they may please the court on michael conley on behalf of the appellant national can unite as to his or five minutes for buttle but thank you i'd like to stress three points today in my oral argument the three principle grounds for reversal the preliminary injunction first is that under the federally arbitration at the district court cannot interfere with an ongoing arbitration especially as no issue exists here that the parties agreed to arbitrate this indeed m apple e here is the one that initiated the arbitration and the injunctions barring the panel from completing its work were going to the intern should be making as my first point second point i'd like to make today's the district court was required to but failed to give any deference to the panel's rulings that first the resumption of ex party communications after the issuance of the panel's so called interim final ward were proper under the panel's only procedural rule on procedural rules and secondly the arbitrator rosen who had been appointed by national union had made adequate disclosures and the third point i'd like to address today's the district court erred as a matter of law and finding that meadow brook it satisfied the elements for issuance  particularly the element of the likelihood of success on a contract claim that matter brooke never play it took into the first point your honor under the federal arbitration act the district court can intervene only at two stages one is before the arbitration to decide a gateway issue is to do the parties agree to arbitrate was the scope of that arbitration or two after the arbitration is completed under sections nine and ten of the federal arbitration act either to confirm or vacate an awar but it cannot interfere as it did here with an ongoing arbitration or review the arbitrators rulings on interlocutory basis there's broad support for this proposition this court in the dealer computer case we cite in our brief of page twenty nine and the decisions in the first circuit in golf guarantee in the seventh circuit decisions in blue cross blue shield and especially trustmark all hold that a lot is appear to have agreed that  with apply but i want to talk about the trustmark case because actually on all fours here in trustmark there was a reinsurance arbitration it's a seven circuit case in that case there was a claim of evidence partiality by one of the arbitrators to the dissatisfied party went to the federal district court in the northern district of illinois and got an injunction that injunctions appealed just as we are here in the seventh circuit reversed injunction seven circuit held the district court had no  to intervene in an ongoing arbitration and that the alleged irreparable harm there which was having to submit itself completely arbitration was not a matter of fact the court said that that argument was frivolous and the  court gave instructions first of all i also indicated that the very harm which is present here of an accusation about an arbitrator's reputation about partiality was damaging to the to the arbitration process itself because it interferes with the ongoing supposedly a fish it less expensive more rapidly completed process of an arbitration appeared in that case again a trust marker on its side in our and no because it had no application there because it wasn't a gateway issue they were trying to review just as metal bro ten but you can only bring that after you have completed the panel process here the panel was in joint by the district court from completing the process and not just the parties to the arbitration but the panel members themselves s supplemental thirty your honor the b g group case versus argentina and that the supreme court decided earlier this month a march fifth and in that case that the court went through the analysis of the gateway issues of where the court has the authority and where does this gateway statutory interpretation or is that this right doctrine or is that what is it's an interpretation of the role of the court versus the role the arbitrators who gets the deciders that is found in a stat in the statute it's found really if you look at section three of the f a a about what the parties agreed arbitrator section to what you know what is the contractual basis because arbitration is decided by contract so so the issue would be what did the parties agree to and parties agreed to certain kinds of issues could be reviewed in court and others couldn't know it's one of the parties agreed to what did they agree to arbitrate because it's a matter of contract so you can only be bound to arbitrate what you agreed to so  n the class certification context the issues were to the parties in their agreement in their agreement in vision that you could have a class where does it say that you can only review those kinds of issues versus other kinds of issues it depends on when you can view mirror you can only review those issues in section two or three before all these cases including trustmark and in the other cases the deal with what did the parties agree like when there's a motion to compel arbitration that's in the  understanding you right you're telling me what the law is i guess to figure out where you're getting it it's a different question i mean i'm sorry are you getting information out very clearly what you see the law to be but i'm saying where's that come from is a statute provide that or is that just the parties agreed or the tree that's what i'm calling a gate the gateway is what do you agree to arbitrate once you it's determine if you agree to arbitrate then the b g case in many cases including the case of the side or brief about procedural ruling say the arbitrators then get to decide they're there anything within the scope of their own arbitration and so long in that key point is so long as the arbitrators origin story is real limits on that right i mean you're just procedural limits on that the case the talk about rightness from our circuit sure so by negative inference suggests that there might be some cases that aren't at the beginning it are at the end well where they meet the ripeness whatever it is that you can hear them don't they suggest that yes or about say two things about the first one is that the rightness cases apply only to these issues the only time this court has talked about the rightness issue like and read also heard some of the other cases has been in the context of if the parties agreed to a class certification that's where the rightness is coming and you're treating that as a gateway but secondly or even even if we apply the rightness test here this is not right the panel has a rule we don't know what the panel's ultimate award is go behalf of the appellate your honor i believe if you review trustmark carefully you'll see it was an decided and jurisdictional grounds at all which is why it doesn't deal with stalled nielson rather assume jurisdiction but found a lack of didn't have to grapple with all due respect with stuart nielsen the analytical framework there's no jurisdiction pardon me out of they resolve jurisdiction they didn't they didn't they said there was a lack of irreparable injury that was the basis for the reversal and the trustmark case was a lack of irreparable injury it's not it's not it wasn't based on lack of jurisdiction they and where did that come from them you had to have irreparable injury because it was an appeal from an injunction i'm sorry under the stress mark is in the seventh circuit and it's an appeal from the grant of appointment area injunction and the seven circuit reversed finding that the district court erred in finding that there would be irreparable injury by waiting  intercede at various junctures if certain tests are are mad and that this court's decision in d c s to deal or computer services to following stolpe nielsen follow that same so the analytical framework for jurisdiction is it's not new it's not novel it's there and it's the right in this inquiry and that's the jurisdictional test and in this case and all that there's any question that those standards are adopt what i'm trying to understand their argument to get your response as i understand their argument as refined is that the f a a whether it's jurisdictional or whether it's just the law that fictional binding law says you just second guess these arbitration decisions at two stages unless it's a gateway issue that's what they're reading out of nine and ten that doesn't really answer that that concept is not part of a f a a and i also would know what about the cases that say that generally speaking you wait until the arbitration is completed and before you second guess interim decisions within the arbitration sort of like to mean sort of like a malady rule that we apply to lower to lower courts i understood your honor but none of those cases none of them deal with arbitrator misconduct in an arbitration that is not being conducted in accordance with the party's agreement to arbitrate you look at all of the cases they cited and not one of them deals with that issue when they talk about is that do deal with that issue that go the other way the answer is no your honor in that in that narrow respect i believe this is an issue of first impression but if it wouldn't be strange to have a rule i mean we're just reading limits into the statu finding them there wouldn't be strange to have a rule that allows a court to review those kinds of issues before the decision is final before the arbitron decisions i would argue just the opposite your honor with  that the rule we have for district courts it in in most cases but like with all rules we have some exceptional cases for instance we have the clatter order roll we have this this imploring the all writs act to review for instance a district court's refusal to then i motioned it's like in the criminal law where is an ordinary manner we were choir a warrant to enter somebodies home but when the officers walking down the street and here's johnny put down that gun you're going to hurt somebody we recognize there has to be exceptions or has to be exceptional circumstances and it be nice if we could just have this bright lang rule  everything in the world three quarter of us might be out of a job if we had a bright line rule on everything but we can't and in this instance this is the again the analytical framework that's the general rule only only on the a nun ca did in d c s too that if you can satisfy those stringent rightness requirements remember this panel in applying that ripeness inquiry didn't say oh we have no jurisdiction we have to wait to the end they this court just found that they couldn't satisfy the hardship prong of the rightness inquiry in if you can satisfy those stringent standards then you have to have a right we have a situation here in this case where one side of this arbitration has been meeting with one of the arbitrator's and hands insight to what the panel meant what they were what they meant by the words interim final award what they were looking for in these post hearing submissions so knowing how to tailor them knowing how to move to strike carse and we don't have that and i i say with respect shame on us if the law is that we have no remedy and you have no power that's their argument we have no remedy and you have no collar you have judge roberts had no jurisdiction all right to say we're going to press the pause button again i take you right back to your decision and by yours i mean the sixth circuit in d c s to it just because it was right doesn't mean the court was going to disturb order interfere and in fact the court found that there you couldn't satisfy the hardship requirement so they didn't interfere and it went forward but what the court didn't do is say or adopt some bright line test that said no no no we we have to wait till this is all over we can't look at this on an interim basis and in fact this court i believe it's page three fifty seven i'm doing that from memory said that there is there there is no bright line test there is no test that says you must wait until the yet i would also judge call michigan law and the this this court found in that case that where the parties events and intents that michigan law should apply that in and on in big u s fashion as they did in this case and as the district court so found albeit in the context of a policeman or injunction that that the kurds should respect that choice of law in terms of the  district courts grant of a pulmonary injunction in this case these are extraordinary facts that clearly warranted the issuance of an injunction and certainly under i mean if we're talking about deference here the deference here should be to judge roberts and her decision to issue a point or injunction that again did no more than press that pause button so we could look at what was going on here before i she relied on an adopted the president's affidavit mr carbon in terms of the fact that you know we're not a i g meadowbrook is not a g and a word of this size that they panel in the after a i g s appointed arbitrator met along with the where they submitted a post hearing requests for an additional twenty five million dollars fifteen times what they asked for at the hearings and in their pre hearing brief and what the affidavit of mr common establishes in a word of that side and being a publicly traded company and having to report they are out and having the raid in the agency's further downgrade their know what this case is about is frankly i think this is what your driver's been trying to get out all morning with this case is about is do we have to suffer that irreparable injury before we can seek relief before it's frankly too late for us or it's only like you say in extraordinary kinds of narrow areas that you can review a lower court decision before it's final and you're saying we should use ripeness analysis to come to the conclusion that we should review this before it's fine i say that the right doesn't ellis is the correct analytical framework and again i know i am somewhat repeating myself your honor but but but this is not an issue of review of th an issue a review of partiality this is an issue of whether or not this arbitration is proceeding in a manner in which the parties did not agree to they agreed to three not two this is i guess mike my questions though goes back have to incur the irreparable injury and it may or may not be then too late it's a rather pyrrhic victory to a year or a year and a half later get it vacated on this type of egre misconduct if the company's out of business and i'm not saying that the company would be out of business i'm not saying there was evidence it would be out of business but there is what the district court agreed in this court by its own decisions is to defer to that determination this court determined in an award of that nature would inflict a rapper will injury and irreparable by definition means it can't be fixed later this is not a situation where it can be remedied later and when you can meet that heavy burden as this court at least determined that we could then we should have that right we can't hang out of a bright line test that says no matter how bad it is whether the arbitrator's have all been bribed in no matter how much it might signal the death knell that's a phrase used by this court and d c s two of a party that we have to wait till the end i see my time is about up as a court of any other questions at this time thank you thank you very much ro may please the court judge roberts i wanted to point out this court's and published opinion in the quickstart case that brady gets on page seven of our reply brief where the quote is a district court should not hold itself out as you know during an ongoing arbitration proceeding since application of interlocutory relief results only in a waste of time the interruption of the arbitration proceeding and delayed in the is it looks he's in delaying tactics or proceeding that it's supposed to produce is to me or opposing counsels are human is that that is may generally be true but it's not true as an equitable matter and if we have jurisdiction in the district court and its discretion finds that that there's a reparable injury that that can be fixed it's intimidated the arbitrators verb an arbitrator and a federal district judge is looking over my shoulder and joining me from acting and there's no claim by the way that the umpire did anything wrong the neutral arbitrator the claim is about the party arbitrator and the spear drake case talks about the  the truth there is the argument that they ruled without listening to the third arbitrator but he didn't rule because he ruled in the reconsideration on on august twenty ninth he ruled out everything he ruled and everything after he came back the same issue was presented and middlebrook presented those and what they did is they went to the panel first and asked then when they got a bad answer from the panel from their point of view they went to the district court they asked a different court to review that and what's thrown this upside down your honor is there's been no difference given to the panel procedural rules here and there's no difference being given at all by the district court at this which would be required to be given if this were a section ten case and so you're and that's what's makes is so important there is no rep warman finishing and we're speculating decide just because a party ask for something doesn't mean they're going to get it and so there's going to be a ruling and once we have a ruling we'll see maybe middlebrook will be perfectly satisfied with that maybe they won't but at least everybody will know what the rulings are the district court would know the difference it was to be afforded this and then we go forward in normal case and that limit that you're advocating comes from nine in ten of the thing and in the case law construing it in a case like and you're just to partiality and second circuit said in the skin any reinsurance is one of the most owner's standards in the law and this court said in the locomotive case that the deference standard is one of the most limited you getting the no matter how wrong they were well if that constrain the agreement and that's what the supreme court said in this case that we decided they said we disagree with what the arbitrators rule that this was there are in that case argentina did something that was completely off limits but they said we're  appreciate them the case will be submitted and you may