i ask you a question so on this theory were directv becomes an affiliate let me just tell you where i'm going wrong say i signed up for my mobility service in two thousand n n excuse me for defamation but yes that's the that's the literal language of the contract and i know that may be disconcerting it's not that it's disconcerting it's that it's hard for me to believe that anyone signing played this and the district court and that case engaged in the same kind of sort of far out hypotheticals about you know what there's a far out i don't understand what it will be mostly far out about it say context of this agreement and i am having trouble figuring out why we would read affiliate in a way that invites you know that doesn't require any great genius to come up with all of the things that that might mean in practice well st of all you can look at the used them generous canon and most of the words in  in that definition of what eighteen t or you mean are ones that are not fixed in time so for example you have a only and then there are later lawsuits in which employees are defendants that only employees who were employees at the time she entered into the green it can be sued well used and general seems like it would cut both ways here because all of those terms to me signify entities that might be doing some work related to the wireless service that you just contract it for right if you can't sue mobility you also can't sue the employees who are working under service you can't sue a successor in a e who takes over mobility is obligations to provide you with wireless service but it just looking at that list it looks like what this provision is about is you can't evade arbitration agreement by saying fine fine i won't  mobility i'm going to sue the particular employee who messed up my service or the affiliate who's doing the billing on my side wireless contract you can't sue someone or any entity that sort of standing in the shoes of mobility to provide this serv v was already a subsidiary and made a phone call to the planet so they're not making the argument that it has to be connected to the provision of telecommunication services secondly of course when you're talking about the meaning of the words in the agreement if there is any ambiguity and we don't think there is we think that it temporally limited and therefore it has to be interpreted to include future affiliates but if the court thinks that there is a debate on that the presumption in favor of in we have all those cases i understand your point on that but we do have a lot of cases in the th circuit saying no it doesn't that when we're deciding who's a party to the agreement who has agreed to arbitrate against the who question that that's  formation question and that we don't apply the presumption and that's true even when in order to decide who is a part you're looking at terms in the agreement like who counts as a customer we say that's a formation question and there's no presumption i don't think it's a quite i know you don't so i think that but my court appears to so well the supreme court in granite rock seems to draw the line between is there an agreement at all there is and then the rest goes to struck by the temp thing here that if at any point in your life you have had a wireless contract with mobility for the rest of your life you can't sue any company that a t n t might acquire for any reason apply to god i i think what the is that sort of stunning that hundreds of millions of americans when they check that box saying i want my wireless service from mobility at that point they waive their right to sue for any reason any company that is later acquired by eighteen t and that last for the rest of their lives they can cancel their mobility contract it doesn't make any difference employment discrimination someone runs you over with a car  that may be the state law question of unconscious bill of which could be raised at the time and if eighteen team were confronted with that kind of claim and were to elect to  context and you tell us all the time in the context of the whole agreement so i'm looking at affiliate and i'm looking at it with this quite broad tempore all sweet and with this quite fraud sort of subject matter scope and i'm thinking that in light of all of that surely feely it could not have been intended to mean any later acquired company whether or not it has anything to do with the wireless service that's being but it's not limited to you but surely this list of categories helps us understand what the arbitration provision covers and perhaps limits its scope some while if an affiliate is engaged in some of these bullet point claims arising out of or related to any aspect of the relationship does that help define whether you know c n n defaming you is in or out or direct t v hauling you to solicit businesses that are out or do you reject the argument that that defines the scope the reason why we wrote the bullet points was just to give some illustrations because at the time that this was last revised and they were included the argument was being made back customers don't have a good enough sense of what claims are covered because all you say is all  claims so in an effort to you know to give people a sense of this one of those sort of the heartland that the claims these are the ones that we know about that we couldn't you know limit you know doesn't define the outer limits correct but if we should we read all of the speech inclined in light of the bullet points that come after it again i'm limiting it to that but saying that that helps inform whether you really mean someone who gets run over by a c n n reporters twenty years later well it might be possible to construe it in a limiting fashion that way but you know my then we would have to have this whole fight that would sort of lead to a fight ok so what about t c p a claim and we feel quite strongly that that that claim is within the scope of the broader  part so yes we organise a fallback that it does relate to the relationship in and it is a statutory claim and it does involve an advertising so we may call those arguments as the fallback but the cleaner easier argument answer that i think should satisfy the entire panel is it falls within the main sentance think and less the court has other questions i will you've got  be is a difficult issue under the f a a and in light of the moses age co rule in repeated that any ambiguity about the scope o issues has to be resolved in favor of arbitration i don't offer that that is probably one of the most frequently and quarterly paraphrase rules in the law because you see it over and over again  in briefs and unfortunately sometimes in opinions described as any dispute or any ambiguity about an arbitration agreement or an arbitration case has to be resolved in favor of arbitration but that's not true what we're talking about here from our perspective the issues in this case are issues of contract formation and as arbitration once there is an arbitration agreement but there is no such presumption on the issue here which is the threshold issue of whether or not the players in this case diana may ever entered into any kind of contract containing an arbitration agreement with directv and the answer to that we do offer is course no we look at basic contract principles what is the st element under state law west virginia state law in particular but any states all of contract formation it's an agreement between two parties two or more parties and that is wasn't an affiliate at the time certainly in two thousand and five when more may die as husband entered into the original arbitration agreement nor in two thousand and twelve when diana may the plaintiff in this case  to to to fuck to believe in objective individual agreeing to this contract at the time in two thousand and twelve would have known that direct t v was an affiliate and obviously people can can relationship between the issues being to be arbitrated in the underlying contract the long case for example long view silver would still apply but they certainly would under the plain language of the contract have been in a field you can't argue with that and so again we go back to the issue this is this is really pretty straightforward it's a contract formation issue who are the party used to this contract and in that analysis we don't apply any person in favor or richer ability we don't apply if there's any ambiguity at all state law principles and i would argue st and foremost that the term affiliate in the contract your answer to the employee's problem i mean is it your position that is made possible didn't create arbitrate about the against the employee who mobility hires the day after this agreement to service her contract no i just instead of suing mobility find the employer who joined the company the day after you signed your agreement and sue that person i agree you're out of that does that does sort of it's all sort of the other end of the get run over in the street you know there are there are ways to draw analysis that make it look more or less reasonable i think the issue here though is there's an understanding obviously that employee that there is turnover and change you go back to what your honor said about the perspective of an objective individual entering into this contract and direct t v has pointed out in their brief by calling point out his argument that the language in the arbitration agreement does at times refer to things that seem clearly an obviously forward looking assamese is obviously forward looking you understand at the time that you sign an agreement that an ass and he is something that can't be no m and can only occur in the future the same thing with successor companies you encounter a lot of these cases that are cited in the briefs don't go nearly as far afield from the original relationship as those when they involve successor companies or asking knees or agents who've been identified or named by one of the parties those are inherently explosively even forward looking terms and as in the has to happen in the future a successor has to be someone who's named in the future i'm an affiliate which the issue that we're dealing with here is not an inherently forward looking turk there's nothing about the word affiliate by itself that tells us that an affiliate is someone that is going to come into existence in the future so the contrary you're reading it normally read in the plain language you read it is these are who are fairly it's are now there's no reason to assume that it's going to continue to expand exist in the future a successor company is something that can only exist in the future we're not inter breeding anything we're looking at the plane dictionary meaning of those terms when we look at an affiliate that's simply not the case had directv intended to include all future fill it it could resolve this issue they got a lot of rude lawyers that could solve this problem as easily as adding one word to the contract two responses to that number one i believe dressing that employee falls if we're looking at this from the from the standpoint of objectivity or in the objective individual believe employees falls closer to the  goes that my nd response to that question goes to an issue that was raised by the judges floyd and hearers about reading the contract as a whole which direct t v has encouraged us to do and you know the arbitration languages is on page one or two of the j the judges honed in on the not exclusive list of types  of disputes that could be arbitrated as an example of how we have to read this you know how an objective person would read this contract and understand it i would say those are all good points with respect to the scope of the agreements to be  precisely within the orbit tradition agreement itself but if we're looking at the agreement as a whole and try to have an understanding about how a reasonable person would have read this and understood who she was entering into an affiliate at this point it's not it hasn't been something that we have talked about in this case or needed to discuss in this case if anything i think it goes to the question of what is you know is this an in being jewish term if it's a baby there's no definition other than what i just cited to aunt jane ninety four there is no definition of what an affiliate is at all in question of is this a contract formation case or is this an arbitration scoped case and if this is a question of contract formation ok and we're not talking about what the issues is but we're just talking about did died of may the plaintiff ever enter into an agreement with directv then we don't apply any presumption in favor arbitration we rely on standard state law contract interpretation principles st of which comes to mind especially in what is essentially a contract of adhesion between day of may and eighteen t when she wants to use a cell phone is contra preferred right we're going to interpret the terms of this agreement against the drafter who obviously was eighteen t now there is a twenty eight j i want to address this issue briefly before my time is up there is a twenty eight j letter in this case drafted by my company he's with directv that suggested a recent supreme court case called lamps plus said we couldn't rely on contra preference but all amps plus said was that when there is a conflict between the f a a and the moses age cone presumption in favor of arbitration arises under the f a a and a state law principle of interpretation such as contra preference i'm that the f a a presumption is overriding but again interpret the contract in this case i think it's very clear you know we have a contract of adhesion between that of may and eighteen t if there is any ambiguity in that we're affiliates which  sounds like the court thinks that there is in that has to be construed st against the draft or it also has to be construed you know in as we said in light of the rest of the greenman in light of you know confused direct t v s argument that the forward looking language in other parts you know closely related parse of the contract means that the court should somehow and the reference to future disputes tells me and should tell the court that when eighty and see wants to write a part of this arbitration agreement that refers to something that we would we would suggest that the court view that issue the same way that poser did in the smith case the way the eastern district of new york did in the wexler case which by the if the organiser would be unconsciously broad it also follows that there couldn't be a meeting of the minds as to who the parties to the agreement were and we think that would be the wiser course thank you very much others appreci points this discussion of whether it's really an issue of formation or whether it is in fact should interpret in the contract and go the st point i'd like to make on that which i think the palace already focused on is that same argument would apply to agents so and what sense would that make as charis pointed out if it were really if there was no contract that allowed employees hired on the very next day to invoke the arbitration clause can i ask you a question about that because i do as my earlier question indicated i do understand the idea that  this arbitration clause didn't apply to future employees in a way that would allow it would make any sense if it would allow the consumer to kind of be the arbitration instead of silly mobility it suits the future employee  for the service failure but again when i read it in combination with the rest of the contract or agreement i am concerned because it seems as though i'm your understanding of our employee means really a combination of the future and the lack of connection is what's disturbing to me because it seems that it would apply like say i was in court all right i'm suing someone who ran me over in his car and you know it's the st day of korra he comes running in and says i just got hired by mobility you've waived your right to sue me i mean that would be fine under your treating right because now that future employee is us and i have waived my right to sue anyone who is included for any dispute or claim anyone who's included in the term us that there's two questions for it the st question is is it covered it's covered the nd question is is there a state law defense to apply so you really  your answer is there is no limitation in this agreement that would take care of any of this we should construe the agreement to reach well beyond what is conscionable and just use unconscionable of the doctor to write in the limits that ought to be in this agreement correct ok and let me give you an illustration i'm sorry i thought that was a rhetorical question but ok the th circuit and the dover says princess cruise case which  the court said in its opinion if you're just put a period after all claims between the parties these other five claims which were like false in prison then you know claims that seem for a feel from the contractual agreement or she was a board tender to provide your board attending services for the cruise the court basically said it a false imprisonment claim or whatever the other claims were that were indo or hypothetical about c n n we'll decide whether that is unconscionable or violates public policy but it is within the terms of the contract and the supreme court tells us we have to enforce these contracts and so so that's i think the the solution to that and then i just want to point out which then the the thumb on the scale in favor of arbitration comes in place to play and the th circuit as we said no breaks the th circuit did exactly this in the adams case and it's a very little it's a short little unpublished federal appendix decision but basically that case involves future affiliates of a successor company and the th circuit not only held that they were covered but also said that even if it was ambiguous the supreme court case law would require them to conclude that the that the claims against this service if you want this plumber fix your toilet check this box ok so your answer would be that's right every literally every claim you in may ever have against anyone from now on you can't go to court but that's fine we'll just go case by case by case and ha know him and so but they've construed that pretty broadly so i guess i'm really not entirely a comfortable with the regime in which we can have agreements that say if you want me to fix your toilet you can never sue in court again and then just ask these plaintiffs to go case by case by case to say this one conscionable this one is unconscionable this why don't corporations just write normal arbitration humans wouldn't that be a lot easier well if we could have a crystal ball and predict all the future ways in which these questions could arise and we could write a contract that would then not be attacked for being so long that no one will read it we would do that but i think this is a pretty good shot at it and we