simple on july twenty second when this court issued its directly on point in controlling opinion in kabbalah the supreme production services now it was decided after the close of briefing in this interlocutory appeal but we alerted the court to to ss that this court follows in with the deference afforded prior panel precedent we believe that kabbalah is binding on this panel and dictates the outcome here today now why does cabala control first  the arbitration of any and all claims arising in the context of the employer employee relationship just so with this case third and most importantly but the arbitration clause in kabbalah and the arbitration clause here contain kabbalah the judgment of the arbitrator is necessary from day one of the proceeding on the gateway issue of ability fourth the delegation clause here in the delegation clause in kabbalah substantially identical moreover as judge smith noted in the kabbala opinion that delegation clause is also substantially identical to the delegation clause and forced by the united states supreme court and it's run to center opinion so i think in math we used to call that transitive property of equality robust broad a delegation clause that requires this matter be sent to arbitration and that mr rein as claims be dismissed in deference to that arbitration not not abated your honors but dismissed that's long been the practice here in the fifth circuit that when arbitration is properly compelled the matter in the federal court is is dismissed not abated that's the russell stover case and many other fist circuit cases over the years that that hold now in that arbitration that we believe we were improperly denied the arbitrator not only enjoys the authority to determine the gateway or threshold issue of our villainy but also to interpret every aspect of aipcs open door policy for conflict resolution it was entered into between i b c and mr raina and i should point out that it's undisputed that this policy was signed by mr raina there's never been a challenge to the existence of this arbitration clause that's that's a matter of record there is an arbitration clause so i think the courts task is very very easy i'd encourage the court to take a look at just how broad the grant of authority to the arbitrator is here and that's resolution is this overarching four step grievance process that the fourth step which is binding arbitration that's the delegation clause with the arbitrator's authority does not stop there the arbitra also and i quote shall have the exclusive authority to resolve any dispute relating to the interpretation of pluck ability enforceability or formation of the open door policy for dispute resolution including but not limited to limited to any claim that all or part of the open door policy for dispute resolution is void or voidable so the interpretation of this policy is entirely in the hands of the arbitrator and why is that relevant it's relevant because of this question of whether mr raina has to proceed concepcion class or collective action is is of course waive all in an arbitration agreement the question of whether that's happened here or not is for the arbitrator under this robust delegation clause and the policy does speak to whether class or collective action is permitted again i think this is properly a decision for the arbitrator when he interprets this policy but the policy hoping looking at the provision puppy looking at is at page three of the public record excerpts  consecutively paginated record page fifty three where it states class action self only be allowed upon the agreement of all parties in the event of the parties agree to permit claims under this policy as a class action the federal rules of civil procedure shall apply to the certification in ministration of the class it continues on from there it makes it clear that both parties have to consent to a class or collective action this court doesn't have to interpret that but merely needs to send this to the arbitrator to interpret let's focus a minute on what it is specifically that you're asking us to do and i'm just looking at the last page of your memory for you given the alternative what it is that you're asking for isn't it true that we actually have jurisdiction only as it relates to the denial of the motion to compel arbitration in other i mean you ask in the alternative the action be dismissed but i'm not sure of that we have jurisdiction over anything other than simply either rendering an order on the motion to compel remanding with a specific direction to the district court to to grant the motion to comp compelling arbitration but as i noted hand in hand with that goes to dismissal of the federal court action because in this circuit we don't abate for arbitration there's there's a dismissal so i would argue that that release is is one in the same if arbitration certification but we would argue that it was an ultra variance act because it followed the denial of our motion to compel arbitration and if the arbitration was granted the district court it should have been hands off at that point  missal should have have flowed from that so when the district court in arcane the conditional certification would argue it was acting in an ultra various manner and no no notice has been sent as of yet although there has been a conditional certification notice has not formally gone out to the putative class yet so what do you want us to do you want us to discuss the case here i mean you want us in active you want district judge district hand in hand and i think in terms of the urge of court to take a look at the genesis of health care case out of the us supreme court twenty thirteen which i think dictates that the collective or class allegations do not save this action if mr rayney the only individual plaintiff in the docket is subject to a motion to can compel arbitration if his claims are dismissed individually to go to arbitration genesis health care teaches us that the collective doesn't survive either test on a basic standing ground and judge rosenthal in the southern district just last march and shoot a case cited in our reply brief it was after opening brief with a file called white in which she applied its genesis health care to n f l it's a collective action in just the way i've suggested this court should do so i think it's conditional sort of occasion was granted back in february or sometime early this year think it's silent on why but the notice has has not gone out and i frankly i can i can share with the court it hasn't gone out but i don't know why that is i don't have a record cite for you on that but i think your honors there's there's some very powerful language in cobol but notes that quote if there is a delegation clause the motion to compel arbitration should be granted in almost all cases and there's no reason not to enforce the delegation clause here this is one of those almost all cases opposing counsel to the best of my knowledge has not responded to a letter so i'll be very curious to see how m intends to distinguish what we believe the directly on point decision in f l us a collective action case that is one month old agreement so to the extent that there are other named plaintiffs i suspect they will go to individual arbitration as well but i should point out we're a year in this case was filed in the trial court last august for over a year and and it's still just mr raina as a named plaintiff no other name plaintiffs have have come forward and his claims are very much governed by an arbitration agreement with a robust delegation cla further questions i've saved some time for a bottle of you say a time for credit mr grounds thank your honour's council my name is david grounds i am here on behalf of carlos wayne to go immediately to a question the reason why i notice has not gone out yet is there is some dispute as to which defendant is actually involved in this lawsuit and we have to conduct discovery to do that to date we have not been  arbitration agreement until the second stage of the notice of cation process and that is what she did here you ask where does this go from here i see it as kind of two different ways either you affirm her deferral and say the court has discretion which admittedly have not found a case in the fifth circuit that has agreed with that yet or anywhere else i have i mean there's other ones we've presented in a breach of this circuit has not answered that question yet or it needs to be remanded so you can have a more complete record as to whether or not the entire agreement is legal or illegal that's the threshold question that hasn't been answered yet because as the judge stated what i'm saying is that think this case is governed where the case is governed by the arbitration agreement is not for now go to and that's the threshold question that your honor actually wrote page four of your cabala decision but the only question after finding there is in fact a valid agreement which that record has not been developed yet and that record on fortune is not in front of this ani is whether the purported delegation clause in fact a delegation is in fact a delegation clause that is if it invents is an intent to have the arbitrator decide whether a given claim must be arbitrary that first step that record isn't here before you we have but the judge herself never actually answered the question whether it was legal or illegal as never developed at the actual record behind it has never taken oral argument on that issue she deferred to the second stage  and that's what this case is about and employees fundamental right to learn that there may be a legal activity that happened at the place where they worked out seventy years ago in the board bank case the supreme court said we can't let employers contract out of that because there is an unbalance put power of position for a person who needs that job and these are low level jobs are not talking about high paid executives versus the company that's going to pay them to work that creates an umbrella position it doesn't say there's been a violation it doesn't say there's not going to be a violation and says hey worker we have an allegation that says this company violate blub and not paying you properly you have a right to join it or you have a right to start your own action or you have a right to do nothing and that's what's going to be deprived of all the other workers that have been notified about this case a lot of the district court cases know we did not have an arbitration agreement the plaintiffs move for conditional certification and the defendant comes in and says oh but some of these people you want to join in have arbitration agreement so it's people aren't similarly situated going it's under spirited the playing of signed an arbitration but we haven't read we haven't taken a discovery to find out the terms of our side of things of that nature again that records that before you dance or question your analysis is correct and ali but what that does provide is the mechanism for a judge to defer and see what comes in we have a representation of hey everybody else signed this too we don't know we don't know that we won't know that the notice goes out until people decide to opt in or not and then whether or not there's going to be arbitration for all of them or only some of them again that record's not here it's certainly been argued but the actual factual discovery has not occurred and frankly in this case there's no discovery at twenty six that report hasn't even been filed the only thing we've been ordered to do is get one deposition to see who the actual defendant should be so the reason why you have that one is it just shows the ability of the judge to use their deference when they don't have complete information when they look at the second stage where that comes up and say we'll decide all that later  and the case is actually cited by the other side as to why we should just go to arbitration include you know like the bargaining agreements it also includes situations where the conditional sort of occasion motion wasn't on file and so that's what and those words are important because there's a meaningful distinction between the two because collective actions while akin to a rule twenty three class is really just the mechanism by which the court can effect way to remedial purposes of the f s a to send out notice and that's the stage are at and you want to declare whether or not their motion is properly heard or things of that nature i think you have to remind remanded because again the record isn't before you in terms of that tidbit of information other than our briefing and how that applies by the way the national bank for the rest of the story appealed that decision to the district court and the district court in southern district judge interpreted and said no as perfectly valid reading of your arbitrary doesn't apply to collective action which again takes us out of the whole realm of what we're doing here and court and then the record gets developed along with the whole you know either galaxy of if they're right and collective actions are out of it does that make the arbitration itself illegal which two circuits now other than this one ha found and that decision could be back in front of you as a result but either way that record has to get developed so that this court has it in front of them so this court can decide whether or not it's right now we're simply dealing with notice and we're simply trying to get it out and it sounds horrible it's been a year nobody's heard about it nobody's filed anything because notice hasn't gone out that's the whole reason why the at the at the let's say requires notice and it's because the statue limitation is ticking every day one more day gone we don't have is the answer from this court is the timing issue can a judge send out a notice and to try arbitration is later or decide the issue of arbitration the legality of the arbitration agreement later and that's the question that we don't have answered from this panel so my recommendation is you look at that issue you look at our briefing on it and pay attention to the lopez case which is in our br suggest that there is a one month old directly on point controlling prior can a precedent that must be deferred to second the very first motion filed by i b c the very first motion filed by any party in this matter just weeks after i b c was served was the motion to compel arbitration to the extent that opposing counsel wanted to challenge the validity of this arbitration provision his response was the opportunity for him to do that to make an argument that it's invalid to make an argument that it's against public policy except or of those arguments were and were not made the existence in validity of this clause was not questioned in the trial court he wants to remain and to further develop evidence on that he had his chance in his response to a motion to compel arbitration and those arguments were not made moreover even if they had been made i think this panel is well aware that attacking arbitration clauses on public policy grounds is not a productive route in the f l s a context of this court in carter v countrywide mortgage back in two thousand and four ruled that arbitration is valid in the f l s a context and again eighteen t v concep n rules that the arbitration you can waive class action just so here so even if he had made those attacks on the validity of this arbitration clause which he did not those attacks i think would would manifestly have failed his argument this just mentions class actions and there is a well recognized distinction collective action judge cost of that's fundamentally a decision for the arbitrator given the broad delegation clause here that empowers this arbitrator to look at the the whole of the agreement including that class action provision that i read to the panel during my opening our he meant and to say whether class is limited to rule twenty three f or whether it's just meant to distinguish from individual arbitra i think that is a lively issue that will be decided in arbitration by the arbitrator because the parties have bargained for the arbitrators judgment on that question and i think opposing counsel actually tacitly concedes that but directing the court to the lopez the i v c case the judge case and decided in that case that issue was sent to an arbitrator and that issue was arbitrated in an arbitration proceeding the arbitrator found the way opposing yes you're out of class arbitration or collective arbitration is very much possible where where the parties agree to it we would take the position we haven't agreed to it just like a t n t and in the concepcion case but the american express express the talon colors restaurant supreme court case again collective arbitration can be agreed to we just haven't agreed to it here but in all of fence that's not a decision for this court that's not a decision for the district court that's fundamentally a decision for the arbitrator and we'd like our day in front of the arbitrator to make that argument and perhaps as the lopez case shows we might not win but i think judge kazan got it right in the sense that he respected the delegation clause respected th was empowered to interpret that agreement just so here we'd like our day in arbitration not not not in front of the the district court  and again to the extent there are any public policy concerns here i would encourage the court to take a look at its holding in carter v countrywide i think that again his prior panel precedent that controls and assuage is those those public policy  concerns and i'll end where i began your honour's which is sometimes timing is everything in life and it's nice to have a one month old directly on point precedent and i believe i b c has that in the form of