we have two cases wells fargo advisors vs sapping ten and versus reagan tucker if you want to step forward counsel you were given separate times in these cases but the same attorneys arguing in the present common issues does it make sense for you to argue both of them at the same time ok thank you i think it would be helpful for us we go that way ok no not twenty minutes public give you more than ten we won't be too strict with it why did the second slept for twelve minutes aside we'll see if they can do it in that time thank you very much right cancer good morning your honour's may please the court my name is ken turnbull and i'm here on behalf of appellant defendant respondent wells fargo advisors the question presented for the court is simply who decides if the parties to an arbitra agreement have agreed to a class action arbitration the district court relying primarily on two district court decisions held that whether class action arbitration was available is a procedural issue that simply pertains to the conduct of the purpose proceedings an arbitration and the district court applied a presumption of arb question of who decides we respectfully submit that both of those conclusions were wrong i do want to let the court know the procedural status of the following district court's decision and our appeal the matters were sent to two different arbitrators to issue a clause construction award one of the arbitrator's the arbitrator in the tucker matter issued a clause construction award concluding that class arbitration was permitted under the arbitration agreement that award is the subject of a petition to vacate before a judge could prove the second arbitrator arbitrat dineen has not decided the clause construction issue i would also like to let the court know that in a case pending in the northern district of illinois williams first wells fargo the underlying claims asserted in this case are the subject of a class action settlement in the northern district of illinois the claimants in these the six claimants in these cases would be covered by that class we hope class certification will get preliminary approval next week and then the parties will have the option to remain in the class or opt out or  and therefore settle that section that would if if if they don't will it leave the names plaintiffs is the only plaintiffs in this action or will there still be a potential for a class so that if there if the six plaintiffs all call them plaintiffs just for these if the six plaintiffs opt out of the wm settlement they those six individuals still have the right to pursue their action here whether there would be numerosity to satisfy a class proceeding if one was even permitted is a question that would depend on how many people remain with claims each and every one of them has to arbitrate separately that's correct your honor but that these six individuals have to have the arbitration agreement to require individual arbitration let me talk about what i think the  and join the settlement if other class members or or have relied on or continue to rely on their representative plaintive to wage the class action on their behalf so two  think your honor the answer is yes a name plaintiff can always settle his or her claim or class action and the other thing as a practical matter here that in the two years since these arbitrations have been filed not a single person has opted in or filed their consent to join so what we have here are just six claims into separate arbitration three for one arbitrator and three before another essentially asserting the say how many people i think will be in this class right now why don't we let you get the main argument before us today sure so a few guidelines at the supreme court has given first on the presumption of  everyone agrees that presumption does not apply to questions of arbitron believe as the supreme court said in first options and in how some that presumption is inverted when the issue raises a threshold or gateway question of arbiter billet where you have a threshold or gateway issue the presumption is that the court will decide the issue not an arbitrator in contrast if it's a real issue the presumption that the arbitrator will decide it will apply the issue of whether an agreement provides for class arbitration is not simply a question about the conduct of the proceedings rather whether an agreement allows for class arbitration presents a threshold question of arbitrary billeted and this is an issue  court to decide now plaintiffs argue this is a mere procedural issue and they assert that the available supreme court and circuit court of florida point in direction of allowing think the plaintiffs are arguing that the question of whether class arbitration is even allowed so is a mere procedural issue what procedure will the arbitrator follow that there were two potential issues in front of us just to pick up on what you said one was the issue related to the presumption which you just explain for us the other was an issue of whether as a matter of overcome if the parties in their agreement provide clear and unmistakable that it's the garden like clear and unmistakable guide of these contracts are to be construed under missouri l that's correct but all the contracts the arbitration agreement at issue all six of them in fact our government will see there's already law so so on the question of clear and unmistakable language the supreme court's pronouncement as to the fundamental difference and the practical implications of the difference between a class action and a bilateral arbitration informs and guides us in that determination here it when the court is looking for clear and unmistakable evidence they look to the words that the parties use the agreements contained no agree that any action instituted as a result of any controversy arising out of this agreement your employment or terminations of your employment shall be brought before finra to the exclusion of all others both you and wells fargo agree that arbitration shall be the party's exclusive remedy and that the results of shots or arbitration shall be following and binding upon them and then it says any mindful that the court has said that it's not yet decided whether the veil ability of class arbitration is a question of arbiter ability and that then you want us to further take language in those opinions that suggests that there's a sufficient difference between bilateral arbitration and class arbitration that you can't assume from just brand general broad buying which about our trading any disagreements that what's contemplated  class arbitration that's the that's the foundation for your argument right that's correct and we haven't spoken to that and the fifth circuit at least when presented with that argument didn't think that it was enough to turn its back on the as i recall it was premised on the supreme court pronouncements and the f a a and taking guidance from the supreme court all five of those courts of appeal well i guess my point is that the earlier eighth circuit case was specifically about missouri law the catamaran case it's you saying it's not clearly about this really just takes its direction still and and so on right it follows the guidance that in the clear guidance which the plaintiffs asked the court to ignore as if it if as if it has no meaning but the supreme court took the time and went through the steps to enunciate those differences the fifth circuit decision plaintiffs argue as many plaintiffs following basil argued that the plurality plus justice stevens should be read to essentially conclude that this is simply a procedural issue so the two things first justice stevens had every opportunity to join simply join the for justice is who found out it was a procedural issue and elected not to in fact justice stevens wanted to affirm the finding of the south carolina supreme court because justice is using of that language setting aside again what i think you're focused on which is whether it's a procedural issue as opposed to some other issue you do acknowledge that our case on the second circuit has construed similar any controversy or dispute language as delegating questions of our bitch realty to the arbitrator so right that is correct here on the second time you have so on the second circuit has also recognized that where the arbitration agreement itself does not apply may not apply to the underlying dispute here may not apply to a class action in effect where there is a carve out then that broad language is not enough to say the broad language alone is not enough to satisfy the clear and unmistakable language in the nasdaq u b s case the court recognized that where there is a carve out in missouri law as i understand it there's not a lot of least that i could find but in this dotson case which is a decision from  intermediate court in the story suggests that when you use the language of any and all in connection with the validity of the agreement that is not just draw but it makes it clear dodging court decision says i'm just a new warning out that that is what it says that is in conflict with decisions that have taken the supreme court garden and applied that guide and so the third the second most recently the eight circuit considered that argument and specifically said that that language by itself is not enough i would also point out the argument that the plaintiffs make about incorporation of the triple  ls because there their argument is by incorporating the aaa rules the party somehow clearly and on mistake a bully delegated this issue to the arbitrator so you obviously should never say obviously you'd agree that if the parties said this includes class class claims then that would be clear enough that would overcome the presumption indeed is there anything short of that anything short of an explicit reference to class claims that would overcome this i'm saying that you want us to focus on so first off yes obviously a clear a rules and again keeping in mind the standard is clear and unmistakable evidence that we wanted to delegate this issue to the arbitrator first off we have to determine whether those aaa rules would even apply is there a carve out here because class actions are covered but getting past that if you look at what the play with the plaintiffs are asking the court to conclude is clear and unmistakable they're saying the agreement that the parties wrote supplemental rules give this authority to arbitrators and the plaintiffs argument if you follow it says the parties adopted the nine hundred ninety three rules by inference they adopt the ninety nine rules and the supplementary rules for lentil and that therefore this way as the draft to you took the risk that those rules that was part of the agreement might include giving to the arbitrator the power to deal with our bitch ability issues and it's interesting i think the timing is particularly interesting here because these agreements that are at issue before the court if you combine the two cases w delegation of this issue to an arbitrator now could it be that we chose ninety three we wrote ninety three but we recognize that ninety three means ninety nine and that also means the supplementary rules maybe but it's equally plausible that it means what it says we want to use the nine hundred ninety three rules and the courts are clear the parties can choose what ever rules they want the fact that there are two possible explanations for this in and of itself demonstrates that the clear and unmistakable standard has not been  thank you very much i think we're going to hear from your adversary and i know you want to reserve time for which is in my hometown in chicago and we attempted to intervene in the case but the judge denied our right intervene you you'll see in judge kept ronis decision that there was an argument about which case was first filed it was the second part of parties going to join in the settlement and after we were denied the right to intervene we have to consult with our clients about the next step are our intention is to oppose the settlement so nothing is really subtle at this point so your honor you're right it's missouri law and both parties argue the missouri law issues to the arbitrators and there was a clause construction order on award on expressions or laws of corporate or than exactly you're right exactly so you are right to stress the different cases decided by this court under different laws connecticut new york the same standard right and the circuit case holes that the any or all kind of language is inclusive it is a clear and unmistakable delegation to the arbitrator even of questions of arbitrary realty so any means any case has actually that's that's what the supreme court has suggested it's not well so the supreme court has done something very interesting with class actions and arbitration they've said that it's too important to allow a an arbitrator on their own steam to decide that there's going to be a class or not a class it cannot be an issue of the arbitrator sense of industrial justice or public policy the parties have t does not signal consent that's right but they've yet to have occasion in any case other than now to evaluate whether class is a question of arbitrarily or not that insofar as the as what those later supreme court decisions wrote those words were dictum on this issue the the the later decisions of course concepcion doesn't discuss basil because it there the issue wasn't presented there was really and still nielsen and what's don't kneel son held was they talked about the second part of basil about the rule of construction that you use for an arbitration agreement they didn't address the who decides issue that remains completely up in the air because this circuit and the supreme court regard arbitration as a substitute for a judicial decision but otherwise regard arbitrators as capable of handling and faithful applying stealth nielsen concepcion all the other rules were not here about whether a class ought to be certified we're here about who gets to decide whether the parties consented to th m and right now there is no law other than basil that even indicates who gets to decide that issue in the fifth circuit said that basil is controlling they had stone nielsen they had concepcion from them they said have claimed that it's it's not a clear and unmistakable but they do use the any language and it's not just between you and wells fargo it also includes and this is found in the tucker joint appendix a page thirty four not just wells fargo but a client or any other person it is about as broad as it can be so it's a mistake to say that it was limited to just the two parties this is not necessarily one of those agreements that you can see if you as a bilateral that's true your honor your point that's right  and so any party reading this language that says any controversy or dispute should be submitted for arbitration would assume that the arbitrator got to decide everything sapping him is even clearer your honor because he even says that everything including disputes about enforceability go to the arbitrator of the reasons that the supreme court in some of these opinions as expressed doubt about that is because they began a fight cintron difference between bilateral or not said it is a matter of holding right so your honor in house that's where the court sets out the standard and then this court has boiled it down to two issues that are questions of arbitron billeted houssam says only narrow circumstances so everything else that is not in force ability or scope by default goes to the arbitrator and that's that's consistent with basil and all the other cases that have been decided by this  the it is special but the party opposing class already gets a bump because there is the clear and unmistakable they get the can't simply be assumed it can't be in by the arbitrator it has to be affirmatively declared in the in the agreement so they get protection but they don't need the extra added protection that only a court gets to decide it's otherwise as this court is held and receipt which was my case by the way so i lost this issue on that one but i and cohen is that it's procedural and even just the late justice concepcion describes class as procedural mechanisms so it's pretty clear i don't necessarily have to prove it's procedural i have to do is prove it's not because it's not contingent point on which we have to have a decision before we can commence arbitration instead it goes to how that arbitration is going to proceed and so it is both parties already agreed to arbitrate questions what do you are treating how you proceed that's right your honor and so what happens from here is that the the claimants go back and argue that actually it's already been briefed before the arbitrator abeyance until you all make this decision but we we we have argued and would and that to the arbitrator's as well that they have the power to do this and arbitrator errington agreed with us  and the parties don't have a fallback in the agreement but interestingly the sappy tens arbitration is continued in front of the triple and the arbitrator has given wells fargo the opportunity to argue that it can't be there for it's interesting because under the f a a if there were an un availability of an arbitrator arbitration forum then the court would have the default to pick an arbitrator but the parties it's not it's not just like like like it's not as if it's as if as if in your well i mean the circumstances under which they consented don't materialize and that seems to me to be to leave the absence of an arbitration agreement all together that's a very fair point your honor and the parties have not argued up to this point that the absence of the finra forum means that the approach that they are agree necessarily blow the agreement up but it it does invoke another section of the f a a that requires appointment of another arbitrator so your honor unless by by your conduct to be both parties have expressed a strong interest in arbitrating yes your honor  we did file arbitration complaints and we've been proceeding down that road because frankly we think we're obliged to under the agreement under the standing law so last year owners have any other questions commercial moules can we really say that an indirect authorization of that sword presents a clear and unmistakable evidence of intent i could weep with joy that you asked me that question because i almost forgot to they made the same argument that the that because it's only done to fight one set of rules that's the rule the apply but this court said that because rule one says it incorporates all subsequent developments that they just made the direct connection to the subsequent rules that that is a direct reference to including the provision in the aaa rules that purse cripes you thank you i want to clarify one point that my adversary commented and passed over as if it was fact and that was his claim that the scope and validity of the agreement are not at issue that is absolutely falls it's what's before the court a question of arbitron bill of the includes scope and validity scope argy scope also includes what type of controversy is encompassed by this agreement because remember an arbitrator is only authorized to decide that which the parties author gave the arbitrator the authority to do and the supreme court installed in concepcion even in the oxford decision have gone to great lengths to say the question of class arbitrary billet he is not procedural because it brings these issues into play who is bound by this agreement are non signatories bound by an agreement that's that that's that's the lower court but i i pointed out to the court that the f a a provides the guiding principle here and so number one what parties are bound is an issue fundamentally at stake here but you don't  all of the parties would be banned if they pursued it individually i mean every every member of the class would be banned if they brought in arbitration individually right true even if with any party who are being subjected to arbitration it is just whether they will do it collectively in a class action or individually but the parties are banned the parties are bound to arbitrate their dispute here the agreement defines what disputes must be arbitrary said there bilateral who's down yeah these parties are banned it's just what kind use right and so when you talk about what are my right like for example let's assume i didn't sign any arbitration agreement among the thousands of wells fargo employees that this group may want to represent there may be some that didn't sign arbitration agreement how can an arbitrary decide any issue in fact the supreme court justice alito and oxford health raised exactly that point won't that be an issue for defining the class but that presupposes that there can be a class the arbitrator doesn't have the right to decide a non signatories obligation as to how he or she wants to pursue his claims but whether he has to proceed in arbitration perfectly ascertainable after the fact whether a person is is involved in the or not and your honor that's what the plaintiffs say the place they will wait we can just find out maybe planners in their brief say maybe everybody signed the same agreement that mr  everyone signed the same agreement maybe maybe not but where does an arbitrator chosen by this counsel representing these three people have the right to select an arbitrator to decide that issue for everyone else who has the right to choose their own arbitrator to choose their own counsel to make their own arguments before the court but you you agreed just to go back to first principles that the parties could explicitly allow for class yeah that raises questions concerns we would and that raises questions the court actually struggled with some of those i think last week and clarified some point a few weeks ago in the jockey sterling case decided on very narrow grounds about law of the case i understand but also recognize that how can an arbitration agreement an arbitration bind non parties to an arbitration the other thing that scope as i mentioned covers is what type of controversy a class action according to the supreme court is a type of controversy and that's why the supreme court goes out of its way to highlight the fundamental differences and i don't think the supreme court is concerned with labels do we want to call it a gateway into aber this point but the language of both of these contracts you talk about types of controversy and language of the contracts with the agreements since any controversy between you the individual and me the company not between you and a group of other people and the company it's between you and the company and you could you just tell me where in your briefs huge mess the language contained in that clause the an sit down you address strongly to sarky meant that how you get to be heard on whether or not that contract and agree to arbitration is by having the arbitrator apply the stricter test that the supreme court has made clear has to applied to the question of whether you've agreed to our class arbitration it's not by having a court decide my skin he thought that you were looking for an extra layer of protection that's not required sure your honor and we the courts have referred to issues as who decides in the first entrant arbitrator or court procedural issues where you agree or for an arbitrary and the issue here is is this a procedural issue and it's been described a lot of different ways is it a gateway issue is a threshold issue is an important issue and the court in this in its stall in the olson in concepcion and even oxford health decision says we're not concerned with labels they do fit into the the court guidance about are non parties bound which fits into how some in first options what type of controversies but what the court i think is really saying is is this an issue that the parties would expect a court to decide and what the court has said in highlighting all of these differences these fundamental differences and the implications of a class action arbitration can you rep you can you have even have a class action arbitration against non signatories arbitration with limited judicial review the that's why the supreme court says class arbitration is poorly suited class actions are poorly suited for arbitrations they say that because as they state it is difficult to believe that the parties would have believed this is an issue to be decided by an arbitrator's just some not of interest or you where none in this case put in any case of parties to corporate entity and individual employees say i am not aware one way or the other your honor i'm not we are included in standard here