are before the court is seventeen dash one three five nine l tran versus intern in or exchange and counsel with may please the court i'm protect at the minute i will do my best this appeal presents an opportunity to address the congressional purpose behind the federal arbitration act the f a a and the requisite content of an arbitration agreement necessary to satisfy that congressional purpose there are many well recognized purposes of the f a a including savings of expense time and simplicity but there's another purpose as well recently the district core lost sight of that of that minimal judicial oversight and that congressional mandate when it determined the a p c o p r care arbitration agreement was substantively and procedur injustice that superior position of the f a a how the f a a and let me that's a good segue to this how the f a a selection process or the arbitrator selection process works under the f simple is is this simple as i see it there must first be it an agreement with an intent to arbitrate next under section five of the f a a there must be a provision on how the arbitrator selected next if there is no provision and how the arbitrator selective or it is deemed to be vague by one of the parties then you go to section five and have the have the district court assist the parties in determining or selecting their betraye finally if the arbitrator selection process is stated it within the arbitration agreement then the parties must follow that stated method of arbitration resolution and if the parties don't like the result of that process then they can appeal under section ten it's just that simple how how it how the process should have worked in this case is a p c had within its arbitration agreement the reserve the right to select the arbitrator it indicated that it would select a neutral provider owes it comes or any definition of neutral hardly any definition of neutral no definition i will pretty much  give an indication that there must be some sort of declaration or statement or provision of neutrality by the by the by the arbitrator it is if providers so i don't mean to to give that short shrift by any means but if you look at that marc rich incorporated case that i cited i think it's i understand it's southern district of new york and it's a one thousand seventy eight case but having said that it really discusses some of the presumptions that go into the into the there and that section ten of the i guess i am struggling a little understand your argument you saying that we just can't even consider in terms of the substantive unconscious bill unconscionable l fact that the employer is going to make all the decisions far as who the arbitrating who who provides the arbitration can even consider it as long as it's there and there's a provision that says well the employer will select the it's where it would be the timing of where the determination or the concern about the about the independence of the arbitrator would be the end in we can we can quibble with the what the f a a says but the f indicates that under such under such intense way that the if there's a concern about bias it happens at the conclusion or after the award that's when it occurs you also in the well let me i'm going to stop you there because you seem to me that you've turned it on its head and that what the district court has to do is to first decide whether there's an enforceable contract that provides for arbitration yes and that requires the district court to go through a series of examinations the first being under california the theory is we haven't any in at each contract which is one consideration then we look at procedural unconscious and then we look at that the that section five says that there must be a stated way in which the arbitrator can be selected we stay and we stated in our agreement that a p c could select a neutral provider and you  the district court concluded that that was unconscionable because as judge mort's pointed out there's no restraint on on your client in terms of who they might select as the  arbitrator and looking at the clause just as the cause that can be interpreted as substantively on conscionable they can be but but there but that would disregard the presumption of the arbitrator being neutral when they sign up in the first place and then in the second place the f a a if congress said there's two things you must do you must identify an arbitration provider by name within the contract or you must give both sides must agree upon the identity of the arbitrator to go forward first then it would have said so it doesn't say that it says under section five there must be a method to select an excuse me and then it right well let's take let's look at a couple examples of this and the first would be it and i want to back up because you had used the word in an employment contract and i think that that's an important point in this in this analysis is an important point with respect where the district court began its analysis as well first of all i think i said it he's in contract i don't think i said him in the employ and it may be an employment setting but the point is this is not an employment setting and i  don't mean to backtrack i will get to your answer but this is a this is a voluntary program where people come to this country to get an educational and cultural experience so to the extent that some or all of this analysis that takes place in this case arises out of employment contracts which do seem to carve out and give more deference to the selection of the arbitrator then and then then in a standard non employment contract and that would be an inappropriate carve out under the concepcion case so when we have a position that if it's not an employment contract that you can have a one sided arbitrator selection provision that allows one party that the more powerful party to pick a biased arbitrator i don't know but the words don't say bias it says neutral provider we've got california case law that says even where it says neutral in mango or magno it says even and even in agreement that on its face requires a neutral arbitration may be unconscionable if in practice the stronger party may select a biased arbitrator with no recourse from the weaker party right in the cape in the  facts and i've been saying magno or mango as well that the facts in that case are substantially different than the facts in this case the facts in the magno case were that the is that a ski for profit school went to the went to the to the student home went into their home and then spent time with the with the students it in a vice that they could get certain benefits from their school contract and from and from participating in this pro for profit program which were material representations and they had no expectation of having to arbitrate this matter on the terms on sets of rules created by the private school and in indiana that's substantially different than the facts in this case let me just i still to want to answer your question even more let's just assume we had put the word jams or aaa into this that that that does not necessarily create all you want i may have more comfort that this would create year and we've been in business for thirty five years so let's just take the last two let's just take this as an example for ten years and two thousand employees that be twenty thousand contracts that say jams or or triple a it who's not to say that the arb that the o p s then could make an argument that well look at you've got a you've got a nice relationship with jambs or twelve or aaa i think that's unfair unbiased well  is the point is they had an opportunity in that setting in that hypothetical they had an opportunity to at least agree and know what they were agreeing to they agreed in advance in your hypothetical to this particular arbitration provider in our situation they're agreeing to and give you one hundred percent control over that decision there is a difference well i'd certainly have us weaker argument in your hypothetical i guess i would i would disagree that because we do say we're providing for a for a neutral provider and that if there is if there is if the if the ope a neutral provider they were inappropriate if they thought that was too big didn't state a name didn't identify it then the remedy would have been to go back to section five go back to the district court and the district court could did name the  good morning your owners may please the court david seligman from towards justice for plaintiffs up ellie's let's be clear about what the arbitration requirements at issue in this case would permit had care decided will miss harding and miss him and has worked as a pair as in the rules that could have required miss harding and miss minutes to bear extraordinary arbitration costs that arbitration would occur in san francisco calif across the country from where miss harding and mismanages worked and if  attorney's fees that's an extraordinarily harsh and oppressive arbitration requirements break it down with regard to the form selection cause both both your clients both the pla court in the first instance shouldn't be weighing that evidence but i think that it's pretty clear that i mean they both admittedly got it in their native language one got in german and one got it in spanish or and they also signed an agreement that says that they read and understand english right in the agreement sure and the agreement states very clearly that care is located in san francisco california and that all arbitrations will be held in  be examined in isolation it is part of and that this is how california unconscionably law works it is part of an integrated scheme along with the the arbitrator selection provision so for example on the face of this contract we don't know how many times miss harding would have to go to california the district court noted that this contract didn't state whether they could appear telephonically the arbitration agreement that the courts are down and magno which your honor discussed earlier that arbitration agreement said that those what's so unusual about that that that would be the forum and i think and again i don't think that this is certainly i don't think that in standing alone you know that it might but not be true th on its own would lead to the invalidation of the entire contract certainly along with everything else it substantially increases the unconscionable ety and that's especially because of his ability to again identify the rules of the arbitration forum simpler when it's important because eventually when you get to the end of all this you apply a sliding scale and you balance the the procedural ability with and along with the substantive unconscionable  here if we take out the venue provision you've got left the arbitration provision as what the district court found unconscionable so it sort of and light east demands i'm sorry and a less substantively unconscionable than the district court did below and that you know might affect the ultimate analysis but let's be clear neither party in this case has identified any case anywhere not in california not anywhere in the country or court as enforcing that if we if we were to disagree with the district court and i would say there's nothing wrong with this reciprocal fee shifting provision because it doesn't affect statutory rights and there's nothing wrong with this venue selection provision i'm down to one provision of the contract that is substantively unconscionable and under california law the presumption is you sever and  under the statutory law there's a formula for figuring out how you pick the arbitrator why wouldn't i do that instead of throwing out the whole arbitration agreement  both parties agree that the standard for severance is abuse of discretion here you know that that's that's been clear throughout the briefings the question is whether georgia where you abused her discretion and declining to sever these provisions i think that along with the question of how many substantive you know how many how much or how many terms might be subtly and cost for ball under the agreement i think that the more important a determination the more dispositive issue on the severance question is the fact that severing this requirement here would require the court to rewrite the agreement would require the court to select a new mechanism for selecting an arbitrary section five that with respect your honor that's that's precisely not what section five design the first sentence of section five is if in the agreement provision be made for a method of naming or pointing an arbitrator or arbitrators or an umpire such method shall be followed so that nothing will exercise its unconscionable  doing that then the court could say ok you're going to use gems you're going to use to aaa or whoever so don't we have to look at this is there an agreement to arbitrate initially did the parties both agree to arbitrate i think the answer  got to be yes to that now then the next question becomes what if any provision is unconscionable and is every it he should contract or a contract of adhesion in your opinion unconscionable to every form contract that has an arbitration clause in it is unconscionable is that your position no your honor would kill me then what your position is if this makes this unconscionable with respect to procedural on caution ability first of all the california supreme court is made clear and sanchez involved is are ok now you've got one client who lives in germany right and was rigged this agreement in in english or in german in germany and if she's in germany what do she care whether she has to come to california or new york or she could ask to use the telephone we don't we haven't gotten there yet or we personal we don't know if you can use the t a severed biased arbitration clause and then they use the default provision in california code of civil procedure section twelve eighty one point six and with respect to my understanding forum with respect to severance allow me to make two more points first is this court was clear in its nesbitt decision right that it was not going to sever was not going to give the drafter the benefit of the doubt on severance where there wasn't a severance provision there is no severance provision here says and i think this is true for better or for worse it's not that hard anymore to draft in agreement that isn't that is clearly enforceable under california law and federal law if it's easy you put it in the contract in fact it's clear why they removed those terms from the agreement and neither substantially more draft or friendly is important to sever not only because on the face of this agreement it's it's not clear that severance was intended furthermore  the severing would require the court to rewrite the agreement i disagree that this is that that section five permits courts rewrite the agreement in fact the supreme court has made clear again and again and again the federal arbitration act calls for the enforcement of arbitration agreements and hording to their terms and lastly in california law is clear on this too we don't want to create incentives for drafters pack their agreements with unconscionable terms future knowing that at worst those terms will be severed and the clauses in forced in their absence i think that there's lots  prioritizing any mention the arbitration provision what would be next on your list in terms of would the fee shifting where would the fee shifting provision come in in terms of year on the scale of unconscionable any i think that judge did not ose opinion in the northern district california the alonzo case is is is absolutely correct and that's on this point the california supreme court made clear and sanchez the ninth circuit affirmed it in tompkins that you know courts cannot that clauses cannot force employees and there should be no question that these are employees to pick costs that they wouldn't otherwise have to pay and under an waive a bill statutory rights that they're talking about in those cases right that carol talking about breach of contract it's limited to breach of contract so i don't that's that's that's actually not how i interpret that the sanchez decision and that's not how i interpret the tompkins decision those decisions discuss the employment range meant in terms of the imbalance as a bargaining power and for those reasons the california legislature has decided to make a different tradeoff in employment agreements and they have in consumer relationships and consumer relationships you can add prevailing party provisions in employment relationships you cannot want i want to me it in tompkins versus twenty three and me the ninth circuit's interpreting california law that plaintiffs and not have done to fight any case where state appellate court held that a bilateral clause awarding attorneys to the prevailing party was unconscionable do you have such a case decision i also want to to highlight something that here at a time c need to wrap it up which is that agreements like the one before us here would allow drafting part these two entirely bypass important protections precisely like the protections that this court implemented forcible even as a matter of ten circuit law as i had mentioned moments ago there is a difference between the employment case arena an arbitration and non employment case in arbitrariness and it was just mentioned that there is no question zero employees and perhaps not part of the record at the moment but that's but the district court in this case has denied the motion for summary judgment filed by ms harding and miss him and his on behalf of themselves and the class members seeking employment seeking employer status of a p c and denying the question of joint employer status so the concept of them using employee cases to resolve this matter at this stage is inappropriate when i started my discussion i want right to judge him of its concurring opinion where he indicated that congress has endeavored to minimize minimalize judicial oversight in the f a a i think we're as lawyers judges we're all at times wanting to go in and make sure things are fair the way we see them being fair congress has put together an act that doesn't include some of the things that are being suggested by the plaintiffs in this case we have to view the f a a in terms of we have to view the unconscionably question in the context of the a what did the f a a layout if it's not if it is unconscionable then the and the f a a provides the remedy selection for the selection of the arbitrator in this and it's in section ten with respect very the next matter and final matter