representatives of a putative class of customers bank customers and the question before the core is whether a huge national bank can take over a small local bank and impose on the customers that bank arbitration requirements that were not agreed to between the customers and the local bank and at the same time you know breach the agreement for the interest rate that would be paid to those customers and i believe the federal retracement act itself dictate that contract principles apply to arbitration agreements and in this situation the contract principles dictate that there was no agreement made between the customers and b there was no evidence offered to the court to show that that was actually sent or received no admissible evidence was provided to the court on that issue nd of all it is a contract of adhesion and under under tennessee law which which area who said in his his affidavit said that even by seventeen there may have been a few banks in severe county area that were using arbitration agreements but it was still not widespread a common practice that's the only evidence before the court on that issue ok well it's your bird it's your bird to get out of the contract isn't it i mean if there's a lack of evidence i know you've got this forcible contract isn't isn't it you're not not that banks no absolutely not it is the banks burden to prove that there is not which ration agreement that was made between ari's it's the bank's burden of proof on that issue and they have to sustain that burden with admissible evidence which they did not do in this case aren't there a number of cases that say though that they continue it's a continuation of your account once the bank has a once in an arbitration clause shows assent to that even if they didn't explicitly sign the agreeing but we have two issues here one to address that point the st is that the original agreement between the and the local bank stated specifically how changes could be made to the terms of the agreement they said the terms the changes in terms could be accomplished by posting in the bank that would take effect thirty days after their post in the bank or by being included with bank statements there's no evidence here b b and he has not sustain his burden show that that was done so that the terms of the agreement that would allow for changes were not complied with but would that be a bit of an arbitrator to decide the arbitrator would agreement which has to be determined by the court when the jury in this case then the scope of what can be arbitrated can be determined by an arbitrator but there's a threshold question concerning whether there is a forcible agreement arbitrate was there ok that the banks made to the bank made in the night she ninety's and here your complaint paragraph five says that the defendant reached the contract here by by lowering the interest rate isn't breach of contract just a quid to tensional subject for arbitration when you have a contract that provides for arbitration and there is a claim that there is a breach of a contract isn't that really just a normal general subject or arbitration particularly here when you're asking for damages your are arguing that the the lower than the contract of adhesion because if there was evidence that it was sent and received it was a thirty three page document twenty two thousand words not addressing terms these are not terms that were within the original agreement there was no dispute resolution cost in the agreement between the customers and the original bank this was perhaps sent there was no admissible evidence that it was sent there was no admissible evidence that it was received by anybody and you cannot merely send a document to customers and impose on them completely new terms under tennessee law that were not within their contemplation in their or beyond their reasonable expectations this is up the sawdust the issue of whether there is a degree in the territory right yes and contract principles applies you have to have you have to have an offer that was actually deployed again there's no admissible evidence here that was ever sent or received and you have to have acceptance you have to have something else under tennessee law you cannot have something about it and did not that is in action under tennessee law that is you cannot create a contract that way unless you can find an affirmative duty on behalf of the recipient to to respond and you can show prejudice in reliance on the and one could say yes it's a kind of activities and but it still could be valid in the forcible unless rd stage it is unconscionable is that is that a proper announces those three different steps the contract is it a contract  limited the obligations and the liability of the stronger party being b b and t and you know if i can refer if there were two decisions that i would really hope this court would focus on it would be the copeland case and the berzinski case and i'm aware that i only have twenty seconds left i simply want to point out that in all of the cases that we've addressed there were there were distinguishing features where the customer side where it was set out on a separate page where arbitration was clearly presented to them in a way that they could clearly accept me as what makes this particular contract and oppressive what isn't in the arbitration agreement they think makes no press i would but i would point out your honor that that the right to a jury trial is a constitutional right is an important right that is inherent in our in our in our society in our country d and the waiver of that is a critical issue needs to be done knowingly and not by inadvertently missing something buried in it when court i'm john hicks and i represent b b and t in this case i have several points that have to be able to direct us to the court including the admissibility of quantum of proof required mutual regimes in range of paper that that make it and discernible to the to the customers here that the operative arbitration agreement judge griffin as you pointed out is the two your account after the effective date of this and the so there really is no real question about this i have the that the that the arbitration agreement that is applicable to this to speed was somehow buried in a the duty of the interest rate and it's my understanding that the breach occurred in two thousand and eighteen i think that that's when they your client reduce the interest rate from six five to one  five is that right i believe that right john snow that's that's two thousand and eighteen not two thousand and seventeen and then it's your argument that the alleged breach of the contract is subject right if it's exactly right you're on ok let me ask you this ms i'm just curious what what basis in the baghdad suddenly after seventeen years do away with the six and a half one interest rate on these accounts about a very t e the agreement you're on the bank services agreement vets applicable to this to this dispute specifically says that the bank can change the terms of the great yeah but why original deal though the original deal was that we guarantee the right will never fall below six half percent that's what the st national bank of gothenburg debt did you assume all their obligations where you are that that is the claim but that is why we are before this court today it is to determine who what form makes the decision and assesses damages if applicable for that bridge or contract and i don't understand that point let me arbitrator and the reasonable attorney fees of the prevailing part so i guess under that term you know all that could be cited along the accountable right of loss your honor that is correct if they lost and then that in the discretion the that has been in the discretion of the arbitrator but by the same token the account holders who claim this breach of contract have the same opportunity to recover those costs and other words the rim a d is mutual here it is not a one sided d arbitration agreement that that gives any particular advantage to the bank what one of the primary considerations of this court in determining it is judge moore indicated earlier in determining whether or not this arbitration agreement is and forcible as long as it's not unconscionable and here if one reviews the terms of the of the arbitration provisions here the remedies are mutual  but even even if it were using your honour's example the following sentence reads as follows notwithstanding other language in this agreement the party retains the right to bring an action in small claims court if it is within that your sticks on limits of that court so under the example that your honor the account holder could still bring of action in in tennessee in general sessions court for that small m i know that one hundred percent ok sir if we can use that outline that i was given your opponent we st decide is there a contract suppose we decide there is a contract then we decide whether it's a contract and if we decide it's a contract of adhesion then we decide is it unconscionable is that the three per test because if it's an contract of adhesion and unconscionable then it is not a valid contract and there would not be about a contract for arbitration i believe that analysis is correct your honor and we believe that the district court was correct and its determination that this is not contracted  says the bank can change the interest rate at its will and then the bank changes the interest rate to i thought it was point one percent i think that's correct your honor and that breach in adelaide's breach of contract is bank and the arbitration clause that i discussed with judge the omen specifically provides that if it's a small amount an amount that would order that ordinarily be thought of is one that was  beyond or less than an amount that would be appropriate for a consumer to bring in an individual action can be brought into general sessions court there is absolutely no proof in the record that that these plaintiffs could not have gotten similar services elsewhere in that unit because they couldn't get six and a half percent elsewhere  it please the court there's absolutely no proof in the record that they could not they came forward with absolutely no proof that they could not the same similar terms it different max and the district court your honor that that's a that's a question i have contemplated honor and then could we take judicial notice of what the interest rates are for our various size accounts i mean i would think that that's public record as to what go back to see the to the concept of who had the burden to come forward with some sort of proof to show that there were not similar services available in the marketplace  it in order to avoid an arbitration clause what would be expected is an unequivocal of the nile that the agreement had been made accompanied by supporting agree that they did not receive the the arbitration agreements that were sent to them by b b and c there's there's no proof that they didn't receive the arbitration agreements and in fact what the priest is it is that they acted back in to new ink to to enjoy the benefit of their counts for months and years after the arbitration clause was  busy jury person arbitrator but that the arbitration agreement does include other restrictions including shifting of liabilities for attorneys fees and so on which is not was never presented to them in a way that they could bank i would say that it's uncommon for them to be exposed to those agreements period how about how about banking arbitration agreements and john i don't i mean is it is this is this wired or is this pretty the only evidence before the trial court was the declaration of our banking expert from severe counties that arbitration agreements period were uncommon in severe county even up through two thousand and seventeen ok how about nationally is is this the the provisions of judge bill that we're talking about are those uncommon for on a national basis to have such provisions in an in arbitration contract with bank bank in their customers or is it i don't well it's your or it's your burden isn't it if you're if you're claiming that this is unconscionable isn't it your burden to establish it's their burden of proof the existence of an agreement arbitrary that's the best the banks are to prove and say ok i think they i think they have but now you know you're claiming that it's unconscionable but you don't really have any evidence that the terms uh the arbitration agreement are unconscionable and i think on the contrary we would assume that they that they're  if they're beyond the reasonable expectations of an ordinary person not a banking expert exposed to arbitration agreements in banking nationwide if they're oppressive to the weaker party which is which is the appellant's in this situation or if they serve to limit the obligations  my ability the stronger party which is clearly b b and t then and they're not in force and what's your best case authority that the provisions of this bank arbitration agreement are an unconscionable because of their oppressive terms that they allocate the burdens of attorney fees or fees or whatever you're talking about which what's what's your best authority anywhere i think my favorite one dollar is the court of  is the tennessee supreme court opinion the copen decision that we've cited in our brief in and in that case the court referred to approvingly cited the tennessee court of appeals case smith versus people's bank where they looked at an ex a provision in a safe deposit box rental contract and they said that it was honored forcible because it was regulated by statute involve the service of great importance to the public banks hold themselves out as willing to service for any member of the public banks have greater bargaining power and it was a standardized contract of adhesion not open to negotiation in this situation just that the bank has argued extensively that the customers continue to take advantage of this account continue to use it but you have to keep in mind that these remains accounts no new deposits were allowed by purportedly using these accounts what with the bank is referring to is inaction the action of merely leaving their money in the account in but leaving the that that is perceived to be a cent or are going to be sent by the bank but in the eyes of tennessee law that is in action which except in extreme circumstances is not going to form a contract there's no manifestation of assent there has to be something other than mere inaction unless there's an affirmative duty somewhere which there is not in this case for the customer to come forward and say i agree or i disagree you cannot impose that on them the issue is subject to resolution by the jury and that pivots on the language in nine title nine section four of the united states program says that a party make demand a jury trial of such issue if the making of the arbitration agreement is at issue i think there's enough evidence here regarding whether these people agreed to it that it should have been presented to a jury and was required to thank you both for your urging in the case of these