itration section seven through nine but the rest would be honor so the piece of the agreement that we think would presumably be left intact would be the release of the claims before july two thousand and seven in exchange for valuable consideration but everything else virtually everything else is affected by section responsibility because that's an obligation that is outside the four corners of the of the agreement that was it's one where that was an obligation that was imposed by the district court in the two thousand and seven medication  you have to but the way i read the agreement at least section i think it's four point one cannot in moscow or shall provides that arbitration will be this sole remedy deemed final so i think that's what where that conditional language and four point one comes in that that may cause the parties that's if they wish to seek a reallocation and allocation and if so explain to me why by requiring that to avoid a claim of waiver that i had to predict a change in the law in the future or you but you should always bring it why is it a change in the years and waited until after there was an arbitration award to bring it to bring its argument in favor and waited until after two arbitrations that you yourself initiated and i think there's some factors that should guide the court's waiver decision in this case so we could disagree with the circuit so you are making an argument without binding a or right now you could have done that absent the temp circuit decision that's how changing the law or application of old law to new situations happens every day in america one and so the aggregate court said in this context the law was uncertain and so you know given that waiver is the knowing intentional relinquishment of a known right this is an inappropriate case in which to find  would respectfully submit that the ability to make a generic severability argument is not the same as having real authority in hand it could have cited in support of its argument that section six infected the rest of the arbitration agreement did not have the benefit but if there were just records i don't believe there were but what if there was would that be and i think that would change the situation but the fact that there was not here expects violence but what i mean ok ake were considered a local costs within the meaning of that agreement and the district court there was very clear page fourteen of its border and said that neither party disputes that the that the agreement is valid therefore the question parties were suing at that point that there was i have a little different question it seems to me the way this agreement was written that what in effect you have is a non binding arbitration pr yet i think that that exact feature that the parties retain the right to make to render that arbitration nine binding at the election of either party for any reason or for no reason is precisely the reason why i bought whole street because it expand the premise of the scope of judicial review of matters that had been submitted to arbitration but does it even implicate the f a a at that point i mean and maybe getting at something why are we even worried about the but just completely optional and there's no real review provision for most arbitration agreements applies because you're going to try to enforce it by judgment in court so nobody has to do anything has to even the actual court the actual trial in court that would allow parties to contract around ha straight and make an end run around it central holding which is that the f a a bodies and national policy favoring arbitration with just the limited review needed to maintain arbitrations essential virtue of resolving disputes right away and if the parties are forced to go through that non binding advisory at best arbitration it would essentially make an end run around the returned to court to see if that resolve the dispute but that's limited to a very small subset of cases including matters under one hundred and fifty thousand dollars controversy so aside from that one provision i believe that non binding arbitration by repeatedly taking the position over a ten year period that the arbitration agreement is valid enforceable all the while knowing that it had a basis to challenge the agreement that usually when we think a waiver we think of as your friend mentioned a knowing and intentional link which meant right and i'm trapped in the criminal context where i always think of a dependent having to affirmatively state back in two thousand and eight that called into question section six of the settlement agreement the novo judicial determination provision and poly one is is charged with that knowledge but instead of doing anything about it probably one initiated will under existing law you could waive their right to challenge an illegal contract is what you're saying well what they're trying to do is use a an arguably invalid provision of a contract section six to then render the entire arbitration agreement invalid that's what they have waived by twice initiating an arbitration  enforcing the arbitration agreement and also in the october th team lawsuit not confirming the validity of that you said what i'm saying i understand your argument and there's a lot of logic to it i'm not disputing that but whether section six is material and should be severed i mean the waiver point is probably one for twelve years has acted as if this provision they now call their nuclear option wasn't available to them and yet they still went ahead for your waiver argument is that the contract should just continue the way it is now right so so in five years they'll be another or there could be another arbitration and somebody has got ninety days to go to court to vacate the award your honor actually my  view is that the best course for this court is to affirm judge russell on waiver and frankly stop there and there's a good reason why but but affirming him on waiver means the contract exists the way  good reason why in you you've heard reference to the fee shifting provision in section six which is that you do no judicial determination provision and that is an incredibly draconian provision that the party that lost  if it then takes the risk of bringing a judicial action it has to reduce its allocation by a whopping fifty percent you know if they have one hundred percent allocation in the arbitration they've got to get down to fifty percent in the litigation and the parties knew that was next to impossible to achieve no matter what the result but that's exactly right they have to reduce it to fifty percent and if they don't they've got to pay the attorney it's six point five three i believe i can confirm that for you it's six dollars so in the litigation we've had today the attorneys fees have been twenty dollars to thirty million dollars and so if you do not achieve a fifty percent reduction you've got to pay twenty dollars to thirty million dollars of the other side's attorneys fees and expertise and the parties knew when they entered this agreement that that was an incredibly draconian provision and a huge disincentive to bringing a subsequent judicial action if you think about it the party that lost in the arbitration in order to have the economic incentive to take that risk to potentially pay twenty dollars to thirty million dollars the other side would have to last very badly you know to have an arbitration number that could be cut in half and then you look going forward into litigation the party who got beaten badly in the arbitration would have to completely reverse its fortunes and win in a landslide in the litigation so i get that you're right about that provision but can i take you back to what you said a minute ago which is just a striking this but you could bring your own action to get rid of this well i think that's an issue that would be best to be taken up once we see if anyone does bring a section six action and that's not sort of the point i mean right now we've got you're saying so you're saying we don't have to decide we could say they waived and not decide whether in five years if they try to do this again you would just go to go to court and say they waived it five years ago and it would be up to that court to figure out whether they're that's the commit murder or something but i mean it's bylines public policy doesn't it of the f a a for us to let that go forward well if the court is concerned about that then perceiving and deciding the question of section six you know it is fine with us as well and we have solid arguments for why that provision ultimately should be severed from the contract i would later your argument is it should be severed in the sense that the arbitration then becomes like any other f the decision by then and judge john roberts in the book or the robert half international case is pretty instructive on that point where you've got a severability clause like we do in this contract and you've got a  vision that is arguably invalid but doesn't in fact the remainder of the arbitration provision the answer really is to sever that invalid provision to maintain the parties agreement  arbitrate alteration in the bargain and that i mean i bargain for something where i can go to court and basically negate the award i understand there's it's i've got to be pretty sure that i'm going to win and i've got to have a lot at stake in order to do that i mean it's like a nuclear option by this six point section six last but it's there it's a check it's i mean it's it is there it gives me more options than the section for arbitrary arbitration provision and the section six judicial determination provision are entirely separate provisions of the contract and more importantly the right to arbitration under section four is in no way  the arbitration right in part of what tell me in that time that compact was expressly subject to the right to actual judicial review of the arbitration award and so i think there is a really significant difference between the two contracts and you know if if the parties here had intended for the right to arbitration to be contingent conditioned upon the right to this section six judicial upon the right to judicial review determination under section six and i think you could cut section six entirely from the contract and you would still have a complete arbitration agreement no doubt you could bargain for want to get to your point about the this this question of whether there's they're intertwined they're really not there's language that kind of recognizes the existence of both for example in four point four i believe the parties agreed that they would bring any other action besides the section six action but that's kind of means what it says it doesn't in any way condition arbitration upon the act which the judicial action there's another provision that talks about the while the judicial action is pending the allocation under the arbitration award will apply that's just sort of a practical recognition that a party has chosen to take the risk to bring this judicial action and potentially your main point is exercising section six and then the little references does nothing to section five or section four that is absolutely correct or other and i've briefly i just addressed this notion that section three should be severed is pretty outrageous and that's the provision that actually sets the initial allocation one hundred percent to poly one and i thought i heard during the opening part that they were suggesting that that should be stricken or there's no no basis to strike that provision that really got the entire contract but i want to make one other point on this materiality argument quickly poly ones argument today that section six is somehow material to this contract is directly contrary to their conduct for the past twelve years i mean if they say they would not have entered this contract without the section six right that's demonstrably untrue because we know for twelve years they have brought arbitration agreement arbitration actions knowing that they did not have the right to subsequently pursue a section six proceeding because the whole street and yet they went right ahead and brought these actions knowing they had a section six percent provision that was potentially invalid it wasn't until the end valid i'm sorry that's true but that's the basis for their argument to me and they say it's indisputably invalid in their brief so i can't really have it both ways and you know it wasn't until this non binding decision in part of what tommy comes along in two thousand and eighteen and they were losing in the van existing arbitration pretty badly that they decide oh we better you know raise this ten year old argument about section six and they're doing that as a pretext to invalidate the entire arbitration agreement so i know you make this argument but i just want to understand so i get your argument that we can if we're going to get to this if they haven't wave which is just right sections  i just want to know the implications because they still haven't necessarily understood what the implications are we using an illegal contract in place where do we draw the line so ok it's contrary to the  supreme court precedent what if it's contrary to hans i mean can you waive where where's that law no i think that i think that probably one can certainly waive using an allegedly invalid provision of an agreement as a basis to strike an entire arbitration agreement but i think for the court leaving an invalid provision in the contract is problematic and problematic and eventually that would have to be addressed i'm not sure that now is the right time to do it because we cabinet nothing's happening on that point just yet and judge russell did give a brief analysis of his view on the validity of section six but also on the severability of section six leaving the arbitration agreement intact he thought that was definitely one more question i'm sorry but can we if we were just say they waiver just a judge right it doesn't mean we're deciding the question although i know you want us to  whether they waived in the future we would have to explicitly say right well yes and i think it's clear but yes yes i see my times out you understand why i know i understand i don't understand i understand the point if i make say one more sentence that the entire concept of waiver that they're making is based on futility and when you go and read those futility cases this case would be the very st of its kind of where you're not talking about a controlling authority preventing one from seeking to invalidate an arbitration agreement nor do you have a controlling authority than allowing one to  i think it's one i agree with rational being and one thing it's a con we're not making passing judgement on the contract we're just saying it's waived stopped it's another thing to say that goes on forever within a legal contract and if we decide to action six's i believe based on twelve years of conduct clearly taking the position that disagreement is valid and enforceable without that conduct doesn't disappear as we go right and again to bring you to the criminal context we do that all the time with constitutional right yeah no i would not give that answer for an involuntary servitude situation here you've got a party that way to trade for twelve years and then didn't take any action to the head if this was involuntary servitude and they waived for twelve years i think you've got a completely different situation there yeah why where what's the line well i mean i think you have to look at the conduct of the party here the conduct of the party was was probably one for whatever reason chose not to enforce its alleged right regarding section six and seeking to invalidate the agreement and then when it started losing arbitration matter decided we better you know resort to this nuclear option and that to me is dramatically different from you know a situation of involuntary servitude i mean i don't know i'm not objective here but this is an incredibly clear case of where you really can find one that's more strong ok thank you and just a few points on my bottom and i think you won before you get three if you're your friend on the other side makes a pretty good argument as to why we could x i i stacked section six the f a a would kind of take its place in the contract would live on with the benefits of the bargain where is the fault in that argument because there's they point to a pretty easy to strike section the references to section six everywhere else where does it become critical another provision what provision want to arbitrate they're saying fine you want to get rid of section six get rid of section six but we still want the arbitration that was the heart and you yourself point out that's wh arbitration in the critical nature of arbitration it's a whole street court also pointed out when the question is whether there's a valid agreement to arbitrate just pointing to the general policy failing arbitration is quote begging the question so where in here does it is still where it is section six become critical to another provision so looking at to the agreement as a whole and i want to specific provision if i can go through today with crayon and excise every one and it doesn't materially alter any other sect then so where can i do that ok so looking st to section three section three  section six is critical to that section does that make sense and then well and the point i'm getting at is it's throughout and so i think i would move from section three then to section four section four four says the the sole  so on that's the provision that makes arbitration mandatory and if a review were the only review available to the parties that would materially change the basis of the bargain because as this court has observed in the past  among the most exacting standards of review known to law so if we're going to pick one let's say you're going to lose which is your worst poison is that waiver there may be a chance to challenge in the future excising section six let me speak to it because yeah no i really would encourage this court to reach the merits there is definitely going to be there are at least there are at least three or four scenarios that are above that mean you take the merit and section six being struck  out we think the whole arbitration clause has to go with section six but here's why this course she reached the merits even if it has concerns lingering concerns about waiver which like is mistaken that the only that there's a significant insurmountable disincentive to bring in section of this month and poly one doesn't tend to file a challenge not a position to represent the contents that challenge but absolutely will happen so that's one case in the very near future that this legal question of law that's currently presented