the first is an issue of the law of the case and application of the law of the case doctrine the prior nicer of the panel in this case this is the second time this case has been before the ninth circuit already that's held that mr nt decision in loose forward recognizes in accord with gilmer that employers may require arbitration agreements as a condition of employment even where statutory claims such as those fraud or title seven by mr does feel is not an issue in this case anymore it was for addressed that issue the third point to be made on this appeal is that there should be no invocation of any arm and there is tight minimum requirements for arbitration which is precisely what the district court it arm and bear as is based on california law not washington law which controls here washington contract law of general application so in fact the contract as to render it invalid as a matter of federal law taking that statement in context is an instruction from the prior handle that says district court you need to look at this under washington law there may be some particular provision or provisions that you find unforeseeable based on washington law because you didn't look at washington the last time you were allowed on duffield so district court go back and look compare this agreement to washington law however it is our view that even if one or more provisions might not be enforceable there is not illegality that pervades this contract so as to render an that is important because the arbitration agreement expressed which states a severability clause within the agreement when the agreement originally was entered by the parties the parties agreed that if there was some portion or portion of the agreement that could not be enforced the core obligation to arbitrate still would need to be enforced that's what the district court didn't do the district court went back to square one and went back to an analysis of well it parties to have identical obligations under an arbitration agreement if you look back at the circuit city case out of the fourth circuit in the circuit city case out of the seventh circuit dealing with  y of obligation what the circuit court held is that there doesn't have to be a mirror image of obligation but the fact is that both parties are members of the arbitration agreement both agree to be that is sufficient consideration and because you have consideration that you don't ever have to get into the issue of mutuality washington contract law which this court must follow is precisely the same what washington contract  is that we are not going to get into a discussion of mutuality unless we find a consideration being absent there's no argument that's ever been made here that the dispute resolution agreement was not supported by sufficient consideration is because the court does not get into the business of waiving consideration that you don't get into a business of determining whether or not there is a mirror image of mutual obligation so if you use your example i think what the court would do is say i would fight that provision under the current constraints of the prior and i sort of canyon ok act as if my circuit is telling me that illegal provisions do not so pervade disagreement as to render it illegal as a matter of clearly was bilateral it required arbitration among employees officers and agents of the corporation it balance the corporation to arbitrate circuit city never has taken the position that it's not required to arbitrate this is not one of those agreements where the and the description of the obligation to arbitrate talks about who is covered in it control it controls disputes among officers agents employees a circuit city therefore it's circuit city had an obvious dispute preference to the ninth circuit's prior decision it went back and revisit it issues with the exception of duffield which i think even the district court recognizes a dead letter at that time went back and started the process all over again the district at that time which the ninth circuit said knowingly and voluntarily entered at that time said this agreement can be modified it can be modified at certain times and in certain ways and the way it could be modified was at the end of each year on one be employed in the one nine hundred ninety eight the rule he accepted is that in the future if there are betray sions the rules for going to apply are the most current rules at that time that is what he expected by continuing to be employed it's not changed any time you want to go out again every december thirtieth and six circuit and it's on bond decision in more sense that we recognize that this modification procedure isn't forcible because circuit city gives up the right to change disagree with the court procedure step in that procedure you know december thirty first and thirty days thereafter the purpose of the thirty the thirty day period for mr al something from november into december hundred seventy on into ninety eight he was given notice of a change and a change was going to be made that in the future arbitrations will act will be governed by the rules in effect at the time they take place the logical reason for that is if you have three arbitrations happening in one thousand nine hundred nine and causes of action arose at different time you don't want to be apply different rules to them what it also permits is that the parties both will have the advantage that this provides is this is a dynamic and fast changing area of the law every change that's been made as we set out the record has been extended mr al spain by recognizing a change in the law as arbitration has developed i understand and i'm going to try to reserve judgment of my time the two thousand and three rules no argument knows no credible argument has been made that there is anything improper or unfair about the two thousand and three rules and that's why i believe the court shouldn't force them of the unconsciously bill of the of a class action waiver washington law never has stated any objection to class action waivers secondly the cases on which team are allies are currently on review by the california supreme court is the last one i would like to make at this time is there right now is before the washington supreme court cases our interview zoomer vs eric such communications and adler v cases which are employment arbitration cases from the trial court and it is scurrilous accepting briefing on those cases thank you is the contract was unconscionable at the time it was me so they were poor that's the focus is what it would mean the district court correctly recognized if you look at the contract when it was made when the contract when it was made it in the one nine hundred ninety seven rules prevail we only have to prove one in california it's harder to prove it unconscionable so the army guard is simply based the contract law that's exactly what this court held in taking that's the back way with this court held that if it weren't basic contract law it would clearly it's equally unconscionable and again this whole rule this rule nineteen that circuit city relies on to try the indoor introject the two thousand and three rules this court already ruled in ingle that that was an unfortunate bill and unconscionable that's why it all rolls under the ninety eight rules that was used to apply the later rules you're going to make the same argument and they did not apply the rules in effect at the time of the case the latest that they applied with the ninety eight rules but it's the same agreement when he used one point to dispose of very quickly which is the supposed restrictive mandate that the first hand all missed by their excerpts of record number forty three i raised an argument the first time this district other grounds one that it was not knowing and never mentioned voluntary that was never an issue before the court and that's not even not an issue under a watch and ninth circuit why i suggested that possibly under several law it might be invalid under the narrow section of the prior panel that were several issues don't get it there we're going to leave it open under remained on the state issues if you find it unconscionable under state law you have the discretion to strike down the whole thing rather than to sever a single unconstitutional the what it did only this fight with i'm conscionable excuse me i'm not quite the same thing only employees must arbitrate their employment claims the employer must not shorten statute of limitations limitations on punitive back pay limitations on pay limitations confidential arbitration each paying like each party much pay one half the cost which again was the provision that meant it struck down with the only one issue in that case because that agreement wasn't as unconscionable circuit city's they found it unconscionable in mendez based on the only one of the nine of the nine deadly sins the circuit city has only limitation one class action make you can go to an arbitrator's for the jury which you can't do with the arbitration agreement in favor of the employer that's what circuit city did and that's why this court has repeatedly struck down circuit city's attempt but again court judges unconscionably at the moment the contract is made june first and then nine hundred ninety seven that is the rules that we have to be interpreted those are the rules that are i'm conscionable the very same rules as unconscionable  ingolf again i've talked to over there is no good friends but all in this area between washington and california let me get to the some of the things that circuit city has argued are differences and they're not property cases where they said there was both sides are equally bound to argue arbitrate a particular type of claims that is not unconscionable whether that is that's a different issue entirely not one raised by this i don't think that's necessary and let me then get to the suit the cases that are mentioned zuber and i've added there were cases that i'm familiar with there are number of issues present in that that deal with a great number of them unconscionable it is only one of them it deals with the right to on the two thousand and three if they apply and i don't believe they do it's still unconscionable how do we know because there's still the one year statute of limitations the seventy five dollars no class actions unilateral power power to modify and secrecy if we're going to construe the agreement the time it was made at the time it was made it provided for modification it was modified in accordance with its terms and the record does not reflect any conflict on that issue and the fact that this rasping continue to be employed in two nine hundred ninety eight he agreed to the new provisions set forth of page one thirty five of the record that says it's going to be the rules in effect at that time i have one final point to make if i may ask my time's expire issue of procedural stuff that i caution ability it it's accordion not that we don't have to get into necessarily in washington in terms of the difference between washington and california off i will tell you that there is no washington commercial contract case that says either procedure or such of a caution ability is enough that only has arisen in the context of an arbitration case so there's no we went back in the sixty's if this maurice thirty snow washington commercial contract what these cases do say and charge pick this up is the context rule you look at the context in which the agreement was made to determine on caution ability so i think that is not the appropriate analysis here and if the court feels that it is appropriate to certify this case to the washing supreme court for consideration along with these who are in add more cases that are currently before we have no objection to that