lisa court good morning my name is stamped olson i represent the defendants in this matter sitting a credit services at all the district court erred in denying the motion to compel arbitration in this matter and let me briefly explain rise to three reasons why first of all the district court disregarded the plain language of the arbitration agreement by ignoring the dictionary definition of the word arise by failing to account for the prep a zisha in between that follows the word arise and by reading out the predecessor language that immediately follows the phrase arise between which makes it clear that this arbitration agreement was intended to apply to past disputes but if we say in doing this very case this case arises under federal law we're talking about the past present only well or to bring it to our case the case arises under federal law it's got both it's got a little bit of both absolutely in that say so doesn't that show you have to be a little careful here well what if we said this dispute meaning the dispute between mr russell and city arises between city and russell it covers the arbitration language arise between covers that dispute but they are arises and still have it have a past sense connotation right and when you look at the agreement the agreement is all employment related disputes the scope is not arise between the parties that just the fines who are the parties who would he would have a dispute where there where there's an agreement to arbitrate but the scope of this arbitra agreement is really defined by very broadly all employment related disputes who wrote this who wrote this agreement i don't know exactly who wrote it or a lawyer involved i do magine there were lawyers involved with the general counsel's office was involved i don't know exactly who who wrote it i'd imagine the lawyers ultimately would report up to the general counsel's office but aren't there ethics prohibitions on lawyers communicating with parties that are against them in litigation and communicating directly with the party without contacting their lawyer sort of this that it seems we finished the quarter start with seems really unimaginable to this put the words to the side for a second what seems unimaginable to me and imaginable to me is that your client had the intent in drafting this language asking him to sign it to have it apply to a pending case because that would be prohibited under the ethics laws of every statement country so i just can't believe that was the intent if that wasn't the intent that leaves the other option which it was prospective right certainly wasn't the intent and certainly was not the case that was the larger issue it was not intended to apply to existing lawsuits no that's not true your honor it was arbitrary to apply to existing lawsuit no i mean it's one of the other it's neither the arbitration agreement you're assuming in your question that the or betray should agreement was drafted for mr russell the arbitration agreement was drafted in two thousand and eleven two years before mr russell signed it mr russell came to city wanted to wanted to make a difference for the purpose of my question because if you have an agreement that was drafted with the intent to apply to all existing litigation ok which is what you're saying and then the company is handing this policy or presenting an arbitration agreement which applies to all of city employees lawyers in the general counsel's office or inoculated from these ethics obligations as long as they give this document to a human resources person that's not a member of a bar and they hand it to him that's how this works no your honor i think i think what you're the logical extension of what you're saying is that if a lawyer in the company ever touches a document and then that document is used throughout the company and in agreement a form agreement is presented to a party who is represented by counsel in pending litigation against the company this is not in a normal normal thing but keep going sure that that is now improper communication between the got a lawyer and that isn't exactly what i'm saying i don't see any slippery slope i see it flak and just exactly what the prohibition is about but there's been no communication between the lawyer and the party represented by counsel and there's a ongoing suit but all of a sudden the insurance companies they release to the plaintiff directly this is the claims manager maybe and a check and says here you know we offer to settle for ten thousand no not at all parties can always deal with their own contracts a party can always talk to another party if if citigroup today went to mr russell today and said to him we want to resolve this case these lawyers they're always in the way they're there pain in the ass let's let's just resolve the case today handsome release agreement and they sign the release agreement there's no improper communication that goes to your point principals can always communicate amongst each other even when they're represented by an attorney said this arbitration clause was written before this happened all right does that years before that mean had it been written after you would lose because you couldn't possibly have had that time i'm not sure what you mean by written after you're the one that introduced the point that it was already on the file before the other case happened i'm introducing the possibility what happens in the next case if the first case is already been filed yes they now write this new generic thing it goes to the general counsel's office and now they hand it to the person does that change the outcome i think as long as it's principle to principle without the direction of counsel there's no violation of the ethical rule principles can always deal with one another and they can always use a form that was in this bar of them are different but the problem it seems to me is that the company when the lawsuit was filed didn't object didn't seek to arbitrate the case originally well at the time it seems kind of unfair doesn't it come along subsequently where the lawsuit is proceeding  and the company is not objective in the anyway to now come in and upset the nature of the lawsuit or whatever is happening right well at the time that the law hendricks versus u b s energy home from the kentucky supreme court and then a solutions patrick higgins all cases that say that even when he put when an agreement those not have an obligation to arbitra between two parties that does not negate a separate agreement that does require the parties to arbitrate so the fact that the first agreement didn't require of attrition doesn't mean that the second thing is very fair to me fact i thought there was arbitration agreement to be gentle so when mr russell first started with city he signed an arbitration agreement which required him to arbitra just got through saying that there was no explicit reference to the original trade agreement to play what i thought i said and i apologize if i misspoke i thought what i said was that under the first agreement mr russell was not obligated to arbitrate claims brought on a class action basis and yes the language said if you bring the case on a class action basis it's not within the scope of this arbitration agreement wrestl you will in fact arbitrate players for and just to get your point if if your question if two parties started litigating against each other neither was obligated to arbitra and then one party said only arbitrate this dispute and they agreed to arbitrate the dispute there's no question that that subsequent agreement to arbitrate would be binding and that's exactly what we say we have here a subsequent agreement and i refer the court to several cases that we cite nor briefs where there was a prior agreement that did not require arbitration there was a subsequent agreement to arbitrate and the courts and force the subsequent agreement the first circuits decision  one thing straight and i really think you going to want to think about this after argument but your view is that if you have the language as to what this does but your view is that your client drafting this attend intended it to apply to existing lawsuits that is your view including lawsuits between the company and former or present ploys that's i would i would say it i would say it more broadly i would say that the clear intent of the arbitration agreement was that it applied to all disputes relating to employment including disputes that occurred in the past yes you know and we know that's true because the language refers to predecessors in former affiliates and the only way to give meaning to that language is by construing the language that it would apply retroactively could you condition continued employment with somebody and signing with these things the supreme court has said you can condition employment on signing gilmer up continued employment in other words someone sued you they're still working you can say listen you know we're going to we're going to terminate you if you don't sign this agreement which requires everything to be arbitrated even if it's pending lawsuit so that's obviously not the situation he had just curious and i'd have to i'd have to look at the case law i'd have to think about that all i know is this is a unique case this is a case where an individual who came to work one of the job with citi group he came to work he signed an employment application the employment application said you're going to have to arbitrate all disputes arising or related to your employment about that and there's good reason that you should be clear about it for the reasons that we talked about in this case with my colleague here and that is that there is the grave potential for misunderstanding of one party particularly when he should contract but also that you will waiving existing rights and as my colleague here has pointed out in his brief repeatedly the law says that a waiver of an arbitration provision should not be lightly inferred but what the law really says is the way we're going to watch should not be lightly one though if we have a question about this whether it's ambiguous or not that since it's their document it is kind of that he should contract it the rule construction is it's construed against them that's correct there are competing that's in this case and so is you're seeing from their brief they want to argue all doubt should be resolved in favor of arbitration and i agree that's not true as well but just arbitration is not disfavored any more correct it's not it's still a matter of contract correct in the intent of the federal arbitration act it says in numerous supreme court cases is to put arbitration agreement on the same equal footing as other contracts and there are numerous rules of contract construction and one of them is that contract even statutes are not presume to be retroactive unless the parties say so and the one thing i want to point out one of the cases that city relies on repeatedly is the new whole case out of the middle district and that was inforced which shows that it's really easy to apply something retroactively and in my view for too easy it's not hard they didn't do it in this case they want to say that they've expressed a clear intent that my client should understood by saying that arise between when he had an existing case and they didn't turn around as soon as he sighed and say ok here's the dismissal papers in his sign this dismissal this existing lawsuit it went on for a couple months  citi in early december in late december city files an answer in which it minutes the court the district court had subject matter jurisdiction in the bill he was proper and then he came back in and find his paperwork and that's when he signed it knowledge meant that he after hiring him that the district court had subject matter jurisdiction and that been used properly i think it's a huge problem that they've admitted that they're gone all this time without moving to compel oppression i'll say up news to me today that the two thousand and six agreement i have asked if you see my proof i've assumed that they have just decided they didn't want to arbitrate on a class wide basis and they decided that court was better for an individual case we're going to let again and this i have this contract question without having the original this that's the agreement that permits non arbitration and of what a class action allegedly yeah but i mean the point i'm making is that agreement is not as important to have in the record if everyone his litigated the cases if it said what they say represented it to say it's all i'm saying correct except that part of my waiver argument is based on the fact that they waived the two thousand and six agreement and they continued to look at what you asked for in discovery we never got discovery and that will was just a motion to dismiss what happened yes ok and did you then say in because you're allowed in response to motion to dismiss to say you can't do this because you need to skiver e at a minimum y says that class action arbitration is prohibited that's what he said and that would make a difference to know exactly what it does and i certainly don't know when it's this i certainly would have made a different waiver argument had i known that be the case but i still think there is the problem so going back to where you started with not my colleague here there was a  history here with city and using these retroactive clauses then i think it's important to the unconscionable the argument into the ethics of expressing intent to apply a contract to waive existing litigation if we go back to the carlisle case which is the case that city has relied on to say this very clause has been construed to be retroactive in that case a man was represented himself pro se he went to city in applied for a job or twelve times he was an african american he was turned down every time he filed a complaint with the missouri human rights commission as a precursor to filing wrists criminal case before receiving his right to sue they hired him to come back and said hey  clause and said that applies backwards in time he didn't even know to make that argument does he represent himself pro se group he should have had a lawyer and he should have you know a lawyer would have would have made that unconscionably argument but that's the context in which this cla mailer here we've amended your credit card agreement and it's got a new war of attrition agreement the bans class actions the court in that case the plaintiffs were represented by counsel made the uncountability argument they struck it down said you cannot impact existing litigation you can't have these types of improper communications with class members without informing them of their rights and that's the full circle argument to me of that's why we say that the law says when you're going to apply something retroactively you need to be crystal clear and we should hold city to a higher standard in same like it's like its competitors do and he claims i have or may have in the future because that makes it clear say in employment related clai related to that is this argument about the dictionary definition of eros that you had your spot of the point i made before this federal lawsuit arises between these parties that can have a past tense component right it also was filed a while ago on the you know could be this very opinion in this case it stephanie referred to the past lawsuits filed at least a year ago but it's still the present as well because it's it's i think it's the same example that you can tell me if i'm wrong but i think it's the same examples but if it covers both that's not very helpful to you know i don't know that means it covers past disputes and future disputes the the use of again i might my first response to that your honor would be that's not clear enough that doesn't meet their burden to show a meeting of the minds of i think when you're dealing with a corporate offending that clearly knows how to draft these things with an individual nonexempt employee their standard ought to be higher to clearly express an intent to have their employees waive existing rights particularly when there is pending litigation but my second argument would be that's not the the dictionary definition of a rise  goes to they say it's relational i get that but the dictionary when you look up arise the dictionary also says a rose arisen to give the different conjugation to the verb as this report found in this case it doesn't say claims i have that arise have arisen already arise in the future or claims that arose in the in the past there's the english language uses tense conjugation of verbs to express tim susceptible to more than one meaning i don't think it does in this context given that there is an existing case in place and they're going to say hey we drafted this well before hand but again it's their burden to show a meeting of the minds it's their burden to show that there was a contract for the mutual set and this gets back to the problem where they say well but this was drafted probably by our lawyers long ago before this case was filed and so there wasn't this expressed intent with respect to mr russell but if we're going to take the intent from the language that was drafted years ago and apply it to each individual then they have to have the intent to apply it to the facts of each employee's circumstances they can't just say well we have this general general intent it's not so general that they don't want to apply it to your client right i put it right and that's the that's the point i was trying to make and was being wordy about it but i think that you have to update the journal was intent and applied to the specific facts of each case and in this case it's a big problem you know my colleague said i wrote this down when he said that that the principals in litigation can can communicate with each other but i don't agree with that principle in certainly in this context when a city manager approaches my client on the call center floor and says hey this is this lawsuit business we don't want to deal with this let's just resolve this between you and me and they enter into a settlement i don't think that works when that city manager has received the advice of counsel when the city manager comes or with forms drafted by their counsel their legal department you could argue this is a little unfair to citicorp because your client initiated this your client didn't bring his lawyer your client didn't ask his lawyer to file the application so they're thinking ok replied fine i mean you can imagine how they would have done this innocently i mean it's true they're still stuck with making a commitment to what they intended with this thing and that's still seems i don't i don't know that that was their intent again we didn't conduct in the discovery on how this occurred clearly my shit my client showed up to a job fair applied for a job and got the job and so you know this this just happened but it's still problematic to apply it to pending litigation does it go to the parties intent what they intended by this agreement and if they actually intended it to be a release or a dismissal of the class action suit they would have brought in the attorney because of course they wouldn't want to arise ethical considerations whether or not this violates ethics i mean is that how we bring it in here is that of course this doesn't apply to stand it litigation because they would know better and that it clearly isn't and so i just closed the settlement last week in which you know the defense counsel shows up with a stipulation of dismissal for me to sign you know that's how these things go hey we've now negotiated a deal here's the stipulation of dismissal you're lawsuits go on and if the parties really intended that that happened tand it well then it is different when you have a class action the class representative of his duties to the class members that the in recurrency case says when a class action is filed the class members do have rights now it's  really arbitration agreement in the record in this case so that we can see exactly what he did say no but it might be helpful you never know i mean but he certainly address a few of the points that were made first of all there's no dispute that an arbitration agreement was signed in two thousand and twelve so the question is what is the scope of that agreement does this dispute fall within the scope of the ordinary contract rule about construing the language against the draft or does not operate under the federal retracement act under the federal arbitration act that rule gets supplemented with all doubts and only ambiguity is or resolved in favor of arbitra fact this court has said in the supply of that why don't you apply that point though at the end of all playing all the cancer construction that's the way it ought to be worth totally agree on this and that kind of construction construe against the draft or well known no your hon r respectfully this court has made it clear the supreme court has made it clear that you look at the any ambiguity is resolved in favor of arbitration now in terms of the canons of construction that short circuit is just give me a case you're saying there's a a case that says to me a case that says that that specifically says the d m n that you do you construe against the drafter does not apply in arbitration in light of federal arbitration policy if you have a case tell us otherwise i'm inclined to construed against the drafter and then on the other hand all ambiguities are construed in favor of arbitration those two principles are irreconcilable and the f a a trumps the common law principle now getting to your can't best case that we say that ambiguity oh but it is a matter contract and arbitration arbitration is a favored remedy but still you construe the contract consistent with the intent of the parties i don't think that throw that out you don't throw that out but let me but it's construed with a heavy presumption in favor of arbitration let me give you what happened in watson wyatt and watson wyatt the excited the the contract was silent on retroactivity and the district court said well it's silent retroactivity so i'm not going to enforce the arbitration agreement much like the district court did here and the and the courts said no no no no you did not follow the directives of this court and the directives of the supreme court that all presumptions are in favor of arbitration all doubts are for or or construed in favor of arbitration and here's a key which again is inconsistent with the construction against the draft or in arbitration agreement isn't forcible in less it can be said with positive assurance that the agreement is not susceptible to an interpretation favoring our arbitration that's clear the sixth circuit has said that over and over and over again you know in terms of the actual construction of the agreement i sutton that you first look at sort of normal contract principles to try to discern the intent of the parties and here or arise between again and watson why it was construed by this court as applying to a dispute that occurred in the past the court said this court said clearly this dispute quote arises out of in quote the services between the parties referring to a prior dispute that was covered by an arbitration agreement executed later on i think they're using arise and this is the preamble of the agreement it says city values each of its employees in the for the good relations within among all of its employees occasionally however disagreements may arise between an individual and city so he believes that the resolution of such disputes will be best accomplished wills the word by external arbitration doesn't that seem pretty prospective i don't think so but that's not the provision that defines exactly what is subject to an arbitration that is the later language under the scope provision i think it comes a few paragraphs later where it says here's the scope of your duty to arbitrate and the scope is all employment related disputes based upon legally protected rights and this is cape agreement statement of intent right i do everything wrong about that while it doesn't define the scope of the arbitration commitment and doesn't say you're obligated to arbitra these disputes that's under the scope clause which follows and what's key as i mentioned before is that the arbitration agreement the very sentence that the district court said doesn't apply retroactively says th applies to cities predecessors and former affiliates the only way to give you your red lights on so if you want to move first i'll make their sure there's no other questions or they're just moving questions if you want to just one sentence with one or two depending clauses