honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court or it is in again i'm not i'm not accustomed to doing these things sitting down so i begged the courts indulgence i would also ask that i have two minutes of time for a bottle with the court will grant that yes you honour's the question we have here is obviously one of arbitron villa t mr boss say in new york life entered into a contract in which they agreed to submit any dispute claim controversy between them to binding arbitration there was no limitation on the subject matter of the kinds of claims that would be subject to compulsory arbitration nor was there any limitation on timing in fact the contract said explicitly that the arbitration agreement between the parties would survive the contract the district court described that as unambiguous saying it is unambiguous that the arbitration obligation survives determination of the contract and that of course is critical here d because it was contemplated that mr boss a might have different positions or relationships with the new york life and even after the particular contract ended arbitration would survive into the future the district court did not dispute that the arbitration provision also had what is known as a delegation clause a provision saying that questions of arbitrary ability must be decided by the arbitrator not by a court and it actually repeated several  times commanded that such decisions are to be made by the arbitrator and incorporated what is known as a rules provision saying that either the rules of the n a s d the national association of well it would go to the arbitrator to decide whether that's subject to arbitration i would answer yes of course it's not what you have i don't think you could easily say the parties thought about a car accident hypothetical namely if mr abbas a had been injured in a car accident caused by an agent of new york life the language of his arbitration agreement would send the matter to an arbitrator to decide whether that was the contractual agreement and there's no dispute that the parties validly and or get into a contractual agreement they agree that any dispute claim or controversy arising between now and including no is alleging employment discrimination in violation of a statu is here and after the claim as well as any dispute as to whether such claim is arbitrary bull so the agreement specifies th type of claim that it wants to be quite certain is understood to be with and both provisions of the arbitration clause and indeed the majority of mr abbas in his claims here are exactly into that alleging employment discrimination in violation of a statute those are his primary concerns so it strikes me that wrong could decide the case more narrowly on those grounds and not get wonder a little bit about what the initial partner's agreement had to do with a car accident many years later ana sorry i judge  position would be your honor in new york life's position your honor would be that the language is that right and since that's how i thought your argument went yes what occurs to me then is what significance should we attribute to the fact that a those whole range of questions that had nothing to do with any employment relationship between the parties as you earlier indicated was not within the contemplation of the parties and then what is the significance you think of the reference to partners as the description of who the agreement is between because i noticed in your brief of though the agreement itself says there's any dispute or claim arising between the partner and new york life we were to do it consistently as if it's a agreement in minutes to both say and new york like which i think is rather different well the partner is really used in the agreement as a definitional term your honor that it is a way of describing mr buss a form of state that feels one way of understanding it might be that what it is a way of describing is his status so any claim  arising out of that status between the two would be subject to the delegation clause but not necessarily anything relating to him independent of that status i'm sorry i'm not sure with that last point i just didn't understand the last part of your question i'm turning to the contract for a moment i'm in my limits painting i have this as a being a judge right now but i also have personal status mr both say had the status of being a partner and also had an independent personals that one could read the agreement to say that any claim arising out of his status deeds of the new york life would be subject to the agreement not any claim relating to him out sure i would like to stop the stream for one second while we try to make an adjustment if you go ok thirty sorry about that mr banks i guess the question is just like i have a status of the judge right now i also have a personal mr both say had the status of being a partner got to the personal that since the contract says partner and the claim arising between the partner and new york lie why wouldn't it be plausible to construe that as any claim arising out of that status of these of the new york life rather than any claim arising out of the fact that mr both say with involved independent of him being partner or judge baron that is certainly an argument that mr b say can make and perhaps would be plausible if he makes it to an arbitrator has been but allocated a question but if that's right i guess we have the question of the scope of the delegation clause and the scope of the delegation cause turns on exactly that interpretive issue there is no delegation if the claim at issue is not within that clause the delegation clause itself and the delegation clause refers to such claims to the sa if we turn to the agreement containing the arbitration clause which appears a joint appendix page seventy two you see that it is a form type of agreement that new york life uses with all of its partners at the top it says partner and then the name kettler boss say and then in the rest of the agreement because it's a form agreement rather than re typing mr boss a's name throughout and having customized agreements for each individual it just uses the short form term of partner we often see this in employment agreements where an agreement will refer to an individual as employee or executive but i thought you just said it was plausible to construe it the way i would suggest well he could make that argument to an arbitrator but there's also a reading of this contract that that is merely a that because i didn't follow that argument even if that was limited only to the types of claims i was just describing the survival clause would still have meaning because any claim about the partnerships that is that arose after he left his partnership would still be subject to arbitration because of the survival club so that survival doesn't bear on the question of the scope of the substance of the agreement but your honor if we go to the language of the arbitration clause it says the partner and new york life agree that any dispute claim or controversy arising between them will be arbitrated it does not say it is limited to disputes between mr bos say and new york life as it might assert while a partner it just defined describes him as the partner the individual if it said at the ambiguity that i'm that i'm raising and i'm not seeing why that doesn't make sense to read it merely because it takes care of what you think couldn't have been within the contemplat party which would be something wholly unrelated to the partnership agreement at all well it claims unrelated to the partnership agreement are subject to compulsory the question i believe that your honor is raising judge baron is who is bound by this is it mr boss say is it mr boss say limited to his capacity as a partner i respectfully submit that it would strain the agreement considerably to say this is limited to a partner relationship especially in light of the marquez declaration we submitted a declaration mr boss say did not submit any evidence in response to our motion to compel in which mr marquez explained to the way these arbitration provisions work typically but also how common it is for individuals to move between positions this is something we see in the employment context all the time where you might have a contract judge bear and if you were employed by a company as vice president of finance and you moved into vice president of sales the contract might refer to us as the executive or the vice president but that's d a definitional term and if there is survival language what the courts have recognized is that goes beyond that contract when you move into a different position there's nothing in this agreement that uses the phrase the partner in any sense other than a short form version of referring to mr boss say as opposed to a limitation on this issue there's nothing there's nothing in the agreement that it means to encompass  yes i guess but i'm still puzzled buzz we have got two different issues that i want to separate but what's puzzling me is what in the agreement makes it clear that the claims that are being reference agreement cover claims that are unrelated to his partnership relationship to do your thing well it's the phrase any dispute claim or know nearly that way them refers to two pardons it refers to the person who is the partner mr boss say and new york life if instead of them it had said any dispute claim or controversy between mr boss say in new york life of course we wouldn't be having this discussion but partner is just a way in this agreement of referring to mr boss say so if you take them me the most logical interpretation of this agreement then if your bank said i do not recall mr boss saying making this argument at any point to the district court is my memory correct on this your memory is correct your honor that argument was not made therefore and you read did not make that argument here to the contrary either i believe is being made by judge just on the point about partner because i had read mr buffett's brief because he underlines partner consistently and distinguishes it between partner and employee to be making exactly this argument but if you say he didn't raise it in a district court we can ask him about that on the  clearly when there is a delegation cause questions about the scope of the arbitration clause are for the arbitrator but in those cases typically there is no question about the scope there's an important fight the two of you are having about what this thing means and whether it applies to partnership status or not but this other point is a generalizable important point for how we think about arbitration arbitration clauses generally could you help me think through how to resolve that because the irony is if we decide it's clear clearly within the delegation clause of course that decides the scope of the arbitration clause itself which is presumably what the delegation closet exists to keep us from deciding so i'm just a little puzzled how to think about unscrambling your honor i'll do my best to answer but i don't believe that there is a question about the delegation clause the delegation clause could not be more specific it says that any dispute as to whether such claim is arbiter bowl shall be resolved by an arbitration seating and again incorporates rules the ambiguity is what was within the scope of the arbitration clause that's going to fight about the meaning of clarity is in the delegation clause because it defines delegation as tethered to such claim so what are we supposed to do in that instance well such claim as used in section five a of the agreement defining the obligation to arbitrate refers back to any dispute claim or controversy between them and that which is then says here and after the claim so the language is so broad as to encompass any dispute claim or controversy then capital c claim is a reference back to the broadest possible description of any term is defined as any dispute claim or controversy arising between them including those alleging employment discrimination including sexual harassment and age and race discrimination in violation of the ambiguity is whether that includes even the hypothetical judge to weigh gave you and if there is an ambiguity on that point in light of the text maybe there's an ambiguity whether it encompasses anything outside the partnership agreement itself that's the issue understood and that's i think i understand that's why i said i don't believe it is ambiguous it does cover the car accident it does cover the personal injury claim it says any dispute claim or controversy and there's no basis to carve that out if we had such a matter which we don't mr boss say could argue to the arbitrator i believe without foundation that such personal injury matter is excluded but i think the language here is broad enough to include that and i think it's logical that it would be broader enough to include that employers and companies developing arbitration agreements  to make these comprehensive for i think obvious reasons no one wants a manager or an executive or a partner to be in i shouldn't say no one may not want a partner to be in litigation with them over any matter whether it's employment fringe benefits a car accident allocation of pensions to a divorced spouse they say look we have a relationship then anything that grows out of that relationship between this should be an arbitration and that's what this agreement does and i would note your honor since we completed our substantive briefing there have been quite a number of cases adopting every appellate court must follow and re shine but the henry schein decision has been followed by at least eight different federal appellate decisions in every instance finding that where there is an express delegation clause as there is here that the question of what is  goes to the arbitrator there is no it ability to revive the wholly groundless argument that henry schein rejected and that this district court resuscitated in a different manner by saying it scope of the delegation club did you have any insight for us if we thought that there was an ambiguity as to scope whether we're supposed to apply a presumption in favor of finding the delegation clause the cover whether we're supposed to apply a presumption against finding because it's not clear and unmistakable or whether we apply no presumption at all and if you do have a view is there some reason why one presumption makes more sense than the other i don't know whether there is any discussion in the cases of presumption and it would be presumptuous of me to tell the court that we should presume anything i believe the phrase that your honor just asked about clear and unmistak e is the question is there a clear and unmistakable delegation this district court said that there was a clear and unambiguous delegation clause the court did not question that what the court below did was intrude upon the scope question that is reserved for the arbitrator i think this language saying that any dispute or claim must be sent to arbitration to determine scope or  he could not be more clear and unambiguous and the district court did not agree with did not disagree with that where the district court went after that was to talk about what claims are ar ball what is the scope of the arbitration clause and that is where the court erred conflated scope with the fundamental question of whether there is a binding arbitration agreement here there's no dispute that there is a binding arbitration agreement and likewise there is no dispute that claim the question of arbitrarily arbitrary billet he is delegated to the arbitrator i notice by the way i am well over my time i don't i hope to keep my two minutes for a bottle and mindful of the court's clock so there are a few other points that i would make but ok thank you and the last point i would then make just no please oh i'm sorry we will hold you to the time now if you have to bore me thank you arbitration act that this court requests the parties to focus on in their supplemental everything and that language is the arising out of such contract or transaction that language in the act would not be there if it didn't mean something and it what it does it conditions the enforcement of an arbitration clause in a contract on their being as a district court concluded some connection with the agreement or contract so the f a a explicitly limits itself  agreements to settle or by arbitration a controversy that arises out of a contract or transaction is a counselor if i might there are a lot of questions to be asked  of the agreement and the relationship constantly by that agreement it is an employment relationship mr bossie was employing there under that agreement whereas under the latter two agreements the agent's contract and the district agent agreement he was an independent contractor statute and that's further defined as including race discrimination claims those that's a very question and the clarification that i need to emphasize with that is that those claims are based on facts and events that occurred when he had a completely different role with the company when he was exercising need far more onerous set duties and responsibilities with the company when he was earning a very different type of compensation with the company over a decade after the partners agreement was terminated so those claims are based on a completely different fact pattern that had nothing to do with his role as duties clause there's nothing wrong with the survival clause but that the arbitration clause still has to apply to the dispute this view and the claims that result from that dispute still has to arise out of left his partnership role that he was cheated out of a certain amount of payment that he believes he was owed as a partner for your view would be that clain because it relates to a claim about what he was old as a partner would still be subject to arbitration even though it's arising ten years later and that would be because of the survival clause correct that is correct for example correct but your position is that if instead what he's saying is in a new role not as a partner i now have a dispute with new york life in which i was discriminated against based on race not as a partner but as an independent contractor of which i had no agreement that is not over by the partnership agreement not occurred only when he was an independent contractor or independent agent no longer a partner and your position is that is not subject to arbitration now because of the survival clause doesn't have force but because it's not within she could not have raised some of these claims under the relationship that he had with the earth life of the partners agreement he had a far far different set of responsibilities and duties under the agent's contract and the district agent agree whether the scope of the compensation is different from the issue about whether the differential treatment is motivated by race or in violation of a claims of race discrimination cannot be brought against someone who is a partner of new york line maybe the measure of damages is different it may identify is that he was not a partner when the allegations actions of when the racism that we claim occurred actually happened he was you was operating under a different set of responsibilit different set of terms and conditions and if you look at the bogan case that we cite and the vantage case tech the vantage tech case that we cite in our in our initial brief those cases concern a situation where a party was party trying to  made here when mr will say was operating as a district agent st as an agent listening agent and then a district agent that is when it's under that umbrella that all of these events occurred this all started two thousand and thirteen and you if i could go back to a question i asked your opponent i'm glad we have judge baron back on the precise argument an independent contractor or an employee relationship was different from partner gave you before the district court could make the precise claim that the term partner was not the acquittal and a reference to bossy without looking directly at the papers we fell below i don't believe we made that argument or that we were trying to make that specific point rather the the argument we were making is what i've been reciting a few times here is that the relationship and his duties and responsibilities under the partners agreement is very different than the last be the the role that he had under the latter two agreements but there's a there's a problem with i understand the substance of your argument but you need explain how the text of the agreement supports or accommodate your permits us to endorse the substance of your argument so what in the text between so what in that well i understand the substance of your contention about what the agreement encompassed but it was reduced to a form of words and so you need to make an argument as to how the words that were used comport with your contention about what it means and since the words include any dispute i guess i'm struggling to see what you say is in the contract text that supports your position if you're not saying that the word partner itself does that result from such disputes that arise or disagreement relate to that employment relationship it's that is how i would answer that that concern that you're posing  we all agree the arising out langridge but that the new york arbitration act does not and if you refer to the new york arbitration so back to my notes are required so i guess that the the bottom line here is if you resolve whether or not the arbitration was actually applies to this dispute that should be the end of the matter and that's what how the district court resolve this arbitration clause has been delegated to the arbitrator to this so don't we have to start with the delegation clause and its scope now it may be that that's just refers us back to the or which it was because of the phrase claim but i don't see how we can start with and not start with the delegation since then if there is no doubt there is a delegate because the only question is potentially as to its go you still need to determine whether or not the parties agreed and there is an independent power in section two the f a a that resides and the reviewing judge faced with  question to an arbitrator the courts have to respect that and cannot rely on this fully groundless exception that was bandied about in that and that in that case by a kennedy it still goes back to question and resolve that st does this agreement actually i have to this this and we can and it does not and that's that should be the end of the matter and i th transaction argument and mr felos comment that the claim must be connected to the agreement it's wrong in two respects st the arbitration agreement is a contract in and of itself the supreme court in both the rent a center and prima paint cases that we cited in our brief make that quite clear that the section two of the federal arbitration act requirement is met because the arbitration provisions are several  distinct contractual obligations in and of themselves parties can agree to arbitrate disputes without any other substance in the contract if i were an employer could hire an individual and say i hereby offer you employment starting tomorrow we agree that all disputes between as are subject to compulsory arbitration nothing else our disputes then about statutory or other claims would be subject to compulsory arbitration and that claim would arise out of the contract within section two of the f a that's the rana center case nd the notion that claims must arise from the other substantive or operative provisions of the agreement is but wide by the supreme court's decision in the shearson v mcmahon case as well as the gilmer vs interstate brands case those cases make it quite clear that statutory claims which do not arise out of the other terms and conditions of the relationship can be subject to compulsory arbitration when there is a broad provision like the one we have everything but it creates a completely different situation that existed when he was an employee it is a different relationship it is still subject to the laws pertaining to race discrimination specifically forty relationship but different in its  differences in terms don't take away the arbitration command in other words i'm mike pay an employee salary in one position and then he might move into a commission job and that commission employment related job might give rise to disagreements about commission and title means that are never covered by the original agreement nevertheless the arbitration clause if it survives the original next generation that that is give that is the biggest yes and that's what it says here that it survives regardless of relationship and survives this contract is it is it the standard form that independent contractors do not sign an arbitration clause namely is that the standard practice in new york life no it's actually not new york life many of new york life's established agent contracts contain well i shouldn't say that i don't want to speculate your honor i'd be going outside the record and speculating i don't know whether arbitration whether all ag contracts have arbitration provisions i know some do but in district agent there's nothing there's nothing in the record that informs of the bout that of that right i think that's right and that's why i want to be careful here about not introducing something beyond the record and speculating  unless the court has further questions i know that my two minutes are up by appreciate the opportunity to appear to be seated unusually and to participate by video thank you thank you your honors texas with the arguments for today the session of the honorable united states court of appeals is now recessed until the next session of the court god save the united states of america and this honorable court counsel you may now disconnect from the meeting