closing arbitration very heavy burden to demonstrate those mandates are contrary to question commands any doubt must be resolved in favor of arbitration this is true even for claims alleging violation of federal statute indeed although the th circuit is not expressly so room the district court in this case noted circuit court of considering the issue of generally concluded that there is no congressional command prohibiting or is a glance from being arbitrated the supreme court  understand i understand your argument just fine on on that front you have to acknowledge do you not though that it is that it is the very very exceptional circumstance where you can find c without any notice of an arbitration provision to a party that was later sought to be bound to arbitration i would agree or i think it is under very limited circumstances but i do believe the risk is one of those rare circumstances sure and i think part of that is because of the attitude that plans are given me sponsors are given to you to modify the plan as maybe necessary maybe the best for  participant to be in a different form mr fryer i'd like to take you to your argument in the gray brief specifically enforceability of the arbitration provision when we take a look at the pleading documents here there's a whole series of forms of relief that mr smith is seeking listed a through k one of the challenges that we're going to have i don't believe that this provision restricts any of the relief that can be awarded under a receiver either by a court or by an arbitrator it would need to be done in individual by individual basis if other individuals chose to bring arbitration has been thought similar but we i do think that in this instance there is a sort of a clear path towards recovery of of you know into his individual plan account for any damages he believes were caused by the by improper valuation at the at the outset of this creation and so i think that all of  therefore may not have an interest in ongoing future plans for new series being in place for example there are some cases to that effect but assuming that the point of pat's feeding i think all of these can be obtained in arbitration so mr for let's let's be concrete about that let's assume that the case goes to arbitration and let's assume for discussion purposes that mr smith prevails across the  would the arbitration panel have the remedial authority in your view to remove the directors of try and manufacturing as well as the trustee i do your honor ok and so the question then is how do you and i know that that's the position i believe you took on pages fourteen dollars fifteen cents of your reply brief so the question i have is how do you square that with the language of the plan document because as you know what i'm talking about there what i know you know there is  it's he can only receive remedial or equitable relief that does not benefit another plan participant so how could that relief be entered i think the relief would be  represent representative arbitrations with this that has a specific reference to eighty two and four hundred and nine and then goes further and says make no mistake the only relief is individual relief well certainly he would have economic relief to recovery to his monetary yeah that's not to that's not what i'm focused on focused on the removal of all directors sure i think that ramifications beyond just this plant this particular plant of i don't believe changes the effectiveness of that labor's really and c i just don't know how you can square that because that language says so long as such remedial or equable or if it does not does not include or result in the provision of additional benefits or mon to any participant other than the claimant it i don't think that would be one teary benefit to those other claimants to the other coaches it's equitable relief though for sure in and effectively the looting of planning assets that way while i would be mighty thankful that he brought a lawsuit it would definitely benefit me and that's that's the part that i don't understand how you the difference to me though is that b the relief being ordered with respect to this individual's arbitration is just that to this individual's arbitration and if it happens to have some benefit to other participants who were not brought arbitration actions i don't think that that's not what's intended by the specific belief and so i don't think it it sort of violates  what what is in this provision which which otherwise just not allow for landline or other participants to benefit isn't there the further problem mr pryor of the non severability of the arbitration provision i mean it's a complete up together in think here or where we have a play and document that has been amended to contain an arbitration provision i think that separates this case from several others in which  have declined to enforce amendments for example where the arbitration provision is not included in the plan but in separate documents such as employment agreement or command in epic that we read to federal statutes in harmony so that we give the facts to both of them and here i think congress an act of the f a a to combat a judicial hostility toward arbitra did not consent to it that the district court similarly found it plain it did not personally consent and therefore could not bound by it we believe that while this plan sponsor was free to amend the plan document to include the arbitration is pretty important for holding it importantly the district court relied on the supreme court's holding in massachusetts neutral like the russell we believe that's flawed because to russell the outcome was limited to the specific nature of a defined benefit plan that issue there whereas the defined benefit plan provides specified benefits to each participant regardless of the aggregate value plans after that defined contribution plan consists of the triad arbitration clause is a textbook prospective waiver of statutory rights on its face it limits or prohibits substantive remedies listed in section four  congress made available to every fifty thousand two hundred and eighty two plaintiffs so i think the way i want to go about this is let's start by addressing what substantive remedies are authorized and that takes us to for an hour so if we look at for a nine what it subject to removal if the court deems that appropriate these are all substantive remedies the only question is who is authorized to seek them and that takes us to the next step which is section fi has repeatedly made clear what is i think evident on the face of the statute which is that every eight to plaintiff sues on behalf of a plan for the relief in section four a nine to remedy injury to the plant that's just kind of a fancy way of saying the claim is always representative so that takes us to the rd piece of the stool which is what does this arbitration provision do and the reason i say it's a textbook case of prospective waiver is because it starts by expressively forbidding any representative litigation which by definition is what fifty thousand two hundred and eighty two does but it goes further than that remedies that are listed in four hundred and nine so to pick up on the kind of some things you are asking the judge scott or the provision in this is that eighty two says the claimant may not seek or receive any remedy which has the effect it says has the effect of providing and then it's a series of things additional benefits or monetary or other relief to any participant but there's no way to read that other than to say that that prohibits removal and in fact the supreme court in russell made that very point the supreme court said that congress this is at one hundred and forty two of russell congress specified removal of the fiduciary as an example of the kind of plan related relief provided by the more specific clauses it succeeds in other words just like last restoration just like disgorgement it benefits everyone in the plan now i understand that my phrase in the clause but that's the provision that's written that is a prospective waiver and before i even get to loss restoration and discouragement that means that the entire provision is i don't force you have put it differently mr serous what you're arguing  it doesn't make any difference what triad thinks it means or what triad now wants to represent that it means that provision means what it says and it absolutely and it susceptible to only the interpretation that your honor offered and that we in the position that we're taking which is that fiduciary removal is prohibited it's not really that's not much different is it in some of these circumstances that you see pop up where an employment relief that that's why i say it's a textbook perspective waiver now the only way my my friend mr fryer can defend that with regard to last restaurant he can't defend it with regard to fiduciary removal we've seen that but the only way he attempts to defend it with regard to loss restoration and disgorgement is to essentially mischaracterize what is happening in the statute what defendants are doing is they're attempting to transform a representative cause of action where the substantive remedy is just gorging all of the games and giving them to the plan and restoring all of the losses to the plan they're trying to make that into an individual cause of action which it's not to transform tory claws into a class action waiver we are not talking about the class action waiver here if you look at the provision this is a day to bars both rep actions in a representative capacity or on a class collective or group basis these are two totally different things assuming there is consent which there isn't in this case and i'll get to that in a moment if a plan wants to write an arbitration provision that prohibits remedy as long as in the arbitration the individual participant could seek restoration of all losses as a representative to the plan and just guardsman of all gains then you would go to a different form but that's not what's happening here what's happening here is it bars class actions and representative behavior and that is where we have the perspective waiver so that's the district court's holding from page a five dollars to six dollars and really that's the end of the story the provision whether it was consented to or not if it perspective perspective waiver it's on and forcible arbitration is not compelled but i'm going to turn it because i have some time remaining to the district court's alternative because we agree with that as well and this is the holding is on page eighty three day four which is the  determination that mr smith is not even balance by the arbitration clause in the st place so the f a a requires mutual consent to arbitrate we cited a number of cases on page thirty five of our brief the circuit has said this before when one party has unilateral discretion to add or to modify an arbitration provision it's a loser in its invalid now here's the key point for purposes of this case there is no exception for it he contracts and let me explain what i mean by that you can only take it in and he should contract if you're given a chance to leave it in other words you have the opportunity to reject the entire contract with impunity right so if i want to sell phone from a t n t i can bargain they have a they have a contract that says an arbitration provision but they can't force me to sign the contract i have to actually get the contract  and i have to sign it or i have to take some action i have to have had the chance to reject it that didn't happen here the facts of this case are very unusual i want to explain what i mean by that is in two thousand sixteen mr smith became and in active participants he's no longer occurring benefits all he had was a non forfeit a bull account balance that he couldn't withdraw into a two  was added in two thousand and eighteen that's two years after he left the plan it's three years after the underlying alleged conduct the misconduct here and as defendants explained you don't have to take my word for it in their motion to compel arbitration your way he could reject the entire contract meaning exit the plan was by giving up his non for football account balance in other words their continued participation argument really amounts to the plan had custody of his money and he had to forfeit it but under no conception of consent or risk the state law any any body of law that i've ever seen would that constitute consent without constitute an agreement a risk to itself says you can't amend a plan to forfeit accrued benefits the idea that there can be implied non mutual consent where the only way that you can say no is to do the very thing that an amendment can't do under the statute that doesn't make it his sister's tryst let me let me offer you a context that may be counter to that and you can tell me i'm wrong to think that way the only context thinking about this argument that i could think of that may support mr fryers position is a shareholder derivative suit state law shareholder of suit so take delaware law very different context than you're talking about ok there is there is law that seems to be pretty well accepted from what we could tell that the consent to arbitration the agreement to arbitrate does not have to come at the shareholder level into derivatives now why am i using a derivative because five o two it's not the same i understand that but it seems to be a rough analogue for purposes of thinking about consent go ahead yes i understand your question i'm going to answer it directly i just want to be clear that's defendants the plan consent is enough argument and so i may get to that but what i what i was talking about a moment ago is just to dispense with their even if they lose that argument somehow mr smith consented here i think that argument's a nonstarter ok study your question i understand the context here is why i think it and a to claim doesn't work that way so an eight to claim is representational that's true but i think the supreme court has made very clear that and in a number of contacts obviously article three standing is one of them but that the the the claim belongs to the individual plaintiff b who has a personal interest in the outcome now i understand you might suggest the same thing in a shareholder derivative suit but i'm not sure in other words certainly in a case where you have an assignment mr fryers argument would be a good one in other words if i have a claim i agree to arbitrate it and then i assign it to you the arbitration carries a provision carries over the question is does that apply to this type of representational claim that i would submit your honor is more similar to a trustee to a beneficiary a common law of a trust suing where when the trust corpus has been diminished because the trustee did something and won't sue on behalf of the trust  write so what you're saying what you're saying is the annex there is book there is a rough analogy there but it's not tight enough and the reason it's not tight enough is because a fifty thousand two hundred and eighty two is not it's not truly derivative he he 's not standing completely in the shoes of the plan he has an individual ised interest in you know receiving compensation for the wrongly he's alleged at an individual level right  but all of the i agree with that but all of these are analogies in other words i agree even my analogy to common law trust is just an analogy so it does require some work to essentially figure it out but let's i think the practical  consequences of the rule that you pick heavily militate in our favor let me explain why if i'm wrong if our position is wrong and only the plant can consent why would you only look at the plaintiff is knowledge the statute of limitations you wouldn't to anyone who acts on could act on behalf of the plan that had knowledge of the relevant no court ever does that they recognize that it's individual enough as well as derivative that it's the plaintiff's knowledge that that might be one that's akin to a derivative situation where there is a person appropriate should they have to make a demand but if you have a case where board fiduciary is are sued the people who could have brought an action on behalf of the plan how can it be that they could as defendants say well we're going to settle this case with ourselves for a dollar because it's our claim it's not their claim there's enough of an of an individual interest of any participant or beneficiary such that for for the purposes of consent and really at the end i can have thirty seconds i'll end by saying this is an f a a case and as challenging as the law is for plaintiffs trying to to to get out of arbitration when there are things like class waivers the flip side is true here for my friend mr fryer there has to be consent the f made very clear that it has to be real it has to be mutual and certainly the arguments that mr smith did anything individual to consent don't work and on the plan level i just think