district court erred by determining arbitron bill of the based on labels based on potential remedies based on the merits of the counter claims and least in one instance based on the timing of when the counterclaim allegedly occurred now we know from this court's precedent that the federal arbitration act must be construed tells us to construe contracts liberally with an eye towards arbitration resolving doubts and ambiguity is in favor of arbitration and  regardless of whether a clause is broader narrow there has to be positive assurance that the contract does not cover the disputed that yesterday dispute in order to avoid arbitration here there is no limiting language there is no prohibiting language the clause says the operative words are if any disagreement arises about the terminations feet then the parties will arbitrate no we absolutely agree this is not one of those broad causes like we saw just a few months ago in the parm vs blue stem case this isn't your standard any and all disagreements arising out of relating to interpretation enforcement or breach of the contract we're not saying it is but it's also not so narrow as the firm is arguing now on appeal even the district court didn't they didn't think it was that narrow because look at what the district court granted of the nine counterclaims all of them are bitter ball for one purpose or another arbitrated now words break down the plain language of that particular provision in the contract there has to be a disagreement about the terminations feet so we're not talking if the case went to conclusion we're not talking about anything after  settlement or verdict that's actually addressed in an earlier part of the attorney contract we're only talking about disputes that arise if the lawyer client relationship and early and then everything comes  like a so in other words you could do set off for for all kinds of different things as long as there's a disagreement about the fate yeah your honor that's right that's that's what the clause allows for and those words if any disagreement  about those are the words that were chosen and it makes sense here because every fetus viewed as we know there's two sides to it there's the clients arguing practice misconduct eason's breaches of duties and we've got and that's why they're not paying the fee and other reasons doesn't read out the first sentence so i mean it talks about the terminations fee but isn't that really a reference back  to the previous sentence which talks about the things that they can fight about an arbitration which is whether they've term where the quietest terminated the firms employ met whether there was good cause or not and how much the fear is it seems to me that that second sen is agreeing to that too would be an issue to be arbitrated who terminated from a client why i agree that's all in the first sentence right but but we submit that you could almost put  these the four five sentences here in different orders and you come to the same result as to what's are beautiful or not it's terminations by whom and why and disagreements if any disagreements arise about the termination fee that's the operative language about it's those disagreements that are to be arbitrated what i don't see and there is if there's any disagreement about the terminations fee then you can litigate whatever you want before the any any any any disputes of whatever nature between the client in the firm and then go to arbitration i don't see that in the in and i'm on i'm not suggesting it's the it's a broad is like i said earlier those mega broad causes like the terminations at the end of a foetus bute and this started before the firm brought its complaint in state court and that's borne out in that you mail traffic right when the dispute arose it is a rose from the firm saying i want to make a quick settlement is that ok client saying well you told me you're going to do all this work and achieve a great victory here now you want to quickly settle for a premium well you better call me first fine if you want to go talk to the got a call me first the firm doesn't do that they go behind the client's back one of the worst things they could have done was ruin a potential settlement by throwing out an authorized numbers and then not even telling their clients and then later that day saying by the way knowing what what you i think you would expect i threw out this number and then i got a counter number the clients at this point are you know you have to peel off the ceiling they're so upset and they're saying you've you've done everything you're not supposed to do you you've done contrary to my wishes you're done and we're going to arbitrate under this your feet which had been talked about anyway is being modified that's the genesis of this dispute it it's ultimately a very big fetus bute based on malpractise based on malfeasance based on deceit the district court's order here isn't isn't all wrong as we say the district court really grappled with plugging these counterclaims into this clause and saying you know most frankly they're they're all arbiter both for one purpose or another count for breach of contract is our bill in its entirety including getting damages defamation the the underlying allegations are also found in the other allegations that are founder of a trouble but the district court's reasoning was one that sort of happened after the terminations and we know from the morgan v smith barney here we have the district court saying no no no you guys aren't going to arbitrate that and you can argue that in arbitration and their attorneys can't find that in the second circuit and frankly it could have been this circuit it's the fact it's out of circuit doesn't really matter the second circuit stage and you don't look at the merits you don't look at what parties can and can't argue that's up to the arbitrator to decide what comes in what doesn't come in so your honor we have it we have a contract  clause that the district court mostly got right in a lot of respects but by limiting the remedies or relief but panel could award by looking at the merits of what the outcome ought to be or not shouldn't be looking at the labels all the cases we've cited from this court so you don't look at remedies you don't look at labels you don't look at what relief might be awarded and you don't look at the timing the factors the statutory claim to see to treble damages that doesn't factor in to arbiter ability in the first instance so without any limiting language and without when you properly look at without interference one of the biggest things in the the firm has not really no means of of contesting this the district court said the panel can dismiss all the counter claims that request this is if you want to bring them before the district court right and one of the problems here is the counter claims were not there not in court there is no there never filed in court you never work bifurcation is kind of a it's a mistake of the procedural history to think there's arbitrations the panel's decision whatever it may be is presented to the district court to be confirmed modified vacated whatever and what we didn't get to arbitrate under the district court's order we would have to file those counterclaims in whatever form they're in they're sort of half in arbitration for some purposes and not others but they could all be dismissed by the panel and they could be there certainly some precludes of effect we're  if the district court has basically said the arbitrator's cannot consider these claims except for dismissal will they be dismissing them for a lack of authority to unclear adjudicate them when they unclear but it may certainly be precluded would be tough to get your precluded on the ground if the court order has said there's no authority yeah and i appreciate that for a rescue to cut a road to really have effect the when you brought up the bifurcation point i thought you were talking jurisdiction because the briefs have a little back and forth you know where that where the apple e seem to say there's no appellate jurisdiction here it's kind of a casual statement in the the cases we've cited your honor well looking at the statute i was thinking you would invoke a two section sixteen you know a kid tori order i believe han the district court has reached out to the arbitration in the first instance and stopped it stopped it but you think that would qualify as an order granting an injunction against an arbitration yes your honor and interfering with arbitration that's appealable if you're if you're allowing arbitration it's not appealable it's right and i get that i just was trying to see how it would fit into the text of one of these provisions but you're right the cases generally say that's the dichotomy i would like to save any time for a bottle if i could your honor very well and you may mr evans will hear from you it please the court counsel it's true federal policy tables arbitration no doubt about it in the courts is that there's a presumption favoring arbitration and the doubts are ambiguities favor arbitration but none of those are principles apply here first and foremost arbitration as a matter of contract the guiding principle in reviewing the arbitration agreement according to both the supreme court in this court is to give effect to the contractual rights and agreements of the party the intent of the contracting party controls over any federal policy favoring arbitration the duty of the court is to uphold and enforce the parties in as noted by the supreme court in the e e o c versus waffle house case in the absence of an ambiguity in the agreement it's the language of the contract that defines the scope of the dispute subject arbitration and nothing in the federal arbitration act authorizes a court to compel arbitration issues that aren't covered by the parties agreement and i think that case i think this case is that simple what did the parties agree to in this case parties can limit claims or issues to that they want to submit to arbitration arbitration clauses if clear unambiguous and narrowly drawn don't need to apply to all disputes between the parties it may be more difficult more messy to have bifurcation but if that's what the parties want that's what the court sho rewrite paragraph for the second sentence if any disagreement arises about the terminations be in again a paragraph or as to be read all together like your honor noted  and interpreted consistently and can't ignore any portion of that paragraph it doesn't say any they want to say any disagreement about the terminations fee they want to change that to say any disagreement or disputes about the representation or among the parties and literally i think the language that they'd like or that they tried and they all size to it is anything that any disagreement about the representation because that was their dispute is about certain of the reputation and they can say all our counter claims relate in some way to the representation but it is not that broad it's simply what is a fair fee period doesn't really say anything it just says if any disagreement arise about the fee in the parties choose people but it doesn't say what they're supposed to do once they're joseph it says that the majority decision of the third or third person what they decide is a fair fee they claim that personally think they're limited to whether the fee was fair that's the only thing the arbitrator's going to say sup the fee period what about the other things from the first sentence for instance who terminated the firm's employment and whether there was good cause for the termination well judge pearce all did that is told in the water and say that the terminations was without that that the clients did terminate the firm but realize how that how we came to that there is no answer them has to be without good cause you know if they terminated the firm's employment before the conclusion without good cause you're right i thought the order sent good cause to the arbitrator's to decide yes it did whether or not there was good cause was sent to the arbitrator it's more than just the amount of the fee it's also whether there was good cause agreeing with that yes but once you why wouldn't it also include whether the client terminated well as i say if it includes a good cause it's part of the same first condition for arbitration i understand and quite frankly i think the reason the judge pierce all decided that issue was because of the the context that was presented to him and we would be the first to say that that if that issue that that issue may be subject to arbitration if this court decides that but that doesn't mean that all the counter claims are it just means that there's an initial matter they decide whether there's term right but whether whether that client terminates issue subject ration is one of the issues on appeal so i understand acquiescing in that i'm not i'm not here usng because i do think that under the federal arbitration and the district court on least in deciding whether the parties of agreed to submit a particular grievance to arbitration a court doesn't rule on the merits but nevertheless according to the f a a itself the court can engage in a limited inquiry to determine whether a valid agreement to arbitrate exists and whether the specific dispute falls within the scope of arbitration and what's going to be arbitrated and so judge pierce all dead make a limited inquiry into whether or not there should be arbitration in this case i'm just resting what she was my client terminates would be decided by the court and good cause would be decided by the arbitrator because seems like both of those things are reverse the client terminates part of the order and say both that and good cause go to the arbitrator or on the other hand whether we should say both of those issues are for the court but why would we split them well because i'm sending this to arbitration and it is subject to paragraph four in arbitration because the firm you think he had to decide that the client terminates issue to decide that there's even any arbitration available that's the way paragraph four reads but is the design of all this to avoid the court at all costs i mean the reason why you do an arbitration provision is to lay everything regarding that particular issue on the arbitrator so you never have to go to proceedings and so should know all the preconditions for arbitration be decided by the arbitrator so they don't have to go to court it seems kind of crazy to draw an arbitration provision where you run to court to figure out where the client of the firm terminates but in the good cause attorney general said listen i think my fees are fair and like a charge for i think i charge a fair fee if we have some disagreement about the amount of my fee and whether my services are worth it you go pick two i'll pick one and we'll let them decide what the  that's what it was it was a matter of contract and i agree with what you're saying your honor except that everything you say does not take precedence over the intent of the parties and here the intent of the parties was if there is a fee dispute we're going to let a panel you pick two i'll just pick one and we're going to decide the freeze but we are going to say is that you pick two and pick one they have all kinds of collateral tort claims seeking trouble damages for fraud and deceit and defamation that allegedly occurred even after the representation was terminated i mean that there's no way you can interpret paragraph four into that it's  a simple on its face and it's unique i agree it's unique because it's crafted to fit a situation of if we have a problem of how much on charging it's that simple  interlocutory appeal that orders arbitration and staying an action is not appealable orders arbitration and stays an action this court held that in equity sales versus pelz quoting greentree the united states supreme court made a final decision final decision ends litigation on the merits and the court noted in greentree that if the district court entered court the district court reaches out and says you know if you want to file those counterclaims later bring them to me all decide them but they were filed before the arbitrator and then the district court comes in and says no you can't i mean you challenge that district says no you can't do those claims before the arbitrator there are things for the court to decide not not part of this arbitration clause so doesn't that have that and the court that cases use this practical effect of staying portions of the arbitration so therefore it would be immediately appeal under sixteen eight to well two things number one i'm not sure that i'm not filing the answer i mean i'm not sure how that helps them if anything it means that the answer in those portions of the counterclaim haven't been asserted in court and the court certainly had jurisdiction to decide whether they should be submitted by arbitration to decide the scope of it and i'm not sure what gamesmanship is being played by not filing it and saying here is where we're coming from when the original motion to state was before the district court the just record inquired about counter claims and seeking damages and they said you can't you can't a they're sincere position i would assume is that this you go to the arbitrator they don't believe that never go to court and so they filed it in the arbitration and it may be wrong about that but that's a little different than than the cases you're citing  well but if we look at the orders themselves we have two orders from judge pearson on may first two thousand seventeen motion to stay and compel arbitration is granted ok we have that then we have the later one when they were taking the position that the arbitrator got to decide if the counterclaims were subject arbitration and we said no and they said you're you're you're agreeing because you're arguing to the the scope of arbitration we which is what his role is weakness of that is under the federal arbitration act a district court doesn't have some general supervisory authority like appellate courts have over lower courts they can't just jump then they have limited powers and they can either join the proceedings happening arbitration or take several other statutory actions but there is no general supervisory authority so to i guess we got to place the action that the district court took it to one of these categories and it conclusion i will simply say the agreement arbitrate in this case is narrow it's specific it's an ambiguous it doesn't a company it doesn't include the client's affirmative tort claims and other collateral claims seeking consequential damages the parties agreed to resolve disputes over a fair fee no more and they say well what about the negligence and this type of thing well claims of malpractise affecting the quality of services and judge pierce allow that to go if it's a claim affecting the quality of services that necessarily is going to affect the reasonable most of the fee so those types of things can go in in consideration of what's a fair fee but affirmative collateral claims for consequential damages incurred as a consequence of the services rendered during the course of the employment as an attorney are separate and apart they aren't related to the fee and those claims are not within the scope of the parties agreement this is unique it was they should have waited and let judge pierce all sorted out after the arbitration and then brought an appeal to the court if need be or we would have but right now all there is from judge pierce all is there's a there's a motion to stay that was granted an order for arbitration that was granted and an order deciding the scope of arbitration thank you very well thank you for your argument mr you have a brief amount of time remaining thanks your honor c thank you very briefly the firm is the one trying to rewrite the clause here by saying it's limited to the amount of the fair feat than say that the firm could have used the model rules for arbitration the a b a has given us which delineate precisely the arguments they tried to make below distinguishing affirmative relief first is equitable relief they had a way to do to write this the way they now wish it said but they didn't