indeed an honor and privilege to be before you this morning argue on behalf of my client ben energy services which we refer to as best go throughout the argument thank you for to the court for the opportunity for allowing us to argue before you in these unprecedented times this is an opportunity for best go to present its appeal to this court on what in our view was a serious miscarriage of justice it took place last summer and subsequent rulings by the court in our view the district court clearly was erroneous in its denial of its motion to compel arbitration although the court had the standard of the law correct the court basically created what i will refer to as the ash standard when it clearly went contrary to undisputed precedent within the th circuit which is deemed to be sceptical regional circuit law which will apply based on the general guarantee case that i will talk about in a moment with trial and so how was the caught using its discretion in finding a way for judge thank you for the question i think it's clear when you listen to my answer st let's talk about the nature of the contract the rental agreement was not a negotiated hands length master service agreement what cajun did was through a series of actions went from a mere receipt of acceptance of product by unskilled laborers for benton who picked up the product then they morphed into a signature which reference terms on a website terms and conditions then after they did that for a period of time they then went to the rental agreement in question which has fine print small print on the back onerous terms and conditions that are a portable to this case it is undisputed that no one with benton authorize these individuals to sign this rental agreement nor was anyone with been made aware caging could have easily presented this is a master service contract and allowed for proper negotiations for the parties to agree to it that is a huge point in this case because judge in all of the cases cited by the district court as well as the pointis where waiver was found there was never an opportunity for a court to have two motions for summary judgment to decide the issue but allow the issue to go to a jury to deter herman whether the contract was enforceable and it wasn't until those motions for summary judgment were denied for questions of fact the judge ordered the issue to be decided by the jury  mediately when the jury decided that issue that this contract was a valid best move to compel arbitration now plaintiff wants the ability to enforce certain terms of the terms and conditions misappropriation of product trade secret successor a but on the other hand wants to ignore the arbitration provisions the nd point i'd like to make in response to your question your honor the district court was clearly wrong and in my view perhaps even bias in finding that best go hid its intent to arbitrate we have outlined nine separate occasions in our brief with citations which most importantly have disputed by the pointis where we clearly and unequivocally placed the court and the point if on notice that in the event this contract is deemed to be valid we are absolutely reserving our right to compel arbitration there's no dispute as to that with this court is trying to do the district court and if this court is allowed laus that ruling to stand is that  best go ways an affirmative defense in a separate proceeding which was caging one when the lawsuit was filed and we're actually determining it any issue here in cajun too but your honor it is undisputed in cajun one that in the footnote we put the parties on notice of our intent in cajun two it's even more clear twice in affirmative defenses various times in motions in the pretrial order in objections to jury instructions and in fact at trial the issue here is notice that the pay keo case that we cite this circuit two thousand and fifteen says a defendant has put the plaintiffs on notice of its intent to our bush arbitrate plaintiff's burden of waiver is higher the burden is already high because there is a presumption in favor of arbitration as declared by the united states supreme court but here where there was notice and read that case carefully and the cases cited in it which we noted in our brief there's no requirement be specifically asserted as an affirmative defense which we in fact did but the court the clear air of the district court order a line of paul on cajun one and the filed but more importantly before caging two was filed and it was brought up at that point when the point of sought affirmative relief on forcing the terms of the  contract and what about my st question because i understood i had you know one of the big questions here is what is the relationship between cage and one cage and two and there seems to be a disagreement between the parties you seem to put more emphasis on the fact that you close because we filed a standing pleading saying that the plaintiffs like standing to certain certain to assert certain causes of action in cajun won and plaintiffs importantly agreed with that assertion and allowed the case to be dismissed i think that is a critical point we all knew that there would be a new filed lawsuit in which all of the causes of action would then be properly pled and that's where course there would have been an immediate motion to enforce arbitration but until the court which everyone agrees the court is the one who has to decide the contracts and force ability intil the court made that determination it was not right your response to that but whether it was started in the alternative the threshold question had to be was there a contract once he decided that there was a question of fact and that issue cannot be decided the alternative position is mute what's the difference between a judge ordering that the contract is valid and in forcible and on the nd day we then file in motion to enforce arbitration in all with all due respect to the district court i believe that's a red best counsel indicated ten months the more important point perhaps is that it was just weeks before the st trial was scheduled to proceed counsel indicates that cajun agreed with the standing issue no kazan did not however kazan did not want to take the chance precisely what's happening here of having to try the case and have it held hostage to an  issues following a trial on the merits now in terms of all that that best appellants did as the court indicated they filed their own lawsuits jury even while contending that the very types of coins that they were submitting were subject to arbitration they never left nevertheless persisted in trying to submit those claims on their behalf to the jury a lot of this is you know actions speak a lot louder than words instance where best go repeatedly and consistently litigations the case on all points never tried to limit it to the breach of contract the validity of the contract but asserted and litigated all coins now the trial judge who presided over these proceedings and the trial itself review circuit and federal circuit precedent which is essentially the same for these purposes and determined after a rigorous analysis now if this that best show had weight arbitration by substantially invoking the judicial process in acting inconsistent with any intent to arbitrary and thereby prejudicing cation there is no nothing clearly erroneous is about the courts the trial court's decision or findings they are meticulous rigorous and well founded and they should not be disturbed on appeal the trial court subsequently contending that those claims are subject to arbitration and thus waiving arbitration as to all claims as the court pointed out and as the cases your honor judge stall would like to answer one question you talked about the delay at the beginning in the ten month time period one of the principles i think is very important as cited in the republican surance and the tenneco th circuit cases that we cited waiver is a factual determination depended upon all facts and not solely dependent upon the passage of time soul though that could be one factor that is clearly not determinative the  point that i would like to strongly assert is that you're talking about the plaintiffs are making the argument that best go cannot have it both ways that is precisely the issue however that the  decided vesco was forced if you read judge ashes opinion and the standard that he announced he hated to make the decision do we except that this rental agreement is forcible and move for arbitration or do we contest this contract litigate the case and forgo our right to arbitration and with the clear precedent of the fist circuit says is no party including best should be forced to make that determination and that alternative proceedings are encouraged and in fact mandated and allowed by law why is and allow plaintiffs to proceed with their course of action and causes of action not knowing ultimately how the jury would rule on that threshold issue there were certain actions to participate millett a geisha and that had to take place but those were consistent with our position that the contract was not valid for example pursuing a cause of action on the oral contract offer on those causes of action would have been there in our favor had the judge had the jury found that no contract existed so those positions or congruity and those positions are in harmony with the position that took it was not  till the judge instructed the jury and the jury came back and found the contract to be enforced that the issue of arbitration was right that is an undisputed point and when the judge says well what else could best o have done judge paul asked one of the questions earlier about could you have filed the motion in the alternative and i explain why that was not  position and one that would really be relevant at the end of the day best go had to preserve its right to arbitrate but on the same time defend the claims of the point if and then the rd position could only aggressively cajun was placed on notice throughout the litigation secondly once the court ruled on the contract issue then the issue was right the two points that i'd like to raise finally are the court relied upon two cases unity communications wireless and republic in support of its position for a waiver the unity communications corporation case in that case arbitration was properly denied there was no intent to arbitrate act saluting none for three years in the litigation that case was not even close in the republic case once again there was no intent to arbitrat made by the party seeking arbitration until days before trial the court used those opinions to support waiver and totally in our view and with all due respect ignored the clear precedent of the general guarantee case in recognizing the predicament that becka was in while preserving its right to defend the contract saying it wasn't forcible but at the same time preserving its right to arbitration if this judgment were allowed and this ruling is allowed to stand a party in my opinion would no longer have the right to contest for stability of a contract and at the same time reserve the right to the honorable court is adjourned until tomorrow morning at ten a