good morning your honour's may please the court good morning until december of two thousand and fifteen j pay required all users of its electronic money transfer services to accept the same arbitration clause that arbitration clause stated that any dispute claim or controversy among the parties arising out of or relating to this agreement shall be resolved  arbitration before under either the commercial rules of the american arbitration association or the consumer rules of the american arbitration association depending on the amount in controversy and it went on to say quote the ability arbitrate the dispute claim or controversy shall likewise be determined in the arbitration in other words the arbitration agreement that shape a drafted and that all of its customers including miss kabul and miss houston entered into before december of two thousand and fifteen clearly and unmistakably stated that the parties wanted an arbitrator to resolve any questions about that intent clear and unmistakable in the language they wanted those things to be decided by an arbitrator and so jay's pay spends a lot of time in its brief discussing whether or not the availability of class arbitration is for the court or an arbitrator to decide but this court does not need to wade into that issue in order to reverse the district court and remand this claim to be decided in the first instance by an arbitrator can the court can answer that question of what where the presumption should lie and in our brief we describe why the four justice plurality opinion in basil vs greentree why that reasoning was sound why it is entirely reasonable to expect arbitrators to to resolve these sorts of contract interpretation questions such as whether the language of a particular agreement allows for class arbitration that's essentially reading and interpreting the contract that's consistent with what the supreme court said install nielson which is if arbitrators are going to decide this which is what the arbitrator's did install nielsen they have to do it based on what the contract says there is another  asking us to disagree with four other circuits who decided that the ability of class arbitration is a substantive issue for the court to decide we're not asking you to do that your honor we think there is a good faith and strong argument for reaching a different conclusion the same conclusion that the california supreme court has made and many other district courts have made out every circuit that's weighed in on the issue has concluded that the question because it's a substantive gateway organic kind of question rather than a matter of pure perceived her why is that wrong assuming i agree with you that we don't hear both parties agree the dispute about whether jay pay collects unconscionable fees and misleads consumers by not disclosing the kickbacks to correctional institution that dispute that substantive dispute is arbitral the only question that the parties are have different positions in whether that dispute can be arbitrated on a class basis whether all of the individual claims of people who have all agreed to the same arbitration provision with the same language in or asserting the same claims can be consolidated and aggregated and that you know just looking at the supreme court's decisions in orthopedic and roper you know the class actions have been described as a procedural device having nothing to do with substantive rights and we would say following that logic and following the logic of the basil plurality this is a question of whether a particular arbitration procedure is available but that's what i want to ask you about high would have normally thought that procedural questions arise once the obligation to arbitrate a matter is established procedural matters might include notice requirements to stop latches statute of limitations but by contrast the obligation to arbitra is on a different level it asks a different series of of questions and it looks more substantive to me maybe i miss em pretending that but doesn't that fall within the more basic gateway question itself to get there with this category of relief or is this really more akin to a procedural question notice how many days all of this business it looks more organic basic and substantive to me why am i mis apprehending this i'm not i'm not sure if you're mis are pretending it what some of the circuit court opinions such as the scout petroleum from the third circuit and the eighth circuit opinion you know have have done is they say well this is really important things that are dispositive this is what the fourth circuit did they said things that are dispositive and that go to whether the dispute is arbiter bill at all these are threshold questions well there are lots of things that have been identified by the supreme court and host them as potentially dispositive such as the statute of limitations if if the claim was not timely filed and couldn't go to arbitra all it's not how important it is it's what were the parties expectations that's what justice pryor talked about in the first options of chicago and hosts and what are the parties expectations and you know here this kind of gets back into the  the parties agree on ambiguously and express their intent in writing by contract that they want the arbitrated to decide the question they can say it and they get to control their destiny and in that way and they did say it here this is again the second path that i pointed out so the first path is the one we've just been discussing you know what is the presumption the second path is to do what the fifth circuit did in robinson versus j and k administrative management and what the second circuit did in wells fargo advisors versus sapping to end what several judges in this court including judge graham in the southern district of florida looking at almost identical contract language in another j p arbitration agreement which is to say if the parties delegate all questions of arbitron realty if they have a delegation clause like they do here splits that language that says you know here what it says is the ability to arbitrate the dispute claim or controversy shall likewise be determined in the arbitration threshold issues go to arbitration that is a nuff to bring even assuming you know argue endo that the availability of class arbitration is a threshold issue that's enough to delegate that particular threshold issue along with all the others we have to ignore the additional argument i don't think you do because again as we stated in our reply brief you know first for something to be a right that is reserved it has to be something that's identified in the law as a substantive right and the ability to proceed on a class basis is has been to the contrary the idea that that is a substantive right has been rejected by the u s supreme court most recently in italian colors versus american express that you know this is simply a procedural device and that parties do not have a right to bring their substantive statutory rights using that procedural device they can go individually into arbitration and litigate their issues and so you know again that that the idea that there should be a heightened requirement something more that jay pay should have  to put in its agreement if it wants to delegate this one particular issue can you tell us specifically looking at the text of the agreement the contract itself what it is in the agreement the parties signed onto that clearly even says an intent to trade these kinds of questions i would point you to two things i would point to the language i already mentioned which is the expressed delegation language there are there is a claim here there are actually several claims here there are class claims they were pled as class claims and so the ability to arbitrate those class claims shall likewise be determined in the there is florida law that says parties contract in contemplation of existing law florida law has contemplated and allowed for class actions an aggregation of small value claims for decades j pay was aware of that and another thing j p was aware of and you asked for what i point to the second thing i would point to is jay pays reference to the aaa commercial and consumer rules both sets of rules and those two sets of rules based on this court's two thousand and thirteen opinion in southern communication services versus thomas both incorporate the triple a supplementary rules for class actions those supplementary rules for class actions have been in force since two thousand three this court decided thomas in two thousand and thirteen saying that if the parties used aaa rules they have also incorporated the class supplementary rules the fifth circuit decided the same thing using the same analysis a year earlier two thousand and twelve in read vs miami university florida metro university so jay pace council presumably knew all of this it should have known all of this if it was reasonably diligent it would known how the law was being interpreted that the aaa supplementary rules were being incorporated and both courts and arbitrators were finding them incorporated if jay paid did not want an arbitrator to decide the availability of class proceedings it had a very easy way to fix that make that intention clear which was to carve out from the agreement you know arbitrators shall decide all threshold questions of arbitrary realty except for the availability of class proceedings we don't want  traders deciding that lots of parties have done that we give examples of pages twenty nine to thirty of our opening brief of what that language looks like but you need look no further course it would have been saved everybody a whole lot of time and money if the contract specifically said beyond the ability to arbitrate the dispute claim a controversy shall likewise be determined in arbitration if you added a clause that said including any question about the availability of class relief the ability to operate the dispute claim a controversy including whether or not the parties are entitled to access to class relief like ways be determined in the arbitration if you'd said that we wouldn't be in court would we we wouldn't but we also if that was what was required then rent a center would have run to center versus jalen not have come any other way here to decide whether it was required i'm simply saying the parties prospectively have it in their power to make sure that everybody knows what they intend only had to do was add and all you would prospect of lee have to do is add a single clause i have that right well i think if i understand the question if they wanted to make clear that it was included we're saying that what they did was they made clear by adding a carve out that it was not included in the scope of the delegate but you have to read that into dispute claim or controversy and i'm simply saying if you use the words i'm talking about there would be no dispute and the point i'm trying to make loaded between in the words dispute claim a controversy the point i'm trying to make is that there is no other type of controversy no other issue where the courts have required and numeration have it and including unclaimed about unconscionable ety and including claims about whether you know this this particular dispute falls within the scope and including claims about fraud there is no other type of dispute or category of controversy that courts have required specific numeration within the delegation clause in order to bring it within the scope of the delegation clause that seems to be what j p is arguing for here if we want class claims to be or the availability of class arbitration to fall within delegation we have to say so using those precise words but that would be a new rule that applies to nothing else and  yes you know you're there right the third an eighth circuits have talked about something heightened being required but what the language that the third an eighth and and even the sixth circuit in all those cases we're looking at did not have an express delegation cla no other issue that the courts have required enumeration and respectfully i think that's wrong and stole nielson the supreme court specifically still held that not in the orbiter ability context on who decides contest but in the substantive is there consent to class arbitration context the court specifically held that there must be consent to class arbitration above and beyond the consent to regular bilateral arbitration now i think as a necessary consequence just as a logical matter of that decision if the court required additional and disha of consent when determining whether there is consent to class arbitration where the pro arbitration presumption applies then how much more so they would certainly require that additional in disha of consent in the class arbitron ability contacts when the reverse presumption applies honour's this case is about ambiguity yes j p could have drafted its contract tell me where the ambiguity is now let's we're going really to the second question i'm not asking you whether or not the issue is presumptively for the the court of the arbitrator let's assume for the purposes of my question we assume that it is generally a question for the court that it's so that it's a judicial question rather than an arbiter book question we all agree that it can be rebutted if the parties clearly intend by contract to ask the arbitrated decide that question so i'm asking you why this language doesn't clearly see the nz the intent to do just that the language i'm talking  any other dispute claim or controversy among the parties this is after they were talking about disputes involving a claim for ten thousand dollars or less any other dispute claim a controversy among the parties arising out of or relating to this agreement shall be resolved by and through operate ration administered by the a under its commercial arbitration rules and then it says the ability to operate trade the dispute a claim but controversy shall likewise be determined in the arbitration what do you suppose the parties meant when they said the ability to operate a claim you know what the claim was here the dispute over the contra controversy was to be determined by the arbitrator or by the arbitrator absolutely and i just want to be clear your honor j p does not hold that there has been no delegation j pays opinion is there  certainly been a delegation of arbiter billet he threw that exact clause for matters of bilateral arbitron billet the ambiguity that we're pointing to is a result of the supreme court's reverse presumption or what the supreme call calls and how some of the anti arbitration presumption or the strong pro court presumption housen describes it as and the to reverse that presumption the court has to find a clear and  any ambiguity invalidates the delegation in fact the third circuit has held that it is such a high burden it is characterized as an onerous burden so with that in mind and you must keep that in mind when interpreted the contract language and that's in the supreme court's kaplan case saying that you must interpret the contract with state law principles but this court has added an important qualification it must be viewed through the lens of the reverse presumption so with that in mind the scope and interpretation of a delegation clause is a question of contract interpretation and under florida law you must look at the entire contract winter parting a contract clause j p s contract never mentions class arbitration it provides only for bilateral procedures and for bilateral rules the tripoli commercial rules are only bilateral it uses singular language saying things like a claim by the user it excuse me it provides for arbitration which the supreme court has held to be is the antithesis of class arbitration it limits arbitration to the two parties of the agreement and as judge gayle's found in the district court it is a bilateral agreement that never contemplates class arbitration and therefore when j delegated arbiter ability in it's purely by a lateral contract it never intended to delegate a matter of arbiter believe that could only arise in class arbitration and as i'll get to in one second three circuits have already agreed that this is a reasonable reading of the clause two to limit a delegation of arbiter billet to bilateral matters and not class but i think the real budget is real point here is that this court doesn't need to decide if the interpretation j p is putting forth is correct or if the interpretation coble putting forth is correct it doesn't need to reach that question all it has to say is whether or not j pays assertion may be correct and if it's possible as the third circuit said in the chesapeake up alicia case if it is conceivable that all j p intended to do was delegate matters of bilateral arbit realty then the reverse presumption applies tie goes to the runner and j p has not clearly delegated matters of class arbiter ability and it's important i think to stress that judge gayle's and district court agreed that this was a potential reading of the clause so to reverse the district court this court would have to find that judge gayle's credited a completely on reasonable interpretation of j p his delegation clause now as i mentioned before j hayes asserted interpretation of limiting a delegation of arbiter ability to only bilateral issues is not a creature of j pace it's not a construct of jay's own imagination it comes from the reed case in the sixth circuit which held that because the agreement never mentioned cost arbitration and i quote the agreement here can just as easily be read to speak only to issues related to biological arbitration and the court held that that was therefore quote at best  you help me again with the language going back to the text of the agreement yes agreement begins with the language in the event of any dispute claim or controversy among the parties arising out of that language couldn't be any broader we have specifically interpreted the use of the phrase and he to include all could that have been any broader language the language begins as in the event of any dispute claim or controversy among the parties arising out of or relating to the agreement and then it says any other dispute that is to say all other disputes every dispute claim or controversy among the parties arising out of or relating to this agreement shall be resolved by and through a the ability to arbitrate shall likewise be determined in all patrician no i understand i think that's the problem that you have it seems to me other than actually having put in the clause that they could have put it in and you could have put it in which might have been even more crystal clear it seems to me you've got a tough argument because any means every they're talking about every dispute and their referring all of that  every dispute every claim every controversy shall likewise be determined in or patricia right i'm having i will just speaking for myself i'm having trouble getting around the breath and clarity of that language even though i think it is correct as you say and argue that they didn't put it in that particular clause i'm not sure that i understand why they had to i don't see any patent or latent ambiguity in these words i think that there are two things the third circuit the six circuit and the eighth circuit have reviewed some one language and found it wasn't sufficient but i  think that in j pays the the fact the j p included an actual delegation of arbiter billeted cause the fact that it said the ability to arbitrate the dispute claim or controversy shall likewise be determined the arbitration means i think that the clause saying any dispute claim or controversy shall be arbitrated cannot include matters of arbitron ability because there is a specific laws governing arbitrarily so j evidence through its use of language saying this is how i'm going to delegate it has specifically then excluded delegation issues let me ask the question in a slightly different way we've got a case that's close i don't think it's on all fours but maybe it's helpful and maybe you can help me with how we would apply it to this case we've got binding eleventh circuit precedent that when we're examining the question of have that when the parties incorporate the rules of the triple a into their contract they clearly and unmistakably agree that's the language in the opinion that the abra traders should decide whether the arbitration clause applies a basic general organic question and when i looked at the language in terminix and compared it to the language in this case i was unable to find much of a difference there the relevant clause said obert ration shall be conducted in accordance with the commercial arbitration rules then in the for in force of the a here the term is incorporated a rules three times including the phrase that i read to you which parallels the the language in terminix we get around terminix absolutely honor actually the third circuit in chesapeake appalachian and the eighth circuit in the catamaran case specifically cited to this court's case and terminix and say that the terminix case is dealing with a bilateral arbitration case and therefore it never had to grapple with the fundamental changes that class arbitration brings that the supreme court espoused in the stall nielson case in the concepcion case and therefore they both held that by lateral arbitration cases carry very little weight in the class arbitration context i think the term annex is not binding on this court because it dealt with a bilateral arbitration issue and we have to if you do not accept a pais assertion that as you know the supreme court has set in stone nielsen that the a circuit has accepted the six in the third circuit have accepted the fourth circuit has accepted that this is a substantive question of our budget reality that is so fundamentally different than by a lot of arbitration then yes terminix would bind this court but i think it's not a it's not a far step to to agree with the third and the a circuits express findings that term axis is not relevant to the  analysis in and i just want to get back to the ambiguity issue that the court was raising before the third circuit has some pretty enlightening language in the ches aysha case where they say again just that the leases at issue in the chesapeake appalachian case could just as easily be read to speak only to issues of bilateral arbitration and they got there for the same reason j pacing singular language used in the contract bilateral rules chose and no express incorporation of the supplemental rules or anything that could govern a class arbitration they then therefore said that it was conceivable that the parties may have intended to delegate questions of arbitration according to the agreement here which are over time and the dispute is the problem that you have i still haven't heard how you get around and he means it means all and if it means all and we're going to would be way question and this is a gateway question why this doesn't fall within the ambit of all gateway questions which they've agreed to arbitrate so there are there are two things i think i would i would say that the six circuit in read specifically contemplated that exact argument they said they recognize that the language any dispute could be agreeing to submit any and all  of the parties contemplation that we can't be sure that when they said any they really meant any in regards to class arbiter billet and i think it's important j's clause that the language any can't be used to delegation of arbitrary realty because j p has a specific clause on delegation of arbitrary it says the ability to arbitrate dispute claim or controversy shall likewise be determined in arbitration if this court held that the language used in the first clause any included a delegation of arbiter ability then what's the purpose of j pays delegation of arbiter ability cause by including a delegation of arbitr evidenced an intent not to delegate arbiter ability through its regular arbitration agreement language including i think it's important in this context to point out that j reserves all rights not expressly granted by the agreement and the agreement never mentions class arbitration so we're through that lens the question respectfully i think the court has to has to answer is can j p can what i'm telling you right now be right not is it right not if you had to make a decision would you say any means all what you have to answer i believe is could it be true that j pe did not mean to delegate the substantive and onerous momentous consequences of class arbitration to a court by using standard arbitration language that appears in question here of whether or not the question is presumptively for the court because here even assuming that that's so really all we have to decide in this question to answer this dispute between these parties is whether or not the language here trumps it that's the only thing we have to decide right if you decide you are right that this is generally a question for a court and we all agree that it's rebuttable by clear language you can sing the intent of the parties all we have to do is assume it and ask whether the intent here rebutted it correct ok thanks very much and let's go brad you have reserved three minutes for puddles thank you thank you your honor there is no ambiguity here this questions that the court has to decide begins and ends with what this court stated in the case and repeated recently in jones the waffle house which is that any means all and here j pay stated itself in the language it drafted and all parties including the plaintiffs here have agreed that any disputes are resolved in arbitration and as if that weren't enough then there is an express delegation clause which is the same thing that the second and fifth circuits said was enough to include the class availability question there's an expressed allegation clause if there is a question about arbiter billet that question of arbiter billet goes to the arbitrator that expressed delegation language was not present in the third circuit in sco so i'm wondering if one of the reasons why some courts have considered this as a subsystem issue might be the existence of some due process concerns now the language  suggested that would include the express delegation of the power to arbitrate the arbitron ability of a class action if i were in the contract then that would clearly indicate that everyone who signed the agreement was willing to waive their right to have an arbitrator decide substantive questions  here how do we know that everyone who signed this agreement and i'm talking about all of the consumers were willing to a delegate that right you're only representing folks who are saying yes that's what we want to happen but how do we know there isn't a large group of folks out there who would say i didn't express lee agreed to have an arbitrator decide whether i would be bound by the result of a class action arbitration i want to court to decide my case i don't want if there is a due process issue that can be resolved when the arbitrator has its clause construction award and then gives notice to the absent class members that they would then have a right to come forward they having agreed to let arbitrator decide that or how do we know they have if there's not some express delegation well here there is expressed allegation three times over as i was saying and obviously it's this court's  has the power to decide whether this is enough to put folks on notice you're only represent the folks that agree with that point of view there may be folks out there who say no when a court to decide my rights under this agreement and it would be typical in  sort of class proceeding once a class a certified and folks get notice folks who we do not currently represent by name we represent punitive class that they would have notice an ability to be heard at that point but here the third type of delegations of first there is that any means all second there is the express delegation clause which neither the third sixth fourth or eight circuits had and then there is what those courts had finally as the third piece and that's the  and what makes the eleventh circuit what makes this court different this court in the fifth for many of those other courts is that here you have binding circuit precedent that doesn't just it's not just terminix a talks about bilateral incorporation of aaa rules but it's specifically deals with the aaa supplementary rules for class arbitrations and says that by enumerating in the clause set of aaa rules here it's two sets the consumer rules and the commercial rules in thomas it was a difference at the wireless rules  enumerating those aaa rules the parties have also incorporated the triple a supplementary class rules that is binding precedent here not in the third fourth six or eight circuits and that's another thing that makes this case different and that also if there is something additional that's required there shouldn't be to in you know to to a numerate and carve out a delegate class arbitration as opposed to any other issue of arbitrary we have that here and we have it in spades let me ask the question this way b that by that theory i suppose even if the parties in this bilateral agreement had put in an express clause saying dispute controversy claim including but not limited to veil ability of class relief it still wouldn't be binding and given effect on the theory that the  named members of a potentially putative class had not agreed which would be another way of saying no matter what the parties said they could never agree to allow the arbitrator to decide the question of class really that's the thrust of the question i think that might be right in our position would be that the due process considerations are important but that there is a time later in the proceedings of this l your answer to this riser that could be dealt that may well be a powerful claim under the due process clause all we're asking is who gets to decide it all we're saying is that under the language of this particular agreement as as well as if you follow the logic of the plurality and basil an arbitrator is authorized to make these decisions to to determine whether under the language of the clause class proceedings can occur and then to conduct those class proceedings including dealing with the due process concerns of absent class members arbitrators are tasked with deciding all sorts of important and complex and dispositive issues under the f a supreme court has looked at arbitration favorably and said that we should delegate arbitrators have to make these decisions where the parties have clearly an unmistakable advanced that intent and that is what they did here thank you very much counsel thank you  efforts in the case it's an interesting case will take it under advisement and move on to