for violation of michigan law called michigan and video rental privacy act which generally speaking prohibits the disclosure of information concerning individuals purchase of written publications to rd party  horton sought five thousand dollars for an individual claim for relief and at the appropriate stage of the proceedings indicated that he would you like was the five thousand dollars on behalf of each of the unnamed class members pursuant to rule twenty three dollars jones move to compel arbitration and a stay the case in the district court dow jones move to compel plaintiffs individual claim for relief to arbitration and the case at no point did dow jones move to dismiss the the district court considered this a class action waiver issue before the court was never actually argued it was a heading that the district court was quoting from there and a brief and the heading refer only in the context of arbitration which was mr horton giving up his ability to participate in a class action so essentially what but what the appellee argued in the district court was because mr horton agreed to arbitrate his individual claim as a consequence of that he's agreed to give a class action predisposition because he's going to be an arbitration and not in court indeed that's the only way to read the agreement it says if you're if you're claiming this is covered by this agreement arbitrary and you're giving up class action clearly states and this is the joint appendix of eighty five by entering into this agreement you are giving up the ability to participate in a class action and doesn't i mean the reference to this agreement refers to the subscriber can't bring class actions you can bring a class action you can't participate as an in class member in a class action to the extent such a claim is brought by somebody else on your behalf which is another reason why that is why there is meaning given to the phrase class actions in the in the class we have a provision in the arbitration agreement under our reading but additionally  that point it would be proceeding in court in that point but you would still be subject of a class waiver because it's otherwise our ritual pursuant to the agreement to arbitrate but in case his claim is expressively exempt from the agreement to arbitrate because any dispute that qualifies for small claims court is exempt from from the entire agreement to arbitrate on one provision of which happens to be something pertaining to a class waiver but again the class weaver is buried in a separate assessment of supplemental jurisdiction at that point didn't make any sense because there was no claim supplemental to mr horton's sole claim for relief alleged in the complaint this isn't a case where there was one claim brought on a class wide basis in after explaining all this that the court declined to exercise supplemental jurisdiction because it was powerless to do so and it would have been leading the court into an error further error if it had done so thank you you have three minutes a couple points on that with regard to what counsel just said this ship sailed he did not tell the district court in his letter to retain jurisdiction he said just the opposite he said dismiss the allegations were dismissed the case if you dismiss the class allegations which the district court granted so he expressed we made that request to get up here before this court today and now he can't having made that election do the opposite but we're not challenging the general rule that ca jurisdiction would survive dismissal of the class claims or denial of class or that doesn't answer the question of whether the individual state law claims should be retained in the district court properly looked at whether or not she could retain jurisdiction in decided that she did not have an obligation to do so looking at the supplemental jurisdiction factors but even if you look at the a five case which is mentioned that instructs that simply the court can read changers to action because it has original jurisdiction but it also importantly noted that it was not suggesting that any class pleading even one that lacked good faith has good faith basis in law in fact would continue to support continued catheters to action and the court went on to say nor do we conclude that the district on finding that a class a case cannot proceed as a class action must adjudicate state law claims rather than remand them so the court absolutely had the power to do what she did here and declined to retain jurisdiction why why should  court exception because that's not the claim he brought to this court the claim he brought to this court is not subject to the small claims court exception when plaintiff knocked on this federal courthouse door he did not do so with only an individual claim he couldn't get in the door he did so as a multimillion dollar caf a class action seeking to represent hundreds of individuals in a complex action and stakes in excess of five million dollars in no way shape or form is that a dispute that claims he asks you to do is a ruse it is there's a fundamental flaw in that premise because you have to look at the whole complaint as pled and when you look at the complaint as pled it's clearly not subject to the small claims court exception to arbitration and that's what every court to ever have looked to that issue has said i want to go to the district court's opinion class arbitrations and class actions are not permitted that is what the plain language says in bold in the subscriber agreement the plaintiff admits he entered into with dow jones this case is about plaintiff's desire to ignore his agreement instead of resolving his dispute as an individual claim in arbitration or in small claims court as he agreed to do he wants to come in to this federal court house on the premise that his multimillion dollar calf a class action is a dispute as we just said that somehow qualifies well it doesn't the district court correctly rejected that position she dismissed the class allegations and under the plain terms of a class action waiver and then declined to retain jurisdiction that decision should start he seizes on meyer but respectfully myers wrongfully decided it does not address binding precedent of this court in the cohen decision which the district court did rely on and cohn which he can't distinguish the class action waiver income was contained in an arbitration clause and just like here and the court held that the class action waiver is independently enforceable even if it's located in an arbitration clause so my or simply did not address that in addition as we said our papers i believe the circumstances of that case the context drove judge rakoff decision the case was one in which the defender and a c e o who were was not even a party to the agreement and had not moved to compel arbitration and unlike here judge rakoff was not confronting a plaintiff that was trying to weaponize the small claims court exception to arbitration which i submit he would have shot down like every other court to ever address that issue has done so so it's simply not instructive i'd like to address notice briefly because plaintiff for just a day all plans arguments about notice and waiver are sour grapes they misstate the facts in the record and the law as was alluded to the district court pointed out dow jones expressly raised the class action waiver in his papers we block quoted it in full because it's involved in the original and argued that he violated the class action waiver by showing up to this courthouse and trying to file a class action and we asked the court to compel arbitration on an individual basis so there's no way in her unfair surprise and if you want to know the answer  that concretely look no further than his own letter brief because when the judge ordered some from supplemental briefing he knew exactly what she was talking about he made the exact same arguments that he's making today and at the end of the day there's nothing more to say there's no evidence that he can present it's purely a legal issue decided on undisputed facts once he admitted he entered into the subscriber agreement the judge ruled on the law and the undisputed facts before her so no matter how much briefing is allowed he loses in terms of the plain language of the art for the agreement it must be enforced here the rules are clear in terms of contract interpretation and all of plaintiff's arguments are in service of wiping away plain language from the agreement and supporting a result that tries to sho horn a complex multimillion dollar caf a class action into federal court through a small claims exception to arbitration the plain language of the class action waiver the plain language of the small claims court exception and the obvious of the agreement itself all dictate that is not the product contract interpretation or result any way you look at this whatever sequence order you want to look at it plan should be left with the options to which  agreed bring in individual arbitration or go to small claims court but he cannot stay and pursue his disport dispute here thank you to dismiss as class claims and to dismiss the case the matter didn't horton was simply responding to the question posed by the district court which was should i continue to exercise supplemental jurisdiction was a yes or no and after explaining that there's no such thing as a class claim distinct from fairly disingenuous to say that mr horton asked for the relief that was was granted by the district court the cohen case is an opposite in that case the parties clearly agreed that the class and we never could be separately and forced from their government to arbitra and the nd circuit simply said that that's permissible under the f a a and the supreme court's germs persons on these issues it's nothing impermissible bought that in this case and in this contract the parties agreed to an agreement to arbitrate that  that that cab and the class waiver and confine the class we have are within the boundaries that agreement to arbitrate and because it doesn't apply here the class or whatever doesn't apply either and i just like to point the court to a recent decision that claims and lastly even if the subscriber agreement if the are provision within the subscriber agreement really is separate and distinguishable and separate enforceable from the class a waiver in this case mr horton agreement thank you thank you both for your arguments the court will reserve decision oh you have one minute yes yes class action that is not a dispute that qualifies for the small claims court exemption and the arbitration clause focuses the small claims court exemption on disputes again the class action that he planted in this court is not a dispute that qualifies it's simply an order of operations in terms of how you look at it so with that i would close by saying that we ask you to affirm the district court but i for any reason you determine that the relief order is not appropriate we ask you to taper take up our contingent cross appeal and grant that as well thank you thank you both  arguments the corps or decision