or it isn't it is a confusing issue and your honor it rests on the i've drawn a distinction between what questions go to an arbitrator and what questions don't go to an arbitrator even in cases where there is a delegation was just a very strange it's a very strange statute not everyone has it and i don't even know if very many other states have it you know there might be a couple other places but it's attention started there i think your your honor is right on everything with respect to one issue i would take slight issue slight i took a different position on it and that's whether or not this arbitration could proceed individually i think is a question for the arbitrator and of the delegation caused because it goes to the scope and enforceability of the arbitration agreement and that's the point that we try to make don't think the market it's different than it was somewhere between between an action and a class action it certainly can't be considered a purohit an action because it really bears none of the attributes of a key to an action because the point of control the action and would be just fine under the federal arbitration act and that's not the test is that more than test a quarter a legislature could effectively preclude the arbitration of any type of claim by devising a rule that applied in both  so it sounds like the the district court well let's put it this way the arbitration clause only allows individual claims and not class claims the district court consider representative claimed and then just said you can arbitrate that i don't understand the basis of that why is a representative claim closer to a class claim versus the individual i think a representative claim is closer then a closer to a class claim  claim because they're seeking relief on behalf of other allegedly aggrieved employees this is not i would say that you wanted the fiction that this is really a representative claim really doesn't hold when you consider the facts this is no more a representative claim in a class action is a representative claim because it has a single named plaintiff to represent the interests of a one thousand or several one thousand plaintiffs the same bases they would need to be arbitrated individually that's our exact point whether or not this is treated as a representative claim or a class action claim there's nothing that precludes them from prosecuting this claim on an individual basis well that's why wondering why that more seeking relief not just for violations regarding now but they're seeking relief for alleged violations that were committed with respect to every other punitive member of whatever you want to call it the representative group the collective the class affectedly the result is the scene at the end of the day every single person that is allegedly aggrieved by this conduct is covered by this suit so again there's just no practical difference between the release what we class action and the release what here other than the allocation of everyone this is a very confusing area and i think systems emphasize that courts should enforce arbitration agreement to their terms including when they require one on one i mean it isn't really does it run on class actions with regard to this arbitration thing and it the cases are a bit in tension with you a great well your honor this court left through all that in so common found a difference between representative pago claims and class actions and remember that at that system's issues it was actually decided was whether or not to be an hour in a creates a right to group action class arbitration can be compelled to even when there is an ambiguous arbitration agreement so neither of those cases addressed the issue that was here this court is still bound by surprise the supreme court has denied in a skinny end is that there is a difference between a representative action and a class action it is a case brought on behalf of the state it is recognized to be like agreed on an action the state does have a level of control unlike w settlement so it is a way of expanding the resources of the state and expanding it to private parties who can step into the shoes of the states that would because the state has limited resources it's not a class action the supreme court the court did just what you asked it just took her to do and now you're complaining that the just didn't get out can you give me your response to that yes i mean you're absolutely right coverall has been changing its strategy along the way in this case it me just report to decide this question whether or not howells arbitration clause could prevent plaintiffs from pursuing representative action in court it asked the court to decide whether arbitration  could be held on a represented bases it asked the court to compel arbitration on an individual basis coverall didn't like the response and now it comes to this court has the district court didn't even have the power to decide appeal and she didn't argue that previously at that your honor i don't recall that we didn't argue that below i thought that we had this case was eighteen months in there already been motion practice decisions  papers cover all waive that because it asks the district courts make this decision and even if there weren't waiver there are multiple reasons why delegation should not be found i mean it's extremely important here that be arbitration agreement individual action so i guess my question is why isn't it then our bridgeable under the arbitration agreement well i think that's actually a very interesting question your honor we have argued below that we've made the point below that the federal court make a difference there are there's also the question about the whether coverall will even let this place to get his butt in the door when we tried to do that originally they tried to saddle him with four thousand dollars in initial filing fees which were out of his reach so there were problems with trying to leave the starvation but if it were made clear that a company couldn't do that it would have to pay for the arbitration and that are represented to be pursued in arbitration we wouldn't have a problem with that but we've we've opposed coveralls mission because it's clearly trying to prevent mister reavis from pursuing his representative claim anywhere and that's the real problem under its gaining it is that it can't be claimed can't be for hoyos all together anywhere right so if we wrote an opinion to that effect would that be the sure vehicle to the supreme court that maybe that that maybe mister lay on has not been successful with the way if we go where no one stance because california is out there on its own if california continues to say that the state can say that this is that you know that it can't be waived and it can't  mean i think i think we covered i think we covered the argument coveralls trying to do here is get this panel to overwhelm the prior panel and it has no basis for doing that and that he can be decided on not issue alone it can also be decided on waiver we talked about some interesting issues here that haven't been fully fleshed out i just don't know whether the court needs to address these issues but i think one way or another the law is a circuit is a representative hughley needs to be be litigated individual and i think is inconsistent with the skinny in itself was against a party could not waive the right to pursue a claim in a representative capacity precisely because the suit belong to the state but  canyon also said that the right to proceed on a representative basis could be waived after the dispute arose this from secada the same distinction the fact that the plane can proceed individually means there's no reason at the reavis to waive represent the district court concluded that the wording of the agreement and i think the district court's ruling in this respect was completely correct that the wording of the agreement are any sort of represent court in may of twenty nine thousand now we intend to move to compel arbitration and might have a decision we refrain from doing it earlier only because we thought that the agreement was somewhat ambiguous in terms of whether or not it would preclude representative actions that's