morning everyone the first matter is enter a pharmacy benefit managers trust again on tact warning your honour's i wants to hear something on the jurisdiction  ok well the jurisdiction in that is that because we voluntarily dismissed with prejudice with prejudice yes what do we have left must make we afford really that when face but if you dismissed a complaint with prejudice everything's gone what is there to help us what is there to arbitrate that was the only way we could get them out of twelve ninety two b arbitration and going to the district court and appealing then after the arbitration is finished court now you're you're complaining that it's too expensive nevertheless there is that remedy that that's arbitration that clause affectively proposes that's we're going to arbitration look what it does number one it exposes us to the costs of experts and attorneys fees of the defendants something that part the other thing that is missing from this particular under this particular clause is it is totally uncertain whether the plaintiffs have a right for for trouble damages that you felt we were effectively precluded from doing so because of the onerous terms of the arbitration clause and i don't maybe we let's move to the way british get your arguments on the waiver i as i must stand it you your position is the district court gave too much weight to the fact that there was no discovery well then the court said well you're right back where you started from what's the big deal in months what's the prejudice excuse me what is the prejudice the prejudice is twofold number one we end up  we end up in district expended a lot of money and time in defending this particular motion of this miss an incredible amount of time and effort secondly we weren't back to where we  report plaintiff's prepared that report right before that report was submitted to the defendants for their consideration the fenton's counsel withdrew and there was new counsel and for days after we submitted the motion for under twelve the twenty six f report the defendants for the first time first time raised the issue of arbitration now i believe they did it for a tactical reason i mean because they've never given an explanation but there were other cases pending against them and if they got a motion to dismiss decision in federal court they've got a binding precedent for those other cases if they get a motion to dismiss decision in arbitration it's not binding precedent in federal court so i think that might have been their tactic when that failed then they decided to go to arbitration the other thing is they had knowledge of it i mean there's no question they had knowledge of the arbitration vision i mean they did a gated it in texas it raised it in litigated in texas while all this was going on they never told judge would be no that they never told us that so that did that was not something that and into the mix arbitration in a case like this i would be very surprised i think is the court's finding that you were not prejudice a factual finding i'm not sure whether it's a factual fun finding of the law but i think that the point is that he didn't consider the fact that you were actually effectively precluded from litigating this case under arbitration because of the additional risks that we had to face a case law of course does permit waiver under certain circumstances and various factors for so it's not a blanket that that no discovery was a substantial let's let's hear something on the on the ambiguity issue as i understand it the argument is that the only award remedy is provided in the agreement if if you're honest look at that agreement and it's very difficult to read because the print so small but every every single and and may not so that modifies what he can do under the rule of law and and again i would like to point out a series of sections of that agreement which are all pro p c s and have nothing to do with the rights remedies of the of the pharmacy and i really suggest you will not find any right remedy of the pharmacy in that provision and they are five point one six point two six point four seven point one seven point two eight point three eight point four and eight point five so that's why we say that there is no way that we can recover remedy which is travel damages which the statute said the plaintiff shall receive under that particular two forty five said a p p x one sixty eight and if i if i could just read from that it's very short and on it's in footnote three  could not do it because it didn't inform the court that that was its purpose which we and we certainly did that and that goes on to say one who seeks to come within the exception to this rule on appeal of the ability after a voluntary dismiss all not at all it was the only vehicle we had as the weirdest case recognizes to get before this court and he tried once before and it was unsuccessful because of a because actually the defendant dismissal without greg without prejudice that we're calling it with prejudice this otherwise you know listen to it but isn't that just a charade try to get around our prior rulings saying that that it's not a final order if we decide this issue and it will go back in the whole case will be presented all over the other it certainly wasn't intended as a charade it was intended as a way to get this issue determined to see whether the plaintiffs can go forward with their case in federal court or it will end because we have made statements on the record we will not or betrayed this claim it is much too risky there are too many problems with these all are we going to open up the opportunity to get around the requirement of a final judgment here in the tribunal martin case this circuit and the case that they did sign read the situation was there i believe there were five causes of  four of those there was a summary judgment entered on there and it was only one claim remaining the plaintiff took the risk of abandoning that claim and it was only because it had abandoned that claim or good permanently that it was able to appeal the also use the word charade yes it is a charade to do with this why is it not because there's nothing left i believe it is there when they lose yes and the court of course does not make advisory opinions as to whether an arbitration maybe we should change the case law say whenever there's a motion to compel arbitration granted there's no media right of appeal or deny the right of appeal well and of course the statute governs that and obviously the statute is directed and crafted to avoid this kind of in a locked or a view if a case is stated as it should be under section three there's no right for me just you know that and what about this twelve ninety two b certification is my recollection that you filed a twenty two of the twelve ninety two b believe they may have filed that when the case was in front of judge for iran i mean because i'm not talking the judge felt right in talking about right now right i think and i do think at some point in time there was a question about intellect or review which was and of course whether the contract is one of it he was debated below i don't think that there was timely submission to the district court on that issue but of course as the supreme court said in concepcion decision last year we sort of passed the days where you can strike an arbitration agreement just because it's to contract of adhesion but i think the real issue here is are you going to open up an avenue for parties to in effect get in a locket or review by taking an educated risk of dismissing their claims with prejudice perhaps with no repercussions if they prevail i think that that's going to likely be a very big issue in cases like this one where there's a class action whether it's a contingency fee case where they'll be a great incentive to dismiss the name plaintiff faced with prejudice voluntarily to obtain an appeal that could res obviously settlement negotiations with defendant or give new life into the case which would not part of the claims of other name plaintiffs because it wouldn't happen hoose of the fact that's the concern and i think that's a concern highlighted by this court martial what if if we were it's still over it's over according to what i think is the guidance this course offered before intervene oh those claims are lost for good so this court is only one small a mere this one count sherman act case it's gone exactly so that even if they win here they lose right which is why the case will be moot in this court at least i said before we're not in that we've wagner even on area it doesn't appeal they could have gone to arbitration as you pointed out in fact they could have gone to arbitration and asked for plenary rulings on the issues that we and judge your brain all think should have been for the arbitrator anyway to determine whether they could have pursued those claims to determine whether the shipping provision wasn't forcible under the contract but they chose not to instead they chose to use this path of this missing all of their claims of the claims with prejudice and we believe they should be stuck with their no further questions on the  i'd like to talk a little bit about the waiver issue just briefly obviously the district court did find that the plaintiffs could not demonstrate prejudice in fact he pointed out at the hearing that quote plaintiffs were unable to pinpoint any specific prejudice other than the lay that was caused by defend its motion to compel arbitration now they've suggested to form to delay but they had to litigate this issue here and time time usually alone isn't enough and with respect to litigating the motion to dismiss that decision of course the motion dismissed those questions would have been presented to the arbitrator anyway an advance p c s stipulated below it would not we would again that issue in front of the arb and we've had some substantial case law since that time judge of reno ruled we've had a lighter nino great hall for example and great whole colette's our most recent case of last year says that prejudice resulting from unnecessary delay an expense incurred by  know you never suggest you didn't know that it right but there's not been a reason for in not invoking it sooner here the only statement is that substitute counsel was new counsel came in course new counsel came in more than two months before the arbitration clause was invoked here so there is really no explanation who or why you delayed ten months to invo a clause in fact you didn't even in the answer to the complaint when it was filed it wasn't even mentioned it just seems a natural thing as i suggested earlier the only assumption i can make is that you kept it in your back pocket to see what happened on the motion to dismiss well there's another point you're on and it's one that you raised earlier judge perry and that is at the time and i believe still today this court had required some participation in discovery before there was a finding a waiver now that's all we know from the record there is no additional evidence of the reasoning here but i will say that this court has said that the filing of a motion to dismiss is not enough itself of course grounds for a finding of prejudice it said that in the  case the second circuit and other courts of numerous other courts of appeals have raised the same point and in fact the rushdie oppenheimer case in the second circuit is very similar to this case in that regard it cited in our brief and eight months the way it did not raise the emotion or the ability to compel arbitration in the answer and i i don't know that it would be correct to say your honor that that was a tactical decision to leave it out of the answer i don't know whether it was oversight or otherwise but the oppenheimer case is very similar to this and if i could your honor the cases cited by the new cases cited by the  the plaintiffs in that reply if i could address them for just a moment they set up the distinction between what this court has required and what some of those decisions require or the facts of those cases this court requires the touch tone of the inquiry to be a finding of prejudice a finding approaches resulting from unnecessary delay and expense as a result is enough of living in it goes on to say of litigating a case that the arbitrator later decides and my point here is what judge or brain are found is you're no different than when you started here because the defendants have stipulated they're not going to pursue that motion dismissing arbitration you would have had to deal with that then and so there's no significant project prejudice here and importantly of course there's been no discovery you know it's interesting that sort of standard becomes you can but again that if you choose this path certainly if you choose this path today that you could move to dismiss you could take certain actions that would prejudice the finance their prejudice the plaintiffs beyond simply defending  again here it's not going to be let me get really to get it but as a pick for example the second circuit decision and the sweater be by being there the court said if the district court rules in favor of the plaintiff then quote surely that could not be the plaintiff disadvantage i think that's what's happening here i'm not saying it's without risk to file a motion to dismiss and a lot of motions to dismiss in your emotions is that you file a motion to dismiss you know the actual limitations has expired you know i and i don't have any difficulty with that i would be very but this was heavy on the merits their words used here that i've not yet heard in my life you know this was heavy on that and couldn't demonstrate it so i think given the presumption of no finding of waiver and the touchstone requirement prejudiced plaintiffs were not sufficiently prejudiced here and the point of so much time time period is not that important well i think that i think that this court has repeatedly said including i think in the jones case from from earlier this year that time period alone is insufficient in the rush case in the second circuit was eight months i don't want to make one quick note about the seventh circuit they found no waiver where there had been eighteen months passed for motions to dismiss and notably the court cites numerous cases from other circuits for the proposition that the filing of a motion to dismiss does not act as an automatic waiver of the right  here and in the majority view in the seventh circuit admits it's in the minority without requiring a prejudice the majority view is you have to have a strong prejudice let me just one other eight circuit case which is new that they cite where there had been no discovery the court there said prejudice did not apply although the circuit usually applies prejudice because the party asserting arbitration was the party that initiated the lawsuit and filed its own motion to dismiss a counterclaim and i think if you look at their other cases they're similar the importance of prejudice in those circuits  arbitration clause and one provision in the arbitration clause itself a single sentence which they want to parse out the plaintiffs and self adopt the view that the contract provisions are completely silent on the issues of remedies with respect to statutory claims in fact the agreement is good very pointed out requires the arbitrator to fall of the rule of law the full sentence says the arbitrator must follow the rule of law and may only award remedies provided in this agreement if plaintiffs us adopted that the only provision are these particular provisions with respect to advance s it would weed out the qualifying first part of that sentence follow the rule of law it would mean that the limitation of liability provision and seven point one is unnecessary supposing you don't need a limitation of liability provision if they're not able to get any remedies and three would also mean that these remedy provisions they're focusing on have surplusage because they end up talking about the company out of provision six point three for example after listening several remedies available to advanced p c s it goes on to say quote all of the remedies are available excuse me it references the ability to recover quote all of the remedies provided by this agreement and a playable law what i think the provision means is reading contacts remedies provided by law are available under this agreement with the exception of enforceable a severance provision that is indorsed by the arizona law that is governing it is expressed in the contract and if you look at the christian case from the first circuit that aside in our brief what the court there did was found that there was no ambiguity that you couldn't get troubled damages and you couldn't recover your attorney's future and i just claim what it did was it looked to the savings clause struck those provisions sever them from the agreement and compelled arbitration in this court's cases mainly in the employment context that i've seen your honor where there was a of unconscionable provisions this court in you know and also in alexander which i know dropped out of the cent from said look no person no no right reasonable fact finder could find that these could be severed i respect i suggest we could at least agree the first circuit is usually reasonable and that's exactly what they did when confronted with this issue is is it clear we're under arizona law on this unconscious the provider agreement provides that arizona law will govern i mean obviously the federal arbitration act compelling arbitration appeal the appropriate order would have been a voluntary dismissal with prejudice under federal civil procedure forty one a two we agree with the first circuits reasoning in johnson's insulation versus  page five o since a lot of cases were being thrown around and i didn't get a chance to mention the self broward hospital district vs med quist case which is also cited in our brief two fifty eight fed appendix fo agreement from the arbitration clause the clause in question says may only award remedies as provided in this agreement so it does bring in you have other parts of the agreement