two thousand and seventeen two zero zero eight two do we edwards versus jordache you may proceed arguments and also additionally address the trial court ruling on class action availability first of door dashes motion to dismiss and to compare tracing was premature as it was based on a mistaken well so those would be pending or at least an order regarding arbitration as to them as nominee and there's an appeal from that that is correct which you go back to where we were here ok sure thank you and so we had a motion for conditional before certification motion let me tell you why that's distinguishable in this case first in rayna both parties agree that an arbitration valid arbitration agreement existed that is not the case here is in dispute as to whether or not a valid arbitration agreement and fourth mr raina was the sole plaintiff there was no one else that could possibly be impacted so we have four factors here that distinguish our matter from the rain a matter of the trial court utilize to make its decision to consider the that this needs to be addressed first to even know who signed arbitration agreements are not so at the onset the course of the looked at the service station or first which is a very minimal standard and then decided later on a motion for b cert if these arbitration agreements would somehow preclude this for moving forward beyond that but that didn't happen here and there's no way to know who signed up or tracing agreements without that being unconscionable because you have to have ration i'm just trying to distinguish the overall contract from your matrix an aspect in what the with measure judge approved by the district judge said is that you're not attacking the entire contract you in its finding that there is a class action waiver in play that is and that that isn't the case either so part of the issue here is that the district court basically said the  issue is subsequent to the certification issue but when dealing with the unconscionably do we need to look at california law in this particular instance the trop work has said california law applies shows california law as the proper law so we got to look at california law what is california law say california law says that you have to look at these unconscionable already fasters first here arbitration what is in fact unconscionable and if we look at sensually it was of the opinion that because they were not provided these individuals with the aaa rules and guidelines that that was enough for this to be procedurally unconscionable  and that that's where they left it without getting into it much further but the main focus here is is now that we know the trial court understands this is procedural unconquerable is to look at the substantive unconscionably factors and we can only do those by looking at the arm and doris factors that's where that's where the nuts and bolts of this case live we have procedural and the court went into  meaningful recitation as to why not all five factors were matched in fact just like we have to have both procedural and substantive  and in this case fails to contain any of these required elements and to the extent that up wires these elements are not in place then yes that is argument an arbitration agreement can be considered permeated by unconscionably and not separable from it's unconscionable parts of it contains more than one unlawful provision and i'm citing to cost and verse home team and that's a california case two thousand and fifteen automatically permeated well according to this case if we have more than one factor that it could be permeate it right not it is permeated well taking this issue in particular if we don't have just one we have to in this particular instance correct it it could be i think a secure quoting from or citing to it says it can be any presumption of doubt to just like one of the most for summary judgment standard to the plaintiffs here so to the extent there is any doubt it needs to be inferred in favor of the plaintiffs at this stage so just like any other case in this case to the extent there any doubt it has to be given in favor of the plaintiffs in this case we have not one but two instances that the trial court has acquiesced and acknowledge that there are provisions that aren't met that hers well in it end of the carlson case they found that it was unlawful we would argue that in this particular instance it would also be unlawful and that it would fully permit imagine this you  requirement for anyone all over the country want to give the con i'm bored ashes is probably the biggest supporter of the biggest suppliers of food that doesn't own a single restaurant doesn't own a single vehicle to deliver food all right and you have folks are doing this all over the country and to have them all have to go to paul also california to arbitrate disputes is unconscionable and the courts say well at least if they were where the trip labels were these rules were never provided to any of these individuals so there is meaningful and constant billing nothing in this agreement states that purposes of arbitron ability is that they had to go to palo alto they are responsible for fees as well all right subsequent to us filing this lawsuit door dash necessarily right answer but the appropriate process is treat this as a contract which it is and you can sever unconscionable provisions under california law from a contract and even though the original contract had these now after you've gone to court those provisions are gone but under california law it can't be done unilaterally and in this instance when you allow you in court and you have had this argument in the district judges giving you relief on the two provisions that they found he found were said that a class action can be waived here and which is inappropriate as well especially if if we are supposed to be an arbitration which clearly we argue we are not then that would be an issue for the arbitrator did sudden here the district court also and for that to say that a class permeated the original agreement and that's the agreement that we're looking at now any subsequent agreements we can't even know who had them or who didn't because notice hasn't been given we don't know who signed those i see that amount of time and  circuit and it's it's not ambiguous the court the fifth circuit specifically says prior to addressing conditional serve occasion we've got to decide the arbitration issue additionally the court has discretion and they certainly did not abuse discretion in maintaining an orderly process of resolving arbitration before conditional serve acacia does that mean that even if doesn't specifically control does apply however because rayna says that if there is an arbitration agreement they're conflating two different issues there is an arbitration being there are going for some reason doesn't apply but there's no dispute that there is an arbitration here and there are then t court probably said we're going to resolve that first another issue which judge southward addressed was who else is in this case there are three other individuals in this case and they have also been the celt arbitration because they also have  there is no evidence in the record that nobody does not have an arbitration agreement people have arbitration bemis here the plaintiff certainly does the three options do and the court properly exercises discretion to properly follow to circuit precedent and also your honor the genesis healthcare case from the supreme court's deals with standing and issues of whether people who don't have standing in court aren't properly in court to represent other parties in here the plaintiff mr edwards cannot represent anybody else because he has a bonding arbitration agreement and it has a class waiver and the courts properly enforced a class waiver getting past the issue of having addressed the though gobion the issue yet ok there were two cases circuit is held to dismiss was appropriate when all of the issues raised in just a court must be submitted to arbitration i don't see much made of those two cases they are mentioned in the opening grieve what do we make of those addressed but those cases don't address the same issues the case before judge gilmore had a situation where there were many many options who did not have arbitration bemis that was before the court so the court recognized that while some individuals had arbitration distinction was in writing that as in this case we've got a plaintiff we've got three options and they all have arbitration agreements in the case before judge gilmore there were multiple planes just party plaintiffs under two sixteen b who did not have arbitration  the other case it doesn't deal with arbitration at all it deals with the issue of resolving a summary judgment before resolving conditional survey cation again that may be a correct holding it on its face but here we have something agreement it's governed by the federal arbitration that and the federal arbitration act requires that it be enforced as written and that's exactly what the court did so raymond is on point back to judge al rudd's point also the court has the discretion to do it they certainly not have not shown that there was an abuse of discretion in ordering arbitration issues before conditionals origination and there's a good reason for that it makes sense the notion that w clients the half the people of arbitration be missing class action waivers and send a notice in the court sends notice people can't participate doesn't make any sense so we win on those issues is we say under rayna under imagine they would bring it to the attention of the district they would go back to the district court there come back here but at this point controlling to circuit press and that the murphy requires that the agreement be enforced and even they keep placement of the poor court's order of deciding the arbitration issue before they would lump that in with the arbitration issue it's not completely clear that's the way things usually go but because it was in the order granting our motion  came in afterwards and after we'd already filed a motion to dismiss so the court treated this as a as a motion dismissed with respect to mr edwards as compared to everyone under him it didn't set such a hung up on understanding is the other individuals opted in later they got that in during the process and subsequently as mike my colleague conceded those individuals now we've also been ordered to arbitration they have their own appeals imagine where you would argue these decisions are for the arbitrator and not for the court but your honor that's exactly what we did argue we did argue that there is a delegation clause by incorporation the aaa rules in the fifth circuit challenge to the provision if there's a challenge that challenge goes in this case they did not affectively challenge the class action waiver it's part of the arbitration agreement we asked them in force the question i thought you were going to ask and i want to address is this there are also challenging in addition to saying it should have been addressed at all which is controlled by fifth circuit law they're also saying the arbitration wasn't a forcible the district court did two things first it saw if there was a delegation clause and there is and it's incorporated by the aaa rules that's just completely sanctioned approved by the fifth circuit that the court did something interesting they conflated the issue of the liberties and by that i mean the court delegation clause but the court said well there's a delegation clause it's valid so now we have to decide on the stand in the fifth circuit whether there's a valid agreement and whether the delegation clause where the court applied valid california circuit law to the extent california law applies it's severed out and it severed out for a very good reason the agreement was not tainted with illegality it was a simple list taking out these two provisions thorough analysis of all of these issues we have we have a winning both ways we have a court saying this isn't forceful that it was your opposing counsel has said if there is new jersey venue and the great thing about lucas first won it was its sights to the aaa rules much like our rules and says this is a good agreement we're going to sever add a couple of provisions to provisions and because the aaa rules are here we've got a good anything but assuming for the sort of mint that there are two unconscionable visions if there is one at that point the court needs to go into further analysis and it doesn't there's no hard and fast rule the courts have said that there is no per se rule then more than one makes unconscionable in fact many many cases cases we've cited to the coroner briefing say the opposite the factors for permeation are is this tented with illegality is this something that cannot be fixed without a lot in the whole example would be in agreement that said plaintiff has to arbitrate the company does it but as far as the issue of two i'm tops in the terms the court exercises discretion to knock those terms out which leaves us w to different direction went to the immediate california court meannesses elimination of interference with any of these five factors makes the arbitration agreement substantively unconscionable it refers to terms your honor there's no way to square that language honor i don't know why she used that quote but i do know that she cited the other cases which gave her the authority to separate out and your honor if that were the case that if any factor in our member is was found that automatically the first of all that would that would be into paddled the f a a that would be incompatible with the countless cases we've cited including recent cases from the ninth circuit whatnot that have held that the court has to look at the factors and then the term and whether or not they can be now and in response to judge judge's question i provided other cases that have in fact found that you have to look at these issues whether it's one two or three and the question is not the number the question is whether or not the agreement is permeated and this agreement is not permeated with unconscionable if you say that the district judge should not have gone further and actually deal with the constant if we were generally to agree with you now what would be the right  and left for the arbitrate are these other point is it important to do something like that in this case your honor i think it's important to affirm this case on both bases on the one hand that the delegation clause finding that there's a delegation clause means it goes to arbitration your honor perhaps part of the reason why the judge did that was as so often happens when when the fenice follows motions to compel we made the argument first and foremost that the delegation clause applies then we made the alternative argument that even if the delegation clause did not apply even if the court took it upon itself to evaluate balls is this used we still win because this is a good agreement i want to end by saying i heard my top my co difficult burden it's not our burden it's their burden to show it's unconscionable the district court entertained that challenge in the alternative or in addition and the term in that while a couple of provisions may be problematic in the end which we disagree with it doesn't change the end result the disagreement is not permit it so to answer your question very directly just south of the chord should affirm the district court on both grounds of the court what legal basis says we should do that i think if we were if the court had found to the contrary and said it was unconscionable you would be here before us arguing it wasn't the court's place to do so we would i would be here arguing your honor that the court did courts below was also proper enforcing the class action waiver which is a different issue because it is in the agreement it has not been challenged correctly as part of agreement on their first section for it should be enforced  and are you telling us that you would not stand before us to say it was improper if the court found it was unconscionable you would not be making the argument to us that the court didn't have the right to declare a constable i what would be the normal run of the mill way dress your honor that would certainly not be an inappropriate way to do it to say the court properly applied the delegation clause and because a delegation clause is valid in the haven't heard anything opposite in the plains or otherwise all the courts should have done was say the delegation cause is valid and all these challenges they make may come to the arbitrator however your honor because the district court addressed it i think we think it's appropriate and it's not unusual in court appeals cases very often will say while the delegation clause is valid the district court also in foresee agreement on the merits and we also agree with that that's not an appropriate result thank you honors and you can have it states that in order for an arbitration agreement to be valid an individual has to have the ability to opt out so at the very onset without the ability to opt out and there's nothing in the record that indicates that at the onset these individuals had the ability to opt out the arbitration agreement is an enforceable under california law this was presented to them on a take it or leave basis which gives an uneven bargaining position to  considered later but the you won on that and the magistrate district judge said that yes indeed this take it or leave it was unconscionable procedural in country building but then you turn into substantive was it take it or leave it in a fairly balanced agreement and i thought that's the way analyses went and i don't see you challenging that that's the right way to do it you said it was done improperly and judd wrong answers given well the court said that even changing that been  it not a constable trot but went on and said that changing any provisions in that agreement did not change the notion that it was that it would still be unconscionable now you know at the end of the day the f a a does not onset fixing it later doesn't make it not unconscionable at the onset when this was when this decision was made and let me also reiterate at the time that this was was was being addressed in the in the district  court we still had options that were in that these options were not dismissed until about two weeks ago which is why we now have filed appeals on those individuals as well so those are absent those opt in still existed there were still issues in the court of the time that this appeal was filed everything had gone away because those folks were still in the truck or at that time and another point that i want to spend some time addressing this is we don't know who does or does not have an arbitration you have to use these apps like and so as far as we know from what has been presented so far you have to click on this and it's taken really like you either click on this or you can't get the app isn't going to work for you and you're not going to get what's the point you're to make of what so we've got different regional managers and or das that are in different parts of the country and so until we know for sure we cannot assume that everyone has had to click on this app in a certain way to be able to get the ability to do deliveries so we first need to know who actually has clicked on this thing to say that the by the way you can't have you can't have a class action either so it's an alternative less so you lose on that why does it matter ok why does it matter what the other drivers might have done so and then it wouldn't matter obviously if we can't get to the conditional certification phase from our perspective what needs to happen is that needs to be that needs to be addressed first and then you see who actually does or does not have an arbitration agreement in place  and we're looking at substantive agreements and part of the issue judge all right is that there's been multiple variations now of this independent contractor agreement that's basically been some down these individuals throats and we don't know who has what variation or not so it's for your class litigation if there's all these different versions of it i don't know that that's a problem for determining whether this case you go to arbitration or not well i think we need to at the very onset and because because of this panel is talking about severability and and we don't know that anyone else we don't know who or who did not become hired him started off with a subsequent version as opposed to someone that only would have been presented or read the original version so anyone that would have stayed employed during that period of time and and may or may not have been forced to acquiesce to a subsequent agreement again that would have been done on a take it or leave it basis as far as we understand there is no bargaining power within the california law you have to have all the basic contract elements for there to even