so i'm assuming that we have one attorney arguing each side is that correct that's correct your honor ok and you each have fifteen minutes and if you're the appellant fifteen minutes include your rebuttals so if you want to reserve any time you're in charge of your time if you tell me i'm looking right at the clock i generally will keep people to their time however if anyone in the court is asking you a question please continue to answer the question even if the time has expired even if it's a really hard question appreciate the accommodation and i would like to save three minutes for rebuttal here your honors the central issue in this case is whether this court's decision vs realty prevents the enforcement of the arbitration agreement as written and as agreed to by the parties and we respectfully submit that it does not for three reasons first the intervening supreme court decisions in direct t v versus in persia in kindred nursing center versus clarke a stablish that should not be an obstacle second this case is about a choice of law provision sakho was not about a choice of law provision and we respectfully submit that under choice of law principles the part choice of law should be respected and enforced in this case and third the california court of appeals recent decision in esparza versus k s industries just a couple months ago  ishes that even when an individual has representative private attorney general act paga claims if the individual has individual claims personal claims for unpaid wages compensatory damages what the aspire is a car court called victim specific relief then those individual claims can should and must go to arbitration and that is the situation in this case and his men while in addition to the representative paga claims has those individual claims and so at a minimum the district to the terminology in aspires because i think that actually sets a very clear line and what aspires a says is that if it's a claim for civil penalties where seventy five percent would go to the state and twenty five percent would go to the  employees that under the scanning in rule that does not that is not waived and even that does not go to arbitration but that if it is a request for the individual for that would go one hundred percent to the individual whether unpaid wages or other kinds of compensatory damages those should and must go to arbitration if they're covered by the arbitration agreement as to the one and all the people hypothetically if you lose on the first point then on the second point you're saying so what exactly in this case would go to arbitration so really all six of her claims which relate to unpaid wages overtime wage is lack of meal periods because as to all six of them she makes a claim for unpaid wages and for compensatory damages and just so the court has it this is in her complaint and the excerpts of record one forty five to one forty six is the prayer for relief and then also on pages one thirty nine one forty one one forty three and one forty four and all of those pages she asks for unpaid wages for herself and also for other employee in place but for those no we have not asked for that and neither has the other side we both have agreed that that's a question for the court ok but i think that the fact that the individual claims will go to arbitration at a minimum and should under a spouse and that's entirely consistent with but i think that also has an important bearing on the more fundamental choice of law issue and let me just briefly go through six reasons why we think that the district court's decision not to give effect to the party's choice of law was erroneous first in the decision justice  emphasized that under the federal arbitration act the parties have very broad freedom to choose whatever law they would like and he gave examples of the law of tibet or pre revolutionary russia that the parties could decide on and here we're just talking about the law of maryland now second the fact that as we've been discussing ms mandel while her substantive claims under the california labor claw under the california labor code arbitration and there's no dispute this is a very fair and impartial arbitration project and she will have a full opportunity in arbitration to pursue her every one of her claims and receive one hundred percent of what she says she personally is entitle to that bears heavily on why there is not a fundamental policy here that requires invalidating the party's choice of law because her substantive rights under california law are going to be fully protected on an individual basis in the average ration third there's another important point which is that the waiver that the rule of about waivers the california supreme court rule in a scanning is applied very selectively and only against arbitration agreements it's one of the reasons and i'll get back to this why we think that the supreme court that the supreme court didn't take they didn't review that you know they did now it's on the backs but under the this court's in absolutely it's a precedent and they recognize that that's right but it is ninth circuit precedent right but under the ninth circuit standard if there's this intervening supreme court decision in this is miller versus cammy decision if there's an intervening supreme court decision that undercuts the theory and reasoning of  panel precedents such that the precedent is clearly irreconcilable with the supreme court decision the subsequent supreme court decision then the panel should not continue to follow it it should follow the intervening supreme court decision instead well except the supreme court's not shy about california and arbitration in the california supreme court but and they got it wrong for quite a period of time after  is very clearly a fundamental policy in california it's really hard to refute that but oncet cobb i don't think the i don't think the employers that petition for certain that i was really surprised said certain aisles are not precedential in concepcion the supreme court had denied cert eight times and that issued before it granted and in the petitions that have raised the skinny an issue there's only been one federal decision and that one had procedural problems it was an interlocutory appeal the others have been directly from state court and justice thomas has taken the position that the federal arbitration act does not apply in state court so decision and let me just briefly point to three points about those decisions that we think illustrate why should not be an obstacle and why in fact have this clearly irreconcilable with the supreme court president and the first one is that both of those decisions emphasize that just because a policy is neutral on its face it it does not mean that it's not hostile to arbitration it can still be hostile to arbitration in a way that is fatal under the federal arbitration act and they include two important identifiers or markers for how did determine that impermissible hostility to arbitration and that's the second and third point the second point is that in both inversion and kindred the supreme court made clear that a very important indicator or policy being enforced outside the arbitration context it was only in the average ration context and then and that is exactly the same thing here neither ms manful nor anybody else has ever pointed to this policy being invoked outside the arbitration context and third one point that is especially important in the kindred opinion is that the policy was applied with regard to arbitration agreements but not with regard to other agreements like settlement agreements and that's in footnote one of the kindred opinion and that is exactly the same thing here the policy applies to arbitration agreements but it's very clear in opinion itself and in cases that we've cited in the brief from the california court such as villa that it does not apply in the context of settlement agreements and again the supreme court has made clear that is exactly the kind of telltale indicator or marker that shows an impermissible hostility to arbitration agreements and i'd like to reserve the remainder of my time ok thank you itself the agreement that the appellee signed specifically excludes representative actions the courtney not going any further because there is no waiver of the representative action in the agreement so that's the first point i like to make if the court finds that there is no apply california law i'm an arrested and as far as from the standpoint that it would appear to stand for the proposition that  any reason we shouldn't follow that is or are you aware of any authority that conflicts with that i am not aware of any authority at this point that conflicts with as far as a so the district court got that wrong to the extent that there is no actual request for  victim specific relief correction the ok well i'm i'm hearing you say that that would be a correct statement of the law if if court as to that part of your not defending that part of the judgement you're defending the rest of the judge correct so yes if the court found that there is a victim meant by that is this in each cause of action it lays out the private attorney general act and then the specific labor code i think individual really not it does say to the extent it does recognize the labor code five five eight provides for seeking  monies that would essentially make the plaintiffs or the class whole so to that extent yes i guess the court can see that it just would appear that her complaint seeks both civil penalties choice of law i think the courts statement earlier that is a fundamental policy is correct what respect to the choice of law  california has an inherent interest in protecting the employees of the state of maryland does not have the same type of protections in terms of their labor laws for to have a nationwide contract uniformly well i thought i would disagree to the extent that if we're talking about california law any cut any company that avails itself and does business in the state and i forgot the name of the case right now there's case law that says that they must make themself aware of the protections of california law  shoe law firms on both sides case and a lot of money and we consult with everybody the best supreme court that we can and we want to have a uniform policy for our employees throughout the country could are the kids are case is a matter of fact if we look at the case that case specifically dealt with private not undermined by by the recent decisions that counsel stated and i and there's a believe a fourth district that that actually ruled that the cob still stood still the law of this district has not been overturned it's not been taking up for cert and i just believe that the finot have not reached their burden with respect to so the kindle case dealt with exactly as your on a said that the the agent can a waive the principals right to have their day in court so to speak and  court the court found that that frustrates the f a a part found that it was a huge barrier for arbitration agreements tacky and failed to put them on an equal playing with other contract correct but i once again that still basically says a look at the end of the day we've empowered the employee to seek penalties civil penalty penalties on behalf of the aggrieved employees as very different from the kindred case in my opinion a few brief points here on ars first my colleague said that the agreement doesn't cover this situation i just wanted to point the court in the agreement and this is an excerpt of record page sixty five  says that the employee that ms man while a agrees to pursue claims on an individual basis only cannot be more explicit and so that it clearly is covered and obviously the district court thought it was clever thought it was covered but in light of that language i think there's not even room for a dispute about whether the language covers it secondly i think it's notable that my colleague did not mention anything in response to the point about the impermissible markers that both kindred have a stablished namely again that there is no other context in which it's been invoked and that there's a very starkly differential treatment between arbitration agreements and settlement agreements again footnote one of kindred and again neither ms manful while or anybody else has ever pointed to an instance where this policy has been in outside of the arbitration context that is fatal under the federal arbitration act and third my colleague mentioned that relied heavily on the idea that these are penalties and that it's in agreement with the with the state  behalf of the state and a few points about that first of all this is obviously a preemption inquiry supremacy clause federal arbitration act there is no exemption for states to label something penalties that's not what the question is under the federal arbitration act the question is whether there's a hostility to arbitration or whether and whether it interferes with the fundamental attributes of arbitration even if it's not and not the labels that are put on it and the reality is that the individual employee here controls all aspects of the of the litigation the state has no role she has to go to the state and when the state declines it's entirely up to the private individual whether to file suit or not it's entirely up to the private individual how to conduct the litigation it's entirely up to the private litigation whether to settle whether to waive the representative claims there so this policy which is hostile to arbitration and interferes with the fundamental attributes of arbitration cannot be saved by saying well it's actually on behalf of the state it has to do with the private individual and she's the one who signed the agreement with the with with the employer and the very very high bar that needs to be met to be setting aside that agreement in rejecting the arbitration part of it has not been satisfied thank you your honor thank you for your argument this matter will stand submitted