good morning your honor on may please the court my name is margarita salazar my co counsel courser l and i represent dr douglas hopper in this appeal we respectfully request two minutes for rebuttal by co counsel and i will keep time the sole issue before the court today in this case is whether arbitral immunity applies to protect the aaa the american arbitration association from claims for false advertising the district court concluded that it does but the district court misapplied the test for arbitron immunity instead it determined that arbitron immunity must apply because and i'll quote finding otherwise would allow litigants to circumvent our virtual immunity and the protections it affords by asserting a claim for bias that is merely cloaked as a false advertising claim the record at page twelve this is kid and is followed in this court in sacks versus dietrich according to the test side of the district court in in its own order the pivotal question and i'm quoting is whether the claim act issue a arises out of a decision an act record on page eleven the district court further even confirm that the functionality test by quoting the test as follows again and i apologize for quoting but this is important because the language is key here if the claim effectively seeks to challenge the decision and act of an arbitrator or arbitration panel then the doctrine of arbitron immunity should apply if not then the doct apply this is the test for determining whether our virtual immunity is triggered in the first instance but here the district court failed to do so he did not ask these very key questions that the that the district court articulated in its own or had the court properly applied the test unnecessarily would have seen that dr harper's claims here for false advertising as against the american arbitration association neither a rise out of nor actually seek to challenge any decisional act of any arbitrator or the arbitration association instead the facts giving rise to the claim for false advertising occurred long before any arbitrated were even impaneled much less any are were to decision have and haven't had been taken place immunity at this point your honor the only claims remaining is the claim for false advertising so we will proceed on that that single claim so worse it's a narrow issue today so the answer would be no doctors hopper's claims stem from a purely commercial activity of the sponsoring organization and not from any decisional act at all we know that in wiseman vs n a s d eleventh circuit case the court there held that commercial functions are not covered under the doctrine of opportunity as such our position here is that one thing has nothing to do with the other because the district court misapplied the doctrine of arbitron immunity and fail to ask the relevant questions that it self articulated in its order we respectfully the claim for false advertising is that dr hopper was harmed and he should be entitled under the california statute seven thousand two hundred seventy five hundred and that he should be entitled to at least restitution because the claims that were stated in the advertisements that posted by the aaa and not by the judges the statements were false all remind the court here are the statements precisely the statements were that the arbitrator's the fuse made that the panel were neutral that the panel were unbiased and there were other allegations that turned out as a dr hopper alleges were not true well i'm just wondering to what extent  n pursuing your claim that the arbitrator was biased and not impartial you are encroached you would be necessarily encroaching into the arbitrator's decision making arbitration the remedies for for dr harper would be to file a petition to vacate the award and which he has done in this period court and now is actually pending before the california court of appeal and that hearing is actually happening next week so in the meantime that happens and whatever happens in that case has absolutely no impact on his claims in this case and vice versa you claim in the dock the harbor was led to believe that these arbitrators were employees aaa yes or that they were that is correct and if and i'll remind our mind the judges that at this stage just merely at the pleading stage so we go back when dr hopper reviewed the materials before he decided what whether he was going to select the aaa or any other neutral  arbitration services provider such as jams or a d r even a private judge for that matter he reviewed this information he looked at it in the understood that this is what he was supposed to be getting this is what his bargain was going to be he was going to get paulie the aaa he was going to get neutral arbitrators who were going to do their job he alleges that those statements turned out to be false again this is absolute and separate and apart from whatever conclusion the arbitration panel alternately reached because the the the truth of  pretty good claim at least it seems to me challenging the part of the arabs that served the arbitrator's would be in the for the ledger client to think they'd be independent employees of the aaa and not independent contractors but on the claim that they had so they be neutral i think it's a little more difficult my mind because that seems to tie in possibly with whether they're biased or not and if they're biased it sounds like  found no case that's directly on point and i suppose that's why we're here today it in order to sort of get to where we need to be that i think the focus is that the lower court actually used a a a a doctrine that has a standard there is a port of entry you have to you have to establish an early forward for example in this case the judge one hundred percent relied on the doctrine of arbitron immunity and didn't and didn't actually use the elements for that test that to get to the answer instead it was sort of a foregone conclusion saying well because ultimately it's you're talking about bias we should we should the dismiss this case but that's not the test for arbitron immunity and again focusing on the the conduct here the act we're talking about a purely how how would you prove damages if you're right that the as were misleading without putting in evidence that particular apologise or the issue of damages here is that it really comes down to the claims that remain that would be with the california seventeen two hundred seventeen five hundred damage here would be limited to his restitution so how would we d i'd like to emphasize three points one that this is an attack on the national roster the aaa maintains the national roster and its maintenance of the roster and be arbitration an arbitration  rules as to how they are appointed and selected is an intricate part of the arbitration process therefore the process in the maintenance of the neutral of the national roster is protected by the rule of immunity second plaintiff's claim that all of the arbitrators not just the ones appointed but every arbitrator on the national roster of seven thousand are biased  after his appointed arbitrators had made a ruling that he didn't like is per se that the collateral attack on the arbitrator's decision or process last the plaintiff exclusive remedy under the federal arbitration act is not to sue the sponsoring organization but to file a motion to vacate the award that was done and he had that opportunity know what they're referring to in this complaint because they never say it they never refer to one of the residents have i advertising on they publish their list of the roster of nationals that is not advertising because in our betray ssion says that the else just says here is our new details in this case i don't know what they're referring to because it's not in the complaint generally they maintain a website and they have their list of arbitrators and includes our engineers it includes bankers are prepared many people in many different disciplines architects there's a absolutely not and that's what is either independent contractors in this case there is a list of arbitrators and it has the backgrounds that's relevant to the selection process there is nothing occasion who work in other jobs or for other arbitration says asians or even have their own companies certainly that's the way it is an almost all sponsoring agencies throughout the country to my knowledge it would be completely impossible  neutrals in this case the statement that they misrepresented that they were employees is created by plaintive by saying that if they were neutral they must have been full time employees they've created a syllogism if you will saying that all non salaried employees arbitrators by it's unsupported it's not logical but they say all non salary arbitrators are biased my arbitrators that have already been appointed in my case are not salaried employees therefore my arbitrators must be biased now this was raised after the arbitrators in the case three retired judges had already made a ruling that talk to hopper did not like and so but the allegation itself comes from  motion to dismiss was our first please tell the six well certainly they would have to they'd have to prove that allegation little day and that they were harmed by it have had the opportunity to file a motion to vacate if in fact the arbitrators the three judges in their particular case did any thing inappropriate or a biased they've had the opportunity the judge denied the motion on all accounts in its entirety you'd be giving them a second bite at the apple i don't know why viewers would be able to determine this when a judge was looked was was  looked at a motion to vacate and found that there was no grounds to vacate the award but the claim itself that all but all arbitrators who are not full time employees are is there spelled out in one think rule ten says that they've alleged corruption partiality the i have it but i don't know all of them but they did alleges that it should be set aside for partiality fraud corruption by the arbitrators and it was denied there are other standards i could get out of rule ten but it's evident bias if there was no evident bias in by these particular arbitrators i don't know why dr hopper would be given the opportunity to prove that all of the other seven thousand arbitrators not salary by the  he say i was led to believe that these people or employees or aaa unbiased now beholden to anybody and it turns out that may not quite be the case i guess you have to think if someone just says these are arbitrators whether it's rational to assume that well they can't be fair if they're not full time employees is that a rational conclusion since you found the twelve b six motion we're not quite sure everything the doctor is claiming i'm sorry since you follow the twelve b six motion we're not sure everything the doctor is claiming we're having there was no intimation and there's nothing in the complaint indicated these are anything in the way of full time employees or independent contractors what's important in this case is that if that was an even  concern of dr hopper or any party with dissipating in arbitration they could certainly ask dr harper didn't ask he didn't ask before selecting these arbitrators or these full time employees that's important to me he didn't he appointed them they made a ruling against him and at that point he decided that all of these people who aren't salaried employees must be biased against him i think he had the would indicate arbitrator's agreeable to them and they could get matched up i don't have the details of exactly how it worked in this case it's the rules are followed rule three is you know we have to maintain the national roster rule twelve of rule twelve which is incorporated into their contract states the procedures and the procedures or they can vary you can always agree on arbitrators from the pan if they don't agree on arbitrators then they're given a list of ten or twelve or various numbers of arbitrators who fit the criteria that they give then they cross out so many and that could be our usually it's three or five and they can cross out some and then prioritize the rest i'm going from memory here but then the aaa will as stated in the rule select those with the highest numbers the ones they the consensus by priority if i've answered the question i don't know if that's exactly how it works here though right i know how it used to work twenty years ago i just didn't know if they'd change the rules it's in rule twelve which is part of the record what we don't have is exactly exactly what happened here  but there's nothing in the record indicate that rule twelve was involved so they had a chance to select the arbitrators make inquiries about the arbitrators they got a chance to prioritize them on the rule twelve presumably and and the ones that best fit their interests and their review were selected but there was nothing in there saying their full time employees that critical fact simply been thrown into the mix because he assumed dr harper says he assumed it because it's necessary but it's not necessary rationally logically it's not necessary unless you assume that anyone is not salaried employee any retired judge is naturally biased