dresses the relationship between the predict its particular terms and the agreement as a whole here chases arbitration clause explicitly makes every term separable so that the remaining agreement will stay in effect even if any specific term is invalid chase now says it didn't mean to do that with respect to the class action waiver if that were so it could have written a very different kind of arbitration clause as other companies have that provides that invalidation of the class action waiver would invalidate the entire train but it didn't do that it did just the opposite and bu in doing so it made the class action waivers validity an issue for the arbitrator because its validity does not implicate does not raise a question of arbitrary billett a question of whether the parties should be arbitrating at all as this concept has come to be recognized under the federal arbitration that the federal arbitration act determines the allocation of authority between courts and arbitrators in cases that involve an arbitration agreement under the f a a courts generally decides it's over the arbiter ability of claims while arbitrators generally decide all other disputes the merits of the claims this framework was set out in the supreme court's first options decision although the supreme court hasn't provided a precise definition of what a question of arbitron filippi is it has provided illustrations that questions of arbitrary billet include whether the parties are bound by a given arbitration clause whether an arbitration clause applies to a particular type of controversy these examples were were given the supreme court's house and decision applying the first options frame or this court has synthesised these examples by saying that only when they're in this is in this court certain underwriter's decision that only when there is a question regarding whether the party should be arbitrating at all is there a question of arbiter billet he presented for a court to decide now and we respectfully submit that that's not what is presented here based on the way this contract court looked at the question of whether or not an arbitration clause allowed class actions and found that that didn't raise a question of arbitrary filippi because it didn't go to whether the party should be arbitrat made another point that i think is relevant here which is that the question of whether the arbitration clause in that case would allow for less accurate or not was one of state law and the opinion twice references state both also support the finding that the class action waiver is severable and separable from the arbitration clause under pennsylvania law of this court in the neti in the spinet it decision is where there is a question regarding whether the parties should be arbitrating at all so it's an issue of whether they're bound by the agreement number one and number two whether the dispute falls within the class that is  that have you ever contended that you represent the plaintiffs correct and a motion to compel arbitration was filed and in your response to that motion did you contend that there was any issue at all about arbitron realty of this  case we didn't our our primary response in the district court is that the primary argument that we're making here which is that we we don't dispute the requirement of arbitration that we question validity of the class action waiver but that provision by itself its validity doesn't raise a question of arbiter belittle it before you even get to that isn't this case unusual in that you have not contended that the issue as the class action waiver would render the arbitration agreement on forcible i can find another case where that it does tavern it does appear to be unusual in that respect without the who has an equal it's hard to answer the question nobody has ever tried this because in all of the cases that we've looked at the what the court was faced with was a dispute over whether the arbitration clause as a whole was in force but we never took that sort of that extra the on the class action waiver to get to the whole arbitration clause but you're not urging that you're not correct that this that the issue opposed enforcement of the class action waiver provision and asked that that question be reserved for the arbitrator but didn't oppose the requirement of arbitration the american arbitration association prohibits class arbitration disputes where the parties agreement bans class arbitration that seems to be your case here unless you obtain a court order now how how would you have taken a court order without a court f on class actions the that the association is not currently accepting for administration demands for class arbitration where the underlying agreement prohibits class claims consolidation or joint or unless an order of a court directs the parties to the statement seems to contemplate exactly what we're asking for which is to ask the court to authorize the arbitrator to decide this in aaa says if you if you have that then we'll decide to get that court order doesn't the court have to assess whether the class action and is conscionable or unconscionable isn't that exactly what the court did in this case that is what the court did in this case but the court doesn't have to do and really  first tee it up as a question for the arbitrator it seems that it had no choice because the agreement itself told the court what to do you mention the word in deliberately before but the agreement itself states if any portion of this arbitration agreement is deemed invalid or unforeseeable the remaining portion shall be in effect if any portion is the invalid isn't that a direction to the judge to determine whether any portion is say that the court should only should only decide an issue if it presents a question of arbiter billeted and referring to the f a i am referring to your agreement to chase the agreement or say if any portion is deemed invalid but how can you suffer unless the board analyzes whether the class action ban is invalid or not because v the question is the validity of this one provision and the contract doesn't say the court shall decide the validity of the class action waiver and it doesn't say the nobody asking for for non non severing i mean the positions are the whole thing is in forcible or the whole thing minus the one provision is but in either case there is something to be sent question there's not there's not a dispute of arbitrary billet iraq i sing out of the class waivers validity just doesn't conscient bill oddie implicate the binding nature of the agreement or is unconscionable it essentially a defense to the enforcement it's it's a defense to to the enforcement it looks at the the manner of formation and the effect of how you got in that case doesn't house and specifically say that that that at least under the first option framework that's presumptively for a court to decide and that's as you said we said before that's the is it binding on the parties and it doesn't fit within the class of deceit or arbiter i'm just reading here the presumption is that i mean that that language in the opinion this court has subsequently addressed and well i mean this is the way this court subsequently addressed it was that where i mean it looked at different kinds of waiver and when when you have an argument about waiver of a claim which arguably is what was at issue in housing itself we have argument about waiver of a claim that  the underlying merits and that's for an arbitrator to decide like the dispute in housing involving the n a s d six year filing but subsequent courts have said that when you have a question about waiver of arbitration  that that's presumptively for a court under the first options framework and so while i think that the housing decision subsequence our position because what we present is not a question of arbitrary bil he i'm not sure that that part of it as it's played out really has any bearing on has any bearing on this has mostly talks about the reasonable accommodation of the parties to the agreement given the limitation on the authority of the arbitrator in this cause why wouldn't we conclude by declan petion of the parties is that any dispute about the class action waiver would be decided not by the arbitrator whose jurisdiction is so tightly  here but by the court the well we position is that the severability clause push pushes the presumption the other way because the severability clause says it with or without that provision you have arbitration contract was that anything getting near or touching on or bumping up against class action would be beyond the authority of the arbitrator to decide and the court would have the side that consistent with what judge fuentes asked you earlier that absent  forum that your books to be and then you don't have a question of presumptively for a court to decide to what extent does your position really give the arbitrator the the essential right to determine its own jurisdiction does it give too much i'm sorry to the arbitrator court supreme court has caution about moving in that direction well there's there's no dispute between the parties over the arbitrator's jurisdiction over the claims the underlying claims it's a question of how they're going to proceed and that's how the supreme court looked at the dispute in the basle case and said that well one side says the arbitration clause prohibits class actions the other says it doesn't and that's a dispute over the type of arbitration that's not an arbiter billeted question under the first options framework that gets decided by an arbitrator and that and we submit that because does the same thing to this dispute and it would be very different if the if if chase had written the this clause like some other companies have to provide judge no that because the contract on its face says that it's several because nobody is asking  is nearly done on applications in your view in in this particular case where nobody raises the question of the let it is for them if the process here was well wait a minute which is in chase a it's valid i mean isn't that the essence of this case forum and so in that sense the you know where where there's a severability provision and where there is no party asking to invalidate the entire arbitration clause then in that situation there is not a dispute over whether its face that there's an absolute prohibition on class arbitrations that it's not up in the air nobody saying it's ambiguous is it isn't that sort of circumstance at all there's a clear prohibition and so then are we not talking about trying to figure out what the parties meant which would be a contract or part of issue perhaps but we're asking whether it's valid or not we are directly confronted with the issue of validity correct and before in that it doesn't implicate what form the party should be in that piece of back to judge when is question though that the way it's written it says if it's invalid it it's deps you through it present it prescribes the order doesn't it it says that determination one of two things is going to happen either it's invalidated and you arbitrate on seeking class classified asis or it's valid and you are betrayed unclear why the as what happened there was the district court sent the decided to arbitration the plaintiffs appealed that determination and the defendants basically are argued not that it should have gone to arbitration but that it was that the class action waivers and force help hell nobody was arguing that helped you with just one of the matter to what extent does your position rely the agreement says doesn't implicate whether the parties should be arbitrated that it's let me follow up on judge dismissed question in american express the court held that a challenge to the explicit class action waiver which is what you've got here was in essence a challenge to green to arbitrate and if there's a challenge to the agreement to arbitrate that presents an arbiter bill and he issue which is a gateway issue for the court going back to judge issues isn't that exactly what you've got  issue for the court no for two reasons one american express didn't address the effect of the severability provision which which need to be read to say this is not an arbiter billeted question as it you know it validity doesn't implicate the form that you end up there if you disagree with the idea that if you challenge the class action and you're challenging the agreement to arbitrate i don't think that lends itself to a one size fits all answer i think that you need to look at the terms of the agreement in order to understand the relationship between the specific and the general certainly in some of the cases that we cited on the last two pages of our brief where an arbitration clause s the class action waivers invalid the entire arbitration clause and we're even if it says the validity of the class action waivers for a court in those circumstances the issue is properly decided by a court doesn't matter if the the nature of the procedural issue here is really the entire something in this in this kind of agreement what is really the entire game if you will is the class action the dollars and cents that come out of the merits and it's really really irrelevant it's whether or not the party has a right to pursue it as a class action does that at all in fact how we should look at this case in terms of whether or not it's an arbiter of all issue or a procedural issue that's that's a hard question to answer the whole game but to the extent that it's that important and it that makes it sound like an aspect of the underlying dispute and not an aspect over where the dispute should play out and i think that the medicine it's not like england it's not like splitting attorney's fees or some of the other matters other cases have cited this this is the essence of the whole cause and he used the importance of that as a reason for holding it back from the arbitrator that really goes against decades of jurisprudence applying the f a a and saying that you know because something is important you can't send it to an arbitrator that's an impermissible line of argument is there no supreme court decision that discusses i mean you identified even one case in which the court held the challenge the enforceability of the expressed class waiver is a question for the arbitrator and that's not surprising because the supreme court decisions lead to the conclusion that the district court correctly ruled this was a question for the court and i want to start on an issue that many of you mr quirke touched on which is the discussion of who decides which the supreme court addressed in the first options case and what the course that there is the question of who the arbitrator or the court decides an issue of arbiter billeted is very different from the question of whether a particular underlying dispute is ar and in the supreme court's words who decides is a rather arcane question that the parties might not have considered and they might not have focused on the significance of having an arbitrator determine his or her own authority so in that circumstance the presumption i switched and the presumption is that the parties intended the court to decide issues of arbiter ability and mr quirke identified two issues of arbiter ability that the supreme court has identified in basil the court identified a third which is questions of arbiter ability include challenges to the validity of the arbitration agreement in house and which we've also discussed this morning in house how the court distinguished questions of arbiter ability from ancillary procedural questions those are questions like where the notice provisions complied with was there any latches here or any waiver in that case it was a statute of limitations issue that was actually a rule of the arbitration proceeding itself those kinds of ancillary procedural questions those are the kinds of things that the arbitrator can decide in battle the court then picked up again confirmed that questions of the liddy are issues of arbiter ability or gateway issues but in that case the court did not find that whether or not the case will proceed as a class action is a procedural matter in fact the court never reached the question of whether there was an issue of arbiter billet because it found a fundamental ambiguity in the contract so the question there was did the parties agree to arbitrate as a class and the court said because this is an issue of contract interpretation and because of the broad scope of claims this is a dispute contract interpretation is something that the parties likely expected that the arbitrator would decide and send the case to arbiter and i absolutely agree with this court's statement in lloyd's of london cave and mr barak has said the fundamental question here is there's a question of arbiter ability that the court must decide if there's a question regarding whether the parties should be arbitrating at all inforce ability of the express class waiver presents exactly that kind of question because the challenge to the enforceability class waiver is a challenge to the agreement itself it's absolutely incorrect that nobody in this case is disputing that this case should go to arbitration it's chase's position that the case should be arbitrated in accordance with its terms that all of the terms aren't forcible but that if the plaintiffs are correct they have challenged the enforceability of the class waiver they've then put into play a two step analysis first is the class waiver and forcible second if it's not what is the implication of that for the agreement as a whole and that question chase has absolutely under established delaware law and pennsylvania case would argue delaware law flies there the presence of a severability clause is not dispositive there is no case that holds because there is a severability clause under either delaware or pennsylvania law the clauses is is automatically several in fact what the law says is under delaware law the acid test is whether the parties would have entered into the agreement if they'd known the challenge provision was invalid so when chase put this severability clause into its agreement it did so against the background of delaware law in perea the third circuit explained applying pennsylvania law that the party urging severance that would be the plaintiffs here must show the essence the essential about the procedure that the parties agreed to hear the procedure that the parties agreed to in terms of what the arbitration would look like is an individual arbitration there's absolutely no dispute the question here is about validity is the express class waiver valid and if so what is the implication of that for the agreement as a whole this is not an ancillary procedural matter but what is the problem but is this a question as to whether the parties are bound by a given arbitration clause as was the issue in house i'm no but there are three issues of arbiter billeted at the supreme court is identified one is are the parties bound both parties agree they're bound to is is this a matter that the parties agreed to go to an arbitrator and here the underlying dispute everybody agrees is something that would go to the arbitrator but third identified in basil is is this a validity is the arbitration agreement valid all that and does it apply to this dispute but i believe basil came after house and in fact identified another issue of our which ability that's at four thirty nine us at four fifty two the court specifically found that questions of validity and again if you go back to first options the question of who should decide and i want to point out for your honour's this is not the typical case in the typical case it is the consumer who is arguing the class waiver is invalid and that invalidate of the contract right we did your honor and the way the contract reads as everything gets arbitrated correct that under all underlying disputes get arbitrated but in fact as to questions of  the class action waiver well and in fact what i would point you to is the elater case which this court where in the contract yes your honor i'm sorry i'm just looking for the contract language the contract provides that over here written exactly and then if you continue the court it says questions as to the uplink ability of the agreement or the validity of the agreement as a whole and this is critical it goes right back to those who decides unless it is clear and unmistakable evidence that the end is so i'm sorry go ahead just in elater this court specifically held the fact that you have a broad scope of underlying disputes that go to arbitration has nothing to do with whether or not the parties have agreed that issues of arbiter ability who decides the validity of the agreement itself goes to the arbitrator but if there's anything clear in the case law it's that arbitration as a matter of contract and we have here an agreement that defines claims in a very very broad way and we have here an agreement that has a severability clause that shows a clear intent a mistake of all intent and that this elephant even if the elephant in the room as some people would say you know this big provision there's no exclusion from the severability and you're now saying in your brief that it wasn't your intent it yeah in the christian cases a similar argument was made and the court talked about the fact that you know how can we now after the fact say that you're saying your intent was something different than what's clearly manifested in the provisions of the contract and let you not have deleted oh but class action waiver if you have had to do that in order to manifest that intent at the time absolutely not your honor and here's why look at christian christian had a general severability clause and the first circuit sad a general severability clause does not mean is all about but if you read the agreement a whole paragraph of it in brought in big bold capital letter says this will be an individual arbitration it also says that each of the parties to the arbitration agreement will decide the arbitrator which is not what will happen if there is a class arbitration none of the putative class members would get to choose the arbitrator and neither would chase for its dispute with them i mean what receptive to the agreement is that the everything gets arbitrary pardon me if you want to everything is central to the groom and that's that everything gets arbitrated i don't agree with that your honor and again i would go back to the elater case and go back to first options the supreme court said the presumption that abdel and i are both saying go back to your agreement yes and if you go back to all but only on an individual basis and you cannot absent clear and unmistakable evidence find that chase agreed that the question of who decides whether the class action waiver is ball is a question for the arbitrator but you would say that at the time that you added to this agreement it was your intent that you would did not want the chase did not want to arbitrate this case if there was presume that the agreement is to be construed against you no your honor you do not you look to the intent of the parties none of the cases involving severability if you look at the erie telecom where is there in the agreement that the intent is that if there is an objection to the class action of waiver that that must be decided by a court i would put it exactly the opposite way which is under first is there in the agreement that there is no clear and unmistakable evidence that the parties intended the question of the enforceability third circuit all of the courts the third circuit has routinely decided that questions of unconscionable of your questions for the court all of the cases that we've been talking about perea the neti and in fact in alexander where the defendant there argued this is a question for the arbitrator the third circuit said not in those cases in none of those cases is that we have the agreement by both parties that the matter should go to arbitration and in arbitration as compared to plaintiffs defending against a motion to compel arbitration on the basis that the arbitration agreement is valid but your honor the question here in all of those there was a very broad scope of claims that's very standard that the the subject matter of confess i conflated my question ok give me a case where both parties agreed that the matter the dispute between them was arbiter of will but both parties do not agree to that here otherwise there would accordance with the terms as why doesn't that say since you moved to compel arbitration that you want the arbitrator to determine whether or not the class action waivers unconscionable because as why isn't that the natural flow from your motion because arbitration is a question of what the parties what the agreement provides it's a matter of contract what your strongest argument for why an arbitrator is not well situated to decide this issue i don't believe an arbitrator's well situated to decide his or her own jurisdiction that's what all the cases say which is the arbitrator can decide matters in the four corners of the contract how do you interpret this that's what the court said in basil but here the court would be deciding is this clause enforceable as a matter in terms of general unconscionable of the provisions and if so is it sever a ball and that question goes to the whole the arbitrators entire authority question of unconscionable ity goes to is this section and forcible and if it is if it is not then the next question is what is the impact of that decision on the in force ability of the agreement as a whole honor in in both cases in all the cases that we've cited in the tracy case in perea and also when alexander all of those had the same severability clause that the court faces here which is of any provision is is found to be invalid then that provision can be severed and in all of none of those cases did the court say automatically you're right the clauses sever of all instead in all of those cases the court said we need to look at the intent of the parties we have to look at whether or not that clause is so simple that we can't sever it without basically taking out the entire heart of the agreement itself and the question that the delaware supreme court agreement your honor and under the restatement that choice of law causes valid unless it is on is it has some connection to the party switch here it has a connection to the parties because she says located in delaware in this contract entered into with the consumers in pennsylvania the contract was entered into chase chase is located in delaware so where the contract is entered into would be i would argue would be delaware but all you have to find here is that there's some substantial connection and if one party is from the place that's the chosen law then that is sufficient but regardless in this case well you know it would it would be the same you know says be the same regardless of which th exactly your honor and i appreciate that here under pennsylvania law perea and spin that he are two third circuit cases decided under pennsylvania law one had a severe villany clause one didn't the court did not say oh we ha it but what i am suggesting i'm asking you what are we to make of it you say you don't ignore it but you say it doesn't count the what how do you square that think about it but then don't apply it what we do with them and i don't think it's that it doesn't count i think it's that where you have an issue that is so central to the agreement so for example in erie telecom we're going tell me what it is instead of going to a case tell me what you've got in this record that shows us that class action waiver is central to this agreement you've you've got some pretty pointed questions from some members of the the court about you could have drafted it to say that and you didn't so what do you have in the document in the record that that would tell us yeah that really is central it's not just us after the fact going up and saying well we didn't mean that there's something in here that would point us to it yes and your honor a large portion of the agreement second as i've already this you just said this what is it you started to say in the agreement in bold twice it says what are you pointing to what's the language you're relying on right so this is central  it is that in all bold all caps at the beginning the court i mean the agreement says you will not be able to bring a class action or other representative action in court such as that in the form of a private attorney general nor will you be able to bring any claim an arbitration of the class action or other representative action and it continues from there it also provides further down that if a party elects to arbitrate a claim the arbitration will be conducted as an individual action neither you nor we agree to any arbitration on a class representative basis doesn't the case law when you talk about a central term we're not talking about something that's important to you we're talking  song that without which there is no contract such as a price term was not the case in erie and is about iced term is there any other case that you can tell us where it says aha if it's important then severability doesn't apply well the delaware companies have done you know what what is what case says aha it's not just the price term where you know without that you just have no agreement it's if this is really important to the parties we're not going to say the severability of  applies which case tells us that i couldn't find one and i think all of the cases that we've cited where the court refused to sever tell us that which is it's not there here there is no price term here the question is what have the parties agreed will be that will go to the our reason that if it's in bold and they care about it then they should have taken it out of the severability what did they agree so i could not find a case where it talks about you know something that's really important to us so we didn't real and i would point to the loudon case in the ninth circuit the pfizer case from the new mexico supreme court and to christian all of which said the class waiver is not separable it is central to the agreement that's right and so when the typical case your honor the typical case as i think judge randell has pointed out it's the consumer who's arguing that the class waiver isn't enforceable and as a result the entire agreement is on enforceable if the court were to  said that everything can be arbitrated here right now that's what really separates them from a lot of other cases i don't agree with that there was always i would invariably a broad scope of underlying claims but the supreme court has repeatedly distinguished between the scope of the underlying dispute going to arbitration and the question of who decides you have said that you would not have entered this agreement if it did not contain the class action waiver is there any support in the agreement itself for that proposition and i would say that the support for that in the agreement is what we've discussed which is the brod simply that it's a core portion of the agreement which then means you would prefer to not go to arbitration but to go into federal court with a class action in federal court zachariah that's exactly right and in fact in the typical case that's what the consumer would prefer right now i know that i know that but it's strikes me as very i think the case would want and so in this case here if the court were to rule there's a severability clause there for automatically this is a question for the arbitrator then in the typical case where you have a consumer who arbitration as i understand it what mr quirke is asking for is for this court to order the district court to send the matter to arbitration so that the arbitrator can decide whether or not the class waiver is in for all he wants us to order the district court to in turn order the arbitrator to accept the case that would be on my understanding of what he's asking for your honor and what chase's position is is that the court did exactly what the supreme court has has explained that it should do which is there is a question of validity here that is not a question that the parties expected or intended the arbitrator to decide and going back into the thing because you'd finding it very good that's a question of validity but if you're right reason it makes sense is that there's absolutely no law indicating that a disadvantage meant by an arbitrator in a class action is binding on absent class members so chase could go through all of the time and expense of class arbitration only to find that that absent class members are not bound by race judicata there also are incredibly limited appeals rights or review rights by the district court of an arbitrator's decision and chase would not have agreed to increase in terms of the increased liability and risk of a class action case would never have agreed to where it's not going to get the speed and then arbitration ways give you an arbitration in a class  you've lost against one consumer as opposed to thousands of them across the board but the arbitrator will have presumably right allow discovery on class action there would have been a class a class certification lot to do i understand your position that if you would put an exception to the arbiter to the severance cause and here that this matter would be very simple and your position would probably prev absent that we've got a problem and i'm not sure that you've you've satisfied some of the question when i asked about civil remedy here and if i could try then once again if you distinguishable what is a case it says if it's important or central and we can tell that it's important to the parties then the severability doesn't apply well and again i think the issue of central lady is exactly what was decided in erie telecom where it was a price term here the central agreement is to arbitrate on an individual basis where both parties get to choose the arbitrator and that is what central here and the christian case in the first circuit louden in the ninth circuit those cases specifically address class waivers and agreed that in fact the class action waiver is so central to the arbitration mechanism that under a general severability clause those were general severability clause those are several in the contract not within the arbitration for his no they were no so in christian there was a severability general severability clause in the arbitration agreement that in christian the court did sever but it was because there was a savings clause in the class waiver itself which we don't have here  i feel my time is up there any more questions good thank you very much feels like there's both a lot that the parties may actually agree upon and a lot that they don't and it's a little bit i'm not sure which is the most beneficial use for time but i'm going to start with some of the things that i think we agree upon which is the the the relationship between the class action waiver and the arbitration clause as a whole is is a central issue here and that it's  important under both political delaware and pennsylvania law the contract lud issue in delaware says that when finding contract provision by a lot of a public policy follows the well established rule that ms thomas just argued that you know if severance will not defeat the primary purpose of the bargain you can sever a provision and force the remainder here but by providing for a severability provision you know it said that you know however much those capital letters at the beginning you know however much that may have been meant to signify notice this arbitration agreement can go on without it in fact it's been any of the court addressed you know caution ability of a provision of the arbitration agreement for the plaintiffs challenge the validity of the entire situation clause and be the severability clause was ultimately served to cut cut down their arguments here were not reaching argument is not reaching beyond the class action waiver and by by not reaching any further and with the contract saying you don't i mean not forcing us to reach any further with nothing in the f a a or in state law forcing us to provide any kind of any less valid than one in court and page one of three of the appendix to place class action rules provide for the same kind of notice that would be provided in court their argument is that perhaps there would be some kind of collateral challenge at the end of the day the class wouldn't include anybody who wasn't down by an arbitration process and collateral challenges or something that happened after judicial class actions as well and so there's there's nothing that the plaintiffs are seeking here that the law in any way prohibits and the contract facilitates it by providing for arbitration with or without the class act waiver thank you very much good thank you thank you mr clerk and thank you mr holmes arguments were excellent will take