clear and can close it i agree it is a heightened standard i believe the case for west virginia marshal versus me can i follow up on judge florence question regarding a trial statute seems a pretty clearly suggests that if there is some doubt person bashing dispute about whether or not the party in question or if there is a go ahead i think the issue where there's court is the ruling by the trial judge challenging that to determinations that were made by the district court judge are observed from a different point of view or from a different standard or are we to accept the factual determinations of the trial the desire to the existence of the arbitration agreement  can follow up on that so the crux of the case after my view it turns on whether or not there is an agreement whether there is an agreement or not and typically when we're talking about of an agreement we're talking about a few times do you believe that the failure of the your client to our producer the contract at least as it relates to this health and negates the ability of this or to find that there was an agreement i don't think so because we have produced all of the circumstantial evidence as to what the agreement ye jury could find it the the key witness and within this case from your perspective being the human resources executive which as he pointed out as far removed from what was happening on the ground and my question to you is do we know of those seven hundred and sixty some odd agreements that were produced in the record award these of the seven hundred and sixty dollars up then plaintiffs how many of those were actually connected to the store will obviously we can consider evidence in other cases but my point is i would think it would be relevant notwithstanding a general policy that suggests that these agreements are mandatory  might well be relevant to them to decide to to determine this case or decide this case whether that policy was being applied consistently across the board across various local entities and what you tell me is you osted in your time clock with other labor law posters references are the arbitration process is part of the appendix cert in this case so there is a great deal seventy other employees for whom there is no evidence of a written or between ssion agreement to arbitrate their claims against defendants and i think i want to jump right into the numbers because judge he has put his finger right on what we think the issue is this is this seven hundred and eighty number that it's been thrown around in our view really doesn't mean anything because as you pointed out it yes there is no denominator here they produced seven hundred in the agreement from we don't know hundred two thousand however many employees working across restaurants in these four thieves and are in our view that metric just doesn't mean anything and all that does mean something is this initially sort of high class only three hundred and nine people seventy one including april held those of the seventy one we're talking about today no sign of whatsoever and then the remaining one hundred and seventy seven some portion was produced and i further left it open below that we could still you know bring up any issues but that as a matter of wall there was no dispute that there was no such study there was no need for a trial where you stand on the i i think she found that the procedure which is that they didn't need the summary an agreement and whether or not the in this case the employee failed to comply with the remit and seems like the district court found that there was there was not enough evidence to support a summary ruling but my question is do you think st of all i guess the st question is whether or not this issue was even preserved since the employer never asked for it probably and if it is are somehow somehow playing there or applies whether this case if  ok i am other than the production of the arbitration agreement itself what her evidence he think the e r g should have  sure and we've seen that so much for it and a lot of other cases i mean it's not impossible and will concede that it's not impossible to prove the existence of an absent contract and meet those state law standards but what other people have done is provide testimony from one or both of the signatories provide testimony from a witness provide statistical evidence so you know that we might not be here today if they produced rather than only you know seventy seven hill in her deposition have any of the other seventy parties should this suit say that they did not that agree no we don't have any testimony from them either way our position that that would have been defendant's burden to obtain that evidence if they wanted to use it in support of their motion so we don't have evidence about those seventy people's recollections of this event and we also don't have any testimony from their own managers as you pointed out earlier the date mr bates was in fact removed from all of these events and i have no doubt that in his mind this policy exists but he certainly didn't provide very reliable discourse do with the credibility of satchel terminations made by the trial court below i think in a firm and would be appropriate because the district court went through all of the facts i mean she didn't discount any of the decision and i think that that camara case that we submitted to the court last week that we just issued by the d c circuit court really supports the way that judge berger saw these facts will allow where the d c circuit court pointed out it's not plaintiffs have to prove a negative i mean it's a little been possible for us to be in a position where we have to prove something didn't happen rather than saying well they haven't met their burden to prove that it and just to go through the circumstantial evidence which is what i heard my friend on the other side talk about a lot that they have enough circumstantial evidence i mean our view is that this evidence just raises so many more questions than it answered i mean you see in some of the other  if there was at least a plausible reason for the missing agreements you know there was a fire there was a fast the files were moved you know some some kind of reason that they could point to that that really would bolster the circumstantial evidence and we don't have that here signatories and mr bates original affidavit he talks about various mean answers that is when the various me and injuries were trained so we don't even have testimony that all of the managers were train d and we don't even have sound testimony about what happened if employees chose not to agree to arbitration mr b testimony was actually that he didn't know what would happen if an employee happened to say you know i don't like arbitration can i still work or if i don't sign his testimony was that he didn't know people were actually told to go home if they didn't sign that's and that's so we just don't have enough here i mean the court recognize his standards i mean they are they have to meet not only the state laws standards for proving a missing contract which are within those four states of variation of clearing conclusory as well as meet the summary judgment standard here and they just if  the problem with that language is what raises the specter of wal mart vs juge in terms of destroying the idea of commonality and i asked my class action but it also orientation materials including the arbitration agreement were produced bates replied quote i think the last upload we did is was i mean it's been sometimes it is possible and you should know that you know maybe while they're cleaning out a storage locker or something or find one that would be i'm just throwing things out here that would be an anomaly but i feel everything there we're they're saying we have just been produced would you agree that at a minimum mr bates is testimony is it best equivocal with regard to even supporting d the and with that our office of you know i think that employee resource group is short they may be a witness that says i saw this signature i saw them sign a contract are coming