for lawn care services she terminated that contract in the spring of two thousand and fourteen almost a year after she terminated the contract triggering make calls to her cell phone violating a federal statute the telephone consumer protection act the violations fall into three different categories first the triggering use an auto dialer to color cell phone second that it failed to put her on its internal do not call list and third they called her despite the fact that she was on the national do not call registry pretty much every way you can violate the t c p a plaintive sued under the federal statute she did not sue under the old long care services contract nevertheless the district court in forced an arbitration clause in the old contract and compelled her to arbitrate her federal claims this court reviews de novo and we're asking it to reverse the district court applied a strong presumption in favor of arbitration that was error in this case because this contract had already expired once a contract containing an arbitration clause expires the rules are very different this court said in the south central decision which we've cited the general principle is that the obligation to arbitrate grievances does not continue in effect after the agreement expires we think that should be the starting place for this appeal a rule against arbitration south central lays out the only three exceptions to that general rule and this case does not meet any one of them the first or what about the language in the contract this says that contract plast two possible futures there is right when you read that against the backdrop of the general rule i just described what that means is that while the contract is in effect true green had a right under the contract to call her to discuss future services so what does that mean it could cause her to talk about renewing her contract for another year those would be future services they could call her to talk about adding services to her existing plan because she didn't get the whole show more misfortune she got some services but not others so they called her to talk about that those will be future son only problem  to future services it doesn't say that permission is given to call in the future it doesn't speak to when the calls are made and so what we're left with is just a general principle of contract law which this court has already adopted and expressed in south central so the there would only be like the day that the contract was signed the sheep that that call could be me no do well during the entire term while the contract was in effect which was a year true green had permission while the contract was in effect because the contract said so to call her the services she was currently getting or possible future services which again at that point in time could be renewing her contract for another year could be adding shrub protection or whatever it was that she didn't already have but but the threshold question in this case though is it's not how broad was the arbitration clause the question is did the duty to arbitrate even survive the termination of the contract and that is the threshold question where no presumptions in favor of arbitrary realty apply that they rely very heavily on this presumptions and say that any ambiguities have to be construed in favor of arbitration but none of that applies at this threshold stage the litton south central type analysis and against south central sets out three specific tests and one of those has to be met before arbitration is even a possibility the first one is that a majority of the material facts and circumstances have to arise during the contracts term when you think  plaintiff's case in chief one of the t c p a that's not going to have anything to do with this long care services contract it's going to have to do with things like did she receive calls with an auto dialer or was she on the nude do not call registry triggering is trying to drag the contract in as an affirmative defense saying that she gave consent to be called under cellphone now we've cited some cases saying you know the fact that they try to raise it for of defense doesn't change the whole nature of the case so as to make it a rise under the expiring contract and trigger the arbitration clause but putting that aside for a second just to show you how totally immaterial this contract is to to the federal case the specific language there a line on this is page  one sixty eight in the record it says if i have provided true green with my cell phone number i agree the true green may contact me on that number so it says on that number and if you flip the contract over in the upper right hand corner of the contract the point of hand wrote in a cell phone number so that was the cell phone she gave permission to be contacted on if you compare that with paragraph eighteen of our complaint it's actually a different cell phone the calls made to the plaintiff in violation of the t c p a were made to a different cell phone so no matter how expansively this contract could be construed according to its terms it could have only given consent to being called in that old cell phone that irrelevant cell phone so that is a doesn't important thing that i  hope the court takes away from the face of the record so certainly this contract is not material in any sense to the federal t c p ip claims because at at the most it means that they had consent to call a different cell phone now the second cell central test is whether right accrued or vested under the terms of the old contract and the classic example of an accrued or vested right is a pension right you earn it bit by bit over time but you don't get it until a later date while the permission to call her old cell phone is nothing like a pension they didn't earn it over time they got that permission right off the bat but the contract also said it could be revoked at any time and she did that in the spring of two thousand and fourteen she revoked the whole contract well saying that a right can be revoked at any time is the absolute opposite of vesting language i know this court has had a lot of vesting cases dealing with retiree health benefits and things of that nature and any one of those cases i'm sure that if the agreement said you know this pension benefit can be revoked in any time that would make quick work of the best inclined that's just not consistent with what the idea of a vested or crude right the third south central test is whether under normal rules of contract interpretation the dispute contractual rights survives the expiration of the contract and here the disputed contractual right is the consent to call her cell phone you know bearing in mind that that course is the wrong cellphone which should be should render the contract totally irrelevant to the whole case there's no language in this contract like a survival clause that says even when this contract is terminated you still have the right to contact me on my cell phone you know a good example of this kind of language is the case triggering sidedness notice of supplemental authority telecom decision makers the contract expressly said party a commissions to party b the duty to pay commissions will continue even after the contract expires because party brought those accounts to you and you still owe money residual money coming in as commissions that's what this third test has in mind language like that and there's nothing like that in this contract again it says that the permission can be revoked at any time and of course it does refer to possible future services which we've already discussed but read against the backdrop of that general contract rule that just meant that during the term of the contract she could be called to discuss future services not that calls could be made at any time in the future forever so what we have here is really two separate independent things if you consider the time line for a year there was a long care services relationship between the parties they gave for lawn care she paid the money and that ended in the spring of two thousand and fourteen maybe a year later close to a year maybe she all the sudden starts getting these phone calls and her cell phone more than ten despite all these things she's on the do not call list as not to be called that's the second part of the situation and it winds totally unrelated to the long care relationship that they had before not even the two cell phone numbers are the same so there's really no causal relationship there's no legal relationship or claims in this federal case have nothing to do with the lawn care services contract you know the only connection true green is raising is that is says it wants unilaterally to make this case about this expired contract and because this expire contract has an arbitration clause this case has to be arbitrated but it would be a probe a little bit deeper and look at the language and look at the cell phone numbers there's really no connection there are two entirely different things and for those reasons the dispute we have in front of the court today whether the information they were using the color was derived from the file they had pursuant to the contract or whether they they obtained that information separate and apart from the contractual relationship well i think it makes a difference in this respect they're trying to say that this contract has something to do with our federal case because they got the consent from this contract that's what why they're saying this this case needs to be arbitrated and we're saying no you didn't even get the number you called they were complaining about from this contract nothing in our case that we filed nothing in our complaint nothing about that case has to do at this contract not even the number you called you didn't get consent no matter how you read this contract it only gave true green consent to call a different cell phone and under the t c p a it's a number by number thing you don't get consent to call one one number and that applies to every other number the person may acquire throughout her life so so they didn't have consent and that's the only connection they have to argue between the longer services contract with the arbitration clause and the federal t c p claims so that's i hope that answers your question we won't we don't know of course how they got the new cell phone number because this case never proceeded to discovery or anything like that but from the face of the record there's there's just no apparent causal relationship between the two things so we're not arguing are just disputing that arbitration clauses are forcible we're just saying they're not immoral they don't rise from the dead after the contract is terminated and attached to disputes that have nothing to do with the contract it has to be related to the contract in some sense as to be arising under the contract that that is the test under south central lity and because those three south central  if the contract expired a week ago as opposed to twenty years ago does that make a difference i think indirectly would probably affect that first test because a long time has elapsed between the expiration  contract and the facts that that led to the dispute then it's probably not going to be the case that a majority of the material facts and circumstances happened during the term of the expire contract that's the first south central test here you had about a year and that's that's a pretty good time all right thank you may please the court george lewis and i represent the apple the true green in this matter implement early of course it is strongly disputed that there's been a violation of the t c p a the district court did not address that issue it's not before this court this argument about that they call the different cell phone number and i cannot find anywhere in their brief or in the district court's opinion where that issue was addressed either it may be buried in their brief and i don't remember it but i don't remember hearing that her human ever before i don't think it matters your honor for reasons that i will explain but i just want to point out that those those issues that that council began with about the violations the tepee to c p s are still a matter of dispute in the pleadings and have never been addressed by the district judge in this matter the contract provides that it that the consent to call applies to current and possible future services possible future services customer services and billing and it provides  that the plaintiff did not have to provide the number in order to get services the conclusion reached by the district judge is buttressed by the arbitration provision because the arbitration provision says purchaser and true green agree that any claim dispute controversy between them or against the other or the employees agents or assigns of the other and any claim arising from or related to this agreement or the relationships which result from this agreement shall be resolved by being neutral arbitration there is a class action waiver provision in two places in the contract it's in the paragraph math and it's in a separate class action waiver paragraph and that paragraph says any claim must be brought in the party's individual capacity and not as a plaintiff or class member in any purported class collective representative multiple plaintiff or similar class action in the parties expressly waived any ability to maintain a class action in any forum whatsoever course what the plaintiff and wants to do in this case is to maintain a class action in the district court contrary to the clear language of the arbitration provision and contrary to the class action waiver paragraph and the second half of that paragraph i won't take up the and your hypothetical your honor has she called and revoke permission to call where she's revoke permission purportedly i don't know if she did it by calling or email or nail mail or whatever contract says she can do it or in writing ok if she has never revoked that permission then they would have the right to call your on it on of the facts here isn't it the case that isn't the claim that the contract that expire contends she had revote permission you would agree to desert convention i would agree that that's the argument on appeal that by the simple expiration of the contract or her terminations contract she's revoked her permission to call i would agree with that your original question had to do with all right well she's the only down to the restaurant you know there's an issue as to whether she and revote but assume that she did does that mean that she could forum in which she must prosecute those claims all right you can come to and so i think you are yeah i mean there are obviously might be statutes of limitations under the act and there would be contested issues about whether auto dollars were used and all of those sort of things that happen in these types of cases but the issue here is can that happen in the district court or must it happen before an arbitration panel chosen through the processes of the american arbitration association and yes for the rest of her life she's agreed to submit those claims to arbitration and she must do so where would we draw the line when we say she has to do it within a year or two years or five years or ten years there's no such dividing line drawn in the contract so what she agrees to the arbitration she's got to follow her agreement she doesn't she doesn't have to give consent to call to get services so the answer the question is yes or if it arises out of that relationship that these parties have formed just in the same way arbitration agreement arise in the financial industry or the construction industry or any other business or industry those arbitration agreements are enforced by this court and the united states supreme court and they don't the obligation to to arbitrate doesn't expire by the passage of time in our view and in the district courts you this your court correctly applied huffman in our opinion your honor  federal law and indeed the district judge sided extensively this court's opinion in huffman ok and that that language that's quoted comes from section the huffman opinion on page four where this court said we first determine who the agreements arbitration clause clause had post expiration effect the district court's decision whether to compel arbitration on the federal arbitration act is reviewed dyn o of similarly the district court's decisions regarding arbitrary military review do not vote but then the court goes on to say central to the resolution of this issue is the strong federal policy in favor of arbitration in lytton financial printing division versus in l r bery the supreme court recognized a quote presumption in favor of post expiration arbitration of matters unless negated expressly or by clear implication for matters in dispute arising out of the relation governed by the contract and the court goes on to say footnote two under section two and this is also quoted by the district court the supreme court and litton went on to note that with respect to agreements containing broadly worded arbitration clauses quote there is a presumption of arbitrary billeted in the sense that in order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that argument huffman made by the party seeking to avoid arbitration was that there was a severability clause and that arbitration there was a survivability clause and that the arbitration wasn't listed in the survivability clause and they by implication that by omitting it from the survivability clause that express the parties intent that it didn't survive but here we don't have a survivability clause and we have a consent to call which which specifically refers to future services we also have a reference on the first page of the contract that if they don't want any services they can give consent to call the district court apply as the three prongs in huffman on page nine of the district court's opinion and the district court discusses each of the three prongs briefly does not in our view make any finding as to the first progress here's what the district judge says on page nine the facts in the present case are similar to those in south central and it's some but not all of the facts and occurrences telemarketing calls arose prior to the expiration of the old agreement and so the district court really made no decision about whether that prong pr number one applied or not but then the district judge goes on to discuss the next two prongs and he concludes the agreement allowed truck true green a call plaintiff about quote possible future services therefore the right to do so accrued or vested under the agreement so the district judge found it pronk to under huffman applied then the district judge discussed pran three and the district judge says and using quote normal principles of contract interpretation leads to a finding that the disputed contractual right i e arbitration survives the expiration of the term a nation of the services agreement so if all this court has to do to affirm the result reached by the district judge is a firm on either of those two grounds either of those two problems i respectfully this court does so as does the district judge in an environment in which there is a strong presumption finding arbiter ability and finding the survivability of the arbitration clause and so it's our position that the district court was imminently correct in the way the district judge applied huffman and if the court i suppose disagree with both of those two findings then the appropriate thing to do would be to remain so the district court could make a finding under prong one but in our view that's not one of the necessary because clearly the normal principles of contract interpretation would lead any any reader to to conclude that the ordinary meaning of giving somebody the right to call rearming future services and the ordinary meeting of of an arbitration clause that covers anything arising out of or relating to the contractual relationship or future relationships would be covered by by the agreement to arbitrate i think your adversary here says maybe i'm overstating the argument that is arguing among other things that the district court applied the presumption in favor of arbitration at an earlier step than it should have been applied that the court applied it in determining whether or not the dispute arose under the expired contract   even playing field or a or a preference for arbitron building or an actual legal presumption the result is the same based upon the clear and plain language of this contract well know did you have another question like i guess my concern is that there seems like there's a difference between how you decide whether the disputed issue here actually a rose under the contract which eventually expired  survivability and not to whether it's covered by the arbitration clause i heard what he said and i'm a little confused as to which which of those steps but i would submit that the result is still the same because under this cour decision including the decision that this court decided back in june of this year there is a strong favorable policy under federal law in this circuit in favor of arbitration i have about thirty three seconds left i just want to hit the these are long care services not the right to employment not the right to a pension that the manner of the arbitration under aaa as opposed to some other biased form of arbitration is is the one chosen and they're willing to pay for the arbitration if it's under fifteen thousand dollars so all of those factors mitigate against a funny one conscience ability i'm out of time you are thank you  thank you i'd like to to clear up a couple of factual matters the first is that tribune is represented that that the plaintiff did not revoke permission to call her old cell phone i would direct the court to docket entry number thirty i want which is for declaration and she says i terminated the attach contract in her brown the spring of two thousand and fourteen if you terminated the contract and revoke the contract the permission to call her came out contracts that's revoking that part of the contract to say yes she did revoke permission the second  is my adversary quoted the district court's opinion which seemed to say that some of the facts that telemarketing calls happened during the term of the old contract if the district court meant to say that that's that's a misconception because it's clearly glenn your complaint that telemarketing calls didn't start until january of two thousand and fifteen which is about a year after the contract expires so i want the court to be clear on that at that point in the case of huffman the triggering relies upon the district  not discuss the south central factors in any detail and go through that analysis because in huffman it was very clear that the dispute arose under the old contract the plaintiffs were saying we were employed by the company and it didn't pay us appropriately for our time worked and they had employment contracts that govern their entire employment relationship during that time period so it was kind of a given in that case that these tests were met and so it's not that huffman changed the law or applied a different standard it's just it didn't really get hung up on the issues that are govern this appeal where it's not clear at all that that dispute arose under the old contract so we're not saying it's a choice between huffman versus south central it's just that south central really applies to this particular kind of dispute the question about the issue of different cell phone numbers being in the record the parties do not argue that in their briefs in triggering reply brief it made some statements that there was the the tribune had been sent to call her at the number you know in the complaint and that you know there was a causal relationship between giving consent in a contract and then the later events and so we just thought it was important to point out to the court there from the face of the record you're talking about two different cell phones and therefore no more no matter how you parse the contract language it cannot possibly give true green a colorable affirmative defense in this federal t c p a case and i think that that's fair to do in response to their reply  brief coming down to the possible future services language i want to be clear the court we're not trying to read that out of the contract we've given that reading the gives us substance but at the same time is consistent with contract law during the term of the contract should be contact about future services which i gave examples of it's a standard rule of contract law that the contracts incorporate the rules of contract interpretation of course of come up with that or prevailing at the time and one of those was the one i described himself central that unless the contract says so explicitly all the promises and duties in the contract and when the contract ends and that's basically our position in this appeal thank you very much thank you counsel case will be submitted