so all right you're good to go thank you chief judge two and they please the court this case is about a three member money management firm that managed millions of dollars that made millions of dollars and made all of its decisions important decisions with a handshake and one line e mail the only comprehensive writing in this case is the two thousand and nine operating agreement and for our purposes for the appeal it's got three three provisions that matter brought arbitration clause that says all the speech by these these members have to be arbitrated they shall not be resolved in any other form other than an arbitration it's got a paragraph twenty is an entire agreement clause that says any proceeding any proceeding the gauche ation agreement contract with these parties is superseded by the operating agreement and third it's got a provision under four point nine  which is not based on the operating agreement even arguably the res judicata in the transaction or occurrence the test there and has been in this court since at least one nine hundred seventy nine the plant versus blazer financial services case is the logical relationship test and it's the same test for a compulsory counterclaim if that's under thirteen a if that's a bet then it's the same transaction or occurrence therefore factors in that whether the issues of fact and law are largely the same claim as well as the defendant's counter claim or defenses and the fourth element is is the logical relationship between the two claims and the two different suits whether they're related by time origin motivation and whatnot as to the first reality might be available to enjoin something is something else to say that if you're looking at a temporary restraining order to stop immediately some sort of conduct that overt ration is a suitable mechanism the kid got a hard sell to me which doesn't mean you're the arbitrator can issue an injunction so when you have a contract that says everything's got to be arbitrated he has to issue an injunction a serious aspect of that rule is it also says if you go to court for an injunction that's not going to be deemed a waiver of arbitration under the james rules i think words to that that doesn't nullify the party's contract in this case it says absolutely everything has to be has to be arbitrated and it certainly doesn't trump louisiana law that says if you go to court and bring certain claims that arise out of a same transaction or occurrence you need to bring them all or they're all other going to be lost if there isn't some kind of a judicial determination again the judicial determination in this case was a dismissal with prejudice that was entirely within weston's control if they dismissed their their state with it without prejudice i wouldn't be making any of these arguments that would be an argument to be made they're the ones who determined to do that when they decided to dismiss it with prejudice that was a terminations mr cooper favor that was the end of all the claims that were made and that could have been made and the transaction or occurrence first and foremost is a breach of the operating room and that was supposedly one of the elements of cause to get rid of mr cooper to keep mr cooper out and that's the basis for the relief that they're seeking he don't come to the office don't contact clients don't contact the accountant that's that's what they got in the t r o and judge southwick i think you raise an issue that that the district court kind got caught up in was well they got the t r o this is this emergency relief that they at they needed to get in a sort of the end of the story well yes they got the t r o but the suit was about a t r o a preliminary injunction and a permanent injunction for a state court in louisiana to tell cooper you can never talk to the account you can never talk to these clients you can never come anywhere near any these people forever or until further order of the court say i wasn't lawfully kicked out of the firm as you allege you didn't have cause we'd have a whole trial over cause would be the same evidence we had in this case they talk about making charges to the firm and the next we had a lot of that was a big part of the  the evidence was everybody's making these charges and they all get reconciled when it comes tax time between what's personal what's not but that that's one of the allegations that he preached the operating agreement in state court that's going to be some of the evidence some of the testimony would hear about in a state court proceeding that's powerful proof that we're talking about the same transaction or occurrence he was kicked out with cause if he went kicked out with cause why can't he go to the office why can't he be contacted count any one of the factors that this court as has adopted for the transaction background about the expulsion and having cause that it was really just for this temporary injunctive relief supplies that's that's looking at the object of the suit that's looking at the cause of action that's not looking at what is interpreted broadly in r barred from doing that if you look at the the claim in arbitration page two of the statement of claim which is record number seven thirty two paragraphs nine ten eleven twelve all of this all of these are accounting issues the counting even under the old louisiana law the relief requested in the statement of claim record number seven thirty eight the very first type of relief is in order for an accounting to calculate the value of mr cooper's capital  in addition claimant request in order for mr cooper to provide documents and information needed to complete the accounting well even just the object of the state court suit was prohibited cooper for having contact with play his clients and accountants don't let him have access to the court was able to get a bunch of discovery in court that it would have gotten in in the arbitration in this case mr cooper was denied just the ordinary discovery access to his his accountant which is also weston's a can access to his clients access to  of weston service so he was denied the discovery that he would just have as a matter of course as a member of this this farm has access to the office and goes into the office i mean it's there a difference between a t r all that wants him out of the office and an arbitration that settles the breaking up of the of the operation organization whatever and how much money goes to each one one deals with damages and the final division the other one is we need the breakup of the organization there is no distinction in this case your honor because he can only be kicked out of the firm for cause and cause as defined if you could be kicked out for something other than cause or if you were  an at will employee and there were some other ancillary claims related to that employment that would be one thing that was hey we fired this guy this is an at will state he's gone now he's come into the office we want to do it we want to stay away from the office that's not the case here you have somebody  as a matter of course export what they wanted with the object of the sued which is which is even the old law is don't ever let this man talk to the accountant don't ever let him access clients even though one of the claims is he's got this agreement with the client it turned out that w that was all that was in violation of the operating room and they said that was all false that was never supported all the allegations about you know going to the office and harassing and stalking people that was all false we had a month of twenty four hour surveillance so just you know on the equitable aspect of it we know those claims are false anyway but the fact of the matter is to say somebody can't come to the office is to say he's not a member and in this case to say he's not a member is to say there was cause to kick him out it's the same thing on the the o's a claim the claim for hedge fund management fees to gus's egg for a million dollars that's not based on anything at all it's based on one of the things i submitted was a two thousand and seven according to this ros is based on a two thousand and seven agreement r company and things of that nature mr rose it did participate in those fees for several years until he ceased to be a salesman for the hedge fund because the hedge fund was closed to new members and when he moved to chile in those other more for him to do more importantly after all this after this agreement was was written the one that mr mr rose at home has had on to say needs a million dollars the operating agreement was entered into in two thousand and one paragraph twenty that agreement says it supersedes all prior agreements improperly interpret in the operating agreement or not doing a good job or doing an arguable correct or incorrect job that's not in that operating agreement at all and i think west end is never as never addressed that they rely on the presumption in favor of up to the boards claim between the parties in a subsequent case but the two cases must arise out of the same a transaction or occurrence that was the subject matter of the case and these two cases were entirely different the t r o case involve mr cooper's post expulsion conduct only and the arbitration proceeding involved mr cooper's pretty expulsion misconduct only there were no claims for damages in the t r o case and mr cooper has the burden of proof on this issue and he did not meet it in the district court how do you trust his response above all that they told among one hand stay away from their accountants and don't get these documents and engaged in threats by sending threatening text threatening emails he tried to enter the premises after he was expelled and the security people had to prevent him from doing so and one of the things that was was requested was that he not interfere with weston's business and one of the things related to that was contacting the accountant or the clients but the t r o was intended only for a limited period of time it wasn't intended to cover the arbitration proceeding which had not yet been filed i think it's important to note also that the arbitration proceeding was filed before the t r o action was dismissed about a month before the t r action was dismissed so it was never contemplated that the t r o action would be the only action that there would be no arbitration so the race to the condit effect of the t r o dismissal should not take place in this case the one with a decision termination what there were three members of this limited liability company two of the members voted to expel mr cooper with cause and that expulsion took place on august third two thousand and twelve then i believe on august twenty fourth or thereabouts two thousand and twelve the application for the t r o was filed and then in september late september september twenty sixth or twenty seventh two thousand and twelve the arbitration arbitration proceeding was filed then on october twenty second the t r o was dismissed by motion of west end and it was dismissed with prejudice mr cooper never appeared in the t r o action he never made an appearance he didn't do anything he didn't occur in a expense he didn't could have been easily dismissed without prejudice or the t r o would have expired on its own on its own accord as of september fourteenth two thousand and twelve so i don't believe there's any conflict once the t r o expired mr cooper was freed and to contact the accountants and get the documents that that he needed or sent that he made the argument as i understood it from posen counsel is that you could not resolve here open the injunction junction depending how long it went without deciding what misgivings rides were to be in premises and to be talking to accountant and whatever else which all goes to whether there's any cause for him to be evicted from the premises and for these t what's your take on that were you necessarily having to resolve a t r o whether in fact there was call for cooper to leave and if not how is the judge making a decision of weather cooper was within his rights to talk about threats i heard from mr cooper there were no actual don't get much group here maybe is but his counsel there were no actual threats and so some factual differences there so to what extent and if we look at the record of hero would we see any investigation into whether mr cooper had violated the terms of their operating agreement and i believe you would see that there was no allegation that that was a necessary expelled by boat of the numbers of the of the limited liability company that was sufficient to establish that he had been expelled from the from the company whether his expulsion was proper or improper was for the arbitrator to the side  claims west end capital management was the only party to the t r o action mr bolton and mr as they were not parties to that action so the race judicata doctrine would not apply to them and they had separate and distinct claims against mr cooper separate from those of west bank capital management they sought damages for injuries that were direct in themselves and were not injuries to the so the limited it's hard to imagine a broader arbitration provision and the dispute between the parties about the west end hedge fund fees that we're talking about mr o's x claims here relates to the company and its  business and its management if you look at the two page contract it states many times that the hedge fund is a part of the west and capital business and the hedge fund fees are part of that business also on the flow of the of the income in addition to this  the parties agreed that jan's rules would apply in this case and jansen rules provide that the arbitrator will decide arbitron villany and mr cooper agreed to be bound by jan's rules and so the arbitrator addition to this mr cooper waived his right to object to arbitrate ability he did not raise an objection on this issue until after the arbitration award had been issued and in the first time that  raised it in fact was in his reply brief to the motion to vacate the arbitration award this is waylaid it is a clear waiver of this arguments i'd also like to point out with respect to both the ra that appeal has to be taken from a final decision with respect to arbitration and federal rule the pella procedure for anyone and for a seven a small t states that that appeal has to be taken within a certain time period and that time period under section of federal rule for a seven a small to is one hundred eighty days after the order was issued its one hundred eighty days because  was no final judgment that was issued with respect to that so he gets one hundred eighty days rather than just thirty days but no appeal was taken within the one hundred eighty days and therefore on as a matter of law on this court does not have the jurisdiction to to decide that the race judicata or the waiver issue applies in this case there are other issues in this case on this too long and didn't raise arbitrator's award based on error in either understanding the facts or applying this law and this court would have to substitute its judgment for that of the arbitrator and would have to do so without the benefit of the full record  proceeding which you do not have even if even if the arbitrator was incorrect and the court had the power to overturn the arbitrator's decision there were other grounds upon which the they also raised in their breach the issue about arbitrator disclosure one of the important things to understand in this respect is that mr cooper has the burden of proof to show that the arbitrator engaged in eviden partiality i do either section ten eighty two of the federal arbitration act or section twelve eighty two eighty six the california code of civil procedure and essentially is as i understand it opposed appellants argument is that an alternative dispute resolution provider such as jan's has a duty to disclose a relationship between a mediator or an arbitrator or its roster who was not the arbitrator in the case and one of the parties and this position has no support in any statute or case law appellant's argument is flawed with respect to this disclosure issue because he does not challenge the conduct of the arbitrator who presided over the case nor any disclosure by that arbitrator as it relates to the party and the california statute in the california ethical standards that was cited by appellant only apply only to the arbitrator who is deciding the case and not to a person who is not the arbitrator and not to the alternative dispute resolution provider which in this case was jan's a california statute and the ethical standards in california contain a long laundry list of items that need to be disclosed and nowhere on those list as a requirement that the arbitrator's needs the arbitrator needs this close relationship between another person on the ard a t r providers roster and one of the parties and even if that was the case even if that was required the relationship between mr bolton and this non arbitrator mr john bates that they challenge was so tenuous that such disclosure would not have been required years before the arbitration proceeding they were members of the same large club in california and that's it they had never spoken about the case against mr cooper and in fact had not spoken with each other in ten years and this is all in the record  and california law and federal law routinely holds that personal acquaintances are not disqualifying for an arbitrator and neither is membership in the same professional organization or social club the arbitrator in this case judge cahill knew nothing about the supposed to be lation ship between mr bates and mr bolton until it was raised by mr cooper's counsel at the arbitration hearings and the law in california by the way spoken to mr bates about the case and that mr bates was not even aware that he was conducting a judge cahill was conducting the hearing in the case even if there had been a substantial relationship between mr bolton and his  debates or there was any other reason why judge cahill should have been disqualified as the arbitrator mr cooper waived his right to challenge the word on this ground because he failed to follow jams as rules which required a written challenge t arbitrator and those are jan's rules fifteen i and twenty seven b and even if there wasn't the gans rules california statutes require that a there be a  no such written challenge with jambs nor did he make a timely demand for the arbitrator to disqualify himself so mr cooper has not met his burden even if he had met his burden his way that many times and i think the final thing to consider here is the public policy implications of mr cooper's argument if his standard was adopted arbitrations would likely grind to a halt at least for the large  providers such as the american arbitration association jans or finra it would be extremely burdensome for any of these large a t r providing providers who have hundreds and sometimes thousands of arbitrators and mediators to check with each person on their route roster who is not an arbitrator for the case to determine whether there is any relationship between a party and one of these individuals he was not the arbitrator for the case let me just briefly address the waiver issue which mr laughlin in that it was one of their weaker arguments there is a strong presumption against waiver the against waiver of the right to arbitrate waiver will only be found where there is detriment or prejudice to a party and prejudice the courts of hell means delay expense or damage to a party's position the factors that are reviewed are to discovery occur what is the time and expense of defending the case and was there a timely assertion of the right to arbitrate and all of these factors are in favor of the west and there was no discovering this case mr cooper in fact didn't even appear in that case and because he didn't appear take an appeal from that but even then the context is when to take a an interlocutory appeal without the niceties and the requirements of twelve ninety two day without getting it certified without getting permission to take the appeal it happens all the time in a policy immunity qualified immunity cases where a police officer someone says he's got qualified immunity the court denies a summary judgment he doesn't need permission to appeal that he can appeal that immediately he can take an appeal on that but he doesn't have to he can wait till all is said and done  question is why can't he go to the office weston says because he's expelled from this program he's not a member in good standing because we had cause to expel him the issue that's going to be raised is going to be that's not true if you get evicted from your want an accounting we want documents in their earlier suit they said you can't talk to the account you can't access documents even under the old law that would be raised judicata but there's no waiver and the transaction or occurrence it's almost incredible to say these are two error and the areas highlighted by the fact that it compromised their entire claim and every other claim they had arising out of the same transaction or occurrence the operating agreement the alleged breach of the operating room and these claims were not way we've we've had these claims constantly if that was an error it's weston's there and mr cooper should not be praised by that in terms of mr o's agone arbiter ability the thing is like with the james rules sometimes west and relies on the james rules sometimes they go  dollars it's a written agreement it talks about discretion on the part of cooper doesn't have to pay anything it doesn't have an arbitration provision the operating agreement does have an arbitration for the nation a very broad what is it which is conceded the operating agreement also revokes all prior agreements he can't have it both ways it's either over travolta's operating agreement as an arbitration provision or if so it's been revoked by paragraph twenty that same agreement there is no other agreement on which to to hang that award that's not a question of the arbitrator making a mistake or not interpret ing the contract the way we like to go the way even the port with mike in hindsight i think is right it's ignoring that operating agreement and weston has not shown where that that entitlement is anywhere in that operating agreement just like it is not shown anything about race judicata why can't cooper go to the office and speak to the client's spin speak to the government because he's been expelled because they say that's the central focus