argument ended up with epic systems which i think does set up the legal framework for the issue here and there the supreme court said that the f a a protects pretty absolutely agreements for one on one or individualized arbitration and the court said that section two can't uphold a state law a contract rule that will reshape traditional individualized arbitration and in our view that's exactly what the mcgill rule does and i think the fundamental reason for that is that as mcgill itself says public injunctions are designed to provide relief for people other than the individual who's beginning who was the sort of the claim it's mcgill says quoting brown and hughes it's designed to prevent further harm to the public at large rather than to redress or prevent an injury to the plaintiff do you disagree with the statement we just heard that an arbitrator may issue and what the supreme court said is even though california state law in the discover bank case required that there be a class proceeding oh no that's not the same question my question is can an arbitrator issue a public injunction and you said if  fundamental difference is it's not about the party before the court it's about whether there is a risk of future harm to other similarly situated people and what i understand that but i think you just conceded that the arbitrator has the power to issue such an injunction you move to concepcion the court had a different idea in mind the court said that all of the procedural devices that are good with class actions in a quarter different from what happens in arbitration are there any procedural things in that are substantially different in arbitration compared to accord when we're talking about a public injunction well if i may or i'd like to disagree with your premise and then answer your question why don't you i don't think you disagree with everything you like i think e systems makes clear that although concepcion addressed class proceedings because that was before it that the the preemptive effect of the of the f a is not limited to class proceedings that it sort of looked at the other side of the corner and said well crest class proceedings certainly are preempted what's protected is individualized one on one determination so i think the question is under the f a a and under epics systems is does the proceeding that those the process that's required to decide to issue and then to oversee a public injunction differ from individualized one on one decision adjudication and i think it does for the reason that you're not just looking at the party who's bringing the case you're looking at a whole bunch of other parties and in fact the only way you get a public injunction is this is to decide that there is something a threat a future harm to those other parties that requires a series of decisions are those parties similarly situated to the person bringing the claim in our particular case which involves alleged misrepresentations there were a whole series of different disclosures depending on timing and other things so you have to look at all of those other people to decide whether they have a risk of harming harm based on the other information that was provided to that mr pinkus and if i can ask you a question because you did argue in your br that demonstrating an entire moment public injunction would require class like evidence of that's what you're trying to describe right now but but why is that why is it enough for public injunctive purposes for an individual to establish that the law was violated it's false advertising law and that the violation is ongoing well i think that's exactly what has to be two of the things that in your question i agree with that the violation is ongoing so one of those subsumed within those that inquiry at least for the kind of case that we have is what were the representations to those other people is there an actual risk of harm and also in this particular case is there a risk in the future that people will be subjected to alleged improper charges here given changes in technology and changes and a lot of other things so that's a whole separate inquiry that why do you need evidence of third parties who see the ad to say you're enjoying from running the at because the whole inquiry here is are there is there a risk of future harm to other people what what macgill specifies in quite a lot of detail is an injunction that benefits only the plaintiff is not or is not a public injunction the inquiry on a public injunction is  is there a future harm to other people not similarly situated the core the states of california supreme court has said in other circumstances and so that fundamentally changes the inquiry from redressing harm to the individual to what is the situation of all these other people in this case millions of other people who got all kinds of different representations where technology and practices have changed and that whole set of inquiries would have to be undergone and then what is the proper  technological fix is it a representation is it a fix that requires specific disclosures all of that has to be looked into in order to decide what to do and then the court and broaden and cruisin talking about public injunctions said there also is the future administration problem that's a big difference from individualized injunctions and something that really is quite incompatible with arbitration are you suggesting then that the inquiry for public in class which seeks injunctive relief the question there of course would be is there risk of future harm you didn't that for injunctive relief and the inquiry would be what about all of these people is there a risk of future harm it california law doesn't require class procedures but i think succumb was the court's finding in that case that the plaintiff was proceeding as a proxy for the state there were critical elements of the state was the gatekeeper the claim couldn't be brought if the state didn't want it to be brought the state is bound by the decision in a paga case and the state receives the lion's share of the recovery seventy five percent so this case is totally unlike that none of those characteristics here this is a totally private action although will though it has the term public injunction the other thing is paga does provide relief for the individual who brings the claim he's part of the similarly situated people and here as i said the characteristic of public injunctions is that they don't provide that the focus is not relief for the person before the court but for these other people i think it's relevant although not dispositive that's a cop was before the epic system's decision we don't that that anyone has to decide cobb is wrongly decided in order to rule in our favor in this case but i think it's relevant that's the cobs focus was comparing paga actions to class and the supreme court has made clear that the relevant comparison now is in fact individual eyes one on one actions to whatever the that kind of action or remedy is that's at issue and the other thing that  think is relevant is there's a difference in the focus of the inquiry as i said the paga action is an individual saying labor violation i was subjected to labor violations and i'm suing for myself and for all the other people who were subjected to the same violations so the focus there really is proving the plaintiff's case and then a somewhat mechanical analysis of who the other similarly situated people are to get monetary sanctions it's not injunctive relief and so it doesn't create the questions about exactly how to fashion relief relief that might conflict with other third parties that are seeking relief because in pago of course once one case is decided those claims are exhausted in public the public injunction context once one claim is decided someone else can bring a public injunction action and say i don't really like that relief isn't good i don't think i'd like some other kind of relief so there's a possibility of conflicts and because it's injunctive relief there's a possibility that the injunctive relief sought may impact on other third parties who are not in the benefited class and in fact there are cases that we cited in our brief where those third parties have been permitted to intervene to raise those concerns about the potential impact on them so we think it's a very very different kettle of fish then the issue before the court and the cop what is what is in the effect of the not and in your agreement there's a non severability clause is that correct yes and what is the well we have a disagreement yet with my friends on the other side of what that is if there's a claim that can't be arbitrated then the whole clause blows up and we've explained in our briefs why we think that that decision was and not a proper interpretation of the contract why and i'm having a little trouble i understand sure maybe you hav relief only in favor the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim in our view that sort of sets the stage for what the claim by claim application of the provisions that follow that provide that there shall be no arbitration for claims where they are an individualized but that the district court obviously found to the contrary if we prevail on our preemption argument obviously the what the around about what the supreme court says the f a a protects quote pretty absolutely and if you read that section what the supreme court is talking about are terms in an arbitration agreement that specify with whom the parties will conduct the arbitration and the rules under which the part of the arbitration will be conducted and that's what epic systems is talking about individual eyes arbitration protecting and that the cases that the supreme court cites for that or italian colors concepcion and a whole a straightforward application of concepcion to the in a way and so here the mcgill rule doesn't doesn't interfere with either of the two things that epic system says constitute individualized arbitration it doesn't specify who you have to arbitra with it's still just the parties to the arbitration a public injunction can be adjudicated based on bilateral one on one arbitration and two it doesn't specifies the rules that are going to apply to the arbitration the parties are position and not be inconsistent with the cobb what is your view and that in your honor and you see in their briefing that they focus on the key like nature of pagan and less that the recovery goes to the state and you have to provide notice to the state but what's interesting is that all of the distinctions that they raise between pigott claims and public injunction claims are what was driving the court's analysis in secada with respect to preemption under the f a a what was driving the court's analysis since aqaba is whether or not state law was going to impose procedures on arbitration that are incompatible with the fundamental nature of arbitration concepcion and so this idea that seventy five percent of the recovery is going to the state that's for more plants perspective it's irrelevant to the preemption analysis what matters is what the claims look like is due process or any other law requiring us to impose certain requirements on arbitration and the answer in cobb was no and the answer here is likewise no and so the else is as we laid out in our brief is it's virtually identical and in some ways i would say that that it's  even more more the case here right because if you look at footnote ten of sic ob there you are actually resolving non participants these other employees claims are being resolved right and that's binding on nonempty non participants they can no longer bring a piggy claim because they don't have their own claims right but here as you acknowledge at the very end of the previous argument we are not binding anyone anyone else can still sue to either recover restitution for the you know the retrospective harm that they suffered or to seek some sort of alternative relief a different public injunction if they think that that's necessary so because we are not resolving the claims of any nonparty to the arbitration or litigation there's no need for all of the procedural requirements of class actions or anything else to protect those absentees due process rights so if you have three different individual plaintiffs who have been harmed in some way in a consumer context and they each have three different individual arbitrations your view is that the arbitrator in each of those could issue a public injunction and you might have that would go against in this case let's say eighty and then that those could potentially be inconsistent overlapping or contrary to each other so i think the resolution to that is however eighteenth he wants to deal with those claims for  the answer is yes so that they're under a year contract that would be permissible i think that's right your honor but the way to avoid any problems with that would be in structuring the arbitration agreement to say allow intervention from one one case to the other to allow intervention in arbitration to say that all of these different competing injunctions could be sussed out doesn't require intervention state law doesn't require intervention nor does any other constitutional principle but they are still free to select that as an option if they want to to make the administration of a public injunction easier or to prevent competing or inconsistent injections to moving on to to the next point was that the concept that this violates the individualized nature of arbitration because it's going to have an effect on the one party's the injunction is going to benefit members of the general public but having an effect on third parties is entirely consistent with arbitration as we've seen for example in the antitrust context the entire point of the antitrust context of both this court and the supreme court has said is to protect and preserve competition not competitors so in an arbitration the competitor might be the individual participant but a claim or an injunction under the antitrust statutes that's issued by an arbitrator is ultimately to benefit competition i e the right of the general market and the general public so the idea that you can put an arbitration has to be laser focused and consider only evidence pertaining to the have effect beyond just the parties to the arbitration and those are subject to arbitration so this this idea that eighteenth is trying to graft onto ethics systems that individual ised arbitration means only a but what the damages look like there's anything regarding the damages that would affect our analysis here i don't think so your honor i don't i mean the public injunction is really just an order to stop and sued to go back to the the previous question about competing injunctions there's an unlawful unfair deceptive practice right this individual whether it's the individual in court or an arbitration has been suffered a loss of money or property as a result so as long as the practice has as long as the claim it also shows there's a likelihood that the practice is going to continue you stop the practice so in that way the i think simple nature of what a public injuncted junction is stop whatever the illegal conduct is is going to cut against the idea that you know you want to follow the law follow the line well not not exactly follow the law but stop doing whatever it is we've alleged is unlawful but for here that would be the international roaming are there ever affirmative public injunctions there is a negative injunction to stop just stop and i understand that that certainly will be some of them and my question is that all of them i think that's the typical public injunction is stopped in particularly the mcgill court referenced deceptive advertising as the you know kind of ok your ads been saying this but you can't say those words you have to say this or it has to encompass this kind of a disclosure for example because otherwise it's just unfair and misleading or whatever so would would your view apply to the same sort of not just prohibitive injunction but the affirmative must undertake so so for example the you know a phrase is unlawful but if you in the third one just as well your honor i suppose that that's the situation that we were talking about earlier in the remedy to that is to have you know for eighty to draft it's arbitration agreement in a way that takes that into account so for example if there are multiple suits that they can be joined in arbitration or that they can allow intervention in arbitration or if they wanted to they can simply litigate those in court see that as a practical matter that sounds good i mean as an abstract but as a practical matter you get this one waterfront doesn't seem like a practical solution to the problem will you and your honor the arbitration isn't always practical and the supreme court is actually so that is highly technical and that piecemeal you know  is totally consistent with arbitration so arbitration i mean if you look at the harry henry schein case which just came out recently right to the notion that the court can't simply bypass the arbitration process if the court believes that wholly groundless we actually have to go through the whole process of the arbitrator deciding arbiter ability maybe even doing the arbitration before it comes back to the court to say by the way this you know i don't find that that this will that's in some ways a waste of time but that's the way that arbitration is set up and you're at the very very last thing that was touched on in the previous argument was this idea of the non severability clause and and here it's it's if you use just plain and simple english which is what california says you should use to interpret contracts if any if this specific provision which refers to the entirety of the waiver which includes public injunctive relief that provision is found on enforceable the entirety of this arbitration agreement shall that we would urge the court your firm unless there are other questions thank you thank you  just a couple points i think to start with something that my friend said it's certainly true that there can be individual injunctions that have effects on third parties but the critical point here and it's will be very well spelled out in mcgill is that public injunctions are designed only to have effects on third parties and only if any effect on the person before the court is incidental so that necessitates this fundamentally different focus on what kind of relief is appropriate that i discussed before with respect to what the f a a presents i'd urge the court to consider a sort of a hypothetical statute that says state x says we're worried that our this particular statute isn't being enforced enough so we're going to say that one person can bring claims on behalf of up to ten other people if they just send them a note and says that's ok i think if that ten set of ten claims was brought in arbitration it would not be individualized even though there would only be one person who was actually before the arbitrator he or she would be asserting ten different claims that wouldn't be individualized and i think that's the problem that we have here with respect to the rules it's true that arbitration gives parties the widely way in selecting rules but those rules have to provide a reasonable chance for the claims to be adjudicated so the problem here is that those rules have to allow in this particular context for the obtaining of evidence with respect to the situation of third parties whether there's a risk of future will harm and what the proper injunctive relief would be announcing that that are you saying that that's required to california law no i'm saying that that probably it's more quiet this this court in the pull on against c h robinson case discussed this question and we don't know what california law requires although i think it's interesting that a subsequent pod the decision by the california supreme court that we cite in our reply brief did say that at least in court class discovery discovery equivalent to class discovery is appropriate for paga clients i'm not saying that's i'm not saying that that is required but i think there would be an argument of unconscionable ety if an arbitration proceeding didn't give the parties a fair chance to obtain the evidence to litigate a public injunction but if that it ma  what the court said in the pl blon case is a reason to recognize that anything doesn't go in terms of rules in arbitration and that those rules are subject to attack both under the federal arbitration act and under unconscionabl principles if they don't provide a fair chance to get the arbitrator to give you access to the information you need mr pinkus just what would you agree that the procedure for a public injunction are more or at least relatively more so simple than for a paga action i don't think so your honor because i think the way the pago works is the people of the other people whose whose claims are going to be a have to be similarly situated to the person before the court so it may be that there's a lot of evidence to gather about whether the employer engaged in improper labor practice but in terms of relief it's pretty cookie cutter once you decide that for example the overtime applied to this particular job or this particular time was not appropriately taken out of compensation it's pretty mechanical to say ok we're now going to apply that finding to all of the other people here we have this whole other set of people the people who are arguing argued to be subject to future harm that have to be looked into and the fact that it fashioning injunctive relief is much more complicated than fashi realize we're taking over time but this gets us back to the question what does the injunction look like i heard the first panelist argue or say well just stop it's not very complicated i think in i think that's right and i'm less familiar with that case which i understand may have been an overcharge allegation here the claim is misrepresentation i think in order that said stop misrepresenting could have first amendment problems and probably not comply with rule sixty five's requirement so i think it would have to be somewhat more specific in terms of what exactly the alleged misrepresentation is and how to remedy it and we have the additional problem different people got  right that is to say once it's established is a misrepresentation and a court an arbitrator could both say here's what i find to be misrepresenting stop and you're out of the problem in this case is mr mcardle got representations for a specific period future harm would involve people who got information from a t n t for another ten years all of those representations have would have to be looked at to see whether whether they carried the same risk of deception if there was one and how to remedy them so it's a much more complicated problem thank thank you i'd like to think counsel for argument