your question sure what standard are you sure we'll describe applied to disc you should certainly apply to novo standard your honor i think it's very clear from the case law for two reasons one was there were no factual findings level courts must place arbitration agreements on an equal footing with other contracts and and force them according to their terms now the contract here between seniors in each of the individual plaintiffs contains an arbitration clause and that arbitration clause made very clear that arbitration could be selected at any time up until judgement on last the  party rejecting arbitration was able to demonstrate substantial prejudiced that's the terms of the contract between sears and each of the individual plans under the fellow arbitration act parties can cannot avoid their agreements to arbitrate based on waiver which is the issue we have before us unless they establish three things first knowledge of an existing right to acts inconsistent with an eight existing right and three prejudice to the party opposing arbitration resulting from those inconsistent waiver of the contractual right to arbitration is strongly disfavored under the federal arbitration act thus any party that comes before the court arguing waiver of arbitration there is a heavy burden of proof and i would submit to the court that pla doubts regarding waiver or delay should be resolved in favor of arbitration what the court below failed to recognize was that the united states supreme court decision  change in the wall and in order to understand that intervening change of law after the put the arbitration agreement in the context of both arizona law and arizona district court case in arizona which was decided in two thousand and seven i thought did these a tele decision which was the california two thousand and two decision and the discover bank decision which was the california supreme court two thousand and five position so at the time these actions work commenced which was in two thousand and two and two thousand and three the california appellate court in  arizona like several western states look to california law to determine how the courts would likely rule in this instance it was very clear certainly under california law that class action waivers were on and forcible certainly just beginning in two thousand and two with the tele and then carrying through with the stouffer bank which was the california supreme court decision in two thousand and five and then ultimately auction and chose not to elect arbitration which was certainly their right at the outset of that the case it was clear that if the court were to apply arizona law that arizona courts would look to california and the wrist the very real risk to sears was that the class action waiver would be separate and sears would be faced with the prospect of class arbitration which can certainly look to the concepcion decision for a list of those reasons but among the reasons certainly aren't the complexity of the procedure and the lack of any type of review so  bank rule which was that the class action waiver was on enforceable under certain circumstances that were set forth in the sky her bank including the fact that it was a contract of adhesion that the case involves small amounts of money and that the plaintiffs allege that it was essential as to the fraud plaintiffs of that money so that's essentially the discover bank rule which the ninth circuit had adopted and  demand for arbitration of that the man was rejected by plaintiffs and then sears seven days later moved to compel arbitration in the circuit for that motion was  interestingly the circuit court judge judge judge billick concluded that the provision was not on conscionable but nevertheless concluded that sears had waive its right to seek arbitration based on its host litigation conduct the the area that the court committee was to focus on the period of time prior to concepcion as opposed to that short period of time after concepcion and you know i believe plaintiffs can see that if we were to look at the period post concepcion there's certainly no prejudice so what the circuit court did was fail to recognize concepcion was an intervening change of law and as a result decided to look at that time period and concluded on a very thin factual record that there had been prejudice to the pla as as your honor pointed out in your prior questions and decided to not look to california law which is what the arizona jurisprudence suggested it should do but did a survey of a variety of state laws and then nn is that both of those decisions said that in order to demonstrate unconscionable realty you have to demonstrate both procedural and substantive unconscio and certainly with all due respect to this court but what hutchinson failed to do was to follow california law which by the time hutchison was decided in two thousand and three it was was clear from the talent that california law california you know is a statutory state right but of pub else it's the only statutory state in the butt but they both as a talent discovered bank follow the federal life as opposed to any state or i mean what's the best case that you have for your position well concepcion obviously this is the the ultimate game changer in terms of whether class action arbitration provisions  down the street at the district court be the valentine decision for example was faced with similar facts where there was a delay in seeking arbitration and then the northern district recognized that  the terms of this particular agreement which as i said terms are very clear on the credit card agreement which which can be found at appendix thirty one beginning and these thirty one but that agreement here is the illinois supreme court's decision in kinko which found under very specific facts that the arbitration clause was on in force of all and in fact illinois supreme court said at commented that the united states supreme court had concluded that class arbitration was in fact consistent with the f a a well i think after conception you know that's not an accurate found to be unconscionable what what changes under concepcion is that you either throw out the entire arbitration but you cannot force arbitration provision but you cannot force a party to arbitration contrary to the terms of the agreement and that was the risk that sears faced prior to concepcion based on the discover bank rule which was subsequently followed because they move away from what they should have done and in fact what they did do over a long period of time and they fast forward into the future with the steps you don't and let me ask you this question when i hear a lot of arguments ok the average ration clause that was operative in each of the cases i'm about to reference was the same one that they assert here from two or three so that is they have similarity they know i'm the very same claude's they are telling this court that they just didn't think they had a chance of getting inforced in fact they not only had a chance three for three pretty good odds i'm the same basic clause it's your it's the same that took four million people out but in every instance where sears says they put this out patrician class they told something to people not once not twice but over forty million times and they said they have an arbitration agreement and they told those people rule they go through a period of time where they've already spent at a minimum six years of litigation motions to dismiss three mediations and a four legged naturae hearing to enforce a settlement agreement conditioning that they had that's not a record but it's the fact they say they expanded their duties as a point to class rest that was heavily contested class it was heavily contested this wasn't only down you can see what the file they multi year circe years and i'm prejudiced i think they're prejudice and there's something else and i'm not saying these people are looking for this but the long provides an incentive award for people that stand up as consumer advocates for the rights of other people in this country and that's the these opportunities all these rulings all things to see are sought and all things that they not only could have done better to in multiple courts here comes another case that they say is  never took away the case by case analysis it's a concurring opinion which just as thomas and when you put those together to get the five out of four what it says is you do work a spank case that's what illinois has always said know their demand they get seventy five hundred dollars and double their legal fees that was integral in the supreme court's comment and review now what the supreme court did say was you can't give special rules to an average tracing agreement it has to be treated like other contracts exactly ok and that's why we have the case by case analysis which existed in illinois which exists in the illinois you know i ok then why didn't she move on it well guess what they did and they won every single time when they leave off that has to be so significant they leave off that they won every time it can't be and ok that doesn't affect them here there's still a case by case analysis if you get that far but the essence of this case is one thing waiver everything they talk about is concepcion steps they don't excuse what they did before that except to say something that just can't be taken as true that they didn't have a chance they had every chance and they want every chance i just frankly to me it's staggering that we're here i think i i think after twelve years they're coming up to a trial i guess at least on damages maybe a liability and damage just and lo and behold something came along that has nothing to do with where they are or what they have  and they try to refocus everything wipe the slate clean as to what they did for ten years other cases are different when and utilize the same arbitration clause for all practical purposes that they want to put in here and the question  and they want to come in afterwards and say well now now we have this this is the arbitration was here whether it's in or out there best argument is they had him all right i was thinking even if it is and they had plenty of  there's an issue as to whether or not in the earlier one where any half is no longer in business it was of interest to the contractor that we say it was we say it's a rule you know a game changer in that degree but in terms of the waiver those are all realistically there are alternative arguments the waivers overwhelming you can't do that your pick telling you that they didn't know if this would be enforced and that's why they didn't take an action but didn't say what did they tell the courts they want in front of they put in front of them you know also interpol the what the supreme court said the supreme court said it got a look at everything you just can't say oh it's our tradition you know here in california we don't like that you can't do that because of public policy but nobody ever took away the basic underlying public policy of contest cannot be unconscionable that can't be brought about by the rest of that nobody justice scalia hits it on the head justice thomas if not ahead and they make a five four neck race of nobody ever said that somebody can sit on something all these years and suddenly come back and sprayed been the bad conduct under the rug and pretend because they're ruling on something that was not significant i'm to conduct that is before this court it's this is tory it's consumer advocate for twelve years trying to find people like that spender the money for travel sit in hotels or not or drive back or fry here and there or come after they had a hard day's work most or that that is that is an inconvenience maybe not like some of us in that office but it's an inconvenience the risk the risk of putting in a mine of pleading publicize a class notice when all across the world things that happen with with notices today but still clear enough i don't know what else they could have done to this day i think we can and with that i think that as any other questions  futility burden is the clarence decision which was an illinois supreme court decision in which the court held that there is no need to object at trial when it's apparent that an objection would be futile that that finds no connection to the case before us and certainly no connection to the waiver issue before the court it's only the guaranteed success not the futility of a pre conception young motion that would possibly evidence years pre conception no knowledge of a right to individual arbitrator plaintiff's claim up with respect to the other three cases we've talked about such a senate great deal a rule which was a southern district of mississippi decision was an individual arbitration the class action waiver was not at issue so it has no bearing on today and then vigil which was a louisiana federal district court case again rather than following arizona or california law looked to a decision in the northern district of texas and concluded that the waiver was not unconscio so i think clearly concepcion is a game changer it didn't change the law and that at the time these actions were commenced you can look to use a towel and discover to determine whether in fa