my name is rex sperry i represent circuit city the fellow in this matter it would be my plan to reserve crosley five minutes for rebuttal all right what's well thank you we're here this morning on a doctrine or the colorado river doctrine that would preclude the district court from applying believe i've been dealing with these issues with the ninth circuit for several years the fat the f a a under which circuit city's position is a federal statute it is our belief that the federal courts are in the best position to interpret and apply the f a a even with regard to the night circuit decisions that have been published i would point out to the court there are several unpublished decisions of the night circuit or circuit city has prevailed on precisely the same arbitration agreement  i'm ricker feldmann doesn't apply i think that's one of the reasons rick or feldmann doesn't apply shouldn't we under colorado river simply stay and send you back and month at the state court for a couple of reasons under colorado river it's an equitable doctrine it talks about the means we can do it if we want to but we don't have to absolutely and you shouldn't here for the following reasons river feldman nor younger doctrine have any application here because of the unique procedural posture of this case the only reason circuit city with the state court initially was because the night circuit had made an erroneous decision in the first circuit city versus adams case holding that the f a a did not apply to employment agreements which were arbitration agreement between employers and employees and until the supreme court reversed that the families of this circuit were bound by it and therefore you had to go to state court we have to go to state court if we don't you recognize the binding effect of adam's own own the federal pathway absolutely but no you don't you recognize that the binding effect of the use of the u after the supreme court decision the court considered a one nine hundred ninety seven version of the agreement that had flaws that the court picked out damage limitations concerns about each reality those types of issues this angle i covered by the current dispute resolution rules and procedures that we brief this before the district court it's all in the record what this court many of us think court if we defer stay or whatever  exactly what you're talking about it can but what if we have the answers are you afraid of what they would do absolutely not we have an absolute right to have this matter heard in federal court because diversity jurisdiction exist in deeply involved in the same issue and has yet to reach a conclusion but we're back in the same place with regard to each proceeding that's what's important about what the court the state court of appeals did that the district court miss when adopting your argument encouraged forum shopping established this federal absolutely not the reason it would not is we only went to the state court because we have no choice as you asked the reversal we were back to square one call it a tie then after you tie before the california court of appeal with would we be saying to the state court in california you don't know what you're doing you're not capable of resolving this issue cases involving various disputes with their employees why should we send this back to speak or for a couple of reasons first off the fact that circuit city aggressively defends its arbitration program should not be held against it this arbitration program  view is and circuit city's view is that on those first two criteria this case would fail for application of the extension doctrine of state proceedings are not ongoing this is similar to cancer now in that there is nothing pending we're back at square its proceedings hindering the outcome of these federal proceedings when we filed our federal petition to compel arbitration disappear court entered a state of its own proceedings said our right here in federal court now let the federal court adjudicate the petition those proceedings are stayed nothing is pending there's absolutely nothing that the different court could do that would in any way alter modify or affect any ruling by the state court that's been made to this you have federal courts being asked to join state courts on constitutional grounds there for example in the goldies case there for example you have a situation where you do have important state and federal interest in conflict this  a private dispute between two civil litigants and in the foster case i think the court made it very clear that normally is not going to rise to the level of a compelling state interest that the state court is in the best position or should be allowed to adjudicate our of that if at all are the issues different in state court for the federal court they would not be because circuit city's the tuition in state court was made pursuant to the f was in a state court case i grant you chances are the good you would say well i'm through that i've got other work to do and so i'll go along with what the ninth circuit says but what if they don't what if they say well we don't appreciate their interpret most the states counties said even if you have the situation where potentially there might be piecemeal litigation maybe there are defendants you can't be brought into the federal action because of the pro arbitration public policy of the years difference of definition between forum selection and forum shopping or you select figure shopping a place of or petitioner is the master of their complaints we have the opportunity when wrong it shows fear of our ways and you say aha there's this other form that was close for me as a matter of choice and now it's open so i'm going to file a parallel lawsuit over there why isn't that chopping why is that selection because i don't believe that the are modified from time to time as the law has developed obviously this is a very rapidly developing area of the law arbitration law those rules have been modified from time to time mrs angle is under an agreement that says when i put in my petition for my request for arbitration i'm going to be banned by the most current set of rules therefore miss eagle in this case would be bound by the two thousand and three resolution rules and procedures they do not limit damages they do not require the payment of any extreme are excessive arbitration fees circuit city pays the entire cost of the arbitrators hourly rate the rules make clear that it is a mutual binding program circuit city rules in the eagle case judge praeger sutton said he was applying the post nine hundred ninety eight rules but the courts simply did not address the issue of it being the most current rules and the court went back  rules at that time that said the most current set of rules should apply are what was the most current at the most the most her set of rules at the time she applies for arbitration what that does that clause gets the benefit if someone  with them is great i would respectfully disagree and i mean i don't think we can make a little swim now if they do something crazy we want to import actually there is a lot to that effect already in the twenty four hour fitness case out of california said what it says is that if you have a modification procedure it carries with it an obligation of good faith to exercise its modifications in good faith that a record will show that every one of the modifications has been updated ms incl as arbitration a lot has developed make it more fair more beneficial for the former employee isn't that something we would want to encourage i think it's something you want to encourage but i don't think it comports with contractual analysis when let me say to go back to what the fight is about here it's about what's what d r a are we going to use and so that's what the fight that's why they came not only did they form shop two thousand two thousand and one five on that we're dealing with at that point because it's contrary to what they're trying to do which is always to put in the later d r way and to give up the earlier they come to federal court so for this second form shopping you see condemning they're being willing to waive the employee funds to be unconscionable they're willing to waive those things this is what they're doing by them without the sense of the employee and there's a requirement in a moan wolf that they give thirty days notice and one of the issues that came back from the court of appeal in the state of california is whether they had complied with later version they are not giving up their position that the later version a plus in this state court of appeals said you go back to the state court you make sure that the record is complete all the versions because they didn't put the original version in when they filed in state quite so one of the things they're trying to do is they're trying to get out of the evidentiary hearing so they had a judge and a court can determine what right thank you you have some time left i believe very briefly  we put the cart before the horse this was your stiction or issue before the court the district court has not had the opportunity to pass on the various questions that this panel has raised is it in the record absolutely panel get to those issues absolutely should it it should not let the district court pass on these issues of application of angle application of arming terrorists which rules the district court will be in the best position to hold a full evidentiary hearing which oddly enough is exactly what the state court wants to do on the issue of the making of the arbitration agreement from a jurisdictional standpoint it's appropriate for this court to require the district court to address the merits of this claim with regard to the questions about the rules on the substantive merits of the case every since nine hundred ninety five when this program is put into effect there has been a modification to resolve that issue that mean that there was no comfort absolutely not in have it not a one sided contract that you can make to read anything you please use after it's been absolutely not employment any employment contacts between employers and employees the world is full of agreements that provide for modification handbooks have been held to be agreements between employers and employees the twenty four hour fitness case out of california court of appeals i mentioned they include an arbitration provision in handbook the court said that's a contract just like any other contract they agreed at the outset it could be modified we're going to ingratitude on that obligation of good faith employer if you do something crazy we're probably not going to uphold  but parties can agree to future modifications of their contract even though they're not part of the contract any longer though they're still part of that contract that contract applies to applicants at but she was fired and maybe not does not change