argument by saying the district court is not entirely to blame we left out the one of the most critical arguments that should have been raised and that is whether or not the nine u s c want to exemption about that your honor first thing i researched and there's a case style dean witter v reynolds levin circuit seven forty one two d three fifty five really five ways you can bring up a new issue on appeal three of them apply here one is it a question of pure law the answers unequivocally yes whether or not these folks are exempt or not is a question for the courts not for the jury to let's not really purely question a lot of what we've and then delve down and see what kind of jobs they do what kind of work they do so inherent in that mean it's a mix question of fact well we think we have the facts developed in terms of the contract that's already been turned over by we don't think it would take much and we think that that would be an issue for the court the the larger issue though is is this francisco you haven't been exposed to a very long based upon my research is about four hundred thousand to drivers millions of passengers it's a billion dollar company but as for your particular clients they're going to be able to go to arbitration and there will be somebody there to rule on this and as to the hundreds of thousands of other drivers next lawsuit they won't forget the argument and they can go forward is that not correct that would be correct your honor if the court were to reject our contention that the court should look at the nine us you want to except we also forgot to race let's talk about this one first before you get to the other one in your brief there's no argument that you meet those dean witter factors either say you drop a footnote to say that you think you presented the argument because it was subsumed within the district court's obligation to decide whether the f a a even applied that's one of the first footnotes in your brief but you don't go through those factors as to why we should in the exercise of discretion entertain an issue for the first time on appeal right i think it could been done better i think in the initial brief we talk about the fact that hoover is a huge company i think we talk about the fact that there were employees you know there's three hundred twenty seven thousand people i think that we talk about the fact in our reply brief that  it is an issue that needs to be addressed by the court we did in in all fairness to us in our opening i'm sorry in the initial brief to the court at the district court level mention nine u s c one and the application of whether or not if they applied at all or not was the issue it could have been pinpointed better but you didn't but big you agreed that it did you just thought you were out because it was unconscionable on federal and state law grounds but important issue it's such a big company it's such a new technology that the court should give it a chance that dean witter provides the court the power to give it and if we were going to entertain the your argument the ability to make that we'd really have to remand of the district court to start over again right i think that's right you're on but the second issue if i might in terms of whether or not we raised everything correctly i have to point out that  also failed to argue correctly that the goober agreement is illegal and unforeseeable under the national labor relations act now in all fairness to us in our brief to the district court we did argue that the collective class action waiver was on forcible at the end of the brief we did not cite to the in a law right which we should up on at the time then all area was not as hot as topic as it is now after we filed our brief at the district court level and after oubre filed its response and i think even after the order came out in the seventh circuit came out with that says and called those fi epic systems the ninth circuit followed soon after with a case called morgan stanley in both cases the courts came down hard on arbitration agreements that included class action waivers but assuming again assuming that we were going to consider your argument weren't those cases based on mandatory arbitration provisions not the one that's not the type that's before us well judge you're on you're out of there there's there's you cannot wave your right your wise and i may be wrong and you may know more about this i thought that they were dealing with something where it was mandatory that one to be employed by a company you had to agree to the arbitration and whereas  you don't have to do it it's really not all until i'm wrong i could be wrong about that tomorrow but you're not wrong who gives the applicants thirty days to opt out and the reality is most drivers are lawyers you know they decision also expressed he says that the that while the ninth circuit has held that an arbitration agreement mandating individual arbitration may be enforceable where the employee had the right to opt out of the agreement without penalty meaning  did not interfere with or restrain or curse or intersection in violation of section eight that decision conflicts with a much earlier decision from this court which held the contract between employers and individual employees it stipulate necessarily interfere with employees exercise those rights in violation of section eight stone which has never been under minded and making violation of section seven a per se violation in other words an opt out the thirty day opt perspective the difficulty of figuring out this appeal from the perspective of your clients is that this doesn't look like a case where you're asking us to address one issue for the first time on appeal you've got three i mean this is a completely different case on appeal than it was in the district court it's not like oh we made four arguments we missed one we're raising those for we'd like you to address the fifth one too under dean witter in the exercise of your discretion but you know you didn't raise the the exemption under section one of the f a a you didn't attack the delegation clause and you didn't rely on somewhere else in the circuit i'm going to go find out who that is i understand where you're coming from your honor i can't stand up here and tell you that i raise issues that i didn't i don't see and we believe me we appreciate the candor we really do  the one thing i will say is this in terms of because i say that i can kind of pick up where this is headed in terms of the delegation clause the one problem that we do have is that if there's going to be if this is headed arbitration in the indicated the arbitrator could decide everything the district court struck our class action allegations and dismissed the case these issues as counsel and i commend his candor as well these issues were not mentioned at any stage on in any point to section one federal trace an active shoe was not mentioned that there was a site it's on page  six of the the memorandum opposing this is document one thousand where they cited the f a a section one at sec and then went on to argue unconscionably which was their only argument below on section one and this court's decision in access now versus southwest airlines talks about the principles of waiver and proper preservation and they serve important institutional interest so that the district court has a chance to review the issues before they're reversed on appeal for issues that weren't presented to the district court in addition saving resources this there's no factual record there's no legal record on the section one f a argument whatsoever and it's not and issue that relates to the fact that hoopers a large company southwest airlines is a large company and in that case this court noted that the effect the fifth factor under dean witter and under access now the significant issue of significant interest in the court in at in access now said this is a significant issue is whether visually impaired people had access could have b claim under the under the discrimination laws or with not having access to what the southwest airlines website and the courts are that's a significant issue but it wasn't preserved below it wasn't raised there is this is an improper vehicle  so we don't think that the standards were were satisfied and they weren't even argued in there in the opening brief so those were waved as well let's talk about some of the issues that the district court did address shirt and let's talk about the opt out that drivers have from the agreement yet in so far as that opt out provision is concerned with regards to a class or collective action isn't that opt out in effect of unless a lot of drivers opt out in other words if you were driver number one decides to opt out but will take mr hill's numbers just as a as a starting point if three hundred ninety nine thousand other drivers decide not to opt out the nuber driver number one is left with a class action of one isn't that ineffective no your honor first as the district court found many drivers did opt out of the agreement and that's a factual finding that's hasn't been prominently featured and in fact the arbitration agreement issue here was actually crafted by the district judge in the northern district of california judge chin as part of a different case where a lot of these issues were presented so there was did there were disclosures at the beginning of the agreement as judge moody found that you have a right to opt out consider this carefully in so many out drivers did opt out so i think it's very effective and there was no argument that it was it was depriving a right of substantive right to proceed as a class action and that they did didn't want to mention counsel is saying that they're the there's something about the opt out clause that wasn't the ballot it thirty days after the original sign for as a driver on the platform that the individual could contemplate whether to be in arbitration and it's in bold and it's at the beginning of the agreement it's inside the agreement so it's a it's a very very robust right to opt out and that's what the district court found based on the factual record before it in this case and again that that finding has not been challenged at all in this court and with respect to that i ask you about one other issue series and then i'll let you get to the rest of your argument one of the arguments that the drivers making their brief and i think it's the last one or one of the last two is that there should have been a stay as opposed to dismissal and i recognize that there are cases a number of them from our court that say that dismissal can be an appropriate remedy but the language of the f a a doesn't say dismissal and some of our earlier cases say stay yes so why should there be a dismissal if you are decided this is a leak as a pure issue with no precedent to bind you one way or another why wouldn't you stick to the language of the statute and require the district court to stay it pending arbitration let everybody come back or not come back once arbitration was completed yes your honor the two things first the court this court in an earlier case did say that the district should have stayed arbitrate and stayed the do i'm asking you why you think that's correct on a play on an even playing field as a first principle matter i think it's correct it's just it's a cleaner way to resolve it if there's a stay and this court's united steel case that we've cited that talks about  on the district court docket the case stays on the docket then it comes up for status conferences it's there to live being you know it's a living thing that stayed but it's adamah docket it could be confusing i think for other people's rights because if an individual comes into federal court claiming they're going to bring this class action fear radically others might rely on that even if they've been compelled into individual arbitration so it i think it's just a cleaner way to deal with it it's not prejudicial suarez or the other individual plaintiffs because there was a dismissal without prejudice so if they get if they get a judgment they're fair about the arbitrator and i want that confirmed they just come back to court and get that exact time as paying a second arbitrator then but if something came back then there would be relation back so there is no prejudice at all and i should ask your judge or new ask me about the first principles but here this is another waiver issue plaintiffs didn't ask the judge to stay the action to dismiss the action and as the alternative stay the action but plaintiff didn't say your honor please if you are going to compel arbitration stay the action don't dismiss it so it's another waived issue in th rights had the judge stayed instead of dismissed it what's your position as to whether playing a sort of been able to heal the order i think under the f a itself they would have been able to appeal but it does get confusing so sometimes parties don't realize that their rights have been t section three is required to go to stay the action so i think that issue the court acted completely appropriately in the no one asked the plaintiffs did not ask and kind of did not ask them to stay the action i didn't want to address just briefly the other the n r a section eight issue because that is not a new issue and counsel again i appreciate that that wasn't making excuses for not raising it but said it hadn't become a hot issue yet but the d r horton and rb decision that really spawned all this was was from two thousand and twelve and other litigants clearly were raising this issue that's how it got to the seventh circuit that's how it got to the ninth circuit in morrison lewis cases which are now before the supreme court but as judge carnes noted those are very different cases because the that are pending in the supreme court those were mandy tory arbitration cases without an opt out provision the way we had here so under the section eight of the n r a argument which as counsel mentioned was never there was out of breath about that statute in the in the district court but the the theory is that mandatory arbitration is somehow coercing or restricting the employer and employees ability employees ability to collectively act and to organize we think that's wrong on the merits but that that's the theory when there is an opt out that there isn't even triggered in the l case which counsel cited the very next sentence in lewis notes that the court is not addressing that issue so lewis didn't endorse that there this court said this is the seventh circuit we have no need to resolve these differences today because in our case it is  undisputed that sent to the arbitration provision was a condition of continued employment and the morris case the other case that's before the supreme court from the ninth circuit specifically noted that one of its prior decisions that we've cited the bloom john madi decision in the ninth circuit had ruled specifically that there was the n f l or a section eight provision wasn't triggered where there was an opt out provision so it's a complete it's just a different issue those cases are different so even if they had been properly preserved it's a different issue then is now really in counsel's words kind of a hot topic and i guess the other i've got to go back to this question of  like eighteen other courts that these arbitration agreements are in forcible they're not unconscionable the ninth circuit in the mohammad case that we've cited ruled under california law for different florida strict judges have now uphill these agreements  and i i think you know that may explain why there was a shift on appeal in terms of legal theory because the their argument that that was litigated below has been repeatedly rejected so we would ask the court to affirm these issues are being litigated in other courts so it's not like that by other individuals so it's not like this is the only case that could resolve those issues thank you very much i thank  thank you owners i'll be brief in terms of the class waiver issue and in the opt out i'm still not clear on why it is and i mean it's all with all due respect gets to decide that my clients only get thirty days to opt out of an arbitration agreement i don't know where they came up with that date why thirty days is ok is fifteen days ok is five days ok i mean the fact of the matter here point is  doesn't matter how many days they get it's still not appropriate correct you know laura if they could have given you two years and you still would think you can't do it correct you know ray is a substantive right you cannot contract around substantive rights which by for defense to the forstmann of the contract and make the agreement unforeseeable and that's really what the supreme court i think is looking at and that's why again it's one of the important issues wasn't raised in my opening brief at the lower level wish there was i can go back in the new time i appreciate your time and i thank you both very much we appreciate it w recess until tomorrow