morning your honors and may please the court for on behalf of the hilltop companies judge cooke i would like to reserve three minutes for rebuttal make thank you your honors an obligation to arbitrate claims is presumed to survive the terminations of an agreement containing an arbitration clause the presumption can be overcome only if it is negated expressly or by clear implication the agreements that issue here do not express negate that presumption so the question before the court is whether they negate it by clear implication the answer to that question your honour's is no they do not the absence of the arbitration clause from a separate clause on survival obligations is not a clear implication negating the obligation to arbitrate claims that are brought post word concede it is an implication i will concede that it's a reasonable construction of the agreement judge gilman and that it is an implication because the way the district court got there was through a traditional canon of construction express here means i will concede that it is not a clear implication for these reasons your hon or first the background is this presumption and that could lead parties to write agreements that did not includes arbitration clauses in survival agreements because they don't need to given the legal backdrop there was no need for the drafters of this agreement to include the arbitration clause in a survival clause when that is the legal presumption that exists anyway second the language of the arbitration clause itself is broad all encompassing and suggest no to parole limitation whatsoever on when claims might be brought but not be subject to the arbitration clause third the district courts and the plainest reason in as i just mentioned depends on a can of construction that relies on negative inference which is a very weak inference or honors it's it's used in the face of ambiguous evidence in the in the face of potentially unclear language and so by definition the resort to that canon of construction indicates there is not a clear implication of your client's the one who drafted this agreement included paragraph what twenty one which is the arbitration clause in the survival clause which is the very next paragraph well i certainly agree with you judge gilman that this would have been clear had it been included we wouldn't be here that you would not well we might still be here today but not on this issue but i might be sitting at the other tape in that instance the book have before us the draft or your client or you the drafter of this document particular case judge could but judge him and ensure a question about construing against the drafter that's not typically how arbitration agreements get construed because of course arbitration agreements are construed by resolving all doubts in favor of arbitration when there is an arbitration clause so that overriding rule applies here and i don't think contra preferential rule is generally applied to  itration clauses given the supreme court's clear guidance that any doubts about the scope i got of this is almost like a landlord tenant lease agreement i mean these people who are the contract whether employees or independent contractor of course the underlying merits issue under the fair labor standards act but i gather they either signed it or took it or leave it right you didn't really negotiate this contract with them well there's i don't believe there's any evidence in the record one way or the other about that you're welcome but i mean  i mean and there i believe some minor differences in them but you know the record doesn't indicate that you know we can probably presume that yes it was drafted by hilltop and that it was the same contract that was present at what they were trying to interpret what was the intent of the parties here and do they intend for the arbitration clause to survive have terminations a contract or not i think a reasonable person reading this arbitration clause judge gilman which is all encompassing and suggests no temp limitation whatsoever would conclude that it applied both to any dispute that was brought during the term of the contract as well as after the terms what would happen if out of these twenty four clauses that they had incorporated twenty three of them in the survivability clause and not the ever changing clause would that yield a different result do you think or not well i think it i think i would argue for the same results educate because of the background presumption that the arbitration clauses were listed as surviving in the arbitration clause was the only one left out i don't i don't think i agree with that judge going for this reason the background legal presumption has to be take into account when considering whether i've thought about this question a lot because it's a good question and i think one i'm going to gold star for asking no because it was my question current word the star here the one where you could have a clear implication is if the survival survive would mean that there has to be some provision that says arbitration clause is limited to this period of time or arbitration clause does not survive the turmoil only agreements could trump the presumption no no the supreme court clearly  express well it's i think it's an implication from that because they're the background the background default rule is it survives terminations of the agreement and so i only for would be more clear but not clear enough as you would argue in terms of this presumption so realistically you'd have to say in the agreement that arbitration does not survive i think if you if the survival clause said only these clauses survive the survival clause does not say that that's just the converse of those it is but i still think it's an implication your honor not not express language that it doesn't that it doesn't serve this is a case of first impression at least i can you cite any circuit case that a circuit level case that holds that an arbitration cause survives not being listed in the survival i cannot a circuit case one way or the other on this judge tillman i believe it is an issue of first impression in the circuit courts and we did cite the three district court decisions going our way to going against us literally going against us the only two that we know going the other way are this district court decision in the case also filed against a hilltop companies in the eastern district of virginia which relied on judge spiegel's decision the three district court cases prior to that when our way of saying that the failure to include the arbitration clause and survival clause is not a clear enough implication given that the presumption in favor of resolving doubts in favor of arbitrary arbitrary bill so there i can't find we couldn't find a circuit court case judge tillman there are certain certainly circuit court decisions that point in a specific direction and one of them this court's decision that we cited in zucker against after sex in that case this court held unreported decision to talk about these presumptions and in particular context of that decision held that that particular dispute did not involve facts that arose during the course of the contractual relationship and therefore that dispute that particular dispute was you know is this resolved on summary judgment or or this this was just on the pleadings this was a motion to dismiss based on an arbitration or a well the deposition or anything as to why your client left it out of the survivors left the arbitrator no there's no deposition there's no affidavit there's nothing of the sort it was done on the pleadings your honor and you know on the other side of the coin there's no evidence on the other side either to indicate you know the understanding or anything of that sort  from the plains perspective so your honour's in my remaining time i would get like to get another pointless there further questions from the panel on what the district court decided ability that have been discussed even though they were not addressed by the district court or both in agreement that right well they've both been i don't know if my adversary would agree judge mckeague but we were fully briefed reid case controlled oh i'm making this i think i'm making a slightly different point from doubt one judgment which is rather than remained in on these other issues to the district court i'm encouraging this court to go ahead and reach them if if i get past the first hurdle it is true that on two of the three other arbiter billet issues that were raised at the district court the reed elsevier case clearly controls and that has been conceded by the other side the remaining issue of arbitron ability that was raised that's not controlled by retail silver but is controlled by another decision of this court is the requirement for a clear and unmistakable waiver of a jury trial in these cases and that that issue is controlled by this decision in cooper against him or an investment company where this court clearly held that a clear and unmistakable waiver requirement does not exist for bilateral arbitration agreements as opposed to collective bargaining agreements so we think that if we get past the survivability hurdle the remaining issues are purely legal they've been fully briefed they don't need a factual record and they're easily disposed of by this court's prior presidents thank you basis or the language of the contract simply doesn't require it and i think it's important to very briefly to to situate this question in the context of the legal predicates we have to remember that you know once upon a time it was a controversial probably the detractor talk required it that's not the point is that the contract does have an arbitration clause yes the contract has an arbitration clause yes the broader point being whether these claims under the really extending those two concepts both of which were fairly controversial in their time to say not only can we ever treat these statutory claims not only can we arbitrate claims of the fair labor standards act that have a significant public interest component outside the parties of a given case but we can do it with a contract that if you pass it around the thanksgiving table i suspect most people would say boy i wouldn't read this contract in such a way as to require arbitration in this case and i can tell you can that my clients in this case were surprised and would be surprised if if ultimately this isn't forced based on what they thought they were getting into when they signed these things when they were put in front of them or the people around my thanksgiving table of course don't milling about  there are there are too many attorneys in my family so you know perhaps i should join you in things giving next year but the point is well taken i think that up in that state in expect that i think that goes you know right to the heart of the matter which is that there's no disagreement about the standard here that's the standard that's articulated in the lytton case that the that hilltop was discussing there's no dispute that there's no express provision of this contract that would indicate that cost would not survive the expiration of the contract so what we're talking about is whether there is a clear implication here and the district court i think got it right in finding that there that there is a clear implication here actually don't you isn't it your duty today to tell us why the that you meet the standard of a forceful there has to be forceful evidence of purpose to exclude the claim from arbitration if i mean that's the way it works you know the pendulum back and forth it works that you need forceful evidence of a purpose to exclude well respectfully i don't have any evidence this is on a motion to dismiss right what we had i mean contractually it's as a matter somewhere in this contract there'd be some force typically in six in the absence of express an express purpose to exclude then you need some other evidence to establish it probably contract right and i think that evidence is is present here within the four corners of the contract certainly it could be there could be some extensive evidence that is what we know but we're looking for what you say the contract says that would right or in your view and i think what the contract says is there are numerous provisions that clearly survive the expiration of the contract contract basically every of every other substantive provision besides the arbitration clause survives this contract there are confidentiality provisions that these workers have to maintain often to infinity about the work that they did here the part of the compensation structure under the terms of the contract the ownership of materials compliance warranties procedures related to terminations non exclusive a t consideration there's a choice of law provision there's a non competing it doesn't go so far to say that it's not twenty three out of twenty four as the hypothetical suggested but it's literally all other substantive provisions of this contract both substantive and procedure all it's sort of a hodgepodge in fact what what's under the nose that the integration clause and the survivor said were several billet the claws are not listed as surviving but that's why it's me is well that's sort of illogical i mean let's take the seven of these integration clause which generally says it is the entire contract  me there but it's probably a question best directed to the other side you know as the court indicated this was a particularly good piece of paper that was presented presented to these employees so certainly there are it's not twenty three out of twenty four but in is probably sixty forty but i don't think it's a numbers game i think i think it's a question of looking at each provision in its own right and just assume that sloppy draftsmanship because that mean that you win and there's an arbitration doesn't some sort of more intentional draftsmanship on the part of hilltop that's not in the record i think the result here is the same rebuild here is a presumption and you have to convince us that it's not the so it is not enough to simply lead on the presumption of arbitrary realty to have courts rewrite it otherwise may be a sloppy contract to overcome really what the intent of the parties are  if i could address the second point related to whether there is a clear and unmistakable waiver here before you leave that i just want to make sure i understand the point you're making when you say this subject of arbitration typically we look at the nature of the dispute for that and this is one where during the term of the contract this and there's no question that your clients were required to arbitrate anything relating to their terms and conditions of employment which would include overtime right the expiration point that is true so your argument has to be that after the contract is terminated then this is not a proper subject of arbitration that is correct if you frame the case that way yes ok this very brief them second and third point there's a second there's a second problem with the language in this arbitration clause and that is even assuming that it would somehow apply after the termination this contract it's very unclear that rights to a jury trial under the fair labor standards act and under ohio wage and hour law are being waived here there's simply no mention of losing a jury there's no mention of losing a court trial or the right to bring a case in federal court there's no mention of waiving claims of f l let's say and these are very serious rights the right to a jury trial that we're talking about abrogating in this case and the case law from this circuit has has demonstrated that you need something more than just a very general arbitration clause to get you there at least when you're talking about something like the fair labor standards act that that is more than just a purely contractual  dispute between the parties but we don't characterize it as general or whatever the converse of that is we characterize it don't we as to whether there's a broader arbitration clause so basically if i read about that yes that is go then you would basically be saying that a broad arbitration clause which has a certain legal significance could never include statutory rights that include a jury trial in other words in order to it to encompass every single statutory claim that somebody might be able to bring you would have to specifically state that in the arbitration clause because otherwise you'd say no it's not included because it's not clear enough they're ever getting a right to a jury trial if you just make sure i'm with you a as a definitional matter if you're talking about it a broad and also vanilla arbitration clause it simply says all claims arising under and related to  medical that's correct i believe this court's case law stands for the proposition that you need something more in order to have a statutory claim we have a jury trial and i've said of cases in the brief that one that's u clause one that's rejected it and you can see the difference in the language right there i mean the one has a very bold bold language clear language that a layperson or an attorney could understand saying you're giving up your right to a jury trial and that  we believe that's what's been lacking here do you agree with your brother counsel that the court should engage the balance of the issues with respect  to the two separate points that that the court was discussing with with my opposing counsel i do agree that the that the record is clear enough for this court to address those issues i further agree that there's not a whole lot for this court to address bar today what that the rebels who are not to you argue that here look up to it and bank court now i'm not i'm not arguing i was not about to make that point ok i was simply saying that you know if if that comes before the court i think it's worth taking a look at it is it's those are very important issues that are open under the supreme court precedent right now and most courts are coming out the other way on that issue but i'll leave it at that most the cour further questions i don't want to take up this panel's time with the monk issue i think the court for its right thank you you have anything to and i really don't except for one small point judge cooke and that is opposing counsel so the presumption of arbiter ability falls away in this context it does not that's exactly the opposite of what the supreme court said in libya which is there is a presumption of arbiter billet for post terminations disputes that relate to events under the contract ok we hank your honor thank you but thank you both