to avoid the courts when you are great and then i read the kyocera case and discovered there was another arbitration agreement like this and that our courts did no dates and you can't do it like that and the first decision sticks but i was thinking why if you negotiate an arbitration agreement that has such an extremely large role for the court to play it's really more like hiring a special master with an extensive review by the district court and i have no reason to think that the parties would have agreed to arbitration had they known that they would not get that sort of extensive judicial review and maybe they do want to read arbitration on those terms but they didn't and i have no reason to think that they would so why don't we just toss everything out and just stop over from scratch california law both parties have research oregon law to see if there is any substantive difference between the test for severability in oregon and the test in california and the answer is there is not or is whether or not the illegal provision hermie some other part of the agreement and the second part of the tell us is whether or not the separation of the illegal provision replying to the contract also provided a very detailed provision for judicial review under the federal arbitration cap but also in extra statutory terms other document and removing that provision would make other parts of the arbitration agreement unintelligible or out of force of how do you deal with judge other concerns that without this street in today's appeal that's why applying the law of the applying to a set forth by this court in this decision there is no substantive difference either in the law to be applied or in the form of the harm you it was a distinct section for legal review from all the other terms that were provided for for the rules of the arbitration we know today's decision will have far reaching and not only for future lead against but for litigants before the court so the court knew on fox a fair decision would change the law and would change the position of parties even in pending cases before the court given that consideration the ninth circuit not just in panel decision but on top felt that it was more important to immediately clarify the law sold  future cases could proceed under the correct standard of legal review and for that reason the balance of consideration between immediately correcting the law and between affecting the rights of litigants already before the court was drawn in it please the court my name is michael garone and i'm representing hall street in this matter there are a lot of issues in this case and that apparently the teller is elected to proceed basically on the first issue which is the kind of star case there are the parties argued that we would have never entered into the agreement had it not been for that you dish will review provision in this case we have evidence to that effect your honor you look at the joint status report which was  prepare written findings of fact conclusions of law and allow for judicial review then it goes on about the judicial review stand that was the central purpose of the arbitration  circumstances of the parties and you have to look at the terms of the agreement they entered into to determine if the contractual causes or or part of the contract or to visible or not for purposes of  severability and in this particular case you have to then look at what the parties did in this case and i guess i was trying to answer or put forth my position on why this is different than kyocera in this case the parties have the right to  you were victimized by the court well and your honor that's one of my points is this is really not your classic f a i don't see why that matters i mean the judge could make you sign an arbitration agreement he could make you cry to mediate that's altogether and that's why we really don't think i stare even applies here in this case we have a court order which basically approved the parties desire to engage in a more streamlined hear you want to put this in front of a third party identity and another person other than me let's appoint a special master and we'll have the parties split the cost of the special master and they will do it under the special master rule f r c p fifty three  it's the same scenario what he did here he put it you were calling it arbitration what is this truly it really arbitration or is it really just a glorified or another way of really appointing a special master to decide and agreements which provided for me to review the creation i think the judge would just have to do it under f r c p fifty three and it s it's very similar to what the judge did here we had an arbitra we call that arbitration but the judge would have the authority enter f r c p fifty three to do the very thing he did here the parties could agree upon the essentially the same standard of review that we have here and just do it under the interests of of one of the make the party split the cost of special master and have him the trial judge to review the special masters report under the rule which the rules of provisions are essentially the same as what we had here which was denied over review our legal issues would be exactly dispute because there was an arbitration agreement which required that the parties present it to a dispassionate arbitrator here the judge in essence gave away part of his jurisdiction but the judge never relinquished jurisdiction over the case i federal rules to procedure fifty three instead of using the word arbitration once everybody uses the word arbitration i look at kyocera and i think on bach all i say even though it said arbitration used pretty much the same one which wasn't decided part of the case before the arbitration i was conducted and the court never relinquished jurisdiction over the case in essence the arbitration of what was really just an adjunct to the federal court litigation and it would be i think i'm just in this case to apply kind of spirit to these particular facts because the purposes of keiser were two fold to prevent private parties from defining the jurisdiction of the courts which is not true prevent arbitration from becoming a mere pre lewd or more complicated and expensive litigation and of course that's not present here as well because there was no arbitration prior to the lawsuit so really the two central purposes of the decision are not president  no particular evidence ever submitted on that point in addition i think you do have to look at the justice issue here is it just to in midstream when a federal judge has approved your from doing it that when the parties come to the judge and say we have this idea that was given to us by a law professor as a suggestion in the course says well that's fine let's do it that it would be really unjust for you to then say well we're stuck with a decision that we didn't bargain for which you're either in this case again i think it's crucial to look at the fact that the trial judge never divested himself jurisdiction over this case he was intimately involved proof and agreement where instead of just proceeding to trial in front of him and such and then i'm picking a jury and make fifteen i don't care what you do if you're not here to help with picking the jury i'll just pick it myself and we're starting the trial and as soon as we have the jury can't whether you're here or not you  typical arbitration in fact i think calling arbitration may even be a misnomer under what with the parties agree to call it that right and the fact that we called it that then i think you need to look again at the purposes of i don't believe that you can tell your daughter from kyocera whether for instance you know the first paragraph mentioned arbitrary judicial review or not but in this case it really does permeated it permeates every provision of the arbitration document it doesn't say shall be reviewed by j decision would be no different congress has clearly states stated what the standard procedures for review is and the federal arbitration act and the constitution gives only to god if you agree to something that's contrary to that and you also the second point i think it's very important to clear up this argument using the word jurisdiction the federal arbitration pact does not give a party jurisdiction to come before a federal court you have to have independent subject matter jurisdiction is different because there was no jurisdiction in curious sparrow to hear the dispute is one hundred percent wrong you could not hear replying to in this court unless there was independent subject matter jurisdiction and again this case the arbitrator only the arbitrator has heard the witnesses only the arbitrator has been in a position to evaluate the intent of the parties and he got it right the first time the first time the district court reversed the arbitrator he did it one with no appeal of the facts that he had decided no challenge to them by hall street to with no record there was no record of the arbitration placed before him and yet he reversed it anyway the second time he reversed he did have the record before him but yet again without hearing a single witness he reversed the finding of the arbitrator and since that the bottom the whole point of several arbitration this is not where they should be and yes they're going to be there the only place that they can be is where congress says they can be the only standard to review that can be applied whether you call it a special master with you call it an arbitration or whatever you call it if you're going to don't give away your ability to hear witnesses to consider the records to make decisions and that contest for arbitration act completely occupies the field many other issues although the subject matter the question posed to me would comport with third surface analysis of whether or not the parties or the court with a court order with court approval can change the standard a review of an article decision in the ninth circuit it's clear the ninth circuit explicitly without qualification said there is no power by the court or by the parties to change the standard of review explicitly or by waiver because that's the fundamental threat to where the courts power to review article decisions comes from is from the federal arbitration afghan congress there is no other way to assuming that we do strictly enforce kyocera are we doing anything but wasting the litigation expenses of the parties to this pain because in all future cases everybody can just litigants before a court nevertheless it is what it is the federal arbitration act gives only congress the ability to prescribe you just to review the consequences simply are what they are case just argued histor