honor may perhaps it was too late by then to briefs to file declarations affidavit testimony they appeared at the hearing and made very clear if you review the transcript that unconscionable already was only at most a secondary argument that they would advance  fact in their submissions to the district court it was only noted in a footnote it was an exercise of discretion on the eastern district of new york part to allow them the benefit of an additional three pages of briefing there was no request by them to submit any of the evidence and in addition and they simply availed themselves of those three pages of briefing and then allowed a full six months to go by before the district court ruled and during which time they made no effort to supplement the record they made no motion to file any additional affidavit or declaration testimony so yes it is true that the  point seven one argument that's correct the st time that argument has been advanced by mr jaafari is in this court not in the district court in either the other in either of the cases nor before the th circuit