well you scream and judge andrew oldman is in austin but should also be on your screen we appreciate your willingness to participate in all argument by video conference and while it clearly is not our preference  the court room when i ask you to be conscience and also i will tell you at the outset that the panel is completely familiar with the arguments made in your briefs and the key states is that you cited relied on so if you fail in your remarks accordingly that would be appreciated well go ahead and begin mr walsh so i understand you're going to start with eight minutes is that correct yes you're on ok and mr campbell is going to take over from the next eight minutes if you are motion to amend the other necessary parts should be reversed in full during my time i will discuss the n b a whistleblower statutes probation enforcement of arbitration agreements require the condition of employment as well as the denial of the motion to him that e this case involves government corruption and bribery in competing for contracts with the department of veterans affairs when mr robertson refused to engage in such a lawful behavior he was fired now colleagues are trying to mccance yes your honor there are post important tortious interference client and that's what mr campbell intends to talk about i can answer very general questions about it if you have it but i would prefer mr campbell address those and so the question is whether or not section c seven shows the congress intended to pursue the waiver of judicial remedies and here the answer is clearly yes based on the structure terms and sequencing of the statute in fact the n b a whistleblower provide for the remedy of a federal jury trial on the fact that a federal jury trials characterizes a relative is confirmed by its characterization as a remedy in the regulations under the statute as well and for what it's worth appellate implicitly concede that the statute characterizes it but will jury trial as one of the remedies provided for it and that characterization is extremely important because insurgencies other the remedies provision then prohibits waiver of any remedies provided for in the statute within the run reception by any agreement or condition of employment so applying the simple terms of the property to the statute federal jury trials are characterized as a remedy provided for under the statute remedies would still be permitted to waive the right or remedy or settle georgia even though it's very obvious the congress intended to prohibit the waiver of federal jury trials the same is true here by the finding remedy to include a federal jury trial in the  the other thing i would point out is that the waiver provisions are both extremely different in the structure of the statutes between the eighty and the a whistleblower century or are extremely different so the a b a states that the rights of the right cannot  exactly that nothing more nothing less and refused to read in or take out any language from that act in fact in inferring the district court it sided with approval its language saying that it would not rewrite the terms the parties to greenock to accommodate a party that were part of the draft relationship with employment and that sort of connection is simply incidental it's a situation where yes the parties only knew each other because of the point of that's not enough to create and not enough to create an actual connection to employment if that were the case that would interpretation that might be related to employment because the only reason they knew each other is because of them but that's that's that's absurd that defies common sense and just in the just just as in that situation here the only connection is the fact that they knew each observations working with roberts but that's actually precisely the opposite of what the actual factual allegations state which are the police falsely told others that he's on stable and trustworthy that isn't there is nothing to do with his actual work or interject it's about attacking his character that context a stay is generally mandatory if the matter is referred to arbitration the only exception being if all that matters in the disputes are arbitrary in which case the matter can be dismissed because there's something for the court to actually decide on  flies in the face of the point of language of the arbitration agreement in this case it requires reading things into the agreement just aren't there making assumptions that you start wars based upon the actual facts what conditions of the case and the arbitration must be clear and explicit in this to set forth in the copy predicate the case to go more case in the other cases we've decided specifically gilmore and gilmore the supreme court held that a waiver provision in a federal statute must quote explicitly preclude arbitration and quote and in the copy critic case the court held that if a statute is entirely silent as to whether claims under the statute could be resolved as by arbitration then arbitration is not prohibited supreme court is also held that when a congress has expressed its intent to restrict arbitration of a federal crime and it's done so with clarity there are three other cases federal statutes with whistleblower protections where congress has actually provided twelve that in each of these statutes they contained whistleblower protections for certain employees and individuals they also contain virtually identical non waiver of language with only slight variation similar to the language in our statute but with a very important distinction those those statutes quote this following language the rights and remedies provided for in the section may not be waived by any agreement policy for more condition of employment review each of these other three whistleblower statutes you will see that not only do these statutes contain the same identical non waiver provision with that phrase including any previous butte arbitration agreement expressly prohibiting pretty speedy arbitration agreements but these very same statutes also contain an additional provision that's virtually identical in each of the three statutes that states quote no previous period arbitration agreement shall be valid or enforceable common if the agreement requires arbitration of  dispute arising under the statute and i would note that two of those statutes the sarbanes oxley sarbanes oxley act and the taxpayer st act also contain a statement granting the claimant a right to a jury trial so there are very similar to the whistle and deciding the language that would be included in the final bill it removes the language including any predisposed arbitration agreement from the non waiver provision but but but that same section does not contain any specific explicit  statements such as the ones contained in the other whistleblower statutes that no previous need arbitration agreement shall be valid or a forcible so at the least here looking at the other three whistleblowers statutes and analyzing th the climate in the context of the consecrated case and the gilmore case the gilmore case the least what congress should have included was an explicit statement that arbitration was prohibited instead in our particular statute that language is nowhere in the statute section forty seven told is entirely silent about arbitration it does not contain any reference whatsoever to either arbitration or or restrictively predisposed arbitration agreements i wanted to talk a little bit about the legislative history of the statute since i'm already going in that direction it's very important here at the timing of the legislation is important and what was happening in other parts of the the national defense authorization act and n b a is also important in terms of timing that the composite case that judge told him to just mentioned that was decided in two thousand and nine and that case the supreme court held that despite a non waiver provision and the age discrimination and employment act amendment and the commodity exchange act regulation amendments amended by the dog frank act whereby congress included or added this specific language that pretty pretty precluded i'm sorry allowing pardon me congress added the specific language no previous peut arbitration agreement shall be valid or enforceable and then in two thousand and twelve the national defense authorization act was introduced under that particular under that initial version of the statute the whistleblower claim was extended only to department of defense contractors the senate then proposed and amendment to the n d a a that added a non waiver provision and different then the non waiver purpose about was proposed  agreement at the same time the senate proposed a new pilot program to expand whistleblower rights to non department of defense contractors and along with that amendment the senate proposed a non waiver provision that we've already talked about  that stated the rights and remedies under the section may not be waived by any agreement policy form or condition of employment comment including in a previous beat arbitration agreement other than an arbitration provision  the collective bargaining agreement and as i mentioned earlier this type of non waiver provision is used frequently and whistleblower statutes but in an acting section four thousand seven hundred and twelve in its final form but what the house did was it receded to the additions of the enhanced whistleblower protections so it essentially agreed to q and a to extend these whistleblower protections to non department of defense contractors but on the condition that that non waiver provision be revised to exclude the language or to remove the language including a pre disputed arbitration agreement and all the text that followed there after not the same time this was happening and i know this is what a lot to sort of juggle in your mind the non waiver provision relating to the department of fense depends tractors that i had mentioned earlier that was also revised to at the insistence of the house to mirror the current version of the non waiver provision and section four thousand seven hundred and twelve so what congress ended up doing congress clearly decided against including language that restricted arbitration of claims under the indiana a both for the department of defense contractors and for the non department of defense contractors this was an issue that was negotiated by congress congress was familiar with this language because it had used the same language in the fox act and in the commodities exchange act and it considered including the language here but it decided not to it knew what it was doing  pacifically did not want that language and that that predisposed arbitration prohibition contained within that section now in my remaining time i'd like to talk a little bit about other cases and cases analyzing other statutes the closest to cases we sought in our brief are the copy critic case involving the credit repair credit repair organization act and then the gilmore fourteen composite macleod line of cases that analyzed the non waiver provision and the eighty e a i'd like to start with bill maher i think that these this one of cases i think it's more important because the a t f contains not only this non waiver provision but it also contains a statement that a claim addressed a prior version of the a d e a that did not contain a waiver provision and they are the claimant as she was an individual's age discrimination claim whether or not and individual could waive his rights under the a v e o a by entering into an arbitration agreement and so what the court held was looking at the text and the legislative history and again this was before the waiver provision was included the supreme court found that the the there was nothing in the text of the legislative history that explicitly precluded arbitration of an employee's age discrimination claim what the court said there is that by agreeing to arbitrate a statutory claim a party does not for go collective bargaining agreement i already talked a little bit about fourteen percent thought i just want to talk a little bit more about what the supreme court said and terms of the substantive versus non substantive rights that might be waived by a non waiver provision by this time the older worker benefits older workers benefit protection act was enacted so we had our our current waiver provision in the eighty e a and there the question was whether or provision on a collective bargaining agreement that clearly and unmistakeably require union members  arbitrate their claims under the a b a was in the was in forcible the supreme court held that it was and forcible there the court contracted the substantive statutory right protected by the non waiver provision in the eighty e a and that right was identified as the right to be free from workplace age discrimination with a non substantive rights not protected by the non waiver provision and that was identified the specific right that was being argued was a substantive right and that case was the right to bring an action  action were substantive rights under the statute and mcleod the plaintiffs argued that the statute providing with what the specific rights the right to a jury trial and the right to proceed as a class action but that's where arbitration agreement forced them to forgo those rights  in the eighty e a refers narrowly to a substantive waiver of substantive rights under the a t f a and that the right to a jury trial and the right to proceed as a class action are not substantive rights under that statute and the reason why this case is the gilmer fourteen comply with the mclaughlin of cases is relevant is that you have in the context of a non waiver provision in the a b a all that although this we have a different statute in a different non waiver provision there the court contrasts it between the difference between the substantive rights versus the not substantive rights and noted that nonsense it deprives included the right to pursue the right to a jury trial the right to proceed  and that line of cases and apply the same reasoning to section four thousand seven hundred and twelve we're asking the court to determine that the substantive right at issue here that the non waiver provision protects is robertson's right to be free from from  retaliation and discrimination in the workplace in the context of a whistleblower claim under section four thousand seven hundred and twelve we also ask the court to find that the right to a jury trial and the right to a judicial form are not substantive rights under this provision at issue i'd like to st remind the court that the arbitration agreement is very broadly warded and i'm not going to repeat the language that's i know you've been over that but the this court has held that similar clauses that provide for arbitration  dispute related to which is similar to our attrition clause at issue that these types of causes have been characterized as extremely broad and capable of expansive for each according to the supreme court's directive and mitsubishi and st i'm not going to go over the terms of the arbitration clause but i do want to remind the court that in the acknowledgement of the arbitration policy roberts who did agree to arbitrate any employment related controversy dispute or claim there's a list of of specific claims that might be included but this is not an all inclusive list but in that list includes claims for violation of public policy tort claims  discrimination and harassment and claims for violation of any federal law or statute according to the supreme court's directive and mitsubishi what what this court needs to look at and this is the important point with respect to the post terminations and terminations claims the court has to look at the allegations of the underlying these claims in the complaint itself rather than focusing on the legal labels attached to these clients and that's according to the supreme court's direct making if you st focusing on the st interference claim those allegations can be found on pages sixteen and seventeen of the record and because my my posting counsel has already gone over them i don't want to cover them again except to say that with respect to the tortious interference claims both the claim for prospective relief and the perspective contract and the claim for the existing contract there's a tort that underlie and underlies both of those tort interference claims and that's the tort of defamation basically what robertson claims is that the interest of senates defamed robertson and his business to these potential employers and potential business partners and v by very specific statements specifically calling him unstable and competent and defaming roberts and his business and abilities these specific portions are looking these specific defamatory statements speak to  robertson's professional skills and abilities they speak in his business and work performance and speak to his professional demeanor the term unstable refers to his demeanor and competent refers to his competency and his work performance  defames roberson his business and abilities refers to his abilities his work performance and his skills as an m p as an employee and then also if you look at robertson's allegations relating to the damage said he claims that certain contracts were cancelled or not renewed as a result of these defamatory statements so he's essentially alleging that he's lost a business opportunity he's damages are clearly more professional than personal and nature and they are great to relate to his ability to make a living and there is a connection between the tortious interference claims and roberts with employment because defamation is the underlying tort here that underlies both at the tortious interference claims then  it's these claims are necessarily connected to his employment because in determining these claims of the fact finders want to have to determine whether or not these claims are are whether whether or not these are false group case that there's one case that we didn't in my very little remaining time here there's one case that we didn't cite during our breaks and i'd like to point it out to the court it's preventable securities st with marshall and that site is nine  nd ninety six that's a texas supreme court case so it might not be binding precedent but we believe the rationale the texas supreme court used in the hold that the holding in this case might assist the court the arbitration clause in that case is also strikingly similar to this case because it required the employee at issue to arbitrate any dispute claim or controversy arising out of their employment or terminations of employment and in that case and my remaining time i just want to state that  the texas supreme court there the allegation was that prevention in its employees made defamatory post terminations statements to potential employers specifically that the claimant was fired that he lost money and related to a profess in that he was a dishonest person the texas supreme court held that these supposed terminations amatory statements as a matter of law quote at least touched upon these former employees performance of brokers making the clients referrable to arbitration so clear under that same jury trial is a remedy provided for but those remedies cannot be waived and the remedy to a jury trial can't you wait and arbitration is necessarily going to waive that right so it's clear on the face of it that can't be waived and besides that there's