this record heard in ordering that the notice of invitation to join this collective action be provided to the more than thirty five thousand chase employees who signed individual arbitration agreements waving their rights to participate in any capacity in collective actions i think you have a strong case on whether it was error will decide that but your real problem here is convincing us that it was clear and indisputable and i don't see how you get there more than abuse of discretion i certainly think that's right but what we have is a conflict with the federal arbitration that we have as notice being sent to thirty five thousand employees inviting them to do exactly what they promised not to do in their agreements with case we have that notice being sent to them based on nothing more than speculation that hypothetically some individual inside that thirty five thousand might want to raise a challenge and rebut what where where do you find in the case law or illustrates the need for mandamus in the sort of advisory or sit supervisory situations that we highlighted in the briefing the problem is when you have procedural issues like this that will not result in a harmful final judgment we use the example  even if we decide supervision is a good idea we we have to we have to and it has five projects i think that's right but i would suggest that you might need less of a showing of clearing indisputable error in circumstances where the supervisory need for the rate is so proprium the problem here is to talk up just a little bit i'm sorry on the problem here is that if we had any a public guidance on the issue if we had guidance from the supreme court on the issue then i suspect we would be able to show that the district court's error was clear and indisputable the problem for us here is that no court of appeals has ever addressed the issue in the circus at that and that was a an him important and candid concession as in your reply brief when you district court erred well and that puts us in this catch twenty two it does put your ticketed continuous error by the district but let me on that why why is it why is there even need for guidance and why can we assume repeated error if really over twenty years since muhney district courts in the fifth circuit have all been saying irrespective of arbitration agreements at the first page we're just going to give notice would you say that all the district court authority cited has been itself clear abuse of discretion i would say all of the fifth circuit cases that entire body of law has been in each instance a clear abuse of discretion gone up to the extent that the arguments were made to it and also part of what's troubling in this area is that i think the district courts have lost sight of the constitutional significance of providing notice in the manner that they have what you do not see in these district court decisions is an appreciation for a district court stepping outside of adjudicating cases and issuing an invitation to non parties to file suit against a defendant before the counsel that come it gets to the content of the district court's discretion to issue notices in f l it's a collective action i mean you i think you have to concede that the district court does have discretion to send out notices of hoffman laroche yes right ok you have to concede that is there a limit on that discretion and if so i would think you'd have to argue that the district court has jumped over those limits how do you argue that in this case the limit that we see here is a notice to employees who are eligible to participate in a collective action and the plaintiffs here have failed to carry their burden in fact they've said we have no burden to show that these employees are limiting principle is yes notice discretion for notice not if you lose neutrality and express an opinion on the merits so i i look very closely at the district court opinion do you see any languages i think everyone agrees what a district court does in sending out notice of a collective action to non parties inviting them to join the case before it is unusual this is not a typical power of district courts we have article three which limits the hoffman rich briefing and i think when you go back to look at that the natural reading of potential participants there simply means employees who have a right to join the suit but we don't know whether they will or not and the response of the bridge on the merits in particular involved in the roche distinguish between actual opt in plaintiffs and potential opt in plaintiffs and so the reading there is i think what hawke and the roche given how close it stretches to the boundaries of article three needs to be read narrowly and what they have said there is this is part of the court's case management authority its ability to manage the jointer of additional parties and so when you have these individuals who are not eligible to participate in a collective action thirty five thousand people who have said i am not going to resolve my claims against change in a collective action that's that is an employer's declaration right that that has come as a declaration of you read this or apply they say even if we agreed with you we can't agree on behalf of people we don't even know why i think that's true and that's what's extraordinary here the most there is no suggestion there is no argument that there is any individual they have identified who has any valid challenge to the formation of this agreement they have not identified what that argument might be they have not presented any evidence i thought i did notice stage was in order to identify people that might did that the whole point of the notice and the liberal standard for it is to identify them and then you come in with fact based employer defenses and your honor i don't believe that the federal arbitration act permits that and i think that there are two parts of ethics look about i'm an interrupt you then so you are arguing against the lazard two parts standard if you're saying the f a a doesn't permit that two part methodology then your argument which i didn't see in the race is that what we've accepted at least for twenty years isn't the appropriate legal status with the question is what's meant by that was our current work at a high level lusardi simply means you need to have two steps there's one stage which notices issued there's a second stage after a notice is issued at which it may well become apparent that some of the individuals who opted into the collective action are not in fact as similarly situated as they first appeared i don't think there's any way against arguing against that at the high level to the extent that by lusardi framework what you mean is arbitration cannot be considered until after conditional certification has already been done either with respect to the named well this court already rejected that in rain us and in edwards versus dorda so to the extent my friends are arguing arbitration comes later conditional certification comes first this court has already said that's not a result of the federal arbitration permits this isn't quite the same  that they are following the forcible and there is no way for trace to do that until after notice already goes out so we think that is a serious undermining of argument and in contravention of section two of the federal arbitration act and the broad national policy in favor of arbitration the dead bodies and second when you have employed when you say it it requires them to ignore the arbitration clause looking at i thought i think i'm looking at the the notice it says in the event you are required to pursue your claims t to invite employees to join the collective action with the notice in this case says is your consent form will not be filed with the court in this litigation this is crossing the line between a district court managing the joinder of employees into this collective action and simply soliciting individual employees to follow arbitrations against chase that's an important constitutional limit the district courts exist to adjudicate cases of controversies and i think the authority and hope middle roach does need to be read narrowly to manage the jointer police who have a right to opt into the collective action and within the set of employees who are eligible to join a collective action i do think the district court has discretion whether or not to provide that notice but when a district court starts inviting employees to sue chase in a collective action when their claims must be handled to individual arbitration i see that is crossing an important constitutional line and i think at the very least constitutional avoidance would say the statutes shouldn't be read that way if there's any way of doing it happens if it's unclear at this stage one certification stage how many employees how many employees have actually signed waivers of collective action and what are the terms of the waivers of it's not simply me standing up here declaring that there is in fact a declaration is in evidence in the record a statement by ms rockwell you'll see it at e c f fifty four just twenty two stating that since mid two thousand and nine all new chase employees have signed binding arbitration agreements her statement there is uncontroversial so i think it's equivocates the next sentence says the vast majority the vast majority of the conditionally certified class so this forty two thousand member conditionally certified class includes approximately seven thousand employees including those rivenbark who have not signed by the other three from it so we know that everyone after two thousand and nine who joined us to chase employer after two thousand and nine has signed but there were some employees who joined chase before two how can we assume if she's estimating about a vast majority of current who's in and who's out based on that statement well we simply have records it's a question of the notice the district court orders and the discovery that were provided to the plaintiffs so if the district court orders us to provide the plaintiffs with information related to all chase employees so that they can be provided with notice regardless of whether they've signed arbitration agreements but that's what he's done and that's what we can comply with or alternatively an order saying only provide notice to chase employees who have not signed arbitration agreements we think would be appropriate let me try to explain how i think this should work let's say point of does think there's a defect in the arbitration agreement with the plaintiff needs to do is bring forward plaintiff who has allegedly subject to that arbitration agreement the defendant as we did will say don't provide notice to all of the employees because of this arbitration agreement and at that point he replied the plaintiff should say exactly the and uninformed civil and i'm going to stay here and look at this collective action we then would have moved compel that nameplate to arbitration what about the name played us it may not have arbitration games at all but those unnamed plaintiffs without arbitration agreements there's no dispute that those unnamed plaintiffs would receive notice of the collective action i'm sorry your honor we might be mis communicating as  the the district court's order explaining why it's socially wise rejecting your argument respect to blois have signed the collective action waiver in your view does the district court's rationale rust on a presumption or at least a some maybe a presumption that the arbitration agreements are not enforceable or not valid might be challenged because i'm trying to understand what the rationale the district court was whether it was well would they just need notice you know they just need to know that this is happening so they can plan their affairs accordingly or is it something else what your help me interpret it i understand so the district court statements of the hearing i think tended to rest on the second rationale  identified just give them notice that they have been victims of some kind of problem doing as i understand the district court's order though it rests on the first rationale the idea of the district court cannot determine that there is no possibility that some individual within this thirty five thousand might attempt to challenge the formation of the arbitration agreement i'll say one way of thinking about this is simply in terms of but with the way we see it no notice should go out unless the plaintiffs can show that the individuals receiving notice are in fact eligible to participate in the collective action and what they're saying is notice can be sent out to any employee no matter how valid how enforceable that arbitration agreement unless the defendant can prove that the twenty three class or three cation is the procedure that should be followed at the first notice stage no your honor we're certainly not suggesting that you would import all of rule twenty three requirements on the other hand as i think even the and circuit has noted the predominance in rule twenty three resembles in some ways the search for similarly situated employees so i do think one way of looking at this would be to hold that employees who have not signed arbitration agreements are not similarly situated to those that have and first answer that's correct your honor and then what you see in e c s fifty nine that's reply in support of conditional certification plaintiffs are not challenging now nor do they intend to challenge before this court the validity or enforceability of the arbitration agreements or the class collective action waivers contained there in the same page the ones who have valid arbitration agreements will go the route of arbitration if you were to convince us to import some of the second and fact finding determinations corresponding to an employer's ability to say they're not similarly situated because these people have to go to arbitration if you are revealing your argument that those determinations must be made at the front would it then be a district court's authority even over objection of the defendant to told the statute of limitations in these cases we certainly have no objection to the district court after so i know you have no doubt objection my question is could it district court even over the objection of an employer but you are right i have not thought about that issue i need to follow up no that's fine it's not  may please the court based on the information we heard from chase today we agree mandamus is not an appropriate remedy in this case chase cannot establish that there was a clear and indisputable right to the written one of the required element in order for this court to have jurisdiction to issue a mandamus and its respondents position the chase cannot establish an abuse of discretion much less a clear abuse of discretion based on the a list are the analysis that controls in this court pursu lusardi and all of the cases since then that i've seen our courts been very careful even back to that is it mooney yes you never to say we've adopted we've just sort of acquiesced in the methodology that fair to say that's correct so it isn't settled law in the way we normally think of it it's interesting that for twenty years we've been telling people it's ok to use it we aren't saying that it is the methodology in the district courts as opposing counsel conceded have all done and said irrespective of whether one of the things that you mentioned in one of your briefs is that you referred to these cases from the southern district and you said it's it's the controlling the settled law and the southern district of texas there is no such thing as controlling or settled law in a district court a district judge can change his or her mind in a different case than to the day after interview decision so you you you mislead us when you try to let us think that if the southern that we typically address when seeing conditional certification he says now and lusardi in that first step when the court conditionally certifies a class under the lenient standard a review at that at the stage one conditional certification stage surely the district court can and probably must say we're not going to send any notices to men right isn't would you agree with that or not would have great issue if the the district court make some kind of basic distinction among potential members of a collective action and exclude people who are obviously obviously cannot be part of the collective action at stage one absolutely in fact that is their duty and discretion to do so as vested in them by hofmann the roach right right and so often are the roads does draw that basic distinction between and i'm reading from the decision notice process for case management purposes versus solicitation of claims absolutely your honor and in this case this issue was addressed clearly before judge allison the question of whether these individuals who may or may not be subject to arbitration agreements and just to clarify at this point we don't know whether they are not nor could anybody because there is no standing to address that issue but let me ask you this do you concede and then maybe you do if you don that an employee who has signed an arbitration agreement waiving collective action cannot be part of this collective action once they are a party to the litigation and are subject to the discretion  rule of judge alice and he will be able to determine whether or not that was a valid and enforceable agreement but yes your honor if it was valid and enforceable something that must be determined on the outset upon a motion to compel arbitration then yes and if i could direct your honor's attention the fact that an agreement must be found to be valid before arbitration can be issued under the f a a is well settled in fact just today the united states supreme court issued an opinion henry shining versus asher in white sails any and well not directly on these grounds the supreme court recognized citing section two of the f a a that before referring to the dispute to an arbitrator the court first determines whether a ballot arbitration agreement exists this is not something that can be presupposed this is not something that can be assumed over a class this is something that must be found individually and that your honour's is why it is in merits based issue and appropriate unable to get this issue decided and once the notices are issued and presumably the question is made that seems to me to be grossly u nfair well in your honor mr peterson has taken issue with the notice itself but notice is the effect of the district court order defining the  or let's look let's assume for purposes of my question that that having to go to to produce the notice is the sort of irreparable harm that normally we would consider in deciding whether to grant extraordinary relief as assuming that for purposes of the question how do they get out of that box this this issue will never be decided certainly not for purposes of this litigation yet it's an important question it is an important question your honor and lusardi the that issue cannot be before the court because it's a merit based issue there might be other remedies available to chase well actually you know what could have been before the court if we didn't have a district judge here is absolutely determined to make sure that the question is never decided and you helped him at every at every stage there was a there was a motion for twelve ninety to be interlocutory appeal which would have been an easy way to decide that you oppose the motion and judge judge ellison refused to go to to certify the question then when and once he issued his his order there was a motion to stay his order presumably to allow this court to take a look you oppose the stay he denied the stay so i mean at every turn you and he have made it more and more difficult for this question to be decided in a reasonable way while it's still a live and your honor is because we believe this in question is not one that's appropriate for appellate review at this time even though it will be so at a later date not however at this conditional certification stage and your honor we agree that means that notice issues join this action yet it may be an incentive for them to go ahead and join me and your honor that presupposes the fact that they have no right to join this action and if i could direction does that response mean that judge ellison's order assumes that some of the employees who knows how many who have signed the waiver of collective action may be able to successfully challenge that waiver and join section judge ellis and stated that those people were not before he and he could not rule on the merits of the arbitration agreement because there was no standing to do so had he ruled on the indorse ability or validity or doesn't the f a at least require us arbitration agreements are to be considered valid or vocal and enforceable what chase left off was the second half of that statement this is in section two of the f a except a poem grounds that exist all are in equity for the revocation of any and then motion to compel arbitration that burden is initially on chase they must pilot and they must show that a valid arbitration agreement exists and that the issue before the court falls within the scope of that arbitration agreement and if they can do that  judge ellison has done is that he has already basically decided the merits of this case by talking about the victims of the illegality so potential decided the case so what is he what does he mean it quote it doesn't seem to me unfair to give plaintiffs notice that they may have been victims of this illegality what illegality is he talking about your honor he was recognizing the standard at that first lenient stage which is you take the information provided by the plaintiffs and relying on that in the pleadings you make your similarly situated determination that doesn't mean that at the decertification stage he's going to say oh well i already decided back at notice would be a huge compromise of the individual's rights i'm sorry or anything that huge compromise of individuals rights that's a good judge ellison's language i believe that these individuals are entitled to receive the notice as potential plaintiffs in this action they were signing over trade agreement a compromise of their rights and arbitration agreement your honor that has not yet been established or proved or even have brought properly before the court how could the  and it's up to disenfranchise what here you're here protecting what he did we invited him to respond but he didn't choose to do that so it's always understood in mandamus proceedings that that the respondent in some sense speaking for the for the district judge there's nothing inappropriate about that so you have every obligation to tell us how you can justify the language that he used here your honor well i can't speak for what he meant by that language i can say his analysis under lusardi was correct if the district court heard say i want to give people who have signed valid or betray sion agreements notice because i feel they've been disenfranchised we would be granting man us correct your honor he didn't say he didn't say it but had he reduced in his order the statements then would you be denying that that would be clear abuse of discretion your honor had had a valid arbitration agreement before and i know that he refused to enforce alternately in his order as i read it he says two things i don't know whether there are valid orders out there and then he says additionally even if they were you aren't the people who would be defending them we don't know who they are but had he written the order all around statements that he made saying even with valid signed agreements all people i want them to in that notice because they've been disenfranchised that would be a clear abuse of discretion honor and he could determine the validity in force yesterday without that issue being before him then yes and then if or alternatively if a district court said i'm giving notice because i presume arbitra factual one that is to say we don't know of these tens of thousands of people who have signed agreements and who don't or do you think the issue before us is a legal one of whether or not district courts are obliged to resolve fact questions at the first notice stage what is the issue and you restate the question here is the issue in this case a factual one that there just isn't enough evidence for us to necessarily conclude that the tens of thousands of others that haven't yet received notice did sign valid agreements in your argument would be no there isn't and that's what the district court said we'll wait and find out where is the issue before us whether we want to revisit lazard and say district courts must answer those questions at the notice test stage your honor and addressing the factual question first yes we agree that those issues were before it as far as the legal question as to whether the merits of the case should be in inserted into that first conditional certification stage under lusardi i could see good reasons to do it judge duncan's question about an only women or another one let's say the judge said i want notice to go to people order to factor in limits on the court's ability to give notice in fact the similarly situated analysis itself puts those notices and i mean puts those restrictions and because in that analysis the court has to determine who is similarly situated to the named plaintiffs and in so doing it looks at a number of factors including their job duties job titles responsibilities and depending on the facts of the case there are different issues that go into that condition because the challenge here is this is a hybrid case i see it because miss rockwell did give a declaration and she said there they were there in her opinion there are tens of thousands that signed agreements did you did you seek an opportunity to  conditional certification discovery and that is a mere it's based issue whether or not these arbitrations are valid will be considered this isn't like salad or exist or both both they have to be valid and enforceable in order for arbitration to be appropriate and that's well settled law and that issue will be determined that it's not that chase will not get to have its day where it and these cases are sent to arbitration it's just that day is not yet here and it can't at chase who joined after two thousand and nine has signed a arbitration agreement waiving collective action now walk me through how is that going to work at stage two would it be as simple as saying ok we've just verified that that's true we've because there's no way to know these issues before they're before the court and i believe your owners recognize this issue when rayna in distinguishing rayna it addressed court cases directly like the one on point including merit romero where the named playing to did not have an arbitration agreement and the often plaintiffs allegedly or subject arbitration agreement and in the american court they said that the existence of arbitration agreement at the conditional certification stage was irrelevant because it was a m spaced issue that could only be determined after those people are properly before the court and likewise in raina this court cited davis you know mr mortgage with the stench of this dame holding recognizing as long as the name to point it was not subject to a motion to compel arbitration and therefore had standing to proceed in the district court they were authorized to issue notice to those that might also have claims because because of your honor of the definition of a potential plain f which is inherently tied to the similarly situated analysis who is a potential who is a potential plaintiffs in any lawsuit is not determined by chasing who is it's determined by the class definition certified that definition controls the scope of the law suit you agree that under informs the world that that that's the bank has violated and yet the f l i say and has has disenfranchised to tens of thousands of employees who have signed arbitration agreements so that come on and how do you do do do the best i can for you now your honor with all due respect what the potential plaintiffs would receive would be the neutral and formative notice and what was said at the hearing would never be something that the plaintiffs would know they were just know that they might have rights that are being subject to litigation and that those rights might in fact the subject arbitration depending on their focus circumstances unique to them deal with you as to the question i asked him the very end of his time which is if we were to require district courts to do more fact finding at the from there would that would that toll the statute of limitations that applies to these  while i think that such fact finding would be contrary to the principle of the f l s say if that were required i think tolling would be necessary with this wasting statute of limitations their rights would be severely jeopardized we kind of pounded you w questions there may be something else that you wanted to bring up and if you'd like to you may have two extra minutes to do that you don't have to and i don't want you to repeat or summarize what you've already said it's completely up to you of course if you take that time it may engender were questions from the this court were to rule that notice it self to be harmed it's opening the floodgates to put it into mandamus as there is no defendant ever that likes to have a case conditionally certified against it and in each instance they would argue that the issu of notice a selfless harm and that this court should weigh in before notice goes out and that certainly is not in the interest of judicial efficiency either below or here i'd also like to point out that the conditional certification order is inherently discretionary one one that is authorized by huffman the roach who sorry in this horton mooney where in the court gets to set the parameters of the class now you had asked me earlier justice higgins and whether or not the court could abuse its discretion in such a ruling and yes i will leave that it could however that is not the circumstance here because in certifying the class and identifying credit industries that's a case in the northern district of texas that ordered that notice be given to all employees but only permitted the employees who had not signed arbitration agreements to opt into the collective action it is clear that many district courts are treating th to any district court decision whose reasoning she thinks is right i can't identify a single district court decision that has seriously considered this issue in light of the article three concerns and seriously weigh the interaction of the federal immigration act and the federal fair labor and you say the article three concerns and and elevate this to a constitutional issue what language in the majority seven justice majority are you pointing to a point to first the parties i think it would be indisputable that a district court would a committed grevious or an article three if the court suddenly started ordering that notice might be sent out to other potential plaintiffs who just might wish to assert a claim against the defendant who in front employees who have a right to join the collective action and what i'm told that is for court you'll see this at d c s fifty nine a ten in notice they were asking for in this case was quote not about the right to join this collective action the notice they were asking for interacts with the federal arbitration and i disagree with my friend i do not think the federal arbitration act is dormant until a motion to compel arbitration is filed their two pieces of it systems that i think you need to look at here one of them is the court talking about public policy against robert ration i admit the language is directly on point but the court noted that prior to the nachman of the arbitration hostilities arbitration manifested itself in a variety great variety of devices and formulas opposing the nation and the court warned that courts going forward need to be equally alert against new devices and formulas that might achieve the same result today second the other thing up at systems tells us about what to do when we have to federal statutes that might be an apparent conflict now look if my friends procedures if lusardi if this text of ignore the first stage and consider the second stage we're in the text of the fair labor standards act then i agree it might be a before you refer any i think to an arbitrator the court determines whether a valid agreement exists that is right but that presumes that the defendant has the ability to follow most of the arbitration you see the position we're being put in she says again and again chase has not shown that every single one of these agreements is valid and forceful if there were some way of meeting that burden let me know what we need to do because it's frankly practically speaking undisputed here we're large corporation we have agreements that are are on their face value these  agreements that are always sign they represent more than seventy individuals who have signed these agreements haven't identified any individuals problem there is no question that the vast vast majority of these thirty five thousand employees have binding and forced labor traist removed the only example the district court gave a non english speaker is and in fact even a valid defense to contract formation non english speakers who sign english contracts are still bound by the flying versus are turned white simply illustrates the difficulty of challenging arbitration one last point  smith with respect to the ability of notice i would say there has got to be some way of showing a clear ever even in the absence of case law you see that demonstrated in the supreme court's decision in slaven hoff versus holder which we pointed the court to in the briefing as a basis for mandamus relief in these sort of procedurally important circumstances and that is a case of first impression where the supreme court nonetheless heard held that the writ of mandamus was warranted and i apologize if there were more authority on the issuance of the written these circumstances there may well it may well be out there and we may not have had the time to cited in the briefing so i believe the courts where we have all been moving quickly in this case and we certainly appreciate the court's consideration as the panel has for the questions are thank you mr peterson  mandamus under submission and because all the members of the panel saying we very much appreciate the short deadlines over the holidays and all of the of the excellent briefing on both