well here the first case metropolitan life insurance company good morning or honors christopher kos on behalf of mr boo sic my client's position is that the lower court made three fundamental errors each of which by itself requires were versal of the parliamentary injunction i would start with the standard of review it set forth at page eight of our initial brief and i just ask you before you stuart and this may be a question more appropriately asked to your adversary but i would think you probably know the answer as well is there a is there a document that corresponds to your client's form  for that is undertaken or signed by metlife committing it to arbitrate or is it committed to arbitrate simply by virtue of of the of the rule thirteen two hundred and your client to arbitrate it doesn't on its face commit the employer to arbitrate oh i i think the law has been long held that a you for commits both the and the register representative in this case mr bruce sick to arbitrate a dispute there is a legion of case law that if in fact there is a you for between a firm and an individual as there is in this case  constitutes an arbitration agreement with that would be binding upon both parties the issue here is that the lower court took the position that the you four had expired that it was no longer  arbitration agreement and that's the first of the errors in the arbitration agreement the you for never expired met life's membership in the n a s d may have expired but not the you for in fact if you look at met life so brief at the age that if met life continues today that if it enters and them and it doesn't have any limitation in that you for as to when that this dispute arises that was the arbitration agreement that was rendered or reached between the two of them but on top of that there is been a second  standard to address the issue that your honor just raised which met life is proposed and that is met life is asked that the court look at whether material of dance they gave rise to the statement of claim a rose while metlife was still a member and we have set forth in both our initial brief and our reply brief a whole litany of material events that occurred during the time that met life was in fact a member and so even if one were to adopt met life's view that the arbitration agreement should only apply if material events giving rise to the a fraud it by virtue of his low compensation again during the entire time that he was at metlife in fact in the statement of claim we cite the profits that mr blue sic generated for the company and the fact that when you look at those profits he was underpaid and the profits that we cite are for the end tire of the relationship that mr bruce acad with met life which would include a number of years where by or during which met life was in fact a member of federal and so there are material events that touch the the dispute here that arose while mr busek was still with that life and that life was still a member on the on the as i understand it you it's your position  that metlife breached the wage payment law of new jersey because to and i'm quoting to you to mr blue six knowledge the company never provided him with a compensation manual detailing his rate of pay person involved in business and it seems hard to imagine that if he was so i know this gets to the merits which we're not supposed to get to but it seems it's hard to imagine that he would not have the at least try to get some sort of understanding about his his pay given given to possible claims before there was the withdraw all by metlife in the first of all no offense to my client but he's not as sophisticated as one would think he did in fact try to get information on his compensation but that is just one of the many claims if you look at every claim that we have asserted it in fact touches upon or arises out of and i see that my initial seven minutes is up go if you look at the entirety of the allegations that we've set forth they span the entire relationship that he had with met life and a point that i haven't really hit which i really do want to hit which is imperative to hit is that there is an arbitration agreement here whether or not the claims fall within it is another issue but there is an arbitration agreement and when there is an arbitration agreement and metlife admits that under certain scenario in fact you could have claims that are subject to arbitration under alliance bernstein that is an issue for the arbitration panel to make a determination on as to whether the claims fit within the arbitration agreement and i would also note in the case of john esko the sports case engine asco if in fact matters are allegations in the statement of claim touch upon the arbitration agreement then that matter becomes arbiter of all and clearly the allegations many of which are preaching thousand and seven before met life terminated its relationship touch upon that arbitration agreement met life with your statement of claim  include a specification that we are owed so much money for x year and y year and c your being years prior to met life's withdrawal from nasdaq we did not because we didn't have that information that's what we need to have in discovery in the pleading requirements and federal are very they're really not stringent policing requirements mr busek had some information for later years like two thousand and eleven but he didn't have the information for two thousand and two to two thousand and seven that's what it is due to be due the statement of claims that we are owed compensation for years two thousand and two to two thousand and seven states that he was in it that he was under paid for the entirety of his employment and that he seeks compensation accordingly he says that just based on a feeling well he where you're saying not just based on a feeling based on knowing what occurred in certain later years and the fact that he was never given information in regards to what his compensation was in prior years and discovery may or may not bear it out but right now he hasn't even had the chance to have discovery and the issue is whether or not that this claim is one that should be heard by an arbitration panel and whether the arbitration panel in the first instance should make the decision as to whether or not it's arbitrary will and under the alliance bernstein case the answer there is clearly yes and even if you apply this material standards or material event standard when you look at the statement of claim and the  we have alleged many of them touch upon that time period two thousand and two to two thousand and seven let's let's for the just argue are you endo assume that met life's  withdrawal from the and the parties arbitration agreement just for the you know hypothetically how can claims arising after that terminations be subject to arbitration but that would be well that would be the third argument that we have made in our brief and that is that the withdraw all of that life did not in fact terminate the agreement because the federal rules in comp this former members such as and the you for that was signed included all disputes under the code as may be amended from time to time and so as a former member metlife is balland to arbitrate under its you for commitment but even if one were not to accept that argument it's our contention that materially events material events set forth in the statement of claim did in fact occur in the two thousand and two to two thousand seven timeframe and therefore even under the standard advocated by metlife this case is subject arbitration so it it's my understanding that the the district court the district court's ruling was motivated by the perception that this dispute are related to events that occurred after met life's withdrawal from nasdaq is the correct seeks compensation for pre withdrawal time to the court invert to the court and the court's ruling was based on that and one other issue in regards to that issue the court as far as we're concerned simply appears didn't even take a definitive position it appears that the allegations are from two thousand and seven on but the court did not even address the language that we've cited in our initial brief to your honor's but pages eighteen through twenty two of our initial briefs where we laid out the many allegations in the statement of claim which in fact both arise out of that creek two thousand and seven timeframe and certainly touch upon that and therefore would require arbitration the other lynchpin of the lower court's decision was that there was arbitration agreement and our position is no there is an arbitration agreement the issue is whether or not it applies to this dispute and when there is an arbitration agreement under the alliance bernstein cases we've set forth in our brief based on the language of the federal code of arbitration which gives the arbitrator's broad discretion to interpret the rules whether or not a particular dispute is subject to that  one for the arbitration panel to make not the court and the court here just circumvented that by taking a position your interpret in the district judge's opinion to mean that even if it had been clear on its face even if the claim had related soley and clearly i'm soley to under compensation during the time of met lives membership in that as dac the district court region then was to the arose immaterial events arose prior to that life's membership being terminated the lower court i believe would have compelled arbitration the lower court merely said it was nor betray should agreement because the events occurred after the withdrawal bet that's that's what the court said and the court was mistaken in that regard as well because just because the events occurred afterwards doesn't mean there is no of attrition agreement it just means it may mean that th not be subject to arbitration but there's always been an arbitration agreement there continues to be one to this day and under those circumstances whether or not a particular dispute falls within it is a question for the arbitration panel under the second circuit's decision and alliance bernstein because of that language that we quoted in connection with that case from the federal code of arbitration which gives arbitrators very broad discretion  create two thousand and seven the withdrawal yeah it's actually it actually starts on page eighteen you know the first full paragraph it says by way of example the statement of claim plainly states quote for many years mr b supervised one of the most successful and profitable agencies not only in his region but in the entire met life system nevertheless during this entire time met life without any objective or rational basis has failed to compensate mr accordingly the entire time would include that period two thousand and two to two thousand  if you look at page nineteen and i'm not in this whole section deals with it but i'm just going to focus on the some of the highlights if you look in the first full paragraph where it starts in his breach of contract claim mr busek also alleges quote metlife failure and refusal to compensate mr blue six similar to his peers is a blatant breach of the implied covenant of good faith and fair dealing metlife cannot possibly reconcile the compensation it is paid mr boosting with the revenues he has generated over the years and the approximately one hundred million or more in profits mr bruce it has earned the company that hundred million in profits is not something that is just i'm asking you for just quotations oh ok ok met life violated new jersey's wage payment law in met life quote never provided him with a compensation manual detailing his rate of pay and more significantly how his pay would be calculated can we then go on to say on page twenty the statement of claim proceeds to allege that quote on an annual basis up until two thousand and sixteen mr busek received a phone call advise him that he would be paid a certain base and be eligible to receive certain incentive compensation but the base and compensation figures provided by met life were arrived at willy nilly and bear no reasonable correlation to the revenues and or profitability of his agency thank you and if you have three minutes in rebuttal ok good morning your honour's can turnbull for metropolitan life insurance company let me start out by addressing judge of all of one of your first questions which is where is the obligation to arbitrate where those a come from in this case and it comes from two places number one your honor correctly noted that mr boot six obligation an agreement to arbitrate is contained in his form you for registration that registers him to be a member of the n a s d and in registering to be a to be licensed he agrees to the second obligation as it relates to met life is an obligation that arises by virtue of the firm's membership as an n a s d member as an a s d member metlife was obligated to arbitrate here but that's that i would that obligation is the obligation set forth and in rules of thirteen two hundred erect it is not in the form you for however here both the membership of met life and therefore dob occasion to arbitrate ended in two thousand and seven and at the same time the form you for terminated in two thousand and seven and thus mr blue six agreement to arbitrate and those are undisputed facts indeed while my esteemed counsel i'm not sure what's your basis for saying that the form you for say the busuk form you for you say terminated when metlife withdrew from nasdaq correct what's the basis for the mr bush tax form you for it or is a registration form with met life insurance company when met life insurance when met life membership and did that form you for registration and it and that is set forth in the record and admitted by mr busek that complies you're saying that that  you met life with drew on a certain day from nasdaq membership and and and that say things in its business substantially changed at that time and promptly after that employees such as busuk sued or brought to arbitration claims they would say they were all fired when when when metlife were terminated because met life terminated its business let's say when it with through and the employees brought arbitration of claims after the withdrawal the week after the withdraw a saying we're owed a lot of compensation for the years that we spent  working there we haven't been paid you're saying that there's no arbitration agreement that would require mental life to arbitrate those that doesn't seem like a very persuasive argument to well your honor that is where the material about standard comes in so the a car betrays an agreement has ended a you said when it went withdrew the you for terminated or it was no further arbitration agreement direct so there was no further arbitration agreement but if the material events of the dispute between met life and its employees occurred while there was an arbitration agreement then the arbitration agreement covers that dispute but i mean there can only be an obligation to arbitrate if there is an arbitration agreement and you just told me the arbitration agreement no longer exists when metlife withdraws from from you the you that you for you say terminate and the obligation to arbitrate terminate so i don't think you're saying to consistent things i apologize your honor let me try to be a little clearer the so they are saying you're saying that the obligation to arbitrate persists with respect to disputes that relate to the time of the employment erects so with respect to subsequent iraq so if there but now so so mr music argued to us he says that his arbitration claim  made clear on its face that it related to the entire time of his employment he says that his arbitration demand was reasonably can true construed to him to demand compensation for his work and his generation of profits from the beginning of his employment for the first five years as well as the subsequent time so that seems to be consistent with your acknowledgement that if the dispute relates to the time when that life was a member of nasdaq and then there is an arbitration agreement that covers it mr busek does allege that just as he alleged that the district court that the material events giving rise to his claim relate to was the period of time between two thousand and two when two thousand and seven when the arbitration agreement and it although he filed his claim nine years later the court the district court reviewed the facts reviewed the statement of claim and determined that that allegation about when the material events arose was incorrect and the court pointed to court your honor asked whether the court actually looked at the claim and did the court of district court assess that and the district court did and it looked at allegations in the statement of claim for example mr busek said from two thousand and eleven to twenty fifteen he supervised one of the highest grossing offices but his compensation was frozen in early that's at appendix eighteen nineteen in early two thousand and sixteen mr busek inadvertently received documentation showing that he was compensated lower than his peers the district court went through the statement of claim it considered the argument mr bruce putting forward and it rejected those i put it to you that that determination by the district court is reviewed on an abuse of discretion  in the district court looked at the at the specific the more specific allegations and and in view of the fact that the specific allegations related to post withdrawal the district court rejected the the vaguely general statements of this relates to mine to him her entire time of employment direct the court looked at the specific allegations and said based upon the statement of claim filed by mr bruce his claims arise twenty eleven and later you had indeed your adversary's argument i think is that he doesn't know enough to be more specific about the period between two thousand and two to two thousand and seven but that he has sufficiently alleged that there is from his point of view a problem and the district court understood him to be arguing that and said you have not sufficiently allege that you can through discovery come back to me if you want this is a preliminary injunction you can come back to me but looking at the statement of claim it is clear that the material events giving rise to the dispute occurred between twenty eleven and twenty fifteen and if i might note it is one of the interesting things as the that the court considered is the iran or mention the new jersey cl there's a six year statute of limitations on a new jersey wage payment claim you can't go back to two thousand and seven and before and say the material events giving rise to that occurred before your arbitration agreement ended because that ended in two thousand and seven and the claim wasn't filed into the till two thousand and sixteen if you're conceding that at some point in time an arbitration agreement between met life and view sec was formed and your position is that that arbitration agreement expired or was terminated given the language in the you for who is it to gets to decide this issue of expiration or terminations the district court or the arbitrator yes your honor thank you there was an arbitration agreement there is no longer an arbitration agreement the issue of who decides whether there is an arbitration agreement is clearly one for the court in the first instance the second the supreme court has issued numerous decisions to house some decision the granite rock decision in two thousand and ten which which they are the issue was analogous to the issue there was whether this dispute arose before the agreement was entered here the issue is whether the issue arose after the agreement terminated and the supreme court directed that a court must resolve any issue that calls into question the apply ability of an agreement to arbitrate and then you arguing essentially are you relying substantially on statutes of limitations saying that that even to the extent that one might read his complaint the vague vague portions of it as alleging  entitlement to more compensation for the years of two thousand and seven and before those are so clearly bored by the statute of limitations that the demand must be must be construed to relate on y to two non non precluded time precluded disputes so you're right we are not relying exclusively on the statute of limitations we are relying on the district courts determination which we submit was not only correct but certainly far from an abuse of discretion that on the on it in its entirety the claim clearly raises issues from twenty eleven forward i think the fact that the statute of limitations would bar any claims before two thousand and nine helps inform the question of whether and when the material events giving rise to this this dispute over  but we don't rely solely on the statute of limitations i should also point out that my adversary to your honor's question pointed out that the alliance bernstein decision says this is an issue for the  but that misreads alliance bernstein alliance bernstein the court first their term and is there an agreement to arbitrate and the court determined yes there was and then sent the underlying question to the arbitrator to decide a tort claim arising after the terminations of the parties arbitration agreement had to be arbitrated because the resolution of the claim depended on evaluating the plaintiff's performance during during employment does that ring a bell i am not familiar with the case your honor it sounds like but i have not read it that it may be a next or an application of the material event standard that has been applied if the material events occurred when there was an agreement then the dispute could be arbitrary but here in this verse this issue was already have contemplated that its membership would perpetually subjected to fin result of attrition requirement even for causes of action arising long after its membership has ended  so you said a minute ago that he can go back to the district court with discovery so is it your contemplation that he can can then bring suit before the district court and get discovery and and if he finds substantiation of the neighbors seem to be more precise about pretty two three withdraw under compensation he can then point to that to the district court as justification for getting the district court to allow him to go back to arbitration what i'm saying are ours that judge angle meyer at when he issued his ruling asked the parties whether they thought additional proceedings before the district court were necessary or did his ruling on the preliminary injunction issue a sensually dispose of the issue in total and mr b no it does not dispose of the issue and we are entitled to discovery here in the district court on the issue as to whether this claim should be arbitrated so if if he if he the brings a counter claim to met life scream seeking compensation and he gets discovery and his discovery in his view shows entitle him to additional compensation for pre withdrawal he can then go back to arbitration with that you know i if he can convince the district court that number one he can it either convince a court that there is an agreement facts of which you wrote before terminations you acknowledge that the orbit ration coupons would cover that brought them if the material events arose while there was an arbitration is what i'm asking you if the discovery that he gets in the district court shows that he does have a dispute  the arbitration panel because i think based on the argument today as well as statements made by metlife and its briefs there is an agreement to arbitrate there is a set of circumstances whereby even met life admits the dispute would be subject to arbitration you can't have that scenario without an agreement to arbitrate and where there is that was the only basis upon which the lower court did not follow alliance bernstein and allow the arbitration panel to make a determination as to billet the only basis that the lower court will i'd upon an distinguishing alliance bernstein was it the or been in a arbitration agreement had expired and that was clear legal error or agreement has not expired i would also note what  specific as to the period between two thousand and two and two thousand and seven and then you could renew your request and an arbitration receipt and and what i'm saying to the court and  my view would be is that i don't think it's even necessary to go there that certainly would would button it up and make it absolutely clear but i think just on the record right now the admission that there was an arbitration agreement therefore makes the decision as to whether or not this claim is orbiter bowl one for the arbitration panel and i would note that the judge did not look at any of the allegations if you look at the judge's opinion he doesn't mention any of our allegations from two thousand and two t thousand and seven he doesn't engage in analysis and say well the specific overrode the general he pretended or at least based on the the order there's no mention of them at all and in terms of they're pretty vague no i understand but in finra and i've been you know in the federal cases the allegations are permitted to be vague as long as they give some indication as to what is to be defended and when we say the entire the entirety and never those words at least from a temporal standpoint make abundantly clear that we're talking about the entirety of his employment which would in fact cover that time period while metlife was still a member for him and therefore would have the immaterial events having occurred during that time frame so unless the court the only other issue i would no is there was there was a question from your honor about expiration we cited in our brief page ten and eleven of our initial brief issues as to expiration or terminations of arbitration agreements are actually decided by the arb and those are two second circuit tases that we cited in our brief covering that precise issue and the last thing is the the granite rock case because you had asked a question about formation the granite rock case the issue there was that there was no agreement ever formed that was the holding here we have an admission that there was an agreement that was formed so unless the court has any other questions i i think your to me that the viewed  in in a certain light perhaps an improbable one or an unrealistic one the this gives you a scenario that gives you in a way the best of both worlds because all that's get you get the the kind of discovery that you get under the federal rules in order to substantiate your claim that you're entitle to arbitration so you get the the discovery that you might not have gotten from arbitrators and if that discovery gives you the wherewithal to to to make a plausible claim of of under compensation in two thousand two to two thousand and seven you then can go back to the district court and say see here we have here we now have substantiation for an arbitration claim for the period when when met life was a member and we have arbitration agreement that covers that so you then can go back and candidly it's you know i don't disagree with that it's it's not something i thought about prior to the argument but my i hear what the court is saying for sure