the next case is weiss versus macy's come up a little more than that if you look at not bothered by the noise now i'm bothered by the do for the two for on the floor drops out folk i got speeds up argument anyway david weiss and the primary issue is this when an employee is placed on notice of new terms and conditions of employment and that employee continues their employment does their continued employment constitute consent to the new terms and conditions and this is an issue that's already been addressed by this court and the manigault summary order back in two thousand and nine which involved identical circumstances and that decision with ours notices concern macy's fills that element if you will by operant might by the operation of law that is notice was sent from this it's a statement but it's a question notice was sent to me even though he denies ever having received notice it's presumed that he gave her act on the presumption of mailing and that's what the district court found that all of the mailing before or mailing the plan mailing the plan the arbitration agreement plan correct and when i say plan document i mean arbitration agreement that this was what it's referring to which came into effect after mr weiss had been an employee for a period correct so there was a roll out of the  standard business procedure if you will at home for managing mail of this type and his brother didn't recall this nor did mr weiss and there was no evidence i think that there have been trainings presented at this at the store that he was at and it seemed to me that there was potentially a genuine issue of material fact as to whether he had rebutted the presumption of receipt based on these assertions why isn't there a factual issue that's significant here that the district court should resolve well number one because mr wise to not present that argument of actually rebutting the presumption no no argument was actually present at the request of the ability to follow some reply to address some of the offered was insufficient to rebut the presumption that the mailing was received and that suggests of course that one might be able to in some circumstances rebut the presumption correct absolutely and the district  was not sufficient to or about that presumption what did the evidence show about the in store scotians never mind the plan document itself with the discussions with the employees the evidence was presented just that these were presentations that were given months before the actual roll out of the program that was held never store in any employee that that work was required to attend one of the sessions was arbitration discuss the world discussions yes and it was discuss specific and the powerpoint presentation that was presented to the employees it was communicated that this is going to be applied automatically to all employees and that employees that have an opportunity to opt out of step four arbitration did and so there were there were the trainings and store and the mailing that the district court found confusing talking about if you don't want to be covered by the benefits of arbitration you can opt out correct and so there are two problems with what the district was finding in that regard number one it focuses exclusively on the election form and doesn't incorporate the other the actual arbitration agreement that was also sent in the mailing that was supplied  was supplied to miss may have gotten every other macy's employee at the time it also doesn't include a viewing the brochure that was sent which also discusses the arbitration agreement and what's involved taking any one of those documents  vacuum might be confusing or counterintuitive but when you look at them as a whole it's very clear what's expected in fact the only evidence that was before the district court on the issue of understanding those documents mr weiss submitted a declaration that have never seen this before but he also submitted to declaration from his brother joseph and mr weiss's testimony was my brother joseph is a person i would have shown any employment related documentation that i received including anything from a cs and joseph reviewed the documentation that may see sent the plan documents the election form and joseph submitted a declaration that specifically said i reviewed it it's clear that this involves important employment related rights and he he also offered evidence that quote i would have explained to him that signing the opt out for meant he was not he would not be forced to arbitrate with macy's i would have advised him to immediately sign and return the opt out form unquote so the only evidence that was before the district court was that joseph very clearly what was needed to be done if you didn't want to participate in the arbitration agreement with macy's was the brochure mailed with a plan or a separate mailing it was at the same time so the brochure the plan document a self addressed  i think stamped envelope in the election form if if we were to think that the route but the presumption was sufficiently rebutted to create a fact situation as to whether he saw the plan document in the brochure notice whether he was there or not yes it would be enough to put him on notice because it was communicated in those meetings that all employers would be getting mailings in the future regarding this your view is the new york law says you can amend for an will employee you can a man by giving notice and the oral oral discussions give knows whether he chooses to attend or not if the employee is on notice yes then the change terms and conditions  and he continues his employment mean evidence that he actually heard and understood it or is it just the opportunity to know about i think it's the opportunity to know about it and ask questions if your view would be you'd have a winning position even the the best near cases it often comes up in the context of change compensation right so a commission agreement so it's been timi handling cases like that to talk about you know about with respect to an arbitration you're arguably on notice when you see the first bomb decrease in your paycheck right direct something else and macy's continued up to the same mailings to employees who did not opt out and there was a welcome to the program brochure that was sent  was also a second opportunity to opt out given a year later so it's not just even one mailing that was sent there's multiple mailings that are sent to the same address where you receive health benefits information et not received the factual issue was raised in the district court was it not the the factual issue of non receipt was right is but the actual evidence was provided correct ok i think the argument wasn't made there was no case law cited for what's required to rebut the presumption there was no argument made about what's required to to rebut the presumption it was all framed specifically as macy's is not met its initial burden because the opt out form say  the op said he he loses the benefit of arbitration i would have to look at it but that sounds right isn't that a tad precious macy's part  i wouldn't frame of that way but i also wouldn't strenuously object either page ninety seven ninety seven seven complete this form only if you do not want to be covered and then the check box trade you are you're putting in the position of agreeing with your view that arbitration is a benefit and that's possible that's not the evidence that was presented to the district court like i mention the only evidence was from just a few plainly understood what it meant to form was in front of the  good morning scott corner man for mr weiss i want to correct a couple of statements of what's in the record and what's not and were guarding regarding the issue of the presumption whatever this court finds regarding the presumption of mail and it does not apply to what took one forty three plaintiffs not brother specifically says nothing was ever discussed in the store with me about the arbitration program at the sis at one forty six ms rios  backs it up and says i never received any documents in the mail i never received any verbal information in the store so that requires a hearing slash trial before judge hellerstein if the court finds the presumption is let me just clarify general said the documents that we've been looking at the declarations and so on they were submitted to the district court in what context and in connection with what argument i presume i was not counsel below but it makes sense to me and presuming that the presumption was overcome it's all that's the only way it makes sense doesn't counsel what otherwise what mr parsons correctly notes is that in the context of the argument of overcoming presumption the sequence of events went macy's this motion papers then the opposition papers which included these declarations and the brothers declaration and the legal argument was that the presumption of mailing which talks about process was not overcome that was the focus of the argument then came and reply more proof by macy's about the regularity of its business practices and then there was the request that was granted and then it was raised  argument but no further written submissions regarding the issue of waiver there's no waiver here the materials were presented it may one mean the court may not agree that it was overcome the presumption but it was presented so it wasn't waived what was and the election form the plan itself and the election form and the only discussion is in the election form about weaving you know how one opts out and i agree certainly we have made the argument which was before judge context in the context of whether there was off or the election form is a remarkably counter intuitive ambiguous and misleading document nothing in the document makes clear that it is a contract rather the election for master recipient to quote agree that i am waiving the ability to participate in step four and quote of the in stores program which macy's but knowingly described throughout the document as the benefits of arbitration there is nothing there isn't from the employees perspective there is nothing rarely i tell my children never is used almost always the wrong answer but arbitration is as pro employer as it comes and before someone who is learning disabled hast can waive his constitutional right to a jury trial offers should be crystal clear but one thing you know obviously the elephant in the room is manical and i have to apologize when i said this i used the expression this court can disregard min because the presumption is about notice it's not about contract formation and recently judge cotto in a case called right nor versus tiffany and company two thirty nine third seven forty four at seven fifty one two thousand and seventeen agreed with judge kogan the said that the rebuttal presumption does not apply to contract formation where there is an unwitting recipient that we have  notice both in the form potentially of the mailing as well as the presentations and then continued employment in that context that i guess macy's would argue constitutes acceptance in that they delivered the terms and they were entitled to impose terms why was that a mistake in understanding in every case save manigault that macy's sites there it is undisputed that at will employee who continues to work the notice it's in every case that they sacked whether it's orally told and i agree with counsel that if there is an oral discussion with an at will employee saying look i think it's handling where the the commissions get decrease and he's told me he gets it ok you're subject to that change but when when there's no knowledge you can't have that contract formation if there's any intellectual consistency or integrity to the at will doctrine right which because remember what the purpose of the at will doctrine is what is the employee's right well you have a choice they've changed the plans you know about it your options are to quit or to continue you have no finding as to whether arbitration was  think it's a fair statement that this judge based his ruling on contract formations solely on the opt out form no i think would judge hellerstein use the opt out form was to say there was no offer like the answer you question is yes but not in the context of knowledge but just he found the offer ambiguous that was what that judge hellerstein in deciding there was no contract and there was no formation of a contract that waived arbitration he dealt with the opt out form a law yes i do believe that's correct should of looked at other things even if they were in dispute oh yes i believe the appropriate relief that we are entitled to well no i'm sorry if i misspoke the court can affirm if it is greed that the offers brochure the plant two things got with the plan in the election form is what's mailed to mr weiss and if my memory serves the plan does not discuss how you opt out it talks about arbitration but it doesn't  well i don't use too harsh a word but this ingenuous that's a good thank you but we normally don't reject documents because they're disingenuous although maybe we s but your point is him is what's the ambiguity when it says if you don't want to arbitration sign here i just want to post i want to just actually in its reading context it's confusing you don't know what you're doing an employee looking at this says what am i supposed to do here i'm declining benefits of arbitration it says complete and return this form only if you do not want to be covered by the benefits of arbitration during your benefits that pretty clearly mean if you sign it and send it in there won't be arbitrary i don't think so no joke teller just what will there be what's the what's the ambiguity the one reading is it won't be arbitration what's the other reading that there will be arbitration even though you sign a form saying you won't get the benefits of arbitration i think it's one of that's valid but it's still like macy's also talks about the off macy's in its brief at least says well the election form is not part of the offer the opt outs not part of the offer it's the arbitration that's just that can't be that's disassembling what they're saying they're taking away a right if the offer is only the arbitration and it can't be superfluous you know you re contracts as a whole and try to give meaning to every term let's say we disagree with you on whether there was a valid call  exception macy's points out and i believe correctly that judge hellerstein sorry judge kogan uses the new york court of appeals language about clear and explicit agreement whereas this court's made clear that it just has to be by a preponderance of the evidence but the underlying principle is the same as far as whether con whether you focus on by a preponderance of the evidence or clear clear and unambiguous evidence of a manifested manifestation of assent the key still has to be is there a manifestation of  assent then b whether he attended the session and or at least was present when the arbitration waiver was discussed or simply whether at one of those that ploy discussions i'm trying to get your view whether the test is did he attend and hear or did macy's do enough by having sessions with employees who chose to do it i'm going to go in between and that would be so for example of macy's said to all its employees we're having a mandatory session where we're discussing the store rollout program and mr weiss you will be working on this day you must come in barring you know illness some excusable situation he says you know what i'm not coming i'd be hard pressed to say macy's has failed but something where he knows how specific it's the end of the day it wasn't a mandatory program they gave people the option to opt out well steps one through three or mandatory yes but as to arbitration as to waiving your right to jury trial and that's what the opt out form that was male wrecked house was so your mere attendance at the meeting to the extent that that was part of the program i mean that the proposition wasn't that you would tend you learn if you come to work the following day you are have now consented to waive your right to jury trial and to arbitration in all instances the program included the opt out right right but my my response that i agree with that but i was answering the question everybody agrees that the state no matter how much we don't like it possibly but the state of the law is a person at will employee who receives notice of a change in his his or her conditions of employment and continues to work is bound by those changes in conditions the issue is did he have notice of that's what i was responding to judge garnett and i'm still am i'm go if he's what i'm sticking up a little bit as the program is described in the written materials describe the option to employees to opt out and so showing up at work the following day if that if the description given in the actual meeting in person was complete and consistent with the written materials table that is a right but if the employee knows about the opt out and chooses not to opt out assuming you don't find ambiguity then they're stuck thank you reserve two minutes for oh i'm sorry looking at the wrong part of the form i think i will leave it at that thank you mr korn mr parsons you have two yes three quick things just to reemphasize in terms of the actual evidence that was presented in terms of whether or not it's confusing i already quoted one provision from joseph declaration but he also stated quote you if you review the documents he quote would have explained to him that the documents provide for him to arbitrate employment related disputes with macy's unquote so again the only evidence before  the only person who offered any testimony about what it meant is that he understood what to do with regard to the presumption of mailing just to reemphasize it and also it wasn't just one mailing there were there was the informational sessions that were given practically six months before the implementation of the program do you know  informational sessions or the record show with the informational sessions described the right to opt out yes in the powerpoint presentation they did that's my recollection yes and that's our points in the record  in fact it was not the powerpoint was actually even entered into evidence by mr weiss in opposition to the original resumption of mailing apply regardless of the personal circumstances of the recipient or do the personal circumstances affect whether the presumption should be i haven't seen any case law that suggests there's any sort of special rule that the presumption applies and the only circumstances in which it's been over it's been rebutted or overcome is when there's the in many ways a lot of the problems that have that have come that have resulted in this case being here before the court is judge cohen's analysis that he's not bound by a cursory or unsound decisions and summary orders by the second circuit but in reaching that conclusion and