and will be happy to hear from the good boarding running mate please the court my name is dave getting representing waffle house incorporated and w h capital l l c in failing to enforce waffle houses arbitration agreement and compelling arbitration erred in three separate ways first regardless of what the district court felt about the fairness or unfairness in arbitration agreement it included a valid and binding delegation provision that was nearly identical to the delegation provision in the supreme court's renna center case that required decisions of gateway issues to made it made by the arbitrator and not the court second to the extent the district court did have authority to make gateway issues or gateway decisions which it did not it aired in implying that the arbitration agreement was procured by implied improper ex parte communication and third once again to the extent of the district court had the authority which it did not to the extent it decided to issue pursuant to its powers under rule twenty three d of the federal rules of civil procedure that rule did not apply because this arbitration agreement was not a communication between waffle house and absent class members you what we have here is mr jones at philly applied or excuse me sued waffle house in december twenty fifth teen two months after filing a lawsuit he applied for a job at waffle house and did not get that job  undeterred a week later he applied again to waffle house and he was hired and it's undisputed that he did not tell anyone that he was suing waffle house and nobody in a restaurant management knew he was doing awful house and when he was hired  to be decided by the arbitrator and not the court and in fact the delegation provision here was nearly identical nearly identical to the delegation provision the supreme court examined and enforced and ran a where it held that threshold issues gateway issues must be decided by the arbitrator and not the court and it's clear according to run a center and this court's pournelle case argued that the agreement should not be enforced because it was procedurally unconscionable and in both cases both ran a center and parnell the court held that even issues of procedural unconscionable are barred by the delegation provision and must be decided by the arbitrator and not the court so by failing to enforce the delegation provision here the district court err and ask a question should we recognize the the exception would be contrary to eleventh circuit and supreme circuit presses supreme court precedent those those courts specifically hold that in order to get past a valid delegation provision you must specifically challenge the delegation provision itself now the holy ground this exception contemplates that a litigant can get past a valid delegation provision by effectively saying the dispute is so outside the scope that it's clearly not within the arbitration agreement that would permit contrary to this court's precedent and supreme court precedent it litigant to get past a valid ought to answer the question directly and reject any exception based on wholly grammars as opposed to saying it even if it applies it would render a different result to my case you'd have us go right to the merits of and reject that exception yes your honor i would reject the holy ground the exception the second avenue you by which the district court erred is assuming the district court had the response by jones their opposition to your motion for to compel didn't to disagree how to treat that as a specific challenge to the delegation clause there was one specific challenge that mr jones made to the delegation clause that was not a challenge to the delegation clause itself being procedural unconscionable the only challenge that is on jen rogers me through and i've got the joneses opposition in parliament absolutely the only challenge that mr jones made i believe is around page eighteen to twenty of the opposition was a textual argument regarding the interpretation of the delegation provision now that argument that mr jones matts essential in the hol around us or him up well the holy ground this argument deals with the scope of the arbitration agreement the the textural argument was when you when you look at the choice of law provision in the arbitration agreement with the delegation to be made in line with pleading prist pristine pleading precision our challenge is to oppose the delegation clause on grounds such as fraud duress or unconscious military isn't that correct that is correct your honor and so at least under rather center in order to be able to get to have the delegation cause you have to make that type of a challenge you have to make a challenge to specifically to the delegation provision and it's your view th johns did not make that type of challenge isn't that correct that's correct the supreme court is held and read a center that a challenge to the agreement as a whole which is what mr jones did here is not a challenge specifically to the delegation provision and in that the court and ran a center specifically held that you must target the challenge at the delegation provision if you say that the agreement as a whole is unconscionable that is not sufficient here argument in a matter he sees fit in the in the district court order where it set the the bounds for the argument on the motion to compel i believe it specifically said it wanted mr jones to address the arguments i believe on page eighteen to twenty of his brief and those arguments were like you said your honor the holy ground is exception and the argument regarding the the potential ambiguity which there is none created by the choice that's correct your honor at the district court thought it did but the district court really ignored the distinction in its in its decision between a challenge to the arbitration agreement as a whole and a challenge to the delegation provision in either order the clear guidance from rent a center that you must make a specific challenge to the delegation provision and in fact in the district court's order denying waffle house motion to compel arbitration it did not mention the delegation p at all it didn't even consider that issue help me understand this if you challenge the arbitration agreement as a whole as unconscionable wouldn't a subset of that be looking at the delegation provision i don't understand why a district court if you've challenged it as a whole as a subsidiary part of the challenge to hold the district court would have so first of all that the supreme court and run a center has made clear that you must actually specifically target the delegation provision and arguments as to the arbitration as a arbitration agreement as a whole we're talking about the discretion the district court had here to look at the whole case rather than saying ok i am let you have man your response now you need to make a more specific agreement i'm in a more specific person challenge from time out to manage the case  do it it right so so first the district without going through this regular come in and make a more specific challenge so the district court never never said any of its borders at the hearing that the plaintiff was making a direct challenge to the delegation provision it never never never happened but but second even if the district court was going to construe it as a challenge to the mac until you're on the mandate even if the district court was going to view it as a as a challenge the delegation provision specifically even if it was going to look to look past the gateway question there there was no procedural unconscionable to hear and so respect the delegation provision we believe  step one and we don't think the district court could get past that but even if it could we also don't think there was any any procedural unconscious of billet in the execution of the arbitration agreement protect absent class members who may be uninformed about the status of litigation and their potential rights and that's that's clearly what happened in for example the billingsley case or the kleiner case that th cited what rule twenty three d is not designed to do is to protect named plaintiffs and named parties who are fully aware of the material issues in the case and according to at least rule twenty three a planet who's supposed to be driving the litigation now issues such as the ethical rules certainly guide those behaviors but the ethical rules were not violated in this case and the district court specifically said it was not making any any just want to emphasize what set issue on the subpoena on this appeal raises the issue of whether the trial court abused its discretion when determining that under rule twenty three it could regulate and manage the conduct and communications during a class action lawsuit of courts have overwhelmingly held that the district court has this power and that where a communication threatens to impede the  rights of class members or the name plaintiff it's fair game for the district court to regulate that conduct and issue orders with the intent of preserving the integrity of the class action lawsuit so if you look at the billingsley case as mr gettings just referenced that was a very recent decision it was eleventh circuit decision from three years ago two thousand and fourteen and the facts are very similar to this case and that case the the effect of prejudicing the claims in the class action the arbitration agreement there just like the arbitration here was imposed during the class action lawsuit and the court and billingsley was very careful to note that it was not the citing that case under principles of unconscionably instead it was deciding that case under rule twenty three of the federal rules of civil procedure and rule eighty three which is a more general provision which says that the district court can take actions and issue orders it was a case from the northern district of california that's very similar to this situation as well again you had an arbitration agreement that was entered into by the name plaintiff as well as others after the initiation of litigation the court and district court said we can't enforce this agreement as against the plaintiff or the plaintiff class because it was an unauthorized ex parte communication that took place during the pendency of a class action and that's the distinction your honor is that we have to look at here we're not saying that pre dispute arbitration agreements are enforceable conduct here that go on the route twenty three action i mean i'm aware from implications are other from a class action you're right it's exactly as you specified and in other cases you have communications that are going out to class members in this case defendants communication was direct if if a class action is enough to make an arbitration agreement unconscionable then virtually every arbitration agreement i've ever seen would be unconscionable because they all do that i understand the court concern and just to reiterate again we're not talking milling usually is i thought there was just more going on and billingsley that drove the courts reasoning in that case than the fact that there was for the particular plane of who was d and the supreme court and gulf oil it would mean it would mean the same thing it would mean in every case in which there is i mean let's assume that the rich ration agreement was entered into in the most polite possible way and that everybody agreed it was just fine and dandy and then the party who is bound to it wants to bring a class action you know we do we're going to write a presidential opinion that whenever anybody who no question of an absence of arm's length just perfectly knew the name of your coin when the fellow pushes the piece of paper across the table and here is a pre science agreement that person with that knowledge and that place in kansas city they were not aware of the fact if you're going to have a lawsuit the difficulty and i appreciate that your honor later on the difficulty and one of the principal arguments the plaintiff you know he has advanced in this case is that the difficulty with the communication here the ex part communication is that defendants sought to inforce in the trial court and the district court at the hearing discussed this at length someone at general counsel made the decision perhaps without cycling so that an agreement signed by the wasn't basing its decision which is what by here wasn't basing that on ethical considerations i don't believe that that was the case your honor the principal discussion in the court's order was florida rule a professional four point two which is the same in almost every state and also the a b a model rules says you can't have ex parte communications with the represented party without the attorney's consent i had no idea that my client was entering into an arbitration agreement that defense counsel subsequently told me affected his claims in this action if they come to me and asked me do you agree to arbitrate this case an individual basis it was it was a pending class action out of of course said no but the lawyer of course was to have actual that alone sugar's the district court's discretion because this is this is defense admission in open court that because the arbitration agreement was intended to vitiate the class claims the district court had discretion under r twenty three to exercise orders to limit the effect of that actually he obviously knew about the class action the question though is did he know that this agreement was being presented if you didn't have an actual plaintiff correct that's that's placed i didn't know there was communication going on that's the point obviously he knew there was a last at the home office he knows about lawsuits but he had no knowledge that somebody in missouri was given this agreement is that correct it's my understanding or ok with billingsley and kloner and all of those cases the defendant initiate the communication with the class members perspective class member and they same different than this case where the lin is that correct i do not think that there is a there is a point of difference your honor i do i think it's material just as i understand that you know my client is fired but the defendant and billingsley i think initiate d going out to the class members doing all these things but here the plaintiff initiated the communication is that correct yes but let's be clear your honor he didn't commit any communication about arbitration he can go up to you know the manager at the ozark waffles which is a subsidiary of waffle house in kansas city in missouri say hey i want to sign arbitration greener let's talk about arbitration let's talk about my current case he went there for a job and the courts including billingsley but if you and i would courts to you know look at the o'connor case o'connor which was citing our briefs there's a substantial discussion that case about communications made during an ongoing business relationship in fact this was a concern in kleiner as well  recognize that at times parties have an ongoing business relationship and conduct by one party in this case the defendant shouldn't be used to prejudice a pending class action now when it's already been filed and he and my understanding is that he has no legal no no duties for the company other than legal duties the fact of the matter is is that you general was the general counsel at this time of the signing of arbitration agreement or vice president  minor saying is that he's both sure counsel for defending could could provide a more complete answer but let me go back and ask a question about this challenge to the delegation principle i take it you accept the proposition of law that at least in this circuit that we may not review the claim with that you've got to make the challenge specifically do the delegation provision no question about it no question about that it's not enough to challenge the validity of the entire agreement if you want to challenge the delegation you've got to specifically say i challenge the delegation otherwise the federal courts at least in this circuit may not review the claim because it's been committed to the power of the arbitrator that's hornbook law in the circuit right yes it is your honor ok where did you specifically and directly challenge the delegation provision i have looked more than once at this question and it seems to me the most i can find that you said with the following you one challenge the validity of the arbitration agreement as a whole rather than looking at the delegation provision specifically and then in response to waffle houses motion to compel you claim that the arbitration agreement is not even in compas his claims in the lawsuit then you go on to say quote the claims at issue in the lawsuit accrued and he had already filed this action before he allegedly signed the proffered arbitration agreement then you go on to say that the agreement is not quote is an authorized ex parte communication delegation seems to me went to the whether the district court should recognize quote the holy ground was exception and decide the gates the gateway issue but i don't see in any of this and i may have missed it that huge challenge specifically the the liturgy of the delegation provision itself rather than focusing on the question of whether the district court should abide by it i do i just don't see a specific challenge maybe i missed it but it looks to me like this is the first time the argument has been made and even now it doesn't seem to me that you challenge the delegation clause specifically as opposed to the allegedly ex parte nature of the agreement what am i missing your honor there's there's one point i'd like to make which is that on page one thirty nine of the record plaintiffs did specifically attack this aspect of the delegation provision itself that section is headed and i see that in that time but now you take your time and answer this for me under roman rule three the court and not the arbitrator must decide issues raised in this brief and on the following page after i discuss the holy ground less issue i say moreover notwithstanding the delegation provision the court should not delegate questions implicating its magical discretion regarding the conduct of class actions particularly where they implicate the ethical transgressions of coun length and then i conclude the section delegating such questions to be arbitrary or which serve to authorize such questionable conduct in direct attack on the arbitration excuse me on the delegation provision it's in a  twenty three d independently and before you consider the delegation provision that makes sense if i'm not mistaken arnelle was on the books when this was all going on is that correct it's my understanding  not a general challenge and the difficulty i'm having your honor is that you know if the court wants to address the issue of the enforceability of the delegation provision the same arguments apply to the contract in this case which is that it runs afoul of rule of professional conduct for point to violating you know x party communications i but that's a somewhat different argument dealing with that but let me ask the question in a slightly different way when i looked at the delegation provision itself at least it looked to me that it clearly  intent to arbitrate any and all gateway issues have i misread that that's what it says you are so there's no question that when you look at the provision it indicates that the party's intent when they entered into this contract was for the arbitrate or to decide all gateway issues all issues your honor that the the arbitrator has the power to decide well to resolve any dispute relating quote to the interpretation quote the applicability quote the enforceability quote or the formation of this agreement including but not limited to any claim that all or any part of the agreement is void or avoidable i don't know how they could have written this with i agree with that your honor i've just never seen a case where a court has compelled arbitration i delegation clause of a rule twenty three d challenge or a rule for a three d challenge or where the defendant's conduct implicates the rules of professional conduct the district court has an obligation to make sure that the authors officers of the court are complying with ethical rules and that the rules of civil for procedure being followed i don't even know if an arbitrator would have that authority these are the federal rules of civil procedure the district court has that responsibility before we even get to the issue of the arbitration agreement me ask you slightly different question you can help me with this why should we recognize the holy groundless exception i understand that some  i don't see anywhere in any of the law let's just say that i can just write it in by judicial feel that you're taking the position we should recognize the holy gramma's exception right that's correct or why should we do that the tenth circuit says no the fifth has said yes federal circuit has said yes but why are they right in the tenth circuit wrong is really what i'm asking i think it comes down your honor to the issue of contract formation it's a very it's a bedrock principle of arbitration law under the f a a that first you have to make sure there is an agreement that an agreement exist between the parties and that it covers the claims at issue in the lawsuit before you can even nattering to arbitration you've got to find that the parties agree to arbitrate something and just because arbitration agreement just happens to mention scope doesn't mean that you're going to send any dispute no matter how tangential to the issue being just the issue of the scope to the arbitrator let me ask one final question from my perspective and we've gone over the time but it's an interesting case  where waffle house is arguments that the agreement was involved forcible holy ground that's even if i went to it with the claims holy ground and you know we talked about this before the district court your honor i mean attorneys can  find arguments that we can find anything but is that a holy ground this claim is it solely frivolous would it have been sanctionable i'm i have raised that kind of thing on the theory that it's utterly frivolous i'm not sure  this was a palpable argument maybe would win maybe it wouldn't i'm not so sure it would win but it just didn't strike me if i actually went to the essence of the argument that it was wholly groundless what am i missing  your honor i mean the waffle house is has had arbitration agreements in effect for a number of years attached you know it as one of the exhibits to an attorney declaration was a previous arbitration agreement where waffle house was very specific and he claims whether or not they really you know relate to the employment relationship case law is specific that if you want an arbitration agreement to apply to pre employment disputes you've got to specify that was it a holy ground was calling this case does not relate to plaintiff's employment it relates to his denial of employment your honor he was specifically rejected from employment when you lied in order to beach florida it's not denial that actually gives rise to this law suit not his employment by waffle house the premier going to says nothing about pre employment disputes which other cases have had found is significant language in these agreements and specifically does not mention a currently in class action this was the only name plaintiff in this action ok what's the status of the action it was a classic has it been certified did you substitute plaintiff's tell me what's gone on in the l the case what happened in this case what happened is we filed a motion for certification after we filed that motion the court held a hearing on arbitration and denied that motion and then stayed the action pending this appeal after that i filed with ten or twenty different name plaintiffs ok as to the action still sitting there with a motion to substitute name plaintiffs we haven't filed that motion i filed a separate action altogether with different name plaintiffs as on the same cause of action same first point i want to touch on which i think the court hit on the head is that we think this issue is controlled by the binding delegation provision and to judge holes question earlier the supreme court and re center has specifically held that a challenge to the arbitration agreement as a whole is not enough it's not enough to get passed a binding delegation provision as judge marcus noted earlier we believe that this here is the first challenge on procedural unconscionable ety to the extent that it was that that that's what this is on the delegation provision itself and as this court recognized in the delegation provision that is raised for the first time on appeal that understand i'm just coming back just to touch once more on the point seemed to me that the district judge probably knew what the rules or could be heard to that challenge your honor he didn't even go that far the answer would be no no correct your honor what what the district court did in its order what he wanted to do what he probably could have i don't think it is your answer to judge  i would agree your honor i don't think the district court would not have the authority at the district court only would have to do was at the time of argument saying well you've argued this but if you want to argue that you've got to make it much more specific are you arguing that they say oh yeah we are judge you're correct your honor he could amend our challenge to include x y and z and let's have that at the which case the judge could say ok i'll let you do it refit and let the other side respond or i'll let you do it argue with no let the other side respond or the judge will say no i'm not going to let you do it that's could any of that happened here none of that happened your honor what we have in the court's order is effectively the court saying that it believed the arbitration agreement as a whole was unfair unfair to enforce against mr jones there was no specific finding or specific mention of the delegation provision being unfair specifically as the supreme court has said that is not enough that is error to avoid a delegation provision by simply considering an argument and what was the theory behind that why does the supreme court say that in rent to center and why do we say it in part because the delegation provision is an antecedent agreement the supreme court has held agreement from the agreement to arbitrate and the supreme court can infer can enforce that agreement and look at that agreement separately it does and so the supreme court has said courts must look at that antecedent agreement first and see if there's a specific challenge to that antecedent agreement and if there is none it's for the arbitrator to decide not the court and that's not to say that the arbitrator here won't look at this issue we think we're right but look at this issue and say oh i think it's not within the scope or i think something else about the agreement doesn't apply but the important issue here is that that's not the court's decision to make because of the binding delegation provision that's for the there was nothing or at least were written in the facts there was nothing improper or unconscionable up about the about these communications here mr jones is the only one that knew he was walking into a waffle house and applying for a job and the only one that at that time knew he was suing waffle house and this let's assume and this is just for sake of argument this hypothetical that way you think the whole thing arbitrator could look at all of this and decide i'm not going to enforce arbitration agreement as to the class action all enforce it to everything else couldn't arbitrated decide that based on conduct whatever they do i mean they'd have the power to decide that because they've got the power to decide this go decide that he's i mean you may it might be you might appeal but ultimately coming back the  save for some kind of claim of corruption or fraud or something like that right you couldn't even if that's what happened would there be a remedy to go back to the district judge or would you be stuck with what the arbitrated  said given the limited basis that you have under the f a a to take an appeal from the arbitrator's determinations i have not gone back and looked at that standard recently your honor but i would  i would say that would be clear error of law and potentially manifest injustice if that occurred but respectfully i i can't speak confidently right now as to all grounds to ups let me just suggest to you it would not be an easy appeal to to to perfect they're not back in the district that's the theory but that would be inconsistent with the supreme court and eleventh circuit law because it would effectively be an end run around a clear and unmistakable delegation provision which both the supreme court and the eleventh circuit  held you cannot do because you must specifically i'd say your position is simply we can't take a sneak preview and make take a little peek at it that's correct your honor but even if there's a little piece goes to them it goes to them if we can do it we have to do it right  but even if we did it was the argument holy ground was it was not your honor and we were not there's a number of reasons why if you look at this arbitration agreement it is exceedingly bro applies to first all claims and controversies which this court has held is it's a broad broad use of language it applies to all claims past present and future which is broad as to time and it applies to claims arising out of or pertaining to my employment and this court has once again held that while that may not be all encompassing language like arising out of is also extremely broad now if you look at the term my employment the complaint uses the uses the phrase my employment or employer or employee roughly seventy five times and so given this broad language we think it clearly is within the scope and even if the court says well it's debatable it's potentially and big us given the strong federal presumption in favor of arbitration and annuity is decided in favor of arbitration and i believe that's the martinez case your honour's for those reasons we think it's within the scope and certainly not wholly groundless thank you thank you both for your efforts will proceed to the last case this morning