the honorable the judges of the united states court of appeals for the four circuit oh yes oh yea oh yea all persons having any manner or form of business before the honorable the united states court of appeals for the fourth circuit our minds to draw nine give their attention for the court is now saying that save the united states and this honorable court contract its perspective waiver of a borrower statutory rights under federal and state law under this agreement and delbert does not dispute this a borrower may not bring any federal or state law claims in arbitration and  arbitrator no matter who it is may not apply any other law other than the law of the cheyenne river sue try if there is one consistent theme from even the most pro arbitration decisions of the supreme court it is that an arbitration agreement that forbids assertion of certain statutory rights will not be up held counsel can i just as did you raise that argument in front of the district where we did your honor this argument was raised in our opposition to the motion to compel arbitration on page twenty seven we've laid out in a reply page twelve at no three where that specifically is but dating back all the way to mitsubishi motors more than six decades ago and continuing on all the way through to italian collars the supreme court has repeatedly emphasized that the and it forbids any arbitrator from deciding any claim raised under federal or state law and if i could i'd like to point the court's attention to pages one fifty five and one fifty six of the joint appendix which contains a complete version of this arbitration contract all capital letters that it shall be governed by the law of the cheyenne river stu tribe and then again on j one fifty five the arbitration contract prohibits any arbitration from applying and i'm quoting now any other law other than the law of the shy and river tribe and then again elsewhere on j one fifty four the agreement states that quote no united states no united states state or federal law will apply these clauses your honour's could not be clear they forbid a party from asserting any claim based on it are based on any federal or state law and they've bar any arbitrator no matter who it is from applying any law other than the law of the try and i think it's worth noting at this point that delegate contests none of this in fact it's quite forthright that this is what the contract contemplates although it says in response to this argument we made this argument in our opening brief and in our reply all the albert says is that to have a choice of law provision in their contract here whether it be state law or travel law or or what have you that's just a choice of law  wall through controversy before because you are what a party may not do is include a choice of law provision that for bids any party from asserting statutory rights so for instance a party could not include a for apply any law other than that of the shy and river suit tribe and it says elsewhere that no united states state or federal law may apply it is no different than if the agreement had said you may not spring an f t c p a a claim a federal truth in lending act claim or any consumer protection claim based on state law and the supreme court has repeatedly emphasized that that arbitration contracts that include that kind of pro specter of waiver of statutory rights are on it for ci understand your argument it does seem like an extremely fundamental defect in this arbitration agreement and so your view is the district court to somehow miss this when it can own arbitrary yes your honor i think the district court missed several key features of this arbitration clause that caused that make it on and forcible one is it didn't address this prospect of waiver of statutory rights it also i think materially misread what this arbitration clause actually provides for what kind of arbitration it will and for what kind of  allows now the prospect of waiver of statutory rights is really but the if of the iceberg here as we've explained in our briefs the arbitration contract in this case requires a process that should be conducted is supposed to be conducted under the watchful eye of a legitimate governing tripel body but it delivers no such thing a proceeding under tribal oversight simply is not a possibility what language do you think for raising  your honor on yes on j one fifty six of the arbitration contract the remit states that the quote and i'm quoting here the arbitrator will apply the laws of the cheyenne river suit tribal nation and the terms of the agreement it also says on one fifty five and this is in the middle of the page on one fifty five any arbitration under this agreement may be conducted either on tribal land or within thirty miles of your residence at your choice provided that this accommodation for you shall not be construed in any way a as a relinquishment or waiver of the cheyenne river sue tribe sovereign status or immunity and here's the key key language or b to allow for the application of any law other than the law of the cheyenne river sioux tribe of indians to this agreement and then again on j one fifty four the agreement states quite quite clearly you express the agree that this agreement shall be subject to and construed in accordance only with the provisions of the laws of the cheyenne river suit tribe and that no united states state or federal law applies to this agreement we submit your honor that that is about as clear a prospective waiver of federal law as you could write into an it delivers no such thing multiple federal courts of appeals have squarely held that the language in this arbitration contract means that it cannot be enforced and members of this court have likewise has serious doubt on this exact contracts in force ability and here again i'd like to draw the court's attention to the exact words in this arbitration agreement at one fifty five and one fifty six of the joint appendix because i think it couldn't be clearer the first paragraph of the first clause of del contract here titled agreed to arbitrate on j one fifty five states that any arbitration and i'm quoting right now shall be conducted by the cheyenne river suit tribal nation by an authorized representative in accordance with its consumer dispute rules and the terms of this agreement that is mandatory language the eleventh circuit looked precisely at that clause and it and it said that creates an exclusive right to a tribal forum they said the express statement that i just quoted is quote tantamount to designating the forum as the exclusive arbitral forum even if the word exclusive is not used as the loan agreement says the arbitration shout that is required to and here the eleventh circuit cited black's law dictionary be conducted by an authorized representative of the tribe would submit that there is no other way to enforce this agreement according to its terms than to require some tribal participation in an choice of arbitrator provision that's what it's called that's what it's called but it is not what it says what it says and again i'd point the court to the exact language in this clause it says that regardless of who demands arbitration the parties will have the right to select several of their of a number of different from other organizations aaa and however it goes on to say that it that those are organizations may only and minister of the arbitration there is key limiting language in what those other providers may do and that's only to administer the organization and we've cited case law and treatises that make clear that there is a distinction between administering an arbitration and conducting one can i ask you a question about how we should interpret this you know there's that presumption in favor of arbor to belittle is it your that view that sumption applies as we try to figure out this question how these two know your honor that presumption absolutely doesn't apply when what's at stake is a threshold question about whether there is even an agreement  arbitrate at all and here there is no actually enforceable agreement to arbitrate on it's face as it's written arbitration cannot occur under the terms of this contract and the policy preferences the the canons that apply once you have and enforceable agreement to arbitrate simply don't trigger when what's at stake is whether under the f a a there there is even an enforceable agreement to arbitrate and i want to stress to the court that that that sanctioning this kind  of of effort to get around what the contract itself says would really invite a race to the bottom it would allow companies to aim for the floor to include or impose as many illegal or unfair provisions in the contract as possible safe in the knowledge that courts would step in to save them when it turned out that what the system they designed which might be a sham is in fact not the one that they automatically want to then force consumers look down the road into and i think this court has made that point clear in murray and in hooters i think courts across the country have said the same thing the seventh circuit and the eleventh circuit have both squarely horse of choice of law it's both your honor it's the choice of form and the choice of law because they what they do is they work in tandem to create a system which looks like it is a legitimate forum but when anybody gets into it what it turns out to be is a share of ideas the choice of  james arbitrator can be designated under the expressed terms of this agreement but number two even if you could even if you could have a aaa or g m's administered arbitration with a aaa or james arbitrator that arbitrator would be barred from applying any federal law and resolving the dispute the arbitrator's derive their authority from the terms of the contract the supreme court has made that quite clear in a series of decisions in italian colors instead of nielsen they've made it clear that an arbitrator has no more authority than what it's a loud to do under the terms of the contract and the terms of this contract expressly bar any arbitrator from applying any federal statutory law i see i'm out of time and i'll save the rest for  borrowers in arbitrations before jams and aaa using their own listed arbitrators so we've heard argument which is really hypothetical and speculative about how this clause might function or operate but i'd like to focus on what's actually happening the evidence in those arbitrations are people are able to bring their federal statutory claims and if so how does that work and in this agreement the arbitrations are all  arbitrator's that had been appointed and none have played out to the point where that question has risen to the top on that question though about the bringing of federal statutory claims i do want to take exception with something that counsel said about this being raised below and he helpfully gave a pin sight for everybody where this supposedly is on page twenty seven of the opposition brief to the motion to compel below this argument wasn't raised there's a reference to this clause on page twenty seven just the general idea that tribal law applies but not federal law but there's no argument made that that clause in any way whatsoever works to poison the entire a d r apparatus that's been clearly set out by this agreement so we do submit that the issue has been waived even if the court though believes otherwise the issue was preserved as it as it needed to be it's of no moment for multiple reasons number one there is a severance clause in this agreement which says that if any portion of the arbitration agreement is deemed to be invalid then it's to be excised from the agreement and the agreement continues to operate severance clauses have been the subject of many federal court decisions and has in many cases saved arbitration clauses that would otherwise be poisoned another issue is there's a delegation clause here just like in rent the center from the supreme court in two thousand and ten the delegation clause saves it for the arbitrator delegates to the correct ok it was absolutely not raise below but let's assume argue and go that it was short why in your judgment is problematic for a few reasons the case law that council invokes really doesn't actually go so far as to invalidate any arbitration clause from the basis of the presence of a choice of law provision that can be arguably interpreted to exclude the possibility of bringing federal plantation is there any other way to interpret it because i i have trouble understanding what this means other than you may not raise your federal statutory kinds i think that george had made distinctions between clauses that say that no law other than what we say implies governs disagreement and questions about the enforceability of the agreement and that distinction can be made i'm familiar with some cases in new york that draw distinctions between governing agreements and enforceability but i do do have to say though even under mitsubishi motors which is the primary case upon which opponents rely in a footnote in dicta the court says that if there is a waiver and i'm paraphrasing of course but if there is a waiver of federal statutory claims that can work to invalidate a clause but then they see if you go on  this is the issue that was before them they say this is a question about whether we're going to enforce the arbitration agreement at the beginning we're not going to reach that question we're not going to touch that issue it's premature that's a question that comes afterwards when challenging whatever result doesn't differentiate this from the usual choice of law provision it's certainly different language your honor but again submit that this is a question that is vested in the arbitrator to decide it's a procedural question about the construction of a choice of law grimmett the operation of a choice along and this is something dealing with the same exact arbitration clause in the kemp's matter from the northern district of illinois i'm sorry i just really want to make sure i understand your position so if this in fact sa attack was leveled against this exact language and the court there resolved that by saying that this is not for the court to decide this is a procedural question for the arbitrator about the operation of the choice of law provision and i would again turn the court attention to even if that's not persuasive for the court the delegation clause even if that's not persuasive for the court we still have a severance clause in this arbitration agreement that says that that if any part of this agreement is found to be invalid it's to be excised than the rest of it is to operate normally but i do want you mr fisher i have a question please yes mr fisher the courts also have said that if a certain provision of a contract is so intergroup to the operation of the contract that it may not necessarily be able to be exercised haven't they said that in the can and as a follow up let me also ask you before you answer you have a provision here at joint appendix one fifty five saying that the arbitration house to be conducted by the cheyenne river sioux tribal nation ok and then down below they plugged in another paragraph saying that the that you can have the aaa or james administer the arbitration well if it's being conducted by the site in reverse to tribal nation how can it be administered by aaa or jams and has been made on this very clause within aaa and the administrator and the i'm sorry the arbitrator there who is from a aaa list said this was not a convincing attack the way that these two clauses work together is under agreement to arbitrate it says you agree that any dispute except as provided below will be resolved by arbitration which shall be conducted by etc etc the tribe under choice of arbitrator we have regardless of who demands arbitration you shall have the right to select any of the following are you but that's not the way the sentence i absolutely am arguing that point but even if there is any ambiguity there your honor doesn't seem ambiguous to me it seems like except as provided below clearly refers to which disputes are subject to arbitration and then you get down to the small claims exception and that's a kind of dispute that doesn't have to be arbitrated respectfully your honor i think at this point excluding the court below here four other federal district courts have construed this exact language which is in contrast to the language as you pointed out that was before the seventh circuit in jackson and the eleventh circuit in a national board and four different federal district court judges have come to the conclusion that at the very worst at the very worst this is an ambiguous clause and that being the case that being the case under the canons of instruction that are given to us by the f a a with the emphatic policy favoring arbitration the doubt here is to be resolved in favor of arbitration even if the term  minister is viewed as myopically and as narrowly as the appellants are advocating that still doesn't spoil this clause and here's why when you go to jamz or aaa for administration in their own rules they have provisions this is rule fifteen of the jambs rules we cite to jamz rules in general in our brief jams has a provision for what happens when there's a deadlock in the selection of an arbitrator so if here we imagine a situation where mr hayes goes to arbitration and goes to jams and says this arbitrator must be from the trot and we say no we can be from the jambs or aaa list that's for the administrative to resolve that's what can you m fisher if i can ask one more question if you look though at the bottom of one hundred fifty five the contract says the arbitrator has the ability to award all remedies available by statute law or equity can't the prevailing party except for class action really ok well how can how can this contract be enforced if in one part it says that the arbitrator has the ability to award all remedies available by basic premises as to what law apply well i don't know if i would go so far as to say that your honor but again if this is something that is a point that is found to be creating a contradiction or an ambiguity under the delegation cause of this agreement this is for the arbitrator to decide and that's what rights are and how is the how is that an ambiguity if the contract says that the arbitrator can apply all available by statute at law or in equity and then another place says no federal or state law can be implied well i mean that is it seems to me that they it's an internally totally contradictory none in forcible agreement when you look at that how would you answer that well i would answer that by saying that i don't know if i agree that it's a flat contradiction because here it might be thought to be more specific about what it is that does apply to the law of that to the to the construction or to the any disputes arising out of this agreement but more importantly even if it's a flat contradiction opponents counsel hasn't presented a single case where a question about what law what substantive law is going to  apply a dispute that's to be heard in arbitration means that we scrap the arbitration clause altogether and we hear the controversy in court there's not a single case that says that even the integral of the cases that judge keenan referred to support circuit never addressed in the gravity and i would submit there is no such concept as into gravity in the f a a it's not in the text and this is something that the seventh circuit said in the green case but even in the into gravity context that's when we're asking the question those cases have arisen typically where we don't know who is going to be arbitrating the dispute there's a case from the third circuit in two thousand and twelve called con which is very similar to this one where dell computers had terms and conditions company in the sale of all their litigated no matter where the case is adjudicated whether it's in short or an arbitration and again i keep coming back to the point that while it's related to this controversy it's not something that is so antithetical to the idea of you're saying i have to go to arbitration to say i can't bring my claim here well if i wanted to i don't i guess i'm just not following i and i totally understand are you saying that most issues are reserved for the arbitrator sort of complexities about how to understand a particular choice and competition but this agreement is telling me i don't have a right to arbitrate the claim i want to bring forward so why do i have to go to arbitration to say i'm not allowed to be here but it doesn't restrict it just to arbitration i mean this isn't a governing law provision that actually in the kemp case the court noted this is not in the arbitration agreement itself this is a governing law clause and here it says that you express fully agree that no u s law applies to this agreement that's not something that is exclusive to the can even here's a federal statutory claims have been brought so it wasn't viewed as such a repellent clause that it wasn't something that could even be done there in federal statutory claims that have been can serve to avoid an vitiate this entire agreement that it wasn't even raised well look well that that's a different point and maybe you know that understand that but the difficulty is it's opposed to being an affirmative statement of the oh i have it as such and such a law may never apply to disagree and so it's not your typical choice of law provision in which case  not one that's in forcible under federal law and therefore i'm going to separate from the agreement and proceed with the arbitration that is something that the severance agreed that the severance clause in the agreement provides for and that's the solution damage provision on top of it just turned out to be a mishmash your honor unfortunately i know that appellant's have made that point in their brief that's actually not as a matter of fact at all the sequence of what happened here before there was any in court challenge to the other version of the arbitration clause which is the subject of a national bore and the subject of the jackson case this clause was drafted and we know that just by looking at the dates that these borrowers took out these agreements that have this language in it so this wasn't some sort of response to their being negative case law and there really hasn't been any trouble encountered in the courts under this arbitration clause the only decision that actually took this arbitration clause and invalidated it was the parnell case in the northern district of georgia which was overturned a few weeks ago by the eleventh circuit the same eleventh circuit the same eleventh circuit that gave us the ruling on them given to us on friday this same exact contract your honor the same exact contract and there the court said there hasn't been sufficient attack on the delegation clause in this arbitration agreement and therefore the case must be remained it that same court said that the version of this brought us to a unavailable aid to your forum if that same exact court felt that that was unavailable why on earth would it also direct somebody somebody to attend your position as long parties if it's not remaking it because we have a severance agreement that actually has the parties agreeing ex ante if there's any clause here found to be invalid it's removed from the contract and the rest of it applies to it's perfectly at peace with the contract itself and i have to stress as i close there are at the moment we've submitted to the court evidence of six arbitrations that are being conducted under the this very clause not the old clause that appellant's cling on to from the national born jackson but this very cla home there's nothing unavailable about this mechanism and there's certainly nothing so fundamentally unfair about it that the proper solution here is to totally rewrite the party's agreement which is coursing which which has coursing through its veins unconscionable or all invalid or one reason or another but that doesn't take it out of offer full confidence i mean because there are all kinds of ambiguity in contracts there are all kinds of contracts that have conflicting provisions and there are all kinds of contracts that have questionable we have directly challenge the delegation clause as unenforceable in this case unlike in parno and i would encourage the court to go read our now because part now the court said the only reason we are reminded of the case back to the district court is ucas a parties failed to express lee challenge the delegation clause and they failed to ask the court to refuse to enforce the delegation clause for the same reasons that the entire arbitration agreement fails in this case however that problem is not present the parties in this case the plaintiffs in this case directly and expressly challenge that clause arguing that it is unenforceable and fails for the same reasons that the rest of this arbitration contract fail and so that's a sufficient basis to allow this court to decide on the on its face whether this entire arbitration contract is in forcible or not now that respond judge wilkinson to your second question which is about whether  addressing some ambiguity about a trivial matter or a procedure that is to be used in arbitration for instance how many depositions the parties might agree to in arbitration what we have here is a pro spec of federal statutory rights and what the supreme court has said is that a pro specht of waiver of statutory rights renders an arbitration contract and enforceable on its face it cannot be said to an arbitration form regardless of what that form is regardless of who the arbitrator is because the arbitrator will not be empowered to hear the claims and resolve the claims in a manner consistent with their literal long think would have been a valid way or i'm sorry what do you think would have been a val waiver there is no valid waiver when it comes to statutory federal claims when a party asks a court to enforce an arbitration agreement under the f a a there is a bright line rule in the supreme court in italian colors recently made this very that the court there said that that rule the rule that you cannot prospectively waive statutory rights and i'm quoting would certainly cover a provision in an arbitration agreement for bidding the assertion of certain statutory rights that that threshold gateway question that this court has to decide before a rights can be arbitrary absolutely absolutely no problem with absolutely but this agreement your honor does not authorize an arbitrator to hear those statutory claims and it bars any borrower under this contract from bringing those claims in arbitration that's why it's a pro specter of waiver and not something that an arbitrator uses is it possible that if the waiver wire were were expressed in different carefully crafted language designed to create the facade of a legitimate arbitration dispute resolution forum but to what the ultimately provide of the problem i have is it may be an attempt to sneak away or through and wouldn't i wouldn't run from your honor suggestion but i do think that the that the waiver language in this contract is quite clear that it bars any any consumer from bringing their claims it is i mean i'm sure that you know that it's not some kind of particular line bridge in front of us and again i don't i don't think this court need to go beyond the particular language in front in what's contained in this contract because i think the language in this contract is clear it is a typical and it is carefully crafted in a way that well why isn't this just looking at the particular language here this is the contract is something of a mishmash of we have all of these different questions where you have you know the question so and i'm an advocate obviously for the pallies position here but i would turn to the four decisions that we put before the court from the eastern district of wisconsin the northern district of illinois from the eastern district of kentucky and the southern district of florida of which were confronted with the same arguments that we're seeing today and while each of those opinions in some way shape or form notes that there are portions of this agreement that are potentially susceptible to  competing interpretations confusion things of that nature none of that was so overwhelming as to take this out of the federal government's in fact policy favoring arbitration and the supreme court's a mistake a bowl  unmistakably clear case law saying that disputes about arbitration including the construction of the contract and that for most is each cone everything of that nature is to be resolved in favor of arbitration and i  agreement which disputes will be subject to arbitration which what are the cases that sort of apply that presumption on facts more like the converse still third circuit two thousand and twelve campaign i'm sorry there's not as if there's no sort of supreme court equivalent credible policy favoring arbitration resolving doubts in favor of arbitration when we deal with it because here what we're going to do a sweep away every single claim that would be brought under this agreement when it is quite clear that the parties agreed upfront that every single controversy imaginable that can exist between them would be arbitrated so the question as to whether this ninety nine grievance falls within the ninety eight that have been expressed sorry or are there claims that the plaintiffs want to bring here beyond their all they want to litigate is the federal claims that they're not allowed to bring to arbitration and there has i don't know what you mean you have sort of i'm not so sure if that was by design or were or what have you but but surely this company has faced a myriad lawsuits where works a total spoilage of the arbitration provision so this didn't detain them this didn't restrain them below from doing that and i agree with your honor that waivers especially in consumer contracts that have been drafted by counterparty are not to be inferred lightly from an agreement and i would say that i'm not quite sure that this really matches what would be thought of as a waiver if i if i might if the court would allow it out of the problem i'm sorry isn't that part of the problem well a quarter an arbitrator anybody applying what is known to be waiver law i don't know if anybody would actually come to the conclusion that this is waiver that is made with the necessary clarity and unmistakable and think and you said you close your last presentation with this very vivid thing about kind of arbitration coursing through the veins or something of this agreement and when i look at the agreement the thing that seems to be coursing through its veins to me is this idea that this is going to be a tribal arbitration conducted by tribally authorised arbitrators and under tribal law it says that over and over and over again and i get i guess this goes to judge keenan's question about sort of  will apply i just don't really see what's left of this agreement the whole thing just looks kind of like an a sham i do challenge the premise your honor and this is something that began as in the kemp case in the williams case and that your only case in the chewed up case all of which said that this is very different or materially different from the other clause unlike the other clause that was in a national war and jackson where you have the monolithic and uninterrupted presence of the tribe here we do have hundred twenty seven arbitrator as your honor pointed out to mr wes prominent role being assigned to aaa or g m doesn't say conduct i mean you guys drafted the cup why does why does it say administer and not conduct i don't have an answer to that question in the record is bereft of anything that dissects why it is that a certain word was you concern that this was another thing shows into obvious skate for the consumer what was going on here you put this title on a choice of arbitrator it sounds good but when you actually read it it turns out the arbitrator is still going to be the nonexistent inconsistent with the agreement to arbitrate which says that there has to be it just seems like when you read the two together it doesn't get you anything we can get excited is very misleading with that except as provided below the language before hand  all i i want to address that question and also not really i mean and i'll again refer to the fact that we have before the court six arbitrations under this clause we have before the court five federal district court cases other than the one below and i want to say that well five flaws in this agreement that there are issues with it it's not meant condition i believe they have to show that all of those arbitrations that are being conducted under this all of the people involved in them including borrowers who brought their claims on their own volition not ordered by the  the four federal district court judges other than the one below that have come out with this result all of them are behaving on reasonably i believe that's what they have to establish in order to convince this court that this should be invalidated because otherwise we're back where so many of these cases are about resolving doubts and ambiguities in favor of arbitration not against them and again the converse is dull case that was the national arbitration for it was unavailable and the court there said well it's a binary question we're going to have arbitration or not this forms unavailable and that court using the most is h cone progeny of cases said doubts are to be resolved in favor of arbitration if it can i have a minute or two i know that i've