invite you first to examine the failure of the district court to resolve factual disputes regarding the construction of the underlying contract between spirit airlines and those people who signed up for the nine dollars fare club discount program the district court although in and in a perfect dory paragraph acknowledges that there were facts disputing facts makes no analysis and makes no findings of those facts i think the court was bound to apply a rule of fifty six standard to the resolution of those facts it's particularly important because the exercise here involves construing whether or not this contracted two things submitted to the arbitrator delegated to the arbitrator to decide the issue of arbitrary military and whether or not the agreement could possibly be construed to permit basically everything and the supplementary rules provide that any dispute arising out of moment and agreement that provides for arbitration pursuant to any of the rules of these and the arbitrator shouted turman as a threshold matter whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class if they've agreed to the to the rules then it seems to me they've agreed that the arbitrator's going to decide this as a question of arbitrary build i assume at some risk that your honor would agree if it was otherwise plain in this contract that class arbitration was not agreed to was not specifically clearly or unmistakably agreed to you would be much less concerned in fact you would disregard that beginning paragraph in section three that suggests that the arbiter to would resolve so if your honor would permit if you'd patience for one more sentence your honor has to read the last paragraph of rule three because you cannot reconcile the arguments that are made either by judge blum or in those minority of circuits that have said that reference to the rules is sufficient if you read the last paragraph of rule three which says in construing the applicable arbitration clause meaning whether or not the supplemental rules for class action would apply the arbitrator shall not consider the existence of these supplementary decide and so if i take you back one sentence it seems to me that if the agreement itself does is silent you cannot solve the problem by an incorporation generally generically of the aaa rules if the aaa rules themselves say ignore the rules and i think and i have to say your honors i don't read that analysis i have not seen other circuit courts talk about the last paragraph and i wonder sometimes in my career how it is sometimes the most obvious things are are not discussed by court but here and where i had hoped to begin in my presentation so i think you have to begin with the language of the contract itself before you go off the pages of the contract and bin and begin examining the aaa rules and the contract itself presents some contradictory provisions in the use of the singular versus the plural first with respect to party or just spews or the singular state in referring to what disputes will be arbitrated there is a substantial number of factual disputes that require the court to apply the rule fifty six standard in construing this contract this contract specifically incorporates florida law and there are two important elements to that in clark versus clark the florida supreme court set forth the process by which contracts in florida are construed and among other things and i'd urge the court to consider the entire language and clarke but among other things the florida supreme court said you have to consider the surrounding circumstances in order to understand the context of what the parties of agreed to to suggest in this case nothing more than a generic reference to  that spirit airlines contemplated giving up virtually all of its substandard of legal rights particularly right to have a court review the findings of the arbitrator on s betting the company with language that is this casual and with respect language that is silent but florida law also includes the florida arbitration code which specifically reserves to the courts the resolution of whether the parties have delegated to the arbitrator the determination as to what is arguable why would a generic reference to the aaa rules carry more weight and be more persuasive to this court than the incorporation of florida law which clearly specifically takes us to a different place and respectfully it should not it seems to me that you're conflating two different problems who should decide which with whether there's class arbitration under the agreement so those are two different things it's and to me the six circuit misunderstood difference and the question here it seems to me is is this contract reserve that question to the arbitrator or not and we you know we if you follow our precedents about what what is for the arbitrary trader to de in that context you're not analyzing the aaa rules in full context in order to determine whether class action is available you're simply saying in a more generic type of arbitration dispute we're going to allow the arbitrator's to decide because that's how we construe this agreement here as i've read to the court the triple a says don't do that the aaa wouldn't do it the aaa is telling this court to do it so you see where that's what the rules are saying i'm the rules in fact contemplate that the arbitrator is going to be the decision maker it's just not that that availability of the rules means that they've agreed to arbet arbitration class arbitration but it's it seems to me you're making the same conflation there that that i that i think the six circuit well the six circuit was in very good company if your honor considers the number of circuits that agreed have precious little time in my direct appeal i want to call the court's attention and hopefully i will further on reply class arbitrations not arbitration and all still nielson and perhaps projecting how the court would address this issue because it's only in the open linsky case that the matter came up to the u s supreme court on a petition for cert in the posture where they said no this won't not be a class arbitra and the court denied served and you may or may not choose to read considerably into the court's decision not to grant cert but class arbitration is not arbitration and in analysis as to whether or not it's been one first of like to respond to mr gilbert's reliance on the last paragraph in section three of the supplement last rules and as you correctly point out  ricci case and in fact judge blum in her footnote eight actually notes that the actually quote step particular language and says it doesn't apply to decision as to who decides y agreed that the arbitrator would decide arbiter of all issues that that case it had to do with the valid whether the agreement was valid or not and i submit that the that issue has been decided defines the arbitrator's jurisdiction gives him the power to find his own jurisdiction gives him the power to side whether the clause is valid what's the scope and breath is of the clause but in addition what judge blum did was she also located the supplementary class rules which are specific to class arbitrate should section one says it applies to all of the aaa rules by some language when you look at section three it also as judge pryor pointed out is states that the arbitrator specifically decides whether class arbitration is allowed the it may be the dog trainer will decide that it's that they agreement doesn't provide for class arbitration that's exactly right you know it's a different question from who gets to decide that's right i want to also just correct the record where in their brief the reply brief they said well there's no contract like what is this this is just as does claim doesn't make any sense and i'd like to give a analogy i think that explains that we have a real claim here this is a some some fantasy claim if you were to rent a house for you and the landlord says you got to pay one year in advance and it's nonrefundable and that it is going to automatically re every year unless we get notice and when you give notice it more if you don't give notice by that year they withdraw another whole year out of your checking account and is non refundable it as so you've got to make sure you give notice before the one year anniversary but here what happens is if you give notice say three months before the one year anniversary you're a victim from the promise they don't tell you that if you give it one month before the one year anniversary according to them all of your prepaid benefits are gone you're a victim you have no you have to leave and that is what we're saying is that's going to happen it's got to be in the contract you don't have the power to unilaterally decide that you're for your you're going to take or cause a for procedure of our prepaid benefits now let's just look at some of the cases they cite and that's the chesapeake case and that is a badly flawed decision it's a case where i counted no less than nine burden at least nine times and that doesn't come from any supreme court decision that comes from another third circuit case and what they want to do is somehow that that can get grafted on to the level circuit and that's just not consistent with what termin said in addition they talked it in the case they talk about how if there's any ambiguity and again there's no ambiguity here but they say if there's any ambiguity it is is read against the non in every state i'm going around florida if there's any ambiguity it goes against a draft and so i'm just pointing this out that there is there's been this creep from this bad decision where it's gone over into these other circus if you look at the other two cases they cite the dell dell web case there's no mention or discussion of the supplementary class rules at all it's almost as if they didn't exist and the same thing is true with respect to the catamaran case no mention or discussion of supplementary rule so i would submit that this quote unquote majority a circuit cases is not out there and what we and what they are judge did her opinion is sound it's reasonable she read the supplementary class rules it says what it says i think a first year law student to read those or even a lay person read and realize ok this is what is this they were put on notice and two thousand and five when terminix came out about how you draft us because when you put in the aaa rules this is what you get you have a delegated by gree now out the importance of the difference in procedural posture if in the other circuits of five circuits that address this matter and found that reference of the aaa rules was not clear and unmistakable evidence of consent either to delegate arbiter ability or to consent to class arbiter ability if this court says no we're going to firm judge bloom we're going to be before an arbitrator who's going to have an opportunity however that arbitrator elects to to construe the contract procedurally the protections afforded by spirit airlines in the nature of the review in any court might make of that arbitrator's decision profoundly different in fact this is this is a situation in which as long as the arbitrator goes to the trouble of making some effort showing in a decision how the contract was construed this court has already said it won't revisit won't second guess the construction no matter how bad that's the difference between arbitration and having access to the courts to resolve this issue spirit airlines is not delegate the gateway issue in the contract many arbitration agreement specifically state that the arbitrator shall decide disagreements with respect to the scope of arbitration or words to that effect this contract does not this contract incorporates florida law which in effect does the opposite the florida arbitration code specifically expressly reserves to the court the resolution of a dispute between the parties as to whether or not a particular type of dispute falls within the scope of the arbitration clause weight has to be given to the selection of law and a careful review of the contract for evidence as to how it should be construed is required here and judge martin you address this issue generally and in two thousand and fifteen in the cash call case you went to the trouble in your decision to spell out the burden the obligation that the court has to carefully examine all of these elements of the contract for my colleague to say in his argument well if there were ambiguities it doesn't matter because ambiguities are resolved in favor of the party who in a contract of adhesion who had to accept it or or get no benefit and sick knowledge ing that they were ambiguities you can't just skip to what the consequence of those ambiguit by saying that they're construed against the draftsman you'd have to you'd have to consider what those factual contradictions are within the body of the contract in order to determine whether there is clear and unmistakable evidence john blum did not do that she skipped over it and she elevated the reference to the aaa rules to constitute a term of the contract upon which he could proverbially anger happed i don't believe that's correct i think that was there i asked this court to return this case judge to decide based on rule fifty secs how this contract was construed based upon all of those facts that we find within this contract and i urge this court to be guided not merely by the circuit courts of appeal that have done so but the supreme court's rationale concepcion we do not get confidentiality in arbitration we don't get an expedited process in fact i believe it was and still nielsen there's an analysis by the court of how few cases that are class action cases in the aaa are ever decided on their merits after years of path of being pending and most important of all we do not get the benefit of a court reviewing whether or not a class is correctly certified or and we don't get the benefit of the court reviewing by its ordinary standards whether the arbitrator made significant errors in applying the facts and applying the law stolt nielson in concepcion essentially tell us that class arbitration is not arbitration at all it's the wrong noun you should come up with a different name and if you're going to do that then you're not guided by cases like terman x that dealt with garden variety arbitration a completely different creature requires a different application of the rules and i'm just out of time thank you jim thank you mr cooper we will be in recess until tomorrow morning