the fore argued cases i've been apprised by the court clerk that everybody's here on all the cases so i'm going to dispense with reading the the calendar this morning the st cases doctors associate  good morning and may a please the court the district court erred in not enforcing an arbitration agreement in the subway franchise application signed and submitted by mr the district court found that there was no consideration to enforce in fact however your honors there were two forms of consideration to support the promise to abide by the terms and conditions of that agreement clearly an arbitration clause as well as other causes such as confidentiality of any business information that is learned that the st form of consideration ours was a clear benefit to mister that is his agreement to the terms conditions of that agreement could in the arbitration clause was necessary even for doctor's associates the franchise or to even receive in consider his application his business deal to buy an existing subway franchise could not proceed at all unless he submitted the application and agreed with its mandatory terms the consideration is that he'll be deemed eligible to be considered that is correct in fact when he submitted it his status in fact changed to become an applicant or perspective franchisee without which he couldn't have you could simply submitted a letter asking to be approved doctors surgeons would not have accepted that letter and his status would not have changed and he could not have moved forward in fact it did move forward he was interviewed to an aptitude test saw a training video before he was turned down and sued in court because he said those were impermissible reasons for being turned out now the  cite a case from the vermont supreme court called lloyds which has campuses the law of consideration nationally and says that i mean your expectation or hope for a future benefit is consideration for a promise and that principle has been applied in the application context but the new jersey supreme court in the martin case and other cases where for example there was an employment application and the mere willingness to accept an application is colorado connecticut correct if you read am during the restatement and there's really no the law of conservation the sort of long standing in the modern view is what i'm referring to and there's really no substantive difference from state to  state and so this was in fact not therefore a gratuitous document which was submitted without any legal relevance it should be enforced moreover the law of consideration says they're not even need to be an even exchange it only needs to be a benefit to the promisor and nothing else and it can be slight for example the colorado supreme court judge janet hall referred to colorado law the locked case we cite l u c h t which is consideration docs associates need not itself that promised anything or suffered a detriment in fact it did this is the nd form of consideration which the district court did not accept but we believe that was her that is that there was in fact a mutual agreement to arbitrate now there's two aspects to that and say that the actual arbitration clause makes no reference to anything that doctors associates promises by way of agreeing to arbitra the applicant says i agree to submit to apt to arbitration but as the th circuit said and this th circuit follow that up in the johnson v circuit city case simply when an employer or in this case a franchise or says i will take this if you agree to submit to binding arbitration that is in fact stating that there are that if there are any claims by the applicant setting aside whether any claims by the franchise or  employer any claims by the applicant have been agreed to he resolved by binding arbitration i'm not sure if it would be perfectly coherent to say that the applicant promises to abide by arbitration arbitrate was proffered by the employer saying you will settle all claims by arbitration by binding arbitration which is that what we have here will be settled all claims by binding arbitration and that in the th circuit said such proffer clearly implies that the employer employee would be bound by the arbitration process of employer says to the employee you must we must resolve all your claims by binding arbitration it cannot then turn around and say i'm going to vacate the arbitration award because i didn't agree to arbitration that would be i think an unreasonable reading of the circumstance in an application that's submitted by one party this is all fascinating it might make a great law student but you don't really need to we don't because the mere benefit from the willingness to accept the application by itself is sufficient consideration this is really an alternative argument is this even a rd alternative argument which is the bennett case from the rd circuit from the six circuit i meant which said that similar language where an agreement by the by the applicant to settle any and all claims by binding arbitration which is what we have here also implies that even if in this case doctors associates had a claim that there's been an agreement in fact the clause here says that  there are multiple forms of consideration the amount of consideration needs only be slight you're about to run out of time but you spent a lot of time i thought talking about that it was improper for the court to even consider this issue of consideration it is i think an open question about whether consideration is the kind of formation or a question about whether there's even the existence of an agreement which is a wonderful decision by judge lisa i guess in the eastern district of pennsylvania i write a letter to my friend and business partner that i've done all kinds of i've recently read about this american arbitration association it sounds great and you know we've been friends for so long will be ashamed to go to court i promise you that if i ever have any beef with you i'll submit it to the a court yes and then later i changed my mind i think that may not be such a great idea when i actually have a dispute totally gratuitous promise the other side doesn't respond at all gives me nothing  things that are peculiar let it all file it away what that it would then before the fact that i made that promise gets me to arbitration at least enough that the arbitrator decides whether you somebody as opposed to this situation where he clearly knew what the terms where there was clearly a cent and agreed to arbitrate the issue of arbitron realty and so there's no question about that there is in fact this case and it is a fascinating issue and it is perhaps if we agree with you on your other issue not necessary for us to decide it and my question is or is it in other words not only are you saying it is supposed to be for the arbitrator in some theoretical universe but is there some jurisdictional bar is there some reason why we need to address that issue if we were otherwise persuaded that the court got the issue of arbiter ability right because really what you're saying is we're happy to take the risk of going to the arbitrator having come out differently because this judge had no business even addressing it we are willing to take that risk and in some respects it is a question of whether  in that sense and it has to be reached if if the court well if well we disagree with you whether the court got it right then the question of whether the court and us we say if we agree with you on the consideration issue this is an easy i know it's sort of like the presumed jurisdiction cases and what is different because i'm sure you think that we should decide that  there is consideration that any rational arbitrator would decide those considerations as well i leave that to your discretion but it may be in fact that the court does have to address that issue but if the court  operation proceeding to get to the same place yes which we're confident we would prevail before any arbitrary or on an issue of the clear and of course of the court decides that it must decide the consideration issue and decides in our favor i can see where any one in terms of the effect that the court itself decided which is what mr cohen wants would be the subject of any further petition because on that issue because we would have gone what we want i know i know assumptions of what constitutes consideration mr i mean who sits at his computer wanting to submit this application wanting to submit it by computer because it's convenient he'd be happy to do it some other way but this is more convenient and he's ready to do it and he's about to push the button and it says stop you may not submit this by computer or why not you have to st click the thing that says i agree to arbitrate and then you click the thing hasn't he already gotten a benefit haven't they already changed their position by just letting him submit in this convenient way from his desk i don't know why not because the doctors need not review or even notice at that was him they let him do something that he was otherwise not authorized to do otherwise he would have to type it up submitted some other way take it to the post office put a fifty cent stamp on it and he can instead have the convenience of doing it this way but only if he collects that box and agrees st it's not bargained for just because you get a benefit doesn't mean it's the benefit that you're looking for which is really there are going to be looking for it he is looking for it he wants to do this he's about to submit the application by computer and he's told you may not unless you click this box i guess i want to submit it by computer i'll click box understood your honor but the point is is that he could be anything in other words it was then the keystroke becomes consideration the filling it out becomes consideration and just being able to open his computer and look at the website becomes consideration make that any kind of condition here that he could have done it by letter i don't know if that's in the record but that's what is being said here and he opened his computer on his own didn't ask him to do that he made the keystrokes on his own they didn't ask him to do that now he wants to file indeed my point now they say now we want you to do something special for us before you can do that well but they they say that you can do something special for us in a myriad of ways not just clicking the box with regard to the arbitration issue it would be filling it out it would be getting up in the morning it would be turning on the computer it would be nice actually clicking the enter button on the computer itself just like if you were to mail it mailing the application in then or being allowed to mail it in as opposed to going to their office but wait didn't you sue them in colorado for breach of contract precisely for not considering the application get that's no you said there wasn't an implied obligation on them to know you to consider it but  consider it in good faith unfairly the trial court deals with footnote two of its opinion and of course the court's aware that we completing the alternative so that we can advance very much even contradictory theories to the trial court in colorado and  nevertheless to the court in connecticut that there was no agreement and there was no consideration but no complaint senna's after you submitted the application subway began taking actions in consideration of the application well the question becomes as the trial court analyzes that the fact that actions occurred afterwards or is not the same as its actual causation and the language in our complaint was again filed as a complaint and alternative theories can be vance judge paul in footnote two of her pinion explains we had it we felt constrained to follow that opinion in the complaint itself otherwise we'd have some potential ruhleben issues but nevertheless judge hole explains why  adversary says this is a very interesting contract issue it's not for us it's for the arbitrator in why isn't he right about that well this is well there's substantial nd circuit law on commitment frankly this court savage by the constitution is decides whether there's contract or not and this panel one panels before in the circuit have consistently held that it's for the court to decide sufficient to support because there's no mutual promise you have to look elsewhere for this consideration and the st place that appellant looks is for the promise to review and if and that's why we submitted obligation to do anything then it's as if mr hall the mayor is submitting an application in a dark room to no one to do nothing and this is analyzed by the trial court just be course a follows b doesn't mean the b causes a and that's the key here what's the mutuality what's the ball going forward stream i ask you can accept by a performance if i ask you to do something and make a promise associated with that and you then do what i ask you to do that can be an acceptance with consideration not exactly because consideration is considered at the time of contract formation of the contract isn't formed until it's accepted by the other side and if they can except by performance and they do perform they may not have performed equitably when they may have performed in a way that violates federal law but it's clear that they did accept the application they did consider they did give him an answer and the answer was no well i think the quote is referring to these reward situations where you have you know i'll give you five thousand dollars if you bring my cats and but the offer or you arbitration if you consider my application well but that's not exactly what the offer you offer as master of his offer and it determines what performance or problems go take in return and one of the promises that he's looking for certainly is to have his application considered and reviewed and but just because it is reviewed doesn't necessarily mean doctors associates have the obligation to review it why would it matter if they have the obligation if they except by performance if what he wants them to review the application and if they do they have thereby accepted that much of the it's not much of an offer but he's not neither side is bound by anything that happens at that stage to future time so i think the court's got to take a look at consideration at the time of contract formation thank you thank you very briefly clearly mr alamy who thought he was getting a benefit by submitting this he knew he couldn't proceed forward buying his is buying the existing franchise and he read through a background check opening up his financial information gave his social security number these are all things that had of quite a bit of formality to it he understood that this is what he needed to do and i would submit your honour's the declaration of david cousins who's in house practically quoted on one hundred and fifty two of the appendix in return for the provision of this information doctors associates considers the information and decides whether or not to grant the applicant the right to the franchise he refers in that affidavit it said in consideration for the information doctor's notes considers the information in this case is in return it considers and of course the or was if there's any doubt there was performance so if there were no other questions i would ask this court to reverse and asked that th