reflektor the informality efficiency simplicity and extradition that the federal arbitration act was designed to protect this court recently recognizing the basis to refuse to compel arbitration in this case the grounds of sort of the grounds for procedure on caution ability found by the district court finds that the fact contract that this court held in the ground is an argument that in a case like this where the arbitration provision is one part of a broader contract that argument is one that goes to the not a freestanding arbitration clause as for example we see in the strictest video in cases two ways that would not grounds for one is to say well if the arbitration clauses in embedded in a larger contract there an argument against enforcing a contract unconscionable yardman or anything else and say well we can afford every other term the contract but not the arbitration clause apron argument that covers the whole contract in this case and then grab the procedure on an ability argument address the whole contract if there was a procedure on caution ability argument that only the arbitration clause in it was not something that if accepted should take the entire contract or not it's really more a matter of the facts on the second page of the local guy and it tells you you have a contract it also by the way tells you you may have issues with the late billing if you travel a lot tells you the contract on page twenty one of th which is i think your thirty three or thirty four apologize don't have that memorized when you get to that part in the still in large type there's a bullet point that says this contract provides for dispute resolution when you get to the arbitration clause itself it begins with a dispute resolution because it's labeled it begins and all caps and again repeat stuff this is a this means that you will resolve disputes through arbitration not through trials  the issues it covered it's binding as far as its predictions of what the california supreme court will do which is what this court was going into and necessarily predicting what the california supreme court will do not just looking at what the cour s feel had done at that point to tell california supreme court leaders want to tell us what it's going to do and i would suggest that if it somehow manages to dodge that spin it will be out in early july unless it  unless they're willing to miss a paycheck it will be out in early july and we'll know if they do somehow avoid deciding that issue it because it is an important issue i would suggest that the issue certified but i think most important is that we're going to ity can be used to justify state courts or other courts imposing what amounts to arbitration only rules the first the first issue reasonable justification just whatever other authority that the court is relying upon that at most the fact that it's a form contract barely gets you over the line of procedure on caution ability and under the sliding scale  contract and when arguments are necessarily directed at the enforceability of the whole contract prima pain indicates those go to the arbitrator and has a right on other cases to indicate that mr was on his case i think we need to start with the very first sentence of the opinion of the panel in that case and in that sense the panel states quote we must decide who determines whether an agreement containing an arbitration clause is on enforceable the arbitrator or the court the reason that sentence i believe is significant is because it establishes the context in which the opinion and that opinion isn't a case where the issue is whether the agreement as a whole is unconscionable not whether a particular clause in the agreement is unconscionably into grampa the court concludes incorrectly still under the f a that the arbitrator must make that determination that is a determination as to whether or not you agree meant as a whole is unconscionable and why is that and that's lawyer she has she has she did make those arguments and those arguments that the panel considered because they were not arguments that went to the contract as a whole they went to specifically to the arbitration while she said i didn't read that arbitration clause for example and it was very and so forth and so on and the panel found those arguments frankly not convincing probably because this new ground there was an experience a business person seven years in marketing experience she's entering into a franchise agreement where she has a potential for significant monetary live villany in fact she was being sued for only eighty thousand dollars and i think the panel considered those  sermon that under that type of business an area it's no excuse to raise your hand afterwards and say i didn't see the i didn't read this was when you're in a business transaction you have an incentive to either sit down and read the stuff yourself or go out and hire yourself an attorney to read it and explain it to you that's a very different scenario from what we have in our case where we have mr lozano a consumer purchasing the use of a cell phone and being handed a contract as a form billeted that goes yes to the arbitration clause that's invented in the contract and here's why i think that there is room for that distinction first if you look at the facts of the two necessarily must be limited to the arbitration provisions which he's claiming is unconscionable and that's exactly the challenge that he has made in this case if you look at us let me ask you this and i trying to get out from underneath the entire contract like mcgrath or it can be made as to a specific clause in the case of mr was out trying to avoid the arbitration clause so i think it's a matter of how you phrase your argument so suggests that those arguments have to be made to the arbitrator if you're making the argument that mr lives on it was making his case because he's not trying to get out from underneath the contract he wants to enforce the contract he's claiming it was a breach for making the argument that the arbitration clause was given to you want to take it or leave it basis invested in this larger contract that it was not negotiable and that the company had disappeared bargaining power and therefore the arbitration clause is procedurally on conscionable names of the four that is going to be on page two judge raised states the court's role under the f a a is limited to determining one whether the arbitration agreement is valid and enforceable and i'm sorry to interrupt i'm on this page but where on the type of support out there in the law for the concept that you can have a distinction between a contract of adhesion argument that goes to the contract as a whole and a contract of adhesion argument because to a particular client in the agreement can be individual clauses in bed in a larger contract which of themselves constitute a contract of adhesion and i think the law though under the cones the cone case in the florida case plainly recognizes that and i think nonetheless can be made if it is this clause was offered on a take it or leave it basis and i'm not sure that that argument is unavailable simply because the rest of the contract was also offered on a take a legal basis i respect that look let me give you an example sometimes for example when you go into signing a contract and actually a lot of this a lot of times this happens in the in the medical field you go into the hospital these days and you're asked to sign a waiver in connection with your surgery and a lot of times there is an arbitration provision that is contained within the waiver and you're asked to specifically initial that you're actually given the option of initialing it or not initially in it now in that context you've got a clause in arbitration clause that's in a broader agreement but it's not handed to you on a take it or leave it basis in other words you're told to read it in your told that if you want to accept it you initial it and accept it you have a choice whether or any other questions for me thank you very thank you very much  walk out of piece of a contract and say we're really only talking about this piece now that might be legitimate some contracts that have printed parts and then you're negotiate other parts that might be a case in which you had just really was only director of the arbitration just a form but because there is an absence of meaningful choice as to arbitration i can go to five other carriers and all give me the same they also need arbitration in the same way that's an argument that you know in some circumstances can be made and that that argument because what if we have a contract in which take it or leave it is one of the arguments that goes to the unconscionably argument myself i think you're quite right myself this doesn't get you there but it's one of the arguments let's imagine then we have take it or leave that i can't make that same argument as a just as to the cause of self if that is all you that is all you know out of nothing at all i have i'm trying to say whether i can make that argument among others if the argument is available against both the contract as a whole within ninety days or as you say losing a paycheck yes and i guess i the only reason i want the only things i wanted to address and very very briefly here and let the california supreme court sort out everything everything else is that one of the arguments that that we made having to do with unconscionable altie we also i believe went into a preemption argument which was that to require class arbitration or to refuse to enforce a contract from us class arbitration is permitted