bilateral employment rules constituted a delegation to the arbitrator to determine the availability question as to class arbitration there are two independent reasons why the incorporation of by letter rules does not have that effect the first is this is this is an issue that's been considered unresolved by several of your sister circuits and they've all uniformly agreed that incorporation bilateral aaa rules that permit an arbitrator to determine his or her own jurisdiction does not have the effect of delegating the class availability issue to the arbitrator and that's exactly what we have here as the language from the arbitration agreement which we quoted in our in our supplemental authorities letter indicates that there cannot be collective or individual claims and so you can't good morning please the court john psyche for the defendant pallies the five co managers of guest or is pursuing arbitration before the aaa here judge snyder got it right arbitration is fundamentally a matter of contract and in their contract the parties chose to delegate class or reachability to the arbitrator and i guess may regret drafting the current the arbitration agreement this way but get signed the contract the employees sign a contract and this court the will be decided by the player no it says all issues will be decided by the arbitrator so gateway issues and procedural issues are decided by the arbitrator all means all all includes class arbitration includes intellectual property dispute includes punitive damages issues it includes cases that are about a million dollars below a million dollars all include obviously the procedural issues are going to be for the arbitrator and the question is really can you delegate the gateway questions and though the parties can and they can in fact through another document against now there are two ways as my colleague suggested there are two ways of approaching this case one is the narrow modest holding and the other would involve tackling the broader policy questions to win reversal of judge snyder's well reason opinion i guess has to win on both of those approaches so the narrow way is this the parties delegated all questions gateway and procedural to the arbitrator it doesn't matter whether class arbiter billet in the abstract is a gateway question or a procedural question because all means all as we've discussed taken this straightforward approach is required by oracle and brennan and because the parties adopted the aaa rules judge snyder was correct the broad approach to the appeal would  require tackling of a question of policy which is perfectly valid and we argued that in part one of our briefs and that is that process of a trip arbiter of realty in the abstract is a gateway is not a gateway question but a procedural question a majority of the district courts in the circuit say it's a procedural question and that makes sense in light of the supreme court's jurisprudence in house them and basil and b g group and in fact going back half a century to eight technologies first options and granite and other cases so then in terms of the narrow approach arbitration is fundamentally a matter of contract we must honor the parties expectations guest crafted the contracts language to delegate all decision making to the arbitrator both through the words that it chose to put in its contract and impose on the workers and by adopting the aaa employment rules this incorporation  employment rules constitutes a clear and unmistakable agreement to to arbitrate arbiter ability so that's what this court said two years ago and brennan and the district courts have interpreted as we said on page twenty eight of our brief brennan to hold that incorporation  aaa supplementary rules which are incorporated by the aaa employment rules delegates gateway issues to the arbitrator as well so one way of looking at the question is how much help should courts give parties after the fact when they write a contract that they later decide they don't like so they guess may be the guest may not like the fact that the arbitrator is deciding things in certain way the employees may not like the fact that they're in arbitration or that the arbitrator is deciding things a certain way but that's what they freely agreed to in the contract and in fact gas has already corrected that by changing the contract and it's chosen to impose a different contract on workers that now selects jams instead of aaa and now has a class waiver which it didn't in this  contract so the whole point of arbitration is that you get greater speed and efficiency including earlier finale and exchange for sacrificing procedural rigor and judicial review that's what this court held last year in martin  torpedoing that efficiency by trying to litigate the who decides question over three lawsuits going on now almost three years so the broad policy question that the court can tackle if it wishes is what questions are again and again referred to by the court in terms of whether there's a valid agreement and does it cover this dispute and another one could be how is the arbitrator selected so take what is gateway question mean gateway means how do you get into arbitration but what do you need to know to go through the gate so that you're in arbitration is there an agreement doesn't cover this dispute so you can look to various supreme court cases to understand specifically what that means  granite the supreme court said that whether the dispute was covered hinge on when the arbitration hearing was formal so they needed to know is there a dispute they can go to an arbitrator in eighteen two technologies the court asked what types of layoffs there were because that would determine whether under the c b a that there was a question that could be arbitrated so can you even get to arbitration in first options does the arbitration agreement bind someone who never signed the arbitration do it again can you get into arbitration so it's a gateway question moat the recent couple decades of analysis is particularly helpful because it actually has a gateway issue and a procedural issue the gateway issue is does the agreement survive the merger so again is there an issue is there an agreement and then the procedural question is what are the procedural prerequisites to commencing the arbitration and john why is this unwise and class arbitration one of those fundamentally major issues that would be within the gateway  i think it's important to note that the supreme court doesn't analyze how important the issue is it's not a question of whether it's fundamental that's where the sixth and third circuits go wrong is that it's not a question of how important it is now and that's just not in the case it's a question of qualit seeking to run for classification so they they have a dispute an employment dispute a wage an hour dispute that is covered by the agreement that gets them through the gate into arbitration but i think it's true that the supreme court has  class arbitration is a big deal and it is and and a class procedure is fundamentally more important to the parties but that's not how the supreme court looks at the question of who decides who decides is based on a distinction between is it a gateway issue or is it a procedural issue or so this is the the reed elsevier case is the beginning of jurisprudence from these other from the six third and fourth circuits that talks about is is it fundamental so it ignores basil and rent a center and this court's decision and moment which talk about gateway versus procedural so i hope i'm answering your question so all those cases that i recited talk about can you get to the arbitration so john wiley says quote one sentence once it is determined that the parties are obligated to submit the subject matter of a dispute to arbitration procedural questions which grow out of the dispute and bear on his final disposition are left to the arbitrator so it's focusing on do you know can you tell if you get to arbitration and the es off in this crime but you're talking about joining them together into a class well it doesn't matter whether we have one or five but maybe that's not the focus of your question that the subject matter of the dispute is of wage hour dispute that gets you through the gate into arbitration at that point the arbitrator gets to decide or the agreement defines the contours of the procedure and the arbitrator guestimate gets significantly way in making decisions about how many depositions you get is joined or allowed even in questions of whether they're what the statue imitation is is or perhaps most helpfully pacific air the supreme court's pacific care decision said the availability of rico treble damages where the agreement prohibits punitive damages is a is a procedural question it's a really important question and the one party who may be subject to travel damages on a rico could say that that's not what we intended to be subject to or that's not an issue we think the arbitrator should decide but that's procedural because it's after you get through the gate and i'm not sure if i answered your question but i'm happy to engage because i think that's the that's the crux of the broad question if we hold aside the limited question of what are the parties here agreed to and does run in government well let's say that you should because it brings up a claims now let's let's keep it simple and we have one individual worker who's pursuing an arbitration the arbitrator at some point has to issue a clause construction award as as he did here and determine whether the agreement allows for class arbitration let's say he says yes then they move for a class or b cation or he that individual worker moves for class or to be cation and notice goes out to the class either to allow them to affirmatively opt in or to under rule twenty three allow them an opportunity to opt out so at that point they are making informed decisions then defined as the class members who are also mulroney situated substantively as well scientists same arbitration agreement as it's a form agreement everybody signed same thing so those individuals who are subject to that arbitration agreement get to decide do i consent to this process do i consent to the jurisdiction of this arbitrator or do i want to pursue the claim on my own that's the moment at which it becomes a class action you're already well into the gate you've already conducted discover you're already charging ahead in arbitration and that's exactly why we allow arbitrators to decide procedural questions because we don't want to have all this side litigation interfering with the arbitration the principal purpose of the f a is to allow for the speedy and just execution of the parties will in letting them go forward in their betray ssion so that's the moment when you're already halfway down the road where other parties come in and they are individually making decisions about whether to consent to that arbitrator's decision or authority to make a decision where a consolidation of multiple arbitrations or the decision of whether you go with a panel in one state or within another state are all procedural questions they may be they may feel like important questions and they may allow for additional individuals to pursue claims together but there's still a procedural questions i guess i'd like to emphasize as well that the the fact of fundamental the fundamental nature of the of the procedure and the and the stakes are not the focus of the supreme made no mention of the aaa rules in chesapeake the third circuit said that incorporating incorporation of aaa rules generally is insufficient because there are fifty or more sets of rules here we don't have that problem because the parties selected one particular set of rules and del webb the fourth circuit had virtually no analysis so in conclusion defended pallies respectfully asked the court to adhere to brennan and affirmed judge snyder's narrow holding that upholds the party's freedom of contract they chose the  unmistakably delegating all issues to the arbitrator which includes all gateway issues and all procedural issues which includes class arbiter ability so the parties have to live with that choice the court should decline gets his invitation to rewrite for deals with that question and said that's not a clear delegation to the arbitrator and dispute is a capitalized term there it refers to a dispute between the associate and the know it's not the dispute between the parties but must mean something else but it's a dispute or controversy respecting dispute as capitalize defined terms and the capitalize defined term capital d dispute are bilateral disputes between the associate and the company involving the souces contract terminations of contract and similar questions like that is totally by letter of the speech between the individual claimant and the company  or need there dispute or controversy in the first the first time it's used are defined terms what it's saying is that any dispute or controversy relating to the defined term dispute is for the arbitrator so assuming that the gateway question of class arbitration is for the court unless the parties unmistakably agree otherwise yes why and why in this case doesn't a specific reference to the mode would guess me wanted said to the arbitration will be held pursuant to the model rules of arbitration from plan the disputes of the american arbitration association then on a fact those are the bilateral rules which are contained in the record  they also have a reference to class in the supplemental rules talk about class arbitration but there's no reference in either this contract or in the bilateral rules that were incorporated into this contract to the say that daisy chain of logic doesn't get you to the supplemental rules you hit effect of what you have here when you when you incorporate a set of rules it becomes part of the contract you're looking at you're looking at the contract to see whether or not there 's a clear and unmistakable waiver a mix you make clear and unmistakable delegation to the arbitrator so when you put this language from the arbitration agreement together with the bilateral rules you don't see any reference whatsoever to class arbitration there's no reference at all you can't get to the class supplemental rules which are not incorporated which are not even referenced there's no clear and unmistakable intent to adopt those rules which for all we agreed to with the by letter rules we did not agree to the supplemental rules as the third tour to point out if you start to two can go down the road that a reference to the bad letter of rules automatically gets you to  the supplemental rules you're basically turning all the presumptions on their head there has to be a clear and unmistakable delegation and under the road that you're going down on understand judge counts opinion because he's it was a generic reference to a whole set of rules and he said you know what rules apply or you're even going to know he did to me to interrupt but i mean here you have a very specific set of arbitration rules to which you reference no judge that he assumed that they were referring to the committee rule seven of the commercial rules which is identical to the rule that we have here in the by letter of employment rules both give the arbitrator authority to rule in his or her the other sister circuits make clear the fifth circuit panel that considered this case said well we can't really overturn our prior decision so we're going to consider continue to consider that basil is a good law and under bezel this kind of then the whole intellectual premise of the fifth circuit decision is eliminated perhaps but we do have a circuit split on the issue when i don't think you would have a thumb in the six circuit basically didn't have any analysis on their two opinions i just said it's not it's not good enough the third the fix circuit analysis was short because the issue was so clear that the standard is a clear and unmistakable delegation and what the sixth circuit said is when you don't mention the class rules when you have nothing in the arbitration agreement that refers to class arbitration when you have nothing that delegates the issue specifically to the arbitrator that the generalized reference to allowing the arbitrator to consider his or her own jurisdiction is not a clear and unmistakable delegation of the question a barber to belittle as to class availability that's all they needed to say because that's clear and correct and the third and fourth circuit agree with that