good morning or honors and may please the court my name is chris baker and i represent the heidrick appellants i would like to reserve two minutes for about i would like to spend the few minutes i have today focusing on two points  agreement was essentially an all or nothing agreement because it had an illegal pagel waiver it was entirely on enforceable so the question is is the pagal waiver on a forcible if the peg or waivers on appeal the law is ambiguous your honor this court is held it has to be final and the petition to the california supreme court has to be denied there's a california law saying the california court of appeal is sufficient a result not of the trial court's error but because a penny mac's drafting decision doesn't make any difference that the finale the other decision took place while this case was on appeal that is it took place after the decision by the district court it does not make any difference your honor and i think that the this court's opinion and clements makes that clear as well as in geographic expeditions and both of those cases you had a quote unquote final decision by the district court while the case was then on appeal to this court there was an intervening appellate court decision in the state courts so the finality of the and because this because he court finally determined that the arbitration agreement is entirely on a forcible that's it that applies to the entire arbitration agreement penny mac's argument which is that as long as penny mac only moves to compel arbitration on specific claims and illegal and under forcible contract is enforceable as to those claims it doesn't make any sense  it's an argument the lacks merit well let me ask you a question about the argument that if the private attorney general act claim is procedurally deficient in other words you didn't wait long enough to know after notifying the california labor and workforce agency to the to file suit wouldn't it then be appropriate to dismiss the pegu claim for lack of jurisdiction but then subject the remaining case to arbitration it's not your honor because that's not what the district court did the district court had to review the arbitration agreement with the packet claims as part of the complaint  prior to determining whether or not it has supplemental jurisdiction that's the st point nd point is that the pag cause of action was administrat exhausted as two of the packet claims because god has that unfortunate differing exhaustion periods you derive thirty three days for items not referenced and to sixty nine five and sixty five days for items reference and labor because section two thousand six hundred and ninety nine dollars so part of the package claim is going to stay no matter what and when the district court reviewed the arbitration agreement it had to a minimum look at the complaint as a whole but to get to the point of the and it brings which is the point of the fact that the you need to look at the agreement at the time it was signed to determine whether or not it's illegal so to follow just as prior who explained that a contract to commit murder is illegal from its inception period same thing and all or nothing contract to commit murder and for example most someone's lawn is illegal from its inception even if somebody only moves to enforce them owing the law on part of the contract you need to look at the murder or mow my lawn then maybe you'd have a different case you would have a different case it depends probably on how much you're paying for the law and knowing for says versus the murder part but the trick is whether several the trick is whether it's contain very specific provisions on severance they say only these provisions can be separate right that evidence says and intent of the parties that other provisions cannot severed and the illegal pagel waiver was an other provision therefore the entire agreement is illegal and cannot be enforced just as the smoke l c court held and that's consistent not only with california law with this court's precedents because of the collateral estoppel effect of smeagol ski as well as the merits these are both pure questions of law the proper thing for this court to do i reverse the district court find the arbitration agreement entirely unenforceable and re mandate for further proceedings it would be entirely inefficient and inappropriate in these circumstances to simply remain the case for the district court to make the decision in the st instance because the denial to compel arbitration is immediately appealable so we would just be back here in two years anyways this court's authority allows it to make these questions answer these questions of law and rule in the current context and lest i would like to see the rest of my time for a bottle tire article three courts are required to focus on their jurisdiction and here at the district court correctly and narrowly focused on the sole federal claim over which it had original jurisdiction and the district court correctly declined to consider the state law wage in our claims that were alleged by three of the four appellants the appellant's now are asking this court to put the cart before the horse and to assume that the state law claims should have been considered by the district court in analyzing the narrow question of whether or not to compel arbitration of the sole federal claim that was before the district court what do you do istm again while i encourage you to ignore smeagol ski because as it up as it relates to this case there are important distinctions that make it not at all identical and therefore it has no is a clue is that it is of the same contractual language the language is the same contractual q court says that the arbitration clause as a whole is on in force of all because to have a claim is on a forcible and the arbitration provision is not severable correct as applied to california state law wage and our claims imagine however that i'm not sure i read you so narrowly i think they just said it's unenforceable well your honor they only had in front of them state law wage an hour and if it's if it's not whether it's several why does that depend on whether their state or federal claims that it imagine that the smeagol ski plaintive had alleged not a paga claim but a wrongful termination claim the fact that his agreement contained an arguably invalid pago waiver would have no bearing whatsoever on the enforceability of that agreement as to the wrongful termination  not sure now but that's not the case we have in front of us in any event correct the case that we have in front of us is the case that the district court confronted which was a fair labor standards act asserted by four appellants one of whom is from texas and who cannot even assert paga claims so what do we do with his agreement to arbitrate and his fair labor standards act claim the claim they sought was to assert a nationwide class a nationwide collective group under the f l a say including people from florida texas places where they couldn't assert a paga claim what are we to do with that f l s a claim it can't be not compelled arbitration because a california claim that the district court didn't consider might hypothetically implicate some other part of the agreement and what do we do with the fact that the three of the four appellants signed their arbitration agreements in two thousand and thirteen before the a skein ian decision had even announced this brand new rule of california law thirteen was at that point in time lawful certainly not unlawful but you did and you know you just answered my question when i asked you well desist gagne and applied a contract before us again it was decided you said it does apply i'm not saying that i would say that i'm not saying that is skinny and is doesn't state whatever california law is and applies to contracts entered into before as canyon was decided yes but when we asked the question is a contract enforceable and this is what you confronted in the blonde case when we asked the question is a contract and forcible and if the argument being advance is that the contract is an in forcible because a portion you then go back and say that the entire agreement at the time it was entered into in two thousand and thirteen is an in forcible as to every conceivable kind of claim that an employee might bring when one was the contract entered into  so after after so this is an important distinction and in fact it's a distinction that was underscored by some of the california authorities that we pointed out which attempt to apply a scheme in the franco case for example  encountered very very similar language and noted that at the time that that agreement had been entered into it was perfectly lawful language under the controlling f a a and california authorities and the fact that it later was language that was found unenforceable by a scanning and the franco case said we're just going to treat it as a no passage within the contract we're still going to compel arbitration of the wage in our claims but we're not going to compel arbitration of the pocket plane so these things are directly related and the reason that smeagol ski has no application in this case is because you have people who are not from california you have people who signed agreements before screening was even the california law go back to looking at what the district court was actually asked to look at the district court was not asked to compel anything to arbitration other than the n f l s a claim and in fact at the same time the district court was asked to dismiss the state law claims on the basis of several different grounds one as just well why pointed out was that the paga claim was it was defective it had been prematurely filed was it which is a jurisdictional defect and the district court could have dismissed it on its merits but instead said i'm not considering the paga claim i'm just focusing on the f l s a claim likewise the district court could have dismissed all of the state claims paga and the state law wage our claims on the basis of colorado river abstention doctrine because this miguel c case was already pending and already making those claims and now more than ever where this miguel ski case is back from this state process and his chugging along in state court where we're engaged in discovery and later today will be meeting in conferring on discovery disputes with appellants council all those state law claims could have  not within the district court and should have been allowed to stay where they belong in the state court was that i'm interested in your argument that you've got that kind of a nationwide issue where you've got people outside of the state of california wouldn't their agreement still be bound by california law or not because i don't i don't know that i haven't seen here i haven't i haven't looked at that but we do know the answer was very california choice of law provision in the agreement that there is not a how a foreigner a choice of law provision in the riemann's the important thing to remember is that when pelley filed its motion in the district court it asked to enforce the agreements against all of the appellant's under the federal arbitration act not under california law the issues of california law were only ever raised by the appellants in an attempt to get the district court to engage on the state law claims the district court did not accept an invitation it never engaged on the state law claims it said i am going to focus like a laser on the f l s a claim and what did it have in front of it that had been published just days before it is shoot its decision it had the epic decision where you have is there an agreement yes does it cover the f l s a claims yes what does the f a a require in that circumstance under it requires that the district court in force an agreement even an agreement that provides for individual arbitration because that's what epic did so spinning the sin of the construct or use your argument that because of these additional plaintiffs that are outside of california and the state law claims that makes it so that the arbitration provision it just did it wasn't decided or it isn't forcible as to state law claims or are you saying that it's sever bowl as to state law claims my point is twofold st the fact that you have non california appellants and non california claims means that did not consider identical issues to the issues that were in front of the district court and that are in front of this court and therefore collateral estoppel shouldn't apply at all my nd point is that the district court correctly focus on the federal f l essay claims where it knew that what was being sought was a collective action on behalf of people including people outside california who could never assert haga or other california specific claims and therefore the district court did not allow itself to get distracted by these arguments of state law issues where those arguments have no bearing on the straightforward question what do you what to me seems like the determine of sentence determinative sends out of some a gal ski that court rights because the arbitration agreement has been found to be on forcible penny matt cannot compel arbitration of any of these causes of be that cannot be weighed and is not so over such a broad holding as a matter of california law i do not disagree that that is a broad ruling of course only considered the claimed couldn't the couldn't be valid could be valid as to some plaintiffs and not valid as to others i think that's that's the question that i had focused on before where and it's a fair question when the motion to compel arbitration was brought there were three california plaintiffs that is the motion that the district court ruled on a texas person joined the  case later in the case and there was never a motion to compel as to the texas person but that person thought a consent to join under the false fair labor standards act whether or not the arbitration agreement is in forcible in texas is not before this court the only thing before this court is whether or not it is or you're right the substance is in but but couldn't the question have an effect on the collateral estoppel effect certainly not as to the california plaintiff yeah as to you know a choice of all provision with respect to an out of state person who files consent to join that's an issue for a later date it would depend on a choice of law houses the last thing your honor with respect to a skinny and skinny in was retroactive one of the california plaintiffs here sign conference our law clerks will tell you everything that we would not otherwise tell you and we'll come back after conference and talk with