may please the court good morning my name is philip nathan said i represent philip prozac this is an appeal from a couple dispositions vade by the district court from our point of view th first disposition was a dismissal of mr rose ex a claim under the delaware whistleblower statute pursuant to twelve b six counts i think we're primarily interested the in with status of the has happened absolutely i'm associated tended i didn't go but i did read the transcript and receive information about it we really urged our motion to stay the district court in the northern district of illinois that had not been disposed of by that ruling so well i guess my my focus is what is the status of the confirmation of the arbitration award that has been untouched i gather is that right the confirmation has been untouched or the motion to stay that we filed was denied again for the second time right on tuesday ok as a final judgment better than no no what's holding up the final judgment well what's holding up the final judgment is us foods filed a number of claims in the district court in chicago that were not adjudicated by the arbitration so they filed a motion for judgment on the pleadings that asked the district judge in chicago to grant them judgment and not just the confirmation award but all of the other claims they had originally pleaded  in all candor the judge said what he did confirm in the award stands or he's not going to he denied it the entry of judgment on the award initially because of all these other pending claims and now the issue becomes us foods is advised him that they are going to voluntarily dismiss apparently all of the other claims and just asked for a judgment  as an adjudication on the merits so that was done before there was any arbitration ok but now that claim has been arbitrated right now that the whistleblower claims were not arbitrated in the  whistleblower claims arbitrated others are including the delaware claim our position is the delaware claim was not arbitrated or adjudicated by the arbitrator because it had been previously dismissed on the merits by the district court in arizona where they're findings by the arbitrator regarding the delaware laws no no in fact i searched the decision of the arbitrator again this morning and the word delaware is mentioned once  parties have invoked a number of statues under delaware arizona and illinois right i mean my understanding of the order was that the arbitrator found under any under any of the laws that you relied on including go where there was no valid whistleblower clearly well i have two responses of the first one is you could certainly read the arbitrator's opinion candidly as saying there was no whistle blowing offense period as far as he was concerned our position is that the delaware whistleblower claim that we brought first and state court here in arizona and then it was removed to the district court in arizona was resolved on the merits with that now and then to add insult to injury the district court in early confirms that award well from the plainest point of view we're asking you to rule that none of these claims other than the stock claim on of the stock purchase plan should have been submitted to arbitration in the first place but the district of the northern district of illinois has confirmed the award the well and then if you don't like what they did then you go to the seventh circuit and complain about it well that is obviously one of the reasons why we asked to stay the district courts awarded chicago however if if if judge bolton erred which we argue she did in the in our brief in this court because there was no arbitration clause at all forget interpretation the green met with the confidentiality clauses and non disclosure didn't even have an arbitration provision in it because we were to agree with you if we reverse to the delaware supreme court because the only basis whatever i mean you would go forward with your delaware claim somewhere or another yes but in the meantime we have an order from illinois throwing out your delaware claim that the district that the northern district has conferred from us food claims but our claim on the under the delaware statute was was made in the district court in arizona an adjudicator there you don't see there would be an inconsistency well i don't know what our position is that there was stock agreement seventeen b seventeen b contains an arbitration clause and the relevance of that arbitration clause to the claims i'm talking about is paragraph  twenty two of the stock agreement which is e r eighty and it incorporates by reference all provisions contained in the in the what it calls the restrictive covenant agreement which is the and as in the eight all provisions includes the provision and then agreement that a judge of a court of competent jurisdiction only would decide the nondisclosure and solicitation and all those restrictive covenant claims so the stock agreement incorporates the other agreement all provisions which include the right to go to court and have a judge determine the violations or any of alleged violations of the n s and da so we have asked this court to rule that this is not a case like some of this court's cases like the sharon case at two zero zero seven f thirty seven twenty six where this court said there is no issue on the interpretation of the arbitration agreements no issue on our bridge or ability and therefore everything should be decided by the arbitrator indeed i think the sharon case would require if it applied that the arbitrator decide the race judicata or precludes of effect of what's occurred here not the district court of chicago but the difference between that case and what we're talking about is there is and always has been a dispute in this case about the arbiter ability of this claim and every other claim extent except the stock claim and so we've had in our notice of appeal and in our brief we've asked this court to decide is anything other than the stock claim under the stock agreement arbitron will in view of the incorporation of the other agreement all provisions of the other agreement in paragraph twenty two would say and that agreement says only a judge of a court of competent jurisdiction can decide violations of the end as and the a so to get back to what you asked me jed's overman  the judge in chicago the district court in chicago confirming an arbitration award does not resolve whether in the first instance judge bolton was correct in sending the matter to arbitration at all i looked after the court entered its order you wanted the parties to address the precludes of effect of this i looked at the cases some of the cases as i'm sure you know turn on what the agreement says there doesn't appear in seventeen beaded be any reference to the reclusive effect of an arbitration award so the case is saying well if the agreement disposes of that then the  controls and i didn't see any case the dealt with the issue we have raised which is when the district court in arizona dismisses one claim with prejudice and rules the other ones or arbiter bill and we appeal from that and move to stay in multiple courts with judge bolton with the district court in chicago on the issue of arbitration and average ability can there be a precludes of effect of a ruling confirming an arbitration a war that we submit never should have been made in the first place forget the content of the arbitration or whether i agree with the arbitrator or disagree i'm sure the court realizes realizes philip prozac disagrees w the arbitration arbitrator reasoning but that's that's not what we're talking about in a rarity in that case the seventh circuit i think the appeal to the seventh circuit is as it's currently teed up would only be and whether our motion to vacate the arbitration award should have been granted and decide at this point is she should what the average rater eventually did at the arbitration be confirmed or vacated we're asking this court not to not to vacate or confirm thank you may please the court angle davis for a pelleas defendant so i will call us foods let me go directly to the judge's questions regarding the northern district of illinois proceedings and it requires a little bit of background we filed our demand for arbitration shortly after we received mr rose acts complaint from the arizona state court we follow demand for arbitration we also filed suit the northern dished of illinois those confidentiality obligations of those agreements and so that i do understand correctly that the stock agreement provides for arbitration but the other agreement does not the other three does not explicitly provide for of attraction the other agreement if you look at section solicitation on disclosure agreement it states and it's a provision regarding other agreements because us foods knew that there were probably other agreements along with the n s and yeah it says all such provision shall be interpreted to provide the company with humility of rights and remedies and the benefits and protections provided to the company under each such agreement shall be given full force in effect and so what the agreements contemplated when you look at them together and it's important that you look at them together mr rose that keeps on focusing on section ten of the n s a and usa and that is just one very small piece of the larger way that the contracts work together as judges scanlon noted the arbitration clause in the master stockholders agreement refers to the agreement and all agreements that are incorporated there in section twenty two as a the master stockholder agreement explicitly incorporates the non solicitation non disclosure agreement that has provisions that mr rose act is referring to and so the n a s and yeah in the m s a are all one agreement so all those provisions come in together the m s a also in section seventeen b and twenty two c give inju and so when you look at section ten of the n s and yeah i what it's clear what that provision is talking about it's a waiver of the jury trial the second clause is very clear about that and the first clause i think is clear as well because it talks about no action no lawsuit no demand no claim or no counter claims that those shall be as be decided by a judge alone now as this court well knows a demand for arbitration is not decided by a judge in the narrow sense of the term but a demand for arbitration is decided by someone who is not a member of a jury and so when you look at all of those provisions together between the m s a and the n s a and it is clear that the overarching a provision wanted arbitration it wanted arbitration for any dispute arising under or related to the agreement or and its provisions and there are cases that we cite in our brief such as the eight hundred tech case from the supreme court hundred six saying that that type of language is about the broadest type of language that you can have for the scope of an arbitration agreement and we also cited decisions from this circuit talking about for example the the comedy club be improv associates case from this court in two thousand and nine saying that you need to have a positive assurance that a contract is not susceptible to an interpretation that covers this and that mr rose acting is putting a lot of weight on section ten to try and get out of that and i guess just not enough i'd like to ask you if i may mr davis about the whistleblower claim yes i understand correctly judge bolton threw that out on a motion to dismiss that's correct so she was wrong about that suppose she misunderstood delaware law or should have asked to have the question certified we're we go from there in that world your hon think two things you consider first of all is that the arbitration agreement has clavicle stoppel effect there are numerous cases from this circuit recognizing the rez judicata and clowder will stop a fact you're saying that that the delaware claim was in fact arbitrated your arm my understanding is that mr rose that brought that claim under delaware and he also brought claims under arizona and illinois whistleblower law and illinois common law in the arbitration in the arbitration but even if i'm wrong about that  as you noted the arbitrator made very specific findings that the activities that mr rose ak and the other defendant mr noble were engaged in come nowhere close to approaching whistleblower activity and so even if he did not bring a delaware whistleblower came which i don't think it's cracked he would still be precluded by the arbitrary arbitrators war because he had that he had the right to bring the delaware claim that all the other claims involved the same type of facts same types of evidence same time same witnesses there's there's no way that the arbitration would have been conducted differently whether there was a delaware whistleblower protection act claim in there or if there wasn't and so that that decision has precludes of a fact as you say but i'm not quite sure you answered george zimmerman's question how does one challenge that in your view how should the other challenge the decision with respect to the whistleblower claim so your answer is was covered by arbitration my answer is covered by arbitration go also challenge us the next step of appeal they can also challenge it wherever the wherever there was a motion to confirm the arbitration award now it's important that this court understand that mr rosen made a decision not to bring that action in in the ninth circuit u s foods brought a motion a petition to confirm the arbitration award in the northern district of illinois mr noble who was the other defendant in this case brought a motion to vacate the arbitration award in the southern district of new york mr rose act when this litigation was originally filed f a motion to transfer he filed it in the northern just of illinois any filed a motion to transfer the northern gist of illinois proceeding to the district of arizona the district court in the northern just of illinois and denied that motion without prejudice on july twenty fourth twenty fourteen that e c f number fifty seven in the northern just of illinois docket mr rose it then proceeded to file a motion to transfer the northern gist of illinois case to the southern district of new york he for when he made a strategic choice not to seek to bring that question back within the ninth circuit he's repeatedly chose to try to bring it towards the southern district of new york and that is docket entry number sixty one in the northern district of illinois proceedings and so even by rose acts own actions he's decided that he wants the northern district of illinois to hasn't been punished that issue back to the to the district of arizona he's tried to do it between the northern just of the southern district i know your view if he wants to pursue this challenge on the whistleblower claim he has to go to the seventh circuit at this stage or work while it's you can be part of his motion to  arbitration award he had the opportunity to brief and it was and i guess it's that case is still pending because of some collateral issues is that right right and let me clarify that a little bit because as i noted above we brought our complain illinois confirmed our award the original complaint that we filed in the norden district of illinois became redundant moot in so the parties are per the order of the northern just of illinois the parties are conferring guarding dismissal of the complaint and final judgment of the award but i want to which which then makes it right for an appeal of the circuit should they decide to do that that's correct and so the the other issue that i want to bring up that i don't know whether question in your view would the issue of arbiter ability be our efforts to confirm the arbitration award then i think the issue is preserved if he did and i think he's waived that issue the other issue the other part of this analysis that i think this court should consider is the notion of comedy and this court has talked about it in a number of circumstances but the case i'd like to direct the court to his church of scientology versus department of the army and that six eleven f second seven thirty eight you see that in the one of the briefs that is not that is that is a case of we looked at that issue when the court issued the request to determine the precludes of effect of of the courts of the northern just of illinois actions that case talked about the doctrine of comedy which is pretty straightforward that federal district federal courts try not to step on each other's toes they try to avoid parallel proceedings they try to avoid judgments that contradict each other the church of scientology courts talks about an embarrassment of conflicting judgments and we think that that issue is squarely presented here in the church of scientology it was a case where there were various foyer demands made to various courts over time and some courts were able to resolve some of those issues sooner than others the ninth circuit found that even though a  proceeding in the district of columbia was filed slightly after the case that the court was considering that principles of comedy because that case had progressed further and had reached judgment and reach conclusions about what some of these determinations that the court would invoke the doctrine of comedy and not get involved in those specific questions that had been presented to the other court and so here the northern district of illinois had the opportunity to assess the arguments with respect to confirmation of the arbitration of ward they considered that they ruled upon it the southern district of new york defer to the northern just if illinois saying we want you to determine who should decide this issue and the northern just of illinois after it issued its decision the southern district of new york has asked for additional briefing on you know what we should do next but that was the that's consistent with the notion of comedy is that the courts where in three different forms right now  the court should be careful not to create inconsistent judgments when i can and are you telling us then that this issue now is  precluded i guess i don't understand which is you we think we think that an appropriate resolution of this matter would be for this court to determine that due to principles of comedy it should defer to the northern district of illinois if it doesn't decide to do that for the reasons outline the district court on the grounds that were provided by the district court this court can affirm on the ground we just record are you talking this is a court of arizona thank you judge bolton's decision they can affirm based on the reason provided by judge bolton you can affirm based on the grounds that the arbitration agreement and arbitration clause is broad and includes all of the claims brought by the parties mr rose x three claims the see if i understand you what you saying is the principles of comedy should the lady and suspend our judgment over what is an issue in the northern district of illinois but you're not saying that issue preclusion applies because the judgments exit how can the right so i think i think it should preclusion still applies even though there's not a final judgment there will certainly apply when when final judgement well yes but what about today if the judgment isn't final how can issue preclusion apply because it's been confirmed and as this court has recognized in other cases you don't even need a confirmation proceeding to determine that an arbitration has been close of a fact but that determination trial judge in chicago found which has not been reversed then proceedings would continue in the northern district of illinois consistent with what the seven circuits have and so once again you're avoiding the parallel with the risk of inconsistent and conflicting judgments well i guess i can understand you're making a plea that we suspend our judgment until the illinois court decision is final but i don't understand that i'm saying that i record does bolton judge bolton we also think that the court could also determine that the delaware claim is also are part of all based on the provisions of the agreements as i've described them and we can we have also as we explained in the brief that this court can also determine that the agreement clearly and unmistakably gives the arbitrator the right to determine the question of arbiter billet and that's the case that we cite  oracle america versus myriad group seven twenty four f third one zero six nine that case says that if the arbitration agreement incorporates the american arbitration association rules that is clear and un i think in view of the questions it's important to emphasize that the procedural morass that that these parties find themselves in was created entirely by us foods i filed on behalf of philip prozac a state court suit in arizona u s foods reserved to remove that i'm sorry to the u s district court in arizona then file the demand for arbitration in addition of the removal wanted to live again in front of judge bolton in front of the federal budget district judge in chicago and in aaa the average ration association in new york so they created this three forum brass where did the arbitration occur new york at the american arbitration association which is what seventeen b of the stock agreement says or what what is the illinois connection in this case the only connection is that s foods instead of going to judge bolton what they're injunctive relief claims when they were they remember their headquarters isn't it in rosemont illinois yes so they went to illinois court because they say he stole their secrets or whatever in illinois that's why they want to annoy as well i understand that's why they did it judd silverman but they they removed this case to the district court in arizona well they because you started a case in arizona so they had to file the injunctive relief claims they're well i mean i don't see that i can fault them for doing anything that the rules permit them to do but let me let me ask you a question this is what's nagging at me maybe judge bolton was right maybe she was wrong about the delaware whistleblower case whistleblower claiming right or wrong your guy litigated whether he was a whistleblower under any conceivable law he was found not to be a whistleblower as a matter of fact under any law even if judge bolton was wrong i don't understand why a her error wouldn't be harmless given that your guy was found not to have been a whistleblower because the delaware statute the judge bolton considered construed which was not construed by the arbitrator and that litigated in front of the arbitrator made it unlawful for in delaware to violate a financial management or accounting standard of the company and we alleged that mr letterer the c e o by giving no bid contracts to a  head of the company basically well you know maybe that maybe the arbitrator got it wrong but that was that was what they found out he made no attempt to deal with the financial at standards and accounting and management  standards criteria under seventeen zero two and the delaware whistleblower statute that that claim had already been dismissed by judge bolton it wasn't litigated and respectfully in front of the average traitor and we're asking this court to reverse dismissal because i don't see how the seventh circuit has any jurisdiction over that twelve six dismissal by the district court in arizona and i think the court and rely on our brief for the rest of our arguments thank you coun the case just argued will be submitted for decision and we'll hear argument next is his corpus resource center versus the department of justice