it's actually litigated and necessary to the decision when explaining its issue conclusion ruling district court identified the identical issue as something that wasn't involved arbitrator doesn't have the authority i just don't see how you i don't think it's a question of stopping them it's a question of you taking irreconcilable position to take the victory we won on virtually everything we have to give up rights that we preserve on the others now in this case maybe that seems ok because we did do very very well in the  case it might not be so cut and dry if things came out a little closer to even or we only one of few things to say that we would have to surrender our right to challenge the deprivation of our right to be in court to take that position not it doesn't reflect on your absolute you know actually pretty good success in the arbitration let me try it another way you're on the traditional framing of waiver refers to the voluntary relinquish of a known right we did not go before the arbitrator voluntarily we were dragged kicking and screaming and to this day we point out the reasons why we didn't belong there now to say that after because they're clearly in stuff they can't say that the arbitrator lacked the power they said that she had the power so there's no issue there when we go before the district court and we were qwest confirmation the other side can say wait a minute the ar lacked power they are clearly a stop i think there's no doubt about that and i guess the question is can you go in there and ask for it kind of like bifurcated and you know we're the only comparable things we have is to think of it in a more federal court terms one where the party won the didn't get as much as they wanted so they went to arbitration they did receive a positive result they came out of arbitration they went to district court now the opponents said you shouldn't mo because there wasn't a split in their case between things where they prevailed and they were expecting it and things were they lost and they were challenging it flat out they said we petition to confirm and they were able  came out of the arbitration so even though they petitioned to confirm this if i recall that and help me out because you're more familiar than i am with that you didn't have a situation where you had the multiple claims in that case and you  trying to parse how or between some plans and others that's true your honor i suggest it was worse because they went they went all the way they didn't they they moved to confirm harriet so they didn't hold back on anything until the district court enter the judgment with which the party was not completely satisfied and on appeal even though it had done something that at least is analogous it's not beyond with respect to the other issues in the case with respect to how we decide the appeal to basic issues are here was there a final education was there an identical issue and because of the way the issues in th to attack the state court determination in that respect right we wouldn't know your honor we're not we're just a court whatever the state court did the state court did we're not seeking to attack it the state court certainly made and the reason for that is that the state court acted with respect to our embezzlement claims and our collection claims the state court decided those went to arbitration and but i'm not talking about that aspect  but with respect to the proceedings that is involved in this appeal the only claims are the specs huge and counterclaims those were never before the state court and the claims that were before the state court were not before their district and that you are by the way is why the district court was wrong when it identified the identical issue the district courts that it those were never before the state court now with respect to them whether seche gender spans the district court identification of the issue we don't believe it does we think they're focused on the other issue claiming that there said about who has the power to do it was inconsistent with the court's assumption and exercise of the power to resolve those important questions because of that we ha collection claim were are trouble those are not before the district court in this case or relevant decided two things one that there is an arbitration agreement between these two parties it exists in one of the yes that's correct and my understanding is that the i backed off the table now so i want to address that unless you want me to but there are there that's addressed in our briefing now under the l p s a in arbitration agreement exists under california law judge mckinney recognized that that means arbitrator so it does not rest with the courts that's for the arbitrator to decide judge mckinney agreed so he said we have an arbitration agreement i must send you all to and she now everything is everything is with me and arbitration and therefore i just i don't just and they want a bunch of money well your honor they're there are differences and opinion about what happened in this arbitration and in fact i'm not surprised in fact mission specifically requested that the arbitrator allow them to call themselves the prevailing party they want to advertise this and the now let me refer let me go back to what happened here after we get our state court decision richen really litigated that same issue to whom the authority to decide our richard really was delegated that very that really just collateral estoppel that we would invoke because they're not really seeking to upset they might disagree with that they want a different decision but they're not asking to undo the state court decision they're simply asking the federal court to make a decision on which here and if i'm if i may just continue with the history that leads to why this is all moot judge we're going collateral estoppel on the delegation issue he was very aware of what judge me can you decided if you look at his decision he states judge mccain he decided there was an agreement to arbitrate and that delegation was at the delegation on the question of arbitron body was to the arbitrator he made that very clear very same claims and in their words and in their conduct they've now forfeited the right to challenge that any further and when i say their words i refer to their filing before the district court where they represented to the district court that there is no award that was issued within the full authority of the arbitrator now once that's done nugent cannot continue to stay on jurisdictional grounds well on the claims we don't like we still think the arbitrated do not have up here so i think i'd like to end with a few remarks the transcript are in our brief but i can give them to you now if you'd like the transcript sanctions discussions are primarily up here just you know are two five five to two five but you'll see that if you read the entire we think we very likely will we just haven't you have to do that in your very rule thirty we indicate in our three that we will be asking for sanctions but i believe we have until a certain number of weeks after the decision of this panel to actually right there as plain as day on page one sixty seven in the excerpts of record what they're saying when they make the move to start is that we lose our right to review because we want that's what that boils down to shater the state court order that raises an issue that's identical to the issue before the district court it wasn't final it didn't amount to anything was january twenty ninth and we aren't seeking to happen any impact on that as far as we're concerned it is the non final order that doesn't affect anybody's rights in any way how does your trademark and free speech how do your free market free speech claims survive the state court's decision as to what was are going to rule and the other issues of arbiter ability go to the arbiter to points there are two points first of all with respect to when he dismissed our complaint because those counterclaims those were never before the state court they were only before the district court judge where it dismissed our complaint then that's when we went to arbitration on this claims we had no choice at that point he clearly