that having satisfied itself as to the making of an agreement to arbitrate the federal arbitration act in the supreme court precedent required the district court to take the next step and to send the issue of the enforceability of that agreement to arbitration has provided for in the agreement itself the second question presented here is whether the district court fide and hirono use legal standard in making its decisions about substantive unconscious ability appellants of mr district court may not invalidate facially neutral provisions because they are effectively one cited for overly harsh on the washington wall that that is precisely what the district court did here in this case the district court committed parties because service access to the courts france larry remedies for both parties the confidentiality provisions provide benefits to both parties and the costs certainly do not shock the conscience  and after a decision by the arbitrator it was reviewed in the district court and eventually by the supreme court so what that's hell's us is that these these thresholds kinds of enforceability or validity issues can be resolved was the challenge in first off what was the alleged objection or basis for second the arbitration and first options there were three parties against whom an arbitration was sought one was a corporation and two were individuals associated with the corporation first options initiated an arbitration against three parties both parties once arbitration in the context of that arbitration two of the parties say if you cannot arbitrate the dispute with us because we have never signed we have never made an arbitration agreement that was eventually reviewed all the way up to the supreme court and the supreme court agreed that there must be the making of an arbitration agreement it affirmed as to the arbitration award passed to the party that ha an agreement as to those parties who had not signed an agreement it reversed well i would say also that this appeal must be reviewed against a background of congressional intent and strong supreme court precedent establishing three fundamental problem policies that favor enforcement of arbitration agreements the first of the starting point for this appeal is the strong federal policy favoring foresman of arbitration agreements according to their agreements and that violates federal law but first their research is that the district court erred by not referring to an arbitrator the question whether the agreement was in forcible who should make this decision this question is resolved by reference to two principal fargus section four of the federal arbitration act and the supreme court's decision in first options section four identifies a single threshold issue the courts must hear when presented with a motion to compel arbitration the court shall hear challenges to quote the making of an agreement and quote that language is very specific and very important though where in section four of the ca general reference to the court hearing challenges to enforce those are larger sets of issues that include as a subset the making of an agreement but there are other issues that are beyond the making of a group of an agreement that are not included within enforceability and deal with it congress has specified only the from whether an agreement was made in the first place section four dovetails with the supreme court's decision first options were first options held the questions of our which ability may be delegated to arbitration again honor pointed out that happens when there is clear and unmistakable evidence of such delegation there was no question on the record before this court of such evidence in this case the arbitration agreement provides that people live in the enforceability of the also ignore this distinction in confuse the making of an agreement with the enforcement of the agreement this precise distinction between enforceability and the making of an agreement was previously recognized by the ny circuit in the three valleys case and that case the court went through an extensive discussion of the paint line of authority a first options pointed out that the appropriate standard under washington mall for determining whether this contract to substantively unconscionable to the words that have been used by the parties in the course include shocking to the constant to the conscience or m versus ingram case in which an expensive earnestly deposit was forfeited in most cases the court found that those instances did not show that the results were most monstrously harsh or shocking to the conscience and decline to inforce the provisions which the parties have already agreed there is washington case law that provides additional definition that helps us understand where in this continuum from one sided the contract must be for it may be invalidated and found one enforceable in the montgomery ward case the washington court of appeals found that a lease agreement was a hard or present bargain but that that was not sufficient in  itself to require an unforeseeable finding as to that lease agreement similarly in a more recent case the court of appeals provided additional guidance in saying that an unconscionable contract is one which no man in his right sens the district court's order denying the plaintiff's motion for class or to cation and we have also included the court of appeals decision the washington court of appeals decision in heat versus state farm which addresses some of these issues rather directly as the court seems the supplemental materials just as mixed denial of class certification eliminates the factual underpinning for the course conclusion that the fact that one cannot have a class lawsuit at the time that one is arbitrating is unconscionable but not necessarily the end of the game though and i think it  made that finding so it's extremely unlikely that those efforts would be availing also in the heat case which i submitted with the with of the district court's order the washington court of appeals reviewed the i think consumer case involving stay far and in that case the washington court of appeals to term and that fact case would not be suitable for class certification and even without a she's discovered in washington the tell over she's discovered has not been followed in washington spying and he's part of controlling presidents the second reason is that washington in california and the size were different policies california places great importance on representative actions as demonstrated by unique statute such as section seven thousand two hundred and by the arbitration act which provides for classes on which ration which  washington there are no comparable statutes of washington thirteen team fails to stansell problems of procedural unconscionably that are not present here and under california law all those procedural in the district court and said that the fees and costs in our with ration were ten times greater than the filing fee in district court that is not the appropriate comparison mindful of the fact you probably want to save a couple minutes for a while let me jump you ahead to the last question ok assume for purposes of this discussion that we accept the conclusion reached by the district court with regard to the individual elements and passion ability to understand your position correct to say that you are prepared just the facts trippers out of the agreement and still proceed with arbitration that is the severability clause one you wish to apply here still proceed with arbitration even without the individual has supposedly offending elements taken out yes absolutely your honor and let me make a distinction between this case in the case of circuit city vs man store where the court refused to sever those provisions in the mansour arbitration agreement that contract also required included limitations on is remedies work or limitations on the gold only remedies and limitations on the claims that could be brought so we'd affected the actual scope of arbitration there the court refused to be the author of the agreement there is no such problem with this agreement because it has no such limitations so for example merely exercising the confidentiality provision does not affect the scope of what the parties have agreed to nor do any of these other provisions and in fact we have waived our rights to pay nothing more than one hundred twenty five dollars if for some reason that turned out not to be the case the remedy would be for the consumers to return to the district court say we've been hoodwinked things are not as represented we're paying more than we should be paying said if you can't have class action litigation that doesn't render the agreement so civilly unconscionable second it said we can't compel you to have classified arbitration if you didn't agree to it and and that is one of the principal policies that our defense household finance corporation three and beneficial mortgage i'll start with the libby issue and when i was preparing for this i was going to address the legal issues concerning first actions first and then talk a little bit about the facts i think i'm going to just the opposite direction for an important reason back in two thousand and two we filed our lawsuit in state court april thirtieth household sent to the borrowers a letter and at be barred from putting in issue the existence of the validity of the agreement i think that's a very important point to consider here if they don't bring the matter to court they will be barred from putting in issue the existence of the lady there is no place else to serve such motion except for the federal court or in this case in this we were in federal court that time eastern district of washington there's no arbitrator because it's household that's the election the average duration they would choose the arbitrator but the important point is this we know what we're talking about the validity issue the gateway issue as to whether disagreement was ever formed in the first instance it was the agreement ever made we know that when you're talking about uncons ly that we're looking at the point in time when the contractors i think that if they entered into bars in this case they would be darned if you do and darned if you don't when we're talking the first option is the way i read households argument is this i think they're asking for the courts to stand first options and first options of the case that presumes the underlying validity  that the supreme court and the ninth circuit have both considered political actions despite similar exact language containing arbitration writers let's start with the chick interface take  court has no problem reaching the validity challenge in that case in fact in the supreme court in green tree versus randolph by thirty one us seventy nine a page eighty three footnote one the court expressed  and that's an interesting point when you just single out one word in the scope of the essay and not read it in connection with section two and section four together you just say making what is making me what the what the court district court judge last if that here so i'm going to proceed with the end understanding that household leaves that now you only need to prove one or the other which is the correct washington standard now what they try to do is distinguish this california articulation  to express an idea and what is that idea that idea is when you make it to one side and so one sided that it's not fair there's a doctrine of law that want to force those agreements w it difficult for these folks to effectively vindicate their legal rights and i would submit to the court that when you really investigate cases there is no true distinction between the california standard and the washington standard unconscionable but only because it was an execution contract only because of the form of the agreement was it means that it was a consumer contract take it or leave it pre formed drafted by household of course we have found minimal procedural unconscionably that there are bones low threshold and a procedural i caution ability and what that means is if you're talking about the sliding scale that now we've got to find enough under washington to want to stablish procedural international billing absolutely so maybe in the grand scheme of things in terms of adding the pieces up there's not a big difference believed the root root to get there seems to be a little bit different the methodology is different harsh with no reasonable person except this particular class where the judge said was that the arbitration writers provisions regarding the class actions legal remedies provision confidentiality for vision and fee sharing provisions constitute a one ability as of the time of the agreement i really want to take a moment and just talk about this stunning argument because procedural history here we actually feel this is the third time we're arguing in this case to this particular issues to the court in july of two thousand and two we argued this exact issue that she joined the other will judge wally out of the eastern district of washington four months later in october we argued the fact issue to judge last night in the western district through that process told about sixty seven sixty eight pages of briefing one brief alone contained forty one he citations i looked i read every page of those recently and i couldn't find one citation to stein i couldn't find an argument made to the court on  then they would be forced paying for you just tipping the scales putting a thumb on the scale when this case started three families from bellingham joint you gather three families who took out a loan from the same loan officer through three families will be required to put on the same proof to prove their case and the reason they join together is obvious to save time to save resources to save lawyer fees we're talking about the economics of litigation and duration householders not seeking average this is the big mess i sold is not seeking arbitration to save costs now they want to actually force people to battle it out one on one actually policies favoring arbitration is to save time and money we're not trying to do here save time and money we're trying to me to take longer have to call the same witness three different arbitrations argue steam issues three different times maybe even one of those are too  and when i took up all your time the last time the issue class certification had been raised and and you indicated that stein you thought was still precluded an arbitration panel from proceeding with class treatment and my understanding was that that's based on the premise that a party hadn't agreed to a class treatment or an arbitration let me point you the question back again you suppose that's turns out to be the problem  to any court this case started in the state court went to the eastern district welled up in the western district and at no point in those proceedings has the plaintiffs ever suggested that they are interested in class or which are so i can't answer that i would suggest that class arbitration preserves fe holster for any problems probably include ing how do you bind absent class members without the notice provisions of rule twenty three that have no resolution or answer to them and are not governed by washington laws they are by california law and he said i didn't dissipated that's like trying to seal from the bottom i'm not sure where the bottom is there i don't know how the class arbitration would work and recognizing this ninety's they still recognize that's one difference and one arguable appellate decisions that saying that it's not that there is no other authority that suggests that it is their procedures i'm sorry the policy in washington are different than they are in california we don't have seventeen two hundred we don't have a washington arbitration distinct let me just respond to a couple of points the first is that the language firstly by counsel in the letters to all of the plaintiffs were mandated by the washington arbitration act that's mandatory language and i