good morning may please the court before i turn to the three reasons why the district court's decision below should be reversed i'd like to address briefly what i think the question is before this court at this time there's a dispute between the parties apparently as to what the content was of the remain and order issued before i think we can i think it was very clear that the question presented was whether the arbitrator exceeded the scope of her  apps in class members within the certified class it should be equally clear that the reman order did not pre ordained the outcome of that question or as i believe the district court believed permitted to reinstate or treat as law of the case the august two thousand and ten decision which we understand is korean jock one set aside my understanding i was to your honor let me turn to the three reasons briefly why we think the the arbitrator was decision should be upheld that certified a class that included absent class members first the arbitrator acted within her scope of authority in certifying a class  of women who pursuant to the resolve agreement each expressly authorized the arbitrator to determine arbiter ability and all procedural questions giving growing out of the underlying cl therefore each class member authorized the arbitrator to decide whether her claim should be part of a certified class and also the form of any such class that may be certified thus by executing the resolve agreement each bound by the arbitrators rulings sterling clearly is there's no question that sterling agreed to submit the question to the arbitrator whether claim should be certified and the form of those claims to be  certified sterling also said that in the event the keitel seven claims are certified the certification should be governed by rule twenty three type procedures that are provided by the aaa supplementary rules on class arbitration could i yes why is it necessary for us to decide whether absent class members are in fact bound if in fact you are correct that sterling is is bound  issue of whether absent class members are bound is not going to come up it's not ripe until there is a decision on the class action in the  and if sterling loses the chances that that will ever be contested by absent members of the class are close to now judge colonel i completely agree with you the reason we are addressing the issue is because we understood the panel from the prior to the prior panel to have raised the question and we are trying to be responsive to it but we are power only said that the issue had been decided fair enough well and perhaps it it needn't be decided at this time we do believe that sterling is bound by the benefit of its bargain indeed this case is much like the oxford health case decided by the supreme court where the parties agreed to entrust to the arbitrator the decision about arbiter ability and who decides whether a class may be certified and justice alito to which sterling refers frequently expressed his concerns but recognized in joint and concurring in the judgment that that there was no reason to question the validity of the underlying class certified it was a certified class or of the question of the arbitrators authority because the parties had intrusted that very decision to the arbitrator just as they did here are you are you aware of any case where a court has found that it was improper for an arbitrator injunctive relief that there was any reason that you needed to have an opt out procedure we do intend to return to the question of monetary relief and if there's a an opportunity if after liability to adjudicate the monetary relief on some representative basis we will certainly renew our request to have an opt out process that will be before the arbitrator that before the arbitrator yes yes so we're premature on that issue is absolutely i just one of the court to be mindful that that we where we stand if we go down that path well i don't think the issue is necessarily reached we do address in our brief and can stand on that point if you wish the question if the court feels compelled to address de novo the question of whether the arbitrator properly construe the agreement we think the arbitrator did there's no question under the act to construe the arm so to address that issue we don't believe you do we only reason raises because sterling argued it good morning may it please the court my name is gerald mammon of cipher sean i represent sterling in this litigation we believe the issue before you today an appeal is a very narrow legal issue it's whether by signing resolved the nine parties to this arbitration nonetheless consented for an arbitrator unknown to them to decide issues that they did not submit to the arbitrator and as to be bound in some future case brought by someone else about signing the individuals signed the same arbitration agreement but signing the resolver agreement was very different than the legal issue of consent because this issue this case pivots on the fact that the federal arbitration act i don't i don't entirely understand that to be our case law here and where the law of the case they they signed a consent sterling asked them to consent to arbitrate all disputes arising out of thier employment according to certain rules which as it happens include the possibility of class arbitration the arbitrator found that class arbitration was suitable in this case why isn't that consent valid starlink it looks for the benefit of it in other circumstances the fact that it doesn't like the result of these circumstances doesn't mean that there was no consent they were strangers to this are receiving it on page three of jack to this court explicitly said in a sentence that they did not consent to participate in that's not how i read that that said they didn't select this arbitrator they didn't opt into the case they didn't select the arbitrator they didn't appear before or they didn't give testimony they didn't authorize her to make a determination as to their rights as we read the supreme court's decisions with respect to the scope of an arbitrator's authority it's based on consent to participate in that perceiving what you're you're you're jumping ahead about three steps when they sign and signed off on agreeing to arbitrate tell me why they aren't agreeing to everything that has happened so far that is the arbitrator decides the scope of the arbitration agreement they don't have a choice and that that that matters before the arbitrator or sterling would be would be screaming bloody hell right they are says the answer to that so then the problem is that as one of my colleagues suggested you're basically stuck with the agreement where you have authorized the arbitrator to make these decisions the arbitrator has reached a conclusion and is set in motion a process that you've asked for it you've insisted on but then jack two is the law of the case and would make no sense for the remaining and to judge rake off to determine the legal consequences of those individuals not consenting to participate in this arbitration they did sign the agreement jack to indicates as much but jack to said they were absent class members none parties to this proceeding and the consequences of not being participants in this proceeding is they were in a party to that determination and jack one jack two said jack one was deciding a very different issue between the thirteen name plaintiffs and sterling and in jack to this court the panel indicated that jack too was not decided by jack one because those individuals didn't consent to participate in the proceeding and didn't consent to arbitrator roberts deciding the issue as to whether or not they would be bound they've been  that there was no determination of whether people who were not parties to the arbitration could in fact be bound by the orbiter asian you are seeking a ruling and correct me if i'm wrong that because there are people whom you say would not be bound by the ruling the b two class action cannot proceed because there are these absent class members is that fair the perceiving can continue as did the two fifty four issue in jack one but not as to the seventy thousand or so at issue and jack to actively there can't be a b question is why is it necessary to determine the effect of the b two class action on people whom you say have not opted in or consented to the arbitration the arbitrator has said this is the arbitration be two class action this is the arbitration that should proceed what difference does it make at this point to determine whether that's a finding on people who you say haven't consented who are not parties to that arbitration your question illustrates the legal consequences of those class members not consenting to allow this arbitrary or to decide the issue because as plans counsel indicated in his oral argument if they should win they would then ask for money what happens if they lose then it's heads i lose before the arbitrator but tails i may win by bringing my own individual case point you could make the argument if in fact it's a valid argument that those people are not bound by the arbitration because they did not consent and you could have that argument in fact point but to class a class action in the orbiter asian on the grounds that it might not be binding on some other people why isn't that premature the argument when you agreed to have the arbitrator determine whether there can be a class action and whether there can be a b two class the only thing as to the parties before her that word issuing jack one not as once any fault that make that isn't what jock because job wants and it's up to the arbitrator to determine under the arbitration agreement whether in the first instance there can be big class arbitration we were very mindful of that having just come down and told us this court in that as went forward the arbitrator decides what the arbitration agreement means with respect to jack one didn't invest the arbitrator with article three powers to act like a federal judge jack to w careful to point out that jack one dealt with the parties who consented to be before the arbitrator and jack too said these extreme vigils never consented and by buying into that argument you're giving the arbitrator powers that are beyond the federal arbitration act that are grounded in article three where these people never consented to be a participant and jack too would then have to be in essence over rule to allow that so let me pose to you a way that that i might look at this and ask you please to inform me why i am misguided and employing you're a prospective employee starting that day or the next day comes in and signs off on an agreement saying i agree to arbitrate any dispute that i have that employee does well signs up for an agreement which we now know because an arbitrator has told us has signed up for an agreement that says yes and when you've signed that agreement you have actually signed up for an agreement that authorizes the arbitrator to engage in  class arbitration which means that fellow employees can bring an action and seek to represent you and you and you have just signed off on that at the employment entry office and you are in substance at least within procedures allowed by are allowed under class action within class actions you are essentially authorizing phone employers who have a dispute act on your behalf assuming the arbitrator goes through the proper hoops decides what issues are before her and also alternately give you notice to opt in or opt out if we're going to go down a certain path because stoll nielsen said that is possible and parties might craft their agreement in that way but resolve isn't the issue before us on page one hundred seventeen in two sentences of the one hundred twenty page class determination order where the arbitrator didn't even analyze the issue as to whether those people for instance i signed it in one nine hundred ninety eight in a low risk a jock brought a case nine years later and i didn't know about it i didn't participate in it and i didn't consent to be bound by it and in jack to this court the but she did consent or he the employee did consent to be bound by an arbitration agreement that old lady lucy goosey enough that it needed to be interpreted by an arbitrator and the r and b and the employees signed off on an agreement which jockeys argued for that the arbitrator gets to decide what the agreement says the agreement actually says if i go three steps one in step t then i can go to step three in arbitration that's not issue here and that employee never consented within the meaning of the federal arbitration act we would submit as interpreted by still nielsen to that arbitrator making that determination we get believe from the questions understands our arguments they all agreed to authorize an arbitrator to decide the classification question is part of the procedures that the resolve agreement rule six of the employment rules the trouble employment rules and the supplementary rules provide the arbitrator engaged in that very decision making which sterling agreed to authorize her to do as well as the claimants and the only question that is really i think it issue here is can this arbitrator bind those individuals i defer to judge total on the question of whether this may be premature to decide but i feel compelled in case you consider it more fully at least to at least make my argument and you decide how you want to proceed it should be clear that if the court proceeds down that path that they all agree to a common body of procedures which included rule twenty three like procedures in the triple a supplementary rules those rules contemplate having a single a judicial officer type an arbitrator render a decision a classification and if the requirements which are just like those of all twenty three are satisfied to then decide  liability that would bind all persons who fall within the scope of the agreement of the class definition to deafen the class is limited to only women who executed this same resolve agreement that's why they're this is not simply a matter of including women who have not consented to be bound by this process so we submit that if the court wishes to get to that point it can conclude that the arbitrator acted properly in actually being able to bind these individuals certainly we recognize if the issue were to be deferred to later it's not a less grounds to uphold the arbitrator's decision allowing to this class to be certified last point i want to make is on the question mr madden referred to about people who entered agreements in one thousand nine hundred eight to the supplementary rules were issued in two thousand and three i want to be clear why that's not a problem the class began to certify class for earliest da two thousand and four so everyone who remained at the company after two thousand and three must be presumed to have agreed to these supplementary rules were to issued in two thousand and three they could have left their employment if they found the rules offensive and letter your honor there's no evidence that they called it their attention but we assume for purposes of our this litigation that people are aware of the aaa rules there were aware of the sorry yeah i would i'm just thinking and sterling of charged with the knowledge and that's another reason why starlee can't now walk away or do a rerun of this is the oxford health court cautioned against but my point is anyone who remained in the case remain employed as a two thousand and four when the class began would be on be deemed be on notice that they could be bound by a class later certified by an arbitrator thank you thank you both reserve decision in this case