the aaa for damages the texas brine incurred in engaging in a four year long arbitration that arbitration resulted in numerous interim awards and orders all of which were vacated by the state district court judge based on evident partiality judge kleber specifically found in vacating all of those awards and and orders quote t v c was completely deprived of notice of substantial conflicts possessed by the arbitrators in his opinion vacating the wards judge kleber commented that these transgressions were both intentional and continuous the law should not immunized arbitrators for this kind of intentional and fraudulent misconduct that is the kind of misconduct the judge kleber found was intentional and was the basis for vacating the arbitration awards the federal arbitration act itself provides no arbitron munity instead ar a construct by the courts and it is the result of a rather facile analogy to judicial immunity but arbitrators and judges are different and because of those differences the same immunity that applies to judges does not have to apply to arbitrators in exactly the same way in other words the scope of the immunity afforded to arbitrators should reflect their differences with judges as this court recognized in d c ernst in the supreme court recognized i'm on page ninety nine of the record this is i guess will fifty two dollars d parties to an arbitration under these rules have deemed to have consented that neither the aaa nor any arbitrator shall be liable in any action for for rejecting the equable claim was the chick waited a claim for unjust enrichment and restitution with money damages but as we've argued in our breach those two are not the same and the supreme court in the chauffeur's case that hopkins case out  th circuit established that where a party is seeking restitution and the money that has been recovered is met is restitution ery that that is equitable it's an equitable remedy and is not money damages it's not a claim at law so the st are going to be that even if fifty two d is enforceable it doesn't extend to all of our claims in this case secondly as as we've argued fifty two dollars d is not enforceable in the louisiana law article two thousand and four of the louisiana civil code expressly prohibits prospective contractual waivers of the parties intentional or gross fault that cause damages and so to the extent that the aaa where they are betrayers when rely upon fifty t d argument is that it's not enforceable in this case and therefore does not preclude even the damages that texas pride is seeking in addition to the epical relief that i mentioned a moment ago and lastly the rule should not be enforceable because the entry into the rules in the submission to those rules assumes that the parties are all acting in good faith parties don't agree to enter into contracts and to abide by rules where all the parties are agreeing to do that in good faith and the facts of this case demonstrate that the parties at least some of the parties didn't do that and so certainly arguments the aaa and the armchair should be stopped from relying upon fifty two d of the rules because from the very outset of the arbitration before th the arbitrators were even seated at least one of the arbitrators intentionally failed to disclose conflicts of interest that would preclude him from sitting as an arbitrator and judge clay bear relied upon that fact in vacating all the awards issued by and that gets back to why the immunities that that arbitrator's are forty do not have to be the same as immunities the judges get because unlike judges the parties select the arbitrators here they actually interviewed them and they paid the arbitrators so the arbitrator's have a financial incentive not to make full disclosures of their conflicts and here the way that the district court has applied the immunity it doesn't recognize that difference necessary to protect an arbitrator against his or her own intentional or fraudulent misconduct there is no basis in law and there's no basis in policy for that moreover the differences between arbitration and the judicial process argue more strongly for a rule allowing for private parties to seek damages under these kinds of facts than in the judicial process because arbitration does not have the same kinds of safeguards that exist in the judicial process arbitrators are not bound by precedent they often do not issue full reasoned awards even when they do issue reason towards there is no review at the appellate level for errors of fact in law which the court heard about earlier in the other argument and on top of that there is no outside oversight regarding the arbitrator's there is no court of appeals there is no judicial commission that reviews complaints of misconduct on the part of arbitrators and consequently there absolutely no reason to extend arbitron unity to intentional and fraudulent misconduct in addition to that even if the court finds that arbitron unity should be applied the same way the judicial muti applies its not be applied dismissed texas bronze claims for ebel relief and in particular its claim for unjust enrichment which is a claim for restitution or disgorgement essentially saying that the arbitrator is intentionally misled texas br all of the awards that they issued all their orders they should were vacated the arbitration itself district court judge found it was tainted and yet the arbitrator still want to break retain their fees there's absolutely no reason why an arbitrator ship that engages in this kind of tainted process should be allowed to keep the fees that they've been paid by the party that is going along by that intentional misconduct favor of a private party against a state court judge proving once again that judicial immunity and therefore by by analogy which i judicial arbitron unity do not extend to claims for  for not enforcing an arbitrary warrant it goes soley to efforts that litigants may have to attack the award again referring back to the court's earlier oral argument that this is not a case about whether the award can be challenger not we've actually nothing about the extent to which eight litigant who has successfully vacated the arbitration panel's awards may proceed in damages or freckle relief against the panel or the optional association for that matter the other proposition the reasoning all three of those opinions show the absurdity of following a strict plain meaning approach to section one thousand four hundred and forty one b to the diversity a move all statutes are based upon protecting out of state defendants from the potential bias of a state court a form defendant rule has recognized for decades that defendant when when an in state addition added the language properly joined in serve as the basis for the plain meaning approach adopted by the other courts but the majority of courts that have looked at that language in the legislative history of the amendment have found that the language is inserted not to defeat the form defendant rule but to deter a plaintive from fraudulent lee joining or improperly joining an in state defendant in compas and the facts next case show how absurd it is to it's enforced that language strictly and that's because in capas there was an out of state plaintiff who sued one in state defended there was no concern based upon the traditional concerns of diversity for an out of state plaintiffs or else you depended being subjected to an in state biased court and there's no reason be concerned about fraudulent jointer because it was only one defendant that defendant was a in say plaintive there could be no question that the plaintiffs decided and wanted to pursue claims against that defendant was the only one but following a strict meaning interpretation of four thousand and forty one b two it's impossible to avoid that result as a result we argued that the court should reject that because it promotes a form of gamesmanship that premise is diversity and removal solely upon the timing of service lawyers can tire selves into when we're confronted with a statute or a contract that we don't like my opponent in brief said that the district court's interpretation of the removal statute was hyper literal now i don't know if there's a difference between hyper literal and regular normal literal but i do know this the judge had no other principle way to interpret this law you should have been here yesterday we had an advocate of the other side only had a stature and you had a bunch of cases but you know signed only had a statute you'll have to work with that concept i won't be out on you think about this particular statute the judge and and leaving aside all of the reasons why we can't look at legislative history all the statutory canons that prohibit it here there is none courts have in fact found none and so the old adage about legislative history relying on it being like looking across a crowded room and trying to pick out a friend there's nobody in this room there's neither friend or foe in this room all we have is the language of the statute now that hasn't stopped some courts on both sides of this issue from presuming what congress must've intended in the  when they passed this statute and we've seen it on both sides of the issue the plaintiff in braces the minority number of courts who see the issue the plaintiff's way but then along comes just this year judge solomon from the nd circuit in the gi case joining the rd in the six circuits and the nd circuit says you know one of the reasons congress likes to pass statutes with bright line rules like this is they work their efficient they're predictable they're easy to interpret and we think that's what they did here and the plaintiff says in its reply brief well that's just speculation well you can't call it solemn congressional intent when you like the guesswork and rank speculation when you don't this is what happens when parties who are completely unburdened by any actual legislative history get in the business of trying to figure out and put their own spin on what congress meant the bottom line is we can't wish a different statute into existence by imagining language that's not there it's like when lincoln said how many think it was lincoln how many legs does a dog have if we called the tail a leg and the answers for because calling the tail a leg doesn't make it a lake and there's no leg of the type they're trying to create on this dog they talk a lot o removal question about exception it's that the statute couldn't have been intended to be applied this way in the internet era let's not forget they sent us a copy of this petition when they sent us a copy of the petition and forty six dollars our window opened immediately to remove the case when we got the copy of that paper it worked it would close in thirty days during that time period congress didn't tell us we had to wait any specific amount of time to remove the case whether it's one week two weeks whatever it might be it wasn't required by statute it wasn't required by the law this circuit in the delgado case congress could have provided and maybe it's an argument somebody can present to congress that they should provide such a time period but the statutes been on the books seventy years and we're still waiting for that particular time period so the aaa in this case of they old itself of a ri created by the law procedure created by congress consistent with the consensus interpretation of the law the district courts in this circuit and remove the case now was their urgency you bet there was urgency there was an ongoing arbitration in this case that the aaa had been trying for months to reconstitute a new arbitration panel that aaa wanted a quick resolution ready of this legal issue now as it turned out maybe we weren't urgent enough because before we were able to get the district court to rule on the motion the plaintiffs asked the aaa as an institution to recuse itself from handling the arbitration aaa said it couldn't do it plain went to the state court sought an injunction in the procedure just ground to a halt for almost a year so i don't think we were urgent enough maybe in getting the relief that we got why am i pointing this out because the  of a bright line rule in a statute like this is you don't get into this tit for tat back and forth factual question poll about who intended what who's gaming what who's right and who's wrong you just apply the statu and you avoid what the chung court called the expense delay and uncertainty of trying to figure out what we should do in these cases they cited some exceptions that they at their asking i guess you in the  instance to apply they they didn't argue these exceptions to the district court the tedford case that they cite is no longer it no longer applies in this circuit since the decision this summer and those cases were about extending deadlines when a party took an action to frustrate a time period created by congress for the doing of an act this is the opposite there is no such time period once this case was removed to the federal district court and subject matter jurisdiction existed which everyone created by congress in the governing statute we also argued improper jointer the district judge didn't reach that issue didn't have to but that's a good segue into the immunity argument now i want to start  with the rules question you asked judge oldham this is actually my colleague's issue for today so i'm not going to try to explain to you why something that they called a petition for damages that's the title on the document in which they're seeking to compel us to pay a sum of money to them isn't an action for damages but it fits into this exception for prospective injunctive relief that they stretched to mean equitable really that they stretched to mean money i'm going to that to him but i'm just teasing it for you on that question since it's the tripoli's rules can we talk about just the tripoli's part of it i mean i'm aghast at the broader arbitral muni questions implicate other things that perhaps the trip latest one talked about but what do we do with the argument that equitable relief is neither an action for damages or injunctive relief i mean it could have said actions in equity or law it could have said you know or any other clean for relief but it does seem to specify any action for damages or do you have to fall back on some broader or my st response to that would be the supreme court has recently reconfirmed that would be a tight reading of that particular rule but the supreme court has instructed that when you enforce those rules and this is an epic systems with certainly not only epic systems that you have to rigorously enforce the rules of the arbitration sponsor the policies underlying the f a a and the supreme court's decision animate your interpretation of that rule my argument simply and my colleague is going to going to tackle that specific question but damages are damages now you can call it equitable relief but justice scalia has said when you're seeking some either pay a sum of money on a care what you label it and the immunity cases we've given to the court consistently say a number of them say you can't label your way around immunity when you have good lawyers like this if you labeled your way around immunity or around a rule and i feel quite certain the intention was damages or injunctive relief was covering the spectrum of what the aaa has ever been sued for in its almost one hundred years of existence and  i certainly don't want to say that they should have thrown in what a lawyers release would look like with fifty different descriptions of what was being released attorney fees and all the rest of it perhaps that might be something to be considered  given the interpretational age of the supreme court has provided on these specific rules particularly that rigorous and foresman i just i think it would be a travesty to interpret it that way given what the purpose of the rule was what epic says is that we're supposed to interpret  this in a way that is consistent with the arbitration or consistent with the agreements that the parties reached with respective arbitration but these are obviously the the tripoli's rules written i mean this is not a labeling game that the plaintiffs are playing i mean the assume that rule fifty two d to protect itself and say hey if you guys want to invoke the aaa is arbitration provisions you just that's why by doing so you're consenting to the application of this rule that the aaa wrote it's sort of like the sovereign writing its own rules of sovereign immunity but it didn't it we didn't want any more specific than in the text here i feel confident that damages and injunctive relief at the time it was written was intended to cover the landscape because that was what they were familiar with and i would again i would again call your attention to the creative pleading ways that start to erode some of the principles that issue but you make a good point and i would point out that the the the rules aren't just interpretational guides it's the supreme court has said we've given you the case they're incorporated into the party's contract and they they have the force of the form selection clause let me turn to let me turn to  unity generally because we have made several arguments arbitrarily in a generally justice scalia again and burns versus reed he takes it back at least to the s so the doctrine actually predates the implementation the adoption of the federal arbitration act the purposes and goals of the doctrine have been stated over and over and over by the courts i'm not going to repeat them here i wrote down counsel argued that there was no basis in the law for  arbitron immunity and my argument would be that not only has that ship sailed but it's been around the globe i don't know how many times as a number of cases that have recognized it and in our betrayal immunity cases in particular the courts have noted unlike judicial immunity that the policies of the f a a speed efficiency in expenses this animate the immunity doctrine as well and make it different in that respect so our court has never recognized it right it least in a published opinion we've done it once maybe in an unpublished opinion the concept of arbitron unity you've done it in the in the hudson case you've done it in the hawkins case you've done it in the jason case whether all of those  unpublished or not i don't those could be federal appendix reported cases but i don't know where where would the judicial power come from to immunize a private entity from a lawsuit so think it stems from judicial immunity it actually predates you know the formation of the republic it goes back so we can debate i'm sure for much longer than three minutes whether article three of the constitution allows federal courts to immunize federal courts or perhaps even not so how would a federal court i don't even understand where the the what the argument would be as to where the power would come from for a federal court to say a private entities a meeting so that so that when the supreme court recognized it formally and then it was extended by these other circuit courts to judges the concept was that as a matter of a matter of federal common law it was so important to have freedom of the situation making freedom from harassment performing these roles busy that yes there are private entity but these are judicial functions these are decision making functions in this particular case that the aaa these large complex commercial case docket the ten million dollars and up cases a again according to those recent supreme court cases the text of the f a a was designed in a very specific way it provided a remedy counsel said there's no remedy there is a remedy provided by the f a a and the f a a says in the cases that judge so mentions say you cannot rewrite the f a a i want to point out one case to your honor on you on that subject i still have a minute but i thought you might ask that and there's a case called statute operated in such a way as to be a congressional expression of intent that immunity did not apply to the particular individual exercising the decisionmaking function in that case and what the court in essence said was that given the doctrine of immunity judicial immunity in that particular case was so powerful that congress would not have imply italy authorized a suit in the face of immunity it would have to be absolutely express the decision really struck me when i read it because the immunity goes back so far predating really the the enactment of constitution goes back to medieval times according to forrester case that it's acquired so much importance because of the critical principles that it protects your honor that if even if congress comes in as it has by the way under one thousand nine hundred and three you can follow declare an action for declaratory relief against a judge cut congress has to immunity and i think the most important point i can make to you is not a single court has ever held that under pulliam or any other theory you can have a monetary award against an otherwise immune judge or arbitrator it simply practical effects of such an exception it has all of the bad effects of litigation on all the traders all of the looking over the shoulder all of the worry all of the disruption and additional expense in really functions only as a sort of consequential damages waiver in an agreement one can imagine that as we lawyers go to seminars an instruction will be every time you file a motion of vacate under section ten pair it with a suit for equitable relief get your money back from the arbitrator's again no court assumes of course that the aaa doesn't change the way that the rules written i mean obviously can change the can write this or they want to do so the practical impacts are not particularly obvious when we you're dealing with money that is the classic form of legal relief and it's not enough to say that one is calling their theory restitution or in this case unjust enrichment with the opinion teaches us is that restitution in equity was typically available in equity means reclaiming particular funds or property in the defendant's possession if the funds have been dissipated your general unsecured creditor and you have a a remedy at law typically this requires a theory of constructive trust or equitable in which we reject in this is going system we've cited this court recognising that as well and again i would just point to this notion that there is no case that awards money under any theory in one dollar imagines when we have a kit or the argument could be made every time so i certainly understand the argument about why  what is i guess federal common law since erie we don't use federal common law to preempt state or claims so can you help me understand where the power would come from to create the rule i can certainly try your honor and in cases like jason hawkins this court has drawn inspiration from the f a a and they say in light of the federal policies reflected in the f a a our patrol immunity is essential and the court used that word in jason immunity is essential and so this is an aspect of the f a a itself it predates the f a a but courts are drawing inspiration from that the other principle your honor would be the exclusivity of the f remedies and kori which this court has cited a few times recognizes that section ten outlines the remedies for a party dissatisfied with a particular result and again the argument is under the f a a that essentially by expressing these particular remedies there really was is an exclusion of other remedies and then i would just go back to the aaa rules and with leave of court we could submit a letter brief on this i believe the aaa rules also prohibit the arbitrator's from being a party in a case they cannot be sued they cannot even be made witnesses and i would suggest that as epic systems reminds us the f a a essentially federalizes those rules and i think they have to be enforced then as a matter of federal law thank you judge apple lease criticize texas brian for not wanting to follow the strict terms of the rule statutes and four hundred and forty one dollars b two but they have no problems ignoring the strict terms of their own rules as well as the f the f a a says actually nothing about arbitron unity in the f a a also does not preclude these kinds of suits the texas brian has sought contrary to counsel's argument it's not necessarily every case that you have they could share that will result a subsequent lawsuit but even if it did with respect to the return of fees what is the harm of the inequity in that when you have arbitrators who intentionally fail to honor their own obligations and that goes directly to the rule that the aaa road as has already been discussed it expressly does not cover anything other than damages and injunctive relief now could the aaa do that it could do that but the courts opinions draw distinctions among different types of equitable remedies and aaa did not include every up or remedy in it's own rules and quite frankly all these parties should be stopped from even arguing that they are not required to make restitution in addition to the tripoli's rules it also had the arbitrators sign and provided to all of the parties by the terms of payment and the terms of payment at page one thousand one hundred and seventy three of the record specifically says that were the arbitrator's fail to make timely and full disclosure they've committed a quote unquote serious transgression and when they commit a serious transgression like that they may forfeit their feeds so if that's true why does texas brine or any other litigant who participates in arbitration have to wait around to find out whether or not the aaa is going to enforce its own rules whether it chooses to get the money back the texas brine and others have improperly had to pay because of intentional misconduct counsel also argued that while there are no cases like this in other cases where the remedy has been used to get feedback and specifically made reference to judicially in the case as well that just proves the point the point that i made initially which is arbitrated and judges are different there's no equitable injunctive of unjust enrichment claim against a judge because we don't select and pay our judges we do select and pay arbitrators and when they intentionally lied to us about their conflicts and that results in a wasted arbitration and a vacation of the arbitration panel's awards then the parties are entitled to get their money back this is a claim soley for restitution  equitable sense money has been paid to the arbitrators and aaa they are not entitled to that money and it should be returned and that's exactly analysis the hopkins case of the th circuit found relying upon the supreme court's opinion chauffeurs teamsters and helpers as well as the great west life insurance versus knutson case in addition to that as we've argued article two thousand two hundred and ninety eight louisiana civil code views this kind of unjust enrichment remedy as an equitable remedy it is outside of any immunity that the arbitrator can claim because even judges do not have this kind of judicial immunity just as as was noted in the questioning earlier there is nothing in the f a a that creates this kind of immunity so there is no there's no statutory prohibition against this court limiting any kind of immunity that may apply to arbitrators we're not saying the purposes appeal that there is no immunity we don't need to argue that here but even if there is an immunity it's not extend to intentional and wrongful acts let me switch briefly to the snap removal issue there is a different kind of gamesmanship involved with still remove the case and can and can survive a motion to remain and by proving fraudulent jointer but if we take this strict literal interpretation of one thousand four hundred and forty one b two it's purely a race it's purely