agreements were only given to a small pool of punitive class members many of whom it's completely impossible possible that they never would have joined the faction we are now nine years into litigation and only to have so this wasn't as significant in looking at this litigation with the benefit of hindsight obviously i understand that point but at the time we were defending against a motion to toll the statute of limitation that was based on  the procedural posture somehow impeding punitive class numbers from joining and so in making that assertion the point was simply that defendant ten done anything but pursue the procedural also state that they could have joined the litigation or filed their own arbitration claim but from the defendant's strategy at that time it was nearly to rebut plaintiff's argument that  our finding of motions to dismiss at that time had somehow prevented or created some sort of extraordinary certain circumstances that prevented plaintiffs who are eligible for joining and justifying toning defendants want making the point the time when they said that defect that there was nothing that plain just the defendants had done to dissuade or somehow struck the plaintiff from joining that with respect to their conduct which was what was that issue in the motion for tolling because moving otherwise and forcing or attempting to force an arbitration agreement would be futile and the court there specifically defines utility as an instance where it would be almost that it wouldn't have entertained that notion prior to any options with arbitration agreement actually joining once that happened the defendant promptly on the next motion filed the joint and summer twenty two thousand an instance where the arbitration agreement could have up rooted in a lengthy and time consuming and costly litigation from federal court into arbitration this class action or collective was always going to go forward in federal court the only difference is that there may have been a handful of individuals who opted in who are that compelled to arbitration as i said before right now that's to looking at the pool based on the geographic scope there are only five additional who a small part of the overall defense strategy a defense strategy against the litigation that was always going to be and federal court he even if this court decides to apply the hawksworth factor still there can lose they tried vigorously to get the case dismissed and hoping that they would and they did twice and then they thought it would stand and then rd circuit reversed so they were hoping that the case would be knocked out so they kept it to themselves meanwhile no one knew about this and then after so now they said oh now the case is real plaintiff has spent untold dollars time the courts district courts written multiple decisions the rd circuit wrote a massive decision on this case then they said ok now we'll let you know so what they did was exactly the whole point that arbitrates was created was created to take the courts out of the process and give it to an arbitrator but what plaintiffs what defendants did here was cynical and unacceptable and has been rejected by this court and argument based on misconduct but the district court never addressed that you know they asserted they sought arbitration reasonable at the st opportunity they could so the logic if not the holding a chestnut applies why don't we leave this is a topple matter for the district court rather than stretching our waiver doctrine your honor this is not a stretch of the waiver doctrine one  point the complaint was filed that arbitration agreements were present they knew they just simply said that since the law at the time was that by lateral arbitration was no was not effective until the change in the law the supreme court's decision eighteen t that effectively the arbitration agreements that everyone knew about could not be utilized we didn't know about you could they could not have arbitrate and they could not have arbitrated that early correct you're not disputing that you couldn't have arbitrated before late two thousand and seventeen right yes but this is the but there's a bigger point and that's what deals with the issue isn't only whether they could have arbitrate the issue is what was the effect of concealing the arbitration on the parties and the court it created prejudice why because this case was filed as a class action a class action is kick is is not a situation where you have to wait for someone to opt in that's an f l it's a opt in procedure which means you have to opt in a class action is you have to opt out so if we receive a pain class certification every single person would be eighteen going back to the day the complaint was filed and they didn't attend and usually though worth when they're conducting their case they have a right to know that this case may well end up in arbitration critically critically your honor pla is as follows this is the prejudiced prejudices is that in the absence of knowing about arbitration plaintiffs engaged in a lengthy litigation spending untold dollars  time and risk and here's the key this plaintiffs turned down offers of settlement because she believed specifically that she would be able to represent the group there were five people involved that stat were that signed arbitration and that therefore it was a tiny number and therefore wins have had much effect on the case the case would have to go forward anyway that number  not appear in the record it is a number that was created today and the number isn't is in the record and it's a page to it's reference to page two of our opposition papers to seven and that was in two thousand and fourteen mind you and since then for the list six years people are still signing them so how many are there now who knows how many but it's not five it's published case because criterion but you can tell me otherwise even with harold that a party waived its right to compel based on litigation conduct that happened before any potential arbitration know i just don't have a i have a can tell you had and then there were numbers of the cases a cited in our brief to district court and our briefs to your honor's it's a it's a well established yes ok without question but again i emphasize that the point that the fenton has just made to your honor's is that they were simply a handful of arbitration agreement so what's the big deal the case was going to go forward in federal court anyway when i pointing out to you it's a matter of record that eighty seven agreements was signed not five that to me is i mean changes everything am sorry but it i don't see it to be nine pages long it was a presidential opinion involving multiple issues a st impression the court went through successorship i miss my to join employer it went through single it went through individual responsibility of us of a manager it was a huge undertaking and putting that aside to the district court there were three district court opinions written even before that decision and all of that could have been avoided had we been told about this thinks this would have been settled upfront early on and here we have a nine years later and we wouldn't be here today but for the concealment of the arbitration why because once we were into it for three and a half years we had to go forward it was no turning back so we've spent nine years litigating a case that could have been resolved based on what judgment made a couple of months after the plaintiff filed the case i mean if that's not prejudice i don't know what h yes your honor thank you i just want to quickly address this would be in the exact same position if descendants had disclosed the arbitration agreements during th case was always contemplated as a class and or collective action that was going to go forward in federal court the numbers that point of counsel has brought up the eighty seven only is in relation to how many and finding good i just want to make the point that to all of the certainly if we thought that the arbitration agreements would have had an effect during settlement negotiations again it would only have been to do it to descendants