standard your honour's on a motion to compel arbitration simply stated it's a two step process number one determine if there is a valid existing arbitration agreement and step to determine if the dispute at issue is within the scope of that valid existing arbitration agreement the source of this simply stated two step process is clear in sections two and four of the federal arbitration act and it's reciting did repeatedly throughout the extensive arbitration federal arbitration actress prudence before the supreme court and in the ninth circuit the court here committed error by failing to carry out the first step in that process and instead of jumping immediately to the second step in the process second step in the process disregarding the first step it held that the question of whether there was an existing in effect whether there was an existing valid agreement to arbitra determination to be made by the arbitrator and in the words of a couple of different decisions that we cite in our papers that was a case of putting the cart before the horse one can not a district court cannot determine if a matter is appropriately delegated to an arbitrator without first having an appreciation and having ruled on the first step of the process regarding what  the underlying agreement under which the question of delegation arises and in this case the court never made that decision it can't said whether two agreements there's a dispute between the parties i can't decide i'm going to throw up my hands and i'm going to kick it to the arbitrator and it is in that action that the court failed to carry out its obligation under section two section four of the of the federal arbitration and the fact that there was a previous agreement this agreement number one the previous agreement arbitrate is really almost irrelevant instance regardless of whether there were two agreements regardless of whether there could have been five agreements the court or there could have been one agreement as in a case like sanford versus member works where there was a question about whether it was even binding on the parties whether the parties it entered an agreement the court the court had to in the first instance determine if there was an agreement to arbitrate all the court with this argument raised to the district court that it was the court's obligation to determine in the first instance the existence of an agreement to arbitrate if that issue it was raised your honor it may not have been articulated with those precise words it was articulated repeatedly in our briefing it was discussed at the it was discussed at the hearing and in our we furnished further excerpts of the record in connection with our reply briefing that identified some of the places in the briefing at which the argument we thought is only in the record for you most clearly made the argument to the district court that it was the district court's obligation to determine the existence of an agreement to  district court to determine the existence of an agreement to arbitrate i believe it is reflected probably most clearly your honor in the further excerpts of the record pages of i remember correctly i believe about pages six through sixteen and i believe that it's reflected in the for that many pages to tell the district court that you are asking the district court to determine the existence of the agreement to arbitra no your honor it was the reason there are that many pages cited are in what i just told you are twofold first it was raised repeatedly number one and i cite a number of the places it was  further excerpts of record fix and that's talking about whether or not the class waiver in agreement number two precludes delegation to an arbitrator and whether or not agreement number two constitute innovation is that is that what you're saying put the district court on notice as to whether or not it need to determine the existence of an agreement to arbitrate that's one that's one of the places your honor i as i said i don't know that i precisely worded it the way that you asked in the question but do you think it's fair to charge eric to the district court for failing to do something that wasn't clearly delineated to the district court that the parties wanted it to determine they do that to me all the time but i'm ok we don't like it here your honor to be fair to the district or i neglected also to request to reserve four minutes fair under the federal arbitration act is a quagmire i think the oral argument in this matter that the district court reflects these are although the standard is simply stated these are difficult issues to we clearly articulated your honor that agreement number one had ceased to exist we clearly articulated that the standard for the compelled arbitration was this two step standard that i talked about we it's you know has an obligation respectfully i would say it's got to apply the right laws and different people already have an obligation as well and to tee up the issues for the district court and i see it as a fall working together to try to come to the correct resolution so the parties have a part to play in telling the district court what issues it seeks to have resolved and putting forth the press adana of the cases that the parties want the district court to consider and of course the district court will do its own independent research but it doesn't do it separate and apart from the issues that have been framed by the party i completely agree your honor it is a cooperative effort and it's the responsibility and duty of counsel to inform the court i believe that we did i believe that we articulated the standard under section four and section two of the federal arbitration act and we cited cases like granite rock like van dusen like hieron that that articulate the standard the court's focus became based on its own decision the court's focus was brought to the delegation question and we didn't believe it so we argued the delegation question before the district court but we certainly didn't wave and the standard for waiver on appeal was certainly not met in this circumstance we certainly didn't waive the argument that this was this was a situation where the existence and validity of the agreement myriad case the moment case those cases all involve the issue of whether the delegation the second prong of the test if you will we certainly were not conceding below that focus on the second prong was appropriate but that's where the focus ended up being yesterday when there's a man bites dog aspect to this case usually your the the big corporations are the one who's imposing  arbitration on people you're the one who end up paying jams for both sides of the because the plaintiff doesn't want to be there and you know you're the ones who make these class actions disappear into arbitration don't don't you see the irony here i i don't know if i go as far as i call it irony i think that if you look at the at the federal arbitration act your is prudent your honor sides  parties the nature of parties whether it's a corporation or an individual depending on the context in which the issue arises they can end up on different sides of this and not all the power i mean you're the one who sins here's your new sales agreement you have you have to sign it today and you know you're when the corporation has all the power doesn't that enter into your analysis a little bit here i don't think it enters into the analysis at the juncture that else question that is not up one way to look at it tell us a picture right back it is that your position do you accept that premise i i would phrase i can't accept it i'm reluctant to accept it as you state i'm sorry judge schroeder for big too much of a lawyer up here i know i apologize the the question under under the f a a is is is there a valid and existing agreement to arbitrate in this case because there are two agreements the question becomes are there is one of these agreements the valid and existing agreements arbitrator the f a sell it are you saying that there is no  that i'm trying to pin down what your position is here because in the district court it appeared to me that you took the position that the second agreement was the no vacation which voided the first agreement that there was never the left in agreement but you theme to be thing here now that there is a question whether there is a new agreement at all and to me that's a different issue than you raised in the district i'm not saying that there is not an agreement at all it is our position it is oracle's position that agreement number two is the enforceable valid and existing agreements arbitrator what i'm saying is not that there's no agreement i'm saying the court never made a decision regarding whether there was an agreement or not it never determined is there a valid and existing agreement arbitrator and in that in that in the absence of that piece of analysis the court unfortunately was mistaken conclusion that cheek and esteem i'll come back and talk to  heard that the parties agreed that johnson's employment claims would be resolved through arbitration well i don't know about that that's one way to look at it that opposing counsel appears to be saying that there that the district court failed to determine the existence of an agreement to arbitrate and therefore we need to send it back with that problem and terminations to be may what's your response to that well it's actually f e r three the court said at the top and i took the beginning of the paragraph is not included but this is a court speaking there's no question that there is arbitration agreement the question is which of the two a plot that was the court the court found that there was an arbitration agreement the threshold determination was decide and but defendants actually were never challenging the threshold issue that defendants did never came in and said there's no no there's no arbitration no exact date and they get to decide this case and all the planes if you need damages and everything else in in the record they repeatedly referred to is that the gateway issue a gateway issue regarding which of the two agreements governments this is what the court said ok gateway issue well then what what do i normally decide that is a court except if it's been delegated here it was delegated it was delegated because the jambs rules are incorporated in the arbitration agreement arbitrator authority to decide arbitrate ability disputes regarding the agreement under which the arbitration sought plaintiffs admitted her arbitration demanded jams under green one the fact that defendant will introduce a second arbitration agreement to argue the first is invalid because it's superceded agreement number one means the arbitrator will decide whether the subsequent agreement renewed the first one in there and that those kinds of disputes  clearly and mistake the bully delegated to the arbitrator under jams of playing that eleven b is that that you think that's correct i think that is correct i think that the federal courts that have looked at that they have not been able to provide a very clear argument or cite to circuit opinions in which courts have found to the contrary but  they cite to one case i believe in with a district court case let me just check which case that was they cited to a district court case on one issue here saying that because but we dispute that that's a tompkins vs twenty three and me they but we do not believe that the court should follow that district court opinion because that case involved one involved in incorporation of all future versions of the aaa rules and it was aaa not jans but we a very similar and two there was an argument by the plaintiffs in that case the in the individuals who sought to bring a case that they were  unsophisticated consumers and thus that they didn't know what they were agreeing to and there's obviously no dispute that oracle which is a very large company which these documents knew what it was agreeing to and and johnson doesn't doesn't raise any question about what she agreed to she she is the one who's actually the the point is i mean oracle has to face the facts that this is these are there were agreements they these are the documents that they wrote and and they must be required to actually abide by it they keep on trying to fight this out in court which is so why ironic considering there are tens effort to actually have every issue resolved in arbitration  argues that because agreement to which is the one that is part of the hundred page comp plan because it has a class waiver a court will need to decide whether that waivers on in force before even it being sent to arbitration is incorrect johnson did not submit this matter to arbitration under agreement two she's not shall engine enforceability of the class action waiver in agreement to if in deciding the arbitron realty question the arbiter finds that agreement one applies as we believe the arbitrator will the enforceability of the class waiver an agreement to irrelevant on the other hand if the arbitrator finds that agreement to apply then johnson will basically have to decide whether she's either going to proceed on an individual basis or at that point side to challenge the the class waiver or call also argues that a court must decide whether class arbitration is available under agreement one saw also wrong again it  premature because the availability of of class arbitration under remit what it is is not before the court or for that matter before the arbitrator yet because they still have to decide which of the two agreements needs it actually governs here defendants argue that agreement two governs we argue they greet agreement one governs once the arbitrator decides that then it will be decided whether under agreement one a class or the arbitrator right so let me restate what i was just saying i was saying that i i understand the oracle's argument or to make an argument that under agreement one basically a court will have to decide whether class arbitration is a is appropriate because as your honor says that's we're not at that point yet the we're not at the point of saying we're under agreement one it's premature first off second off we would argue that under the plurality decision greentree versus basil that this is a procedural question and which should be decided by the arbitrator now the fact is though that because arbitron billet issues have been delegated to the arbitrator we don't even really need to get to the basil point because under jammed rules the arbitrator will make the determination of whether under agreement one class you use which arbiter ability provision is the one that goes to that governs what is to the arbitrator is appropriate is a question that the district court could answer well we would eat it couldn't answer it had it not been delegated i would guess that's what that's that was my question is that correct or not hands on the delegation that's exactly right your honor because it was delegated it goes to the decides which of the two provisions applies that if the arbitrator finds that provision one applies then there's a question of whether class arbitration is permitted and that again is an issue that that is for the arbitrator whether it's because it's a procedural issue under the basil view or whether it's just because it's a gateway issue that has been delegated to the arbitrator came down just within the last six months or so all of which held that this is this is an issue that can be delegated to the arbitrator simply by the incorporation of the rules of the arbitration for and both of these contracts have the exact same clause the clause the clause that there is no dispute that the same delegation provision is in both modification requirements set forth in the first provision were satisfied by the second provision whether work was should be stopped from arguing that agreement to is the governing provision based on its past actions of presenting agreement one is the operative agreement whether is it unconscious billeted is a number of issues that are before the arbitrator and there has been discovery in arbitration and there's been briefing before the arbitrator already on this issue as you know all the gateway issues were delegated by the parties to the arbitrator this process should continue that's required under the party's agreement and it's consistent with the liberal federal policy favoring arbitration  i have a minute need seconds to make four points so i apologize if i'm talking fast first of all judge robinson asked a question about where in the where in the record we raise the issue about the court having to decide which agreement was the valid and forcible agreement in addition to the cites i gave you before i would refer you to page two of further excerpts of the record with your response to opposing counsel's pointing to the record where the district court said that there was undeniably an agreement to arbitrate doesn't that take away your argument that the district court failed to make that finding it didn't make a finding that there was a valid and existing agreement to arbitrate it is not sufficient under the federal arbitration act to throw up your hands and say one of these two must be a pleasurable the f a a does not use the plural and it's reference to agreement to arbitrate the court that there's no question that there is an obvious choice an agreement that does not satisfy the requirement under the federal arbitration act or under the cases granite rock hieron except or on down the line that it find a valid existing agreement arbitrarily to look at it that's the way i look at  only my client looks at it with counsel that that's a very heavily fact dependent question if it comes to that it may be and the federal arbitration act actually provides for a trial of that factual question if it's a heavily fact specific issue and in the sanford vs member works case the court found that the court committed error in not actually conducting a trial and that it kicked it and so internet there is an agreement whether or not there is an agreement yes but it's not inconceivable your honor that in this case based on the position of the parties that the judge looking at this issue might reach a conclusion different than what she reached in her previous order regarding there must be an agreement or there must be an agreement to arbitra because to the extent that we contend that there is no agreement with respect to number one they contend no less vociferous only that there is no agreement in connection with number two so it is not i have to respect well that well there may not be there it's not necessarily a binary question here and and there has to be a determination is there a valid agreement to arbitrate it's not just saying it's illogical it sounds simple but it's illogical to say they say one agreement applies you say this agreement applies so somebody must be right i unfortunately i don't think you can necessarily reach second clue jand and maintain a logical stance on it the second point i wanted to make eleven b of the of the jambs rules completely disregards the class action rules that jams applies in this circumstance jambs class action rule one be expressly says that the class action rules apply where a party seeks to bring an action an arbitration as a class action council said it didn't matter that this was a demand for class action class arbitration it doesn't matter and it's dispositive on the issue of the delegation because there cannot in view of the class action arbitration rules be found to be a clear and unmistak say that jams cannot even administer it cannot even administer under rule one a eight a demand for class arbitration when the underlying agreement contains a class waiver the b agreement that we contend is the underlying agreement here