context that we have here every appeals court that has addressed if you version of the futility argument that the pennants are making here have rejected the argument not because there's no such thing as he really but because it doesn't apply from what the supreme court of the united states has has told us in recent decisions it is that there are profound differences between the class action device and class case in any event we would hope that our jurisprudence recognizes the future would that be the typical version of the futility exception and there it's been recognized in the prohibition and this on that new jersey said it's unconscionable cetera et cetera they're not trashing provision here is very different it is extremely different there is no mention of class i don't know how you can read in here any kind of prohibition it has a the ability to have one party choose arbitration and have to agree if it's over a certain amount to my mind i'm wondering why you're not arguing that this is not a muhammad case well it's it's not a hard case for that reason we did argue that in our beliefs but ultimately judge sheridan to look at the arbitration clause and find that it only at the beginning of this case because at the beginning of this case to trim down we did not have the ability to move for individual arbitration which is what this clause provides for and it's not just me saying that  done later is not it is not totally futile you're reading it to say individual but there is no prohibition and that's what mohammad and his thoughts about when there is a prohibition it isn't does not allow you're looking at a reading and you're reading it one way o even if the provision was silent on whether whether you could class arbitrate with like a three course all week decision is it would only be enforceable if it provided for a class arbitration so  we have the supreme court twice and the six circuit and on the other side every single decision cited by class council is the courts affirming an also that we found that the futility exception was appropriately provided appropriately invoked by you but in the third circuit unlike  look beyond a mere determination of futility but to look at the hocks with factors and still decide when we are or not there's prejudice here to the other ninety page opinion and you have a situation of inconsistency perhaps if you went to arbitration the arbitrator would come to a different result the court we don't have to hear in this case we haven't even gotten to the stage of a class happened that's the first time the party those parties had the right the six arbitration on article clauses that were not intertwined with novel fisher connell which is two years individual arbitration in kuwait owes me macy's another central district of california case employee chris action again their better motion to dismiss and a class certification motion have it has to be a known relinquishment of a right and just to repeat for emphasis the right you don't have here is what the right to move or individual arbitration that's the only thing he's the said asked for over and over again the defendant's repeated and said that the judgment of my class of tracing it should go to class action we asked for one thing only individual arbitration and there was no right to do that until the conception of decision came down that's why this court said conception created a sea change in the law amount is excess of one million shall be arbitrated only when both parties are great that's a clear indication that this clause provides only for individual patrician the damages in this case are one hundred fifty million dollars you can hardly imagine a class action that the damages would not be in excess of seven figures so for those reasons and the reasons we've cited in brief we clearly believe there's no basis whatsoever the find of the plot provide concepcion the united states supreme court said it patriotically one i guess i'm curious as to the district court's having extensive hearings as to whether this this particular clause provided for individual only or class and and it was litigated i guess my question is doesn't that say that it could have been litigated two and a half years before and it was not indeed futile to have invalidating class action waivers sometimes enforcing them and said that was not a clear cut case of futility we don't know what would have happened but then it went up and said even if it were a clear case of futility we still look at