six yes right and what if any evidence do we have in the record other than just the operative complaint the reason being they all for one very very negative side of the case against p l s and you and your brief talk about no we didn't do this or no we didn't do that and that confuses me because generally we're limited to the allegations in the complaint i think that's what the district judge fell down by yes i think that's generally collect correct i guess what i would say is if you actually look at what they say in their complaint most of the allegations are a lot about but so you're content to just stick to the complaint will stick to the complaint i'll take you where we do have problems or where the complaint actually makes allegations insights sources that clearly show the allegations are not true in that case i don't think the court is required i don't think the district court is required to accept the allegations as true how would we know whether they're true or just let me just give you a very simple example if i were to file a complaint that said that this court claim involves the fifty second state of the united states israel we would all know that statement is false right and the court is not required to accept it in this case just as an example  example i don't think it's relevant to anything that's going on here but as an example the apple lease say that we have a policy of we tell people that the reason for taking these post dated checks is simply to be able to verify whether they have the account they cite to a website as evidence of that if you go to the website it says nothing at all about that whatsoever  but in the contract the parties agree that the federal arbitration act will apply to a lot of we apply the federal arbitration act federal law these are very state law  diversity act because texas has its own arbitration act but that's not going to put right it it's a common situation if the federal arbitration had to apply to apply federal law and then only within the context of the f a a it will specifically say in some instances you look to state law to determine some issues and two examples of that would be one which is relevant here one would be the formation of a contract in other words you're looking at the arbitration agreement and  as to make was there a contract for and you look at state law to decide that not federal common law was a contract or a second example though which is relevant here is on issues ask and you get through the first two initial questions which are is there a contract in his debt are the claims within the scope of that contract questions after that about arbitration go or state law and a perfect example is here waiver in the diversity action well actually this is true even if it's under the f a a if it even if you're in federal court not under diversity but you were looking at that the normal tracing back questions like waiver are actually based decided based on state law that's what the u s supreme court teache so you would on those kind of claims you look to state law the reason it isn't really heard it's hardly ever relevant is because texas law in general on the waiver and the fifth circuit law on waivers in general is exactly the same it's really not a the courts and ask a question of belief question two if you were to prevail what are you saying that as a threshold point you would prevail we wouldn't even reach waiver because your view of this contract is that you agree to arbitrate ar biter ability and therefore the waiver question would go to the arbitrator if you win on your first point is that right or wrong you know i'm going to leave that to you and i'm going to tell you why i was surprised by this law in all my experience  can happen in grievance three things could happen one is the parties could specifically say we want waiver decided by the arbitrator one is you could specifically say we want a waiver decided by the courts a waiver that usually complex contractual waiver as distinct from waiver by virtue of litigation wouldn't you say i wouldn't agree with that your honor if you if you decide to read the language of the contract and see what is meant and then the third the middle ground would be we don't say anything about it all and whether anything was said about waivers specifically here supreme court case in the fifth circuit to my knowledge has never looked at this issue since two thousand and fourteen i think that the law is that you should send it back for the waiver to be cited by the arbitrator that's a surprise to me it's generally too late it normally a motion to reconsider concerns new evidence or something of that type well there are actually two reasons one is in particular because the trial court decided it would consider it and it did rule on it in the motion to reconsider so i think it's properly before you but secondly i do think it falls you know in of walkie talkie orders there really isn't a rule on motions to reconsider but courts of appeals have said we're going to look at it is if it's under rule fifty nine and the trial court said and i think you can look at it for the same thing is clear error of law and i think that's really what this would fit if the if you all decide that the supreme court holding is that we have to send a waiver to the arbitrator that would be clear er thought of that argument until after we look if you waved a waiver or if the laws murky and we're going to get to the merits to understand your argument are you saying the courts didn't happen to be invoked here the da didn't seek a subpoena for this well i just try to move off because you only have four minutes left i only want to be very clear that the only issue that might have been waived was this question of who decides to leave or not i gave and i read one hundred percent so the answer your question i actually don't know the answer i would be i think that actions of the prosecutors can never be attributable to the complaining party that would be my position but clear here it's unnecessary to answer that's what cash because you would think that's what that it doesn't matter because there's no act in court and there the so the restitution payments never went through the court funds note it went directly to the prosecutor and then they and i present i don't literally know this is not the record but i do litigation close quote it has to be in court well if you look at the subway leasing case it actually uses it says an overt act in court when it's discussing in more detail this question of substantially involves this fact issue of the debt between pos and the borrowers ok and it says if you had a criminal action that might be issue preclusion on a civil action over that debt the claims in this case have nothing to do with the indebtedness they're not dependent on it they're totally independent of the claims here are for malicious prosecution d t p a violation is fine to have tech violations and fraud it all stems from the actual act of submitting to the criminal complaint to the prosecutor which they allege is wrongful and that can lead to sudden arbitration those claims have nothing to do with the debt issue they're totally independent of it so even if there was some of it to the prosecutor in an effort to affect repayment of a big yes but it doesn't actually matter of that if we had submitted the claims for any other reason the reason is irrelevant because what is actually the alleged wrongful act is the submission of the client we could have done it for any number of reasons it is independent that may have been the actual reason there is some evidence that may not have been the reason but it's independent of why we submitted it it's simply that the allegation is that we wrongfully submitted so those claims are support my name's daniel to go i represent us in divining christy pond in my time for the court i'd like to address two issues one is whether or not the claims at all fall within the scope of the arbitration clause and to if they do if you look at the complaint that we filed you will see we didn't allege breach contract we didn't allege anything related to the contract our claims are soley related to payless going to the criminal corps to try to enforce  civil debt now p l s to spend a lot of time trying to argue the claims are non or give all the claims are non arbuckle well if the claims are not our bit of all our claims that are based on those claims soley are clearly not over to believe we filed a lawsuit based on malicious prosecution we followed a lawsuit based on the fraud that p l s filled out an application where there were a few things you said there are the district court did make a finding that these claims would be covered and you haven't cross appealed that so if you lose on the waiver these claims would then be covered that there's nothing for the district to revisit but respectfully your honor when you we looked at the issue the issue was we're seeking to just defend the judge i mean as the second seventh court pointed out filing cross appeals out across appeals just waste the court's time all we're asking the court to do is to defend the judgment altering practice and the u s supreme court has said we have the right to do that  further your honor it's in rebuttal to their arguments of non orbital claims they have the right they believe to brief that issue over and over these claims are available well if they're not in our claims are based on them then we should be allowed to argue i'm just how let me rephrase my question then if you if we conclude that some way equipment is that what is called yes the district court misapplied that and therefore the waiver by litigation doesn't apply to these facts what would the relief be if you found that the claims don't fall within the arbitration provision that you know if i if we find that subway equipment doesn't apply that the courts were invoked or the various theories as to whether what would then the relief be in the relief would be and as the district one point district court pointed out the district court didn't even decide whether or not fine agreed to the arbitration provision signed it agreed to it so that would only apply as to pong ok they have not met their burden to prove find it all ok so the question then becomes whether they are beautiful at all we argue they are not they don't fall within that scope but if they do the next question becomes whether or not the substantially invoked the judicial process and as the court is aware the standard is whether or not money damages to collect any sum we claim you owe us that is their arbitration so according to their contract if they were going to seek any money against us in any way they had to first go to the arbitrator and they didn't do that instead they were to the criminal courts and the question is that they refused to answer is why did they go to the criminal courts well if you look into the contract in order to go to arbitration they would have to pay an arbitrator they would have to pay a lawyer they would have to pay an arbitration fee to my clients for a thousand dollars and they would have to go through the arbitration process why are we wondering why a victim of a crime no victim of a crime can waive away their right to report a crime to the da they're not a victim of crime where you claim they are but they say they are worthless check but as the record sits here today when you look at my pleadings which is what the facts the court has to consider they are not victim crime there is no evidence to the contrary and i will represent to you once the pleadings and the discovery bears out it would also show they were not victims of crimes but as we sit here today when you look at all the evidence that this court can consider that is my complaint they are not victims of crimes at all so they submitted those not because they were victims of crime not because my clients committed a crime they submitted those sole to avoid the arbitration cost to avoid the fees in the fines soley to achieve a satisfactory result and try to recover their money lead in your complaint yes your honor so what they did was they avoided their arbitration they went to the criminal courts and they said this is free you say that you keep saying they went to the criminal courts but when i look at subway equipment driven by judge jolly especially i think it's footnote three he said the courts aren't sort of a ghost you have to invoke you have to implement judicial process so i still i'm in the frame of this is a victim reporting to the da a crime and unless you see some use of the courts then the judicial branch hasn't been employed right and i understand that mindset you are because that is the mindset of a typical criminal case a typical assault a typical crime in which the victim goes to the da reports the crime this is a bad check more often than not the yes exactly this is a different matter this is a bad check case this is a case in which the da takes absolutely no action in less the business owner swears out an affidavit saying a crime has been committed and submit the evidence and based solely on that evidence within the district attorney goes through the process of sending out a demand saying you're going to go to jail unless you pay this and you pay the fines and then the step is go to court there's no arraignment proceedings that step never happen because they paid ok and so they achieved their satisfactory result it doesn't mean that they were in that process but what case stands for the in the process rather than actually invoking the court this is a very narrow waiver your honor i understand but the subway case says a specific action it doesn't have to be and where they denied that the motion absolute they did set forth the standard which is a specific act but then the two texas case that seemed to be in play the tragic deborah slow murder case chris just spawn uncashed because those both have months and months of judicial process and you that as the lawyer handling the cash this case the texas supreme court has asked for a full briefing on that case and that full briefing our briefs are due the twentieth of this month which not being well versed too much in appellate work i believe that three justices have to believe that our case is valid and then if we can convince one more they take it up for view so while they want to rely peel us wants to rely on cash because at least the texas supreme court has recognized that it is not a good decision and if you read the decision you'll see that not only do they ignore the f a a they unlike in this case the cashless case there are some factual distinctions as the court pointed out in that case there was no proof that they tried to get paid and that was the hurdle that the court of appeals had in this case we don't have that in this case we have proof that they wanted to get paid and they did get paid and they got they achieved their satisfactory result when we analyze these cases we look at them all of us look at them in the mind frame of a case a civil case you have some written discovery you have some depositions you have some motions and hearings and at some point one of the parties says i want  want to take this case to our tray ssion and so the courts look have you gone too far that's not our case we can't put this case into that box our case is a much surer case it's a criminal case in which they  reclassify civil that in a criminal case they didn't invest in essence involves four things you file the affidavit claiming that it's a bad check you submit the misdemeanor evidence the bad check the information on the client the d a then sends a letter saying you're going to jail if you don't pay and then if you do pay that goes that stops but if you don't pay you going to court that's it so when you look at it that way they haven't acted three out of the four process that would be in place but they're my law and my reasoning behind  very near waiver is it sort of in a stop a concept if pos wants to go to court to resolve this they can turn around say no we'd rather be in the arbitrator but i still don't see how they ever went to court first of all it's not them the district attorney is not an alter ego the victim and second of all even if that concept could occur this district attorney never invoked the courts and we have subway equipment that makes it clear that in vocation isn't sort of a process or a strategy it's in implementation where i would disagree because thankfully because there is only one way to invoke a court in a bad check case there's only one way you go through that process you file that they were going through that process it wasn't like they said or there's some evidence that at some time they were going to stop before it got to the court reporter they were going to court and tell us again or summarize again what does the complaint say about on the time  the man letter was received through the payment of the debt from the time the demand letter was received through the date on your instalment if you don't pay us we're filing a bad check claim on walk us through we don't have a copy of the complaint on the with a group called texas appleseed who conducted a very long investigation into this and texas appleseed laid out the facts for me but it's very detail from that point not only does p l s then tell us what you allege yes what i alleged  jail and the district attorney then sends a letter saying we're going to put you in jail and at that point my clients paid that's what that's what we allege in the complaint and so that is what happened they achieved the result that they were after which was to achieve repayment of the loan that they wanted to that the borrowers owed them and they used the criminal justice system to achieve that that that was the completely wrong and so the question then becomes why after they ignore that did they substantially both digital process and the law says that if you try to achieve a satisfactory result i mean i know that there are cases in which this is a very novel issue there are a lot of cases on this cast is is on point because it's a case filed by me on for the same claims but chris the state's christus spohn points to the fact that you can invoke the judicial process by going to the criminal courts to try to achieve a result in your civil case and there's also a case called principal investments versus harrison which the nevada supreme court relies on the f a a applies federal law and in that case the payday loan companies its payday loans weren't being repaid so they went to a separate justice court and they filed fraudulent default judgments based on affidavits that were false so the borrower basically didn't know that it was happening they took the default judgment against them then they went and you tried to achieve a satisfactory result in that other court and that other court was basically two steps you filed a complaint you file the default judgment and you have a judgment and so that case is more analogous to any of the cases relying on the civil law and looking at how long the civil process goes on that case is is is almost directly on point because they want to j p court they got these judgments and then they tried to use those judgments against the b so that case the court found that they did substantially both the judicial process and they did wait so one final point is that many of the arguments briefed by p o s are arguments they first brought up in their motion to reconsider these arguments they could have brought up in their in their initial motion to compel they could have brought up in their reply these are arguments that they waived and in response to that in the reply brief they cited the euler versus alan brann case which is dicta involving a petition for writ of habeas corpus in which they allowed consideration of the evidence in the motion to reconsider we asked this court to ignore that those arguments those arguments were waved by by palest they could have made those arguments in the reply all the arguments that i made in this brief all the arguments that we made in all our briefing or all of the same arguments we made in response to the motion to c so those arguments could have been made in the reply they ignored that it sets new evidence new affidavits that evidence should not be before this court those arguments should not be before this court the question is only whether the claims fall within the scope and only whether the claims whether they substantially invoke the judicial process in the final issue that is brought up as prejudiced and p l s continues to argue that credit my clients were not prejudice because it had nothing to do with this case but we all know that the first thing that would be asked in a deposition of my clients the first thing that would be asked to cross examine it examination is did you commit check fraud they would say no we didn't commit check fraud and they would say why did you pay the fines and the fees of the district attorney and so they would use that against my clients which is directly would prejudice is setting aside all the issues of prejudice to the fact that they they face criminal charges they got letters from this tourney that to pay extra fines and fees that is the prejudice that is in front of this front of my sides as we move forward in this case and so i guess i can give time back to the core of the show you give time back to you are you distinguishing caste peers are you saying we shouldn't follow it because it's being looked at closely what's your how do you harmonize your argument with cash business reason to point you on a first there's just there's i'm distinguishing it on the point that the justice is in cash because had a hang up in which they couldn't prove based on the record that the cash biz tried to achieve a satisfactory result because they weren't paid back those claims were dropped against the clients because my clients fought them they went to court and so the client the justices and cast this said well it evidences a desire of malice and meanness but there is no evidence that they tried to achieve a satisfactory result in this case we don't have that in this case we have evidence that it tried to achieve a satisfactory result because they did and they used the criminal justice system to get that result and they got paid back completely so i distinguish it on that ground but i also asked the courts to look at the fact that the tex court is asking for full briefing on this case on that case on questions and so obviously they're going to make a determination as to what happened and one of the issues that we raised in that case was the failure of the court of appeals to apply the f as they were supposed to do they applied improper standards and so when you look at the fact that they are going to look to the f a a and federal law i imagine it's some point they're going to look to this court as to what this course determination is to make their determination or vice versa of the prosecutor to p l s in essence what you have is a demand letter was sent and the courts have said in civil cases if a party sends a demand letter that does not constitute a waiver if for example i had checked with the prosecutor yes but not in court we there is a distinction at best if we can agree on something the average citizen if they have a complaint if they were a victim of a crime they don't march down to the office of the u s attorney to the office of their local district attorney in that right you know this is a little bit more sophisticated business savvy route that your average where they go to  that's not what this is about is it i mean it's about they want to collect repayment on a lot let me answer that very directly because i want to be joe because the question is where the focus of the judicial process right and all i'm suggesting is that someone sophisticated enough to go to the office of the district the average citizen walking around on the street that know where the district attorney's office is most of know where the police department is that's but you look at your client goes to the office of the district attorney and they complete affidavit i want to be candid with you about it i think that's a very distinct possibility but i do have to to i think it's a very distinct possibility don't want to be disingenuous with the court about that at all that that could be the very reason for doing it the reason i want to draw a distinction here though is because it's in the record it is actually p l s s policy not to submit these affidavits to district attorneys we are not proud of not there anymore we can't find them all generally on a motion rigorous way too late to present evidence that you knew about right i'm not i'm just trying to answer the question though and when you look at the affidavit that's filed it's a form saying both in the same for the reason i think that's possible is because i don't think these employees understood what they were doing and to give you the difference in the real what actually happens i no no here's what happens and i want to make this distinction district attorney or county attorneys who have heart check policies they do this is a business and it's actually a money making industry for them exactly  which office it might be but whichever they go out and so list at these from businesses and i'm not going to tell you it's impossible that these two employees did this intending to get repaid but because of the company policy i think it's at least possible it is not entirely clear but i do not want to be dissing didn't just disingenious with you and say it's not possible that that was the purpose and do want to be clear with the court about that pos we are not proud of what happened in this case this is not our policy and it's part of the reason that i want to tell the court we do not we are not in the basket of apples with a lot of underpaid we try to be different so i do think th