is one of the bases for being in federal court having removal are you prepared to say on the record here that you're not going to be seeking to enforce a class action waiver for sion of your arbitration agreement with the with the plaintiffs know your opposite marriage ok then i have a hard time seeing how you can say we've got jurisdiction here because this is fifteen thousand dollars in legal fees in the it is that she's paid my clients were illegal and therefore could not be paid and she's seeking that money back so that money including and to the bank fees i think is about all of the fifteen thousand dollars she's entitled to treble damages sensor salts so thank you to about that gets you to about forty six thousand now now we're arguing about diversity jurisdiction mid sixty's you fall short of seventy five thousand dollars how how do you get past seventy five thousand dollars with travelling with costs with everything else we're talking about less than fifteen thousand dollars  top of traveling that's in addition to traveling that's in the that's in addition to that to the compensatory damages so if she has fifteen thousand dollars in compensatory damages just approximately i think she has more than that and if you were to apply punitive damages a punitive damage multiplier on top with that you would usually exceed seventy five thousand dollars ok all right well let's move on i understand your position and and  let me ask you if i might first off about choice of law because there's been some arguing about that  why was the district court under the impression that both parties agreed that there was no conflict of  inconsistent the law in both new jersey and delaware is consistent to the degree that both states recite that they are they will enforce contracts but the district court was left with the impression and indeed i think not surprisingly left with the impression that that you folks were saying there's no difference there's no practical difference between them in the in the district court the argument was made i'm quoting from syria opening brief you have there even if this court were to apply a new jersey law to determine the existence of ballot agreement to arbitration which this court should not do the result would be the same if you tell the district court it doesn't matter which law you apply you're going to end up in the same place aren't you telling the district court there's really not a conflict of law either template is going to get you to the same spot right or let me answer the i'm highly agreed at that both new jersey  delaware law for the reasons i expect that they would enforce contracts whether they're arbitration contracts or other contracts if they are clearly on ambiguously expressed so that the court could make a determination there has been mutual assent to the terms they're not unconscionable and those that was kind of state law rules those rules are consistent both delaware and new jersey before the district court rendered decisions we had no reason to believe that the district court would apply particular rules in new jersey that were so special and has appl arbitration provisions that would invalidate our agreement and in fact we believe so your so your argument is if we'd known you were going to interpret new jersey law the way you do you did we would have told you there's a difference between new jersey and delaware law your honor that we certainly were surprised by the decision but i think we didn't argue in the district court that delaware law should be applied it was the contractual choice the parties and the district court should that is that choice that well you did clearly make that argument i'm just trying to figure out whether you waived any argument with respect to there being a conflict of loss i know you or judge paul anything you want to ask before i ask him anything else and go i have a question and it goes to the issue of delaware law if you have argued in your brief that the district judge should not have decided the issue of the scope of the arbitration clause because under delaware law if you incorporate we did not specifically do that your honor you're correct however i don't think it's where you because we didn't we didn't make the organ of the delaware law which would have respect the reference in the contract should apply you say hey look they've said it's prospect of only so don't pay attention to that in essence i mean a shorthand and what you said in your letter but  really am curious and i'll be asking mr pinto this is no gotcha question here i'm just kind of wondered myself is this would apply ing that decision actually be retroactive in this case it's true that the court said this is a prospect of matter but it seems to be saying that in the context of this is prospective as to obligations on attorneys under the rules of professional conduct that that's their concern that they don't want lawyers who haven't heard this before to face disciplinary charges that's the piece that's prospective but that adds to the question of whether or not the arbitration clause itself is adequately explained in a professional services agreement is there a concern about retroactivity when we're talking about applying it in a case that's pending this is an interlocutory appeal in a you are correct it is a prospective only decision i don't think it's correct to say that it's prospective only because the court did not want to subject attorneys to professional if the plan i think it's prospective because because the court arrangements or potentially have to hunt to litigation or disputes that were then in engaged in by the law firms and clients so i think that's a reason and that's a valid reason not to disrupt those is ok so let's then take it is given that we're not going to apply the laney we're going to be looking at the pre to lay new law and you made the argument that the district court misapplied remicade and moon moon lays out a three step process do you agree that that three step process is the this panel this panel can overrule moon by saying yes it's true that the court looked at elise applied it analyzed it and applied it moon because moon is consistent with new jersey law and good that's what i'm trying to get you to do so i asked you do you agree that that's binding and that's what should be guiding us into your new construction of new jersey law it's consistent with our position in this case is that if you have an a and her betray ssion provision that includes a limiting condition as moon did which is we will arbitrate any disputes ar and disputes would be arbitrated i would be saying that i think i got your argument i understand or at least argument i'm trying to get you to address the moon argument and the moon are you're saying moon  that's what i hear you saying but moon lays out three steps that the district court purported to apply those three steps and said look you didn't meet step one you didn't you know you don't have of claims big way so i just want you to take us through i know you're on our time now you're past the time we do but i do want you to walk through and address what the this record said at step one the court said moon tells us you have to describe you know what what are the the the overall the general subset of the area that they are traced cause covers and it doesn't do that what's your answer to that  is relating to our agreement if you want to make sure that your contracting parties understand that any does no matter what is subject to arbitration then you're right the clause exactly the way it was written in this case had is any dispute between the parties shall be so i felt betrayed so in applying moon is your position that the statement any dispute satisfies step one of moon yes you're what you're telling me i'm trying to i'm trying to steer you into moving right there's three steps there so is your argument when we say any dispute that is step one it's speaking to the general subset of there if it's anything anything that we're fighting about yes you're ok now then answer mr pintos argument which is it can't possibly mean that because we've made an argument which if taken at face value is that there was fraud here so nobody could be considered to be willing to do that so it's that it's inadequate what's your response  suffice to show any kind of fraud in the inducement if she is claiming beyond that that other terms of the professional life legal services agreements are fraudulent because they are for example they violate the terms of new jersey statutes all of those disputes are within the terms of the arbitration provision and therefore you the the latter issue let me just real quick ask you about your state should you've never raised that issue about jurisdiction so i take it your assertion is yeah we've got diversity jurisdiction here because our our amount diversity of citizenship but the seventy five thousand dollars issue i did not bring up because i'm considered since being brought in on the tab for that would supersede seventy five question that i asked mr de deal about whether delaying me is a clickable here they the court is pretty explicit and says because the professional obligation we now pose may not have been recently anticipate a supreme court goes out of its way to say this is not perhaps anticipated but what we're saying here it's changing things now we don't want to unsettle the reason the expectations so it's  then they do they come right out and say well so what i'm trying to get is what's your argument that the laney actually should be applied here in spite of what the supreme court of the state of new jersey says w on i think the prospective application lanie has more to do with the issue of incorporation of multi page arbitration rules into a  retainer agreement that goes with the lawyers obligation under the agreement itself to make sure that the language is clearly understood by the  fact the fact that the language has been clear on is that where the line is is is not what is prospective no that isn't what's prospective but an end to the extent you're talking about that that's not new and i don't think mr genteel is arguing it's do i think what's being argued is new is delaying he says look in the context of a professional services agreement with the lawyer it's not enough to say the things that even would be enough in other agreements that would pass muster in a consumer contract still not enough because you have to do sure you responsibilities and they require you to sit down and even before the leni that obligation existed under the existing law that the attorney has an obligation under the or p c s to make sure the climate or stood it and it was and that there was no questions  ok if that's the template that we are applying here i would like for you to very specifically answer the assertion that mr genteelest made that the district work around because we did satisfy and then we did satisfy we spoke broadly in that arbitration provision specifically so we wouldn't tire selves to the agreement alone and have the additional responsibilities that go with that so we spoke as broadly suited as we could when we said any dispute and that satisfice step one of moon that should satisfy step two of moon and step three moon of course is satisfied because we explained what was being we adequately explained you're giving up a right to a jury you're giving up rights to peel you're giving up rights associated with the discovery we did all those things that under adelies have been that should be enough where where in that three step process did is his analysis wrong number one the term any dispute is not to find and he's assuming that if you see any dispute that means anything and even as briefly says that implicitly it has to mean claims related to the agreement as well as arising out of the agreement because they signed an agreement therefore what else could they have been talking about i don't see how you can say that claims related to the agreement is implicit in the term any dispute especially since the language oh this arbitra clearly why isn't that clear enough to an ordinarily responsible intelligent person to say look let's talk about it before we start going at each other and trying to get a rd party in to decide our dispute we're go talk st and then it says quote any dispute that cannot be resolved between the parties after one hundred and eighty dollars days must be resolved by binding arbitration well that replaces the right to go to court and a judge and jury what is what's confusing about that what's less than clear about that especially in light of adelies you have to look at the next sentence were it says this agreement shall be submitted for binding arbitration that cla e has to be red handed him with any dispute if it says this agreement should be submitted the binding arbitration that is what is being submitted to buying our trees in this agreement so if any dispute in this agreement is not any dispute that arises outside of the agreement which is i'm so and what does that what does that do when you when you limited in the way you just said what's the legal effect of that under move if it if now you say now you say they've said it in a way that ties it to the agreement what's the result of that under moon it's d it does that specify the subject matter of the substantive issues yes it limits it to this agreement any issues under this agreement this agreement is what we're going to arbitrary ok it's a claims it does not satisfy the types of claims because it doesn't say claims outside of the agreement which are statutory claims it limits claims outside of the agreement itself what was the spa's it was whether you had to refer to the agreement or rely in the agreement in order to arbitrate these claims you did not have to do that because these claims arise outside of the agreement itself you don't have to there yes there is an agreement but that agreement doesn't affect the conduct that is made illegal under the statutes all right well i think i have i think i have your position judge maybe or judge bolton do you have any questions you'd like to ask y me address the last points mr pentair raised which is the reference in the rd sentence that to the agreement shall be submitted for binding somehow limits the meaning of any dispute between the parties first of all i don't think it does the all encompassing language in the st in that sense about any disputes between the parties is not qualified in any way there are no exceptions to it well well that's what he's i mean you're just rejecting his reasoning without reasoning he says no that's the only way to read any dispute is in light of the assertion it says it's going to go to arbitration and then the next sentence says this agreement shall be submitted in accordance with the rules it's saying this is the agreement this is the thing that any dispute will be submitted to binding arbitration and the arbitration will be held in accordance with the aaa etc but you didn't frame it that way you guys are the writers of this and the way you wrote it was this agreement will be submitted you chose the language why shouldn't you have to live with it and then have the consequences of living with something that's now tied to the agreement cause because that actually has legal consequences unravel least doesn't there one hundred yes it doesn't mean it also phrase relating to the green that was the subject of litigation lasted for years the parties i'm sure they thought that would be unclear but it turned out they weren't and the court  construe the language here to mean that any dispute that has reference to the parties agreement or it cannot be resolved without reference to the parties agreement his with in the term with him the consent to her hand and that's no more than what we are claiming in this case that any dispute between the parties has to include any dispute that arises out of the parties relationship there are that there has to be an express waiver of statutory rights which which is not the case for any other contract in interest be not the case for any contract in delaware that's where you get into your preemption argument in other words if we were to read this to say this agreement and those that those words now tie it to the agreement then you would agree that the district court had it right that you didn't have an adequate arbitration agreement here but your argument is that under that runs afoul of the f a if i followed your line of reasoning yes you're right so far you have ok all right well again i've taken every base type here and i apologize if there's if there's something further you want to say to wrap up to wrap up sir your honor thank you your one hundred and eleven thing i would say is that had the district court applied delaware law delaware law is clear clear that the arbitration matter whether it's a you know any other kind of way for right as long as it's clear and unambiguous the courts and force it but word has been construed to mean