litigation funding agreement as the roofie cherokee court held that transaction a financial transaction is not alone if there is a contingent possibility of not repaying the loan so in brief you cherokee the plaintiffs were personal injury plaintiffs they received funding and if those plaintiffs recovered nothing in their personally personal injury cases they had no obligation to here if they had not succeeded in their underlying personal injury cases they would have owed away says nothing the district court recited that in its facts in its order there's been no dispute that the nature of the purchase agreement that weighs as has not non recourse and the court is like the supreme court of georgia did this court is perfectly capable of looking at the pleadings and looking at that contract and seeing that as a matter of law it is a non recourse funding agreement not alone oasis is purchase agreements is not enforceable because the p l o applied and the p l o a has a provision that the district court misconstrued that provision states that a the plain and biggest language states that form selection cause can call for disputes to be heard in the county in which the loan office is located again or not lenders in these products are loan but to the extent that the but but you can't have it both ways if you if you win if you're asserting that this is not a payday loan then you can use the word loan to then get out of the other clause which against you now i agree with that i believe based on the act over twenty second two thousand nine hundred roofie cherokee decision that we don't have to address any of the issues that the district court actually addressed as far as the plain language or the class federal court in diversity is required to ply that law the if you i haven't gone back to look at all of the memoranda that preceded the district court's order but the district court's order did not recognize an argument by oasis that it was not a payday lender that's you made that argument below at the time why should we entertain that argument on appeal for two reasons first when we the motion to dismiss our motion to dismiss was filed on may fifth two thousand and seventeen briefing was completed on june second two thousand and seventeen at that time there was only one decision of any georgia court regarding the a plug ability of the pay lending act to non recourse litigation funding agreements and that was the trial court of georgia that said yes the payday lending act does apply but that doesn't mean you couldn't have raised the issue a stay trial court decision is certainly not binding on a federal district court exercising diversity jurisdiction and even if there had been no cases on the issue you could have tried to be the first to create a law i mean we deem those sorts of scenarios to be waivers all the time in different different areas of law if a claim is open to you if it's not barred by the substantive law that applies and you don't raise it and it's not jurisdictional you generally don't get to raise it on appeal what's different about this case do you think well in this case the court is bound to apply the law that has come down from the supreme court of georgia and until october twenty second two thousand and eighteen the supreme court of georgia had never spoken to it of right now review cherokee is the law and the georgia supreme court has stated definitively that non recourse litigation funding agreements are not loans covered by the p l o they are g i l a i grant you that my question is still the same a party generally can't just say oh the law is x and although i never argued x you should decide x in my favor you generally have to preserve issues at least non non jurisdictional ones in the district court and so i'm wondering why we should be in the business of taking up the issue of whether or not the payday lending at the even applies to your client well as the court certainly has discretion to consider that argument of whether the georgia lending acts apply in this case we didn't have a supreme court decision at the district court level it is a pure question of law that will not require any additional facts to be applied or any other decisions to be made and a substantial injustice would happen if the georgia supreme court says a waste this is purchase agreements are not loans yet this court does not apply the georgia supreme court law but that happens all the time when parties don't raise issues it happens all the time that the result of the case could have been different had a certain argument been made and the fact that it hasn't been  made doesn't really make a difference you just move on with what the parties have briefed in an adversarial system and that's just the way it goes well but in this case in this case there's no dispute that oasis is agreement is non recourse and even the district court noted in its order that this is a non recourse agreement under which payments would not be required to claim plaintiffs are not successful in their underlying cases we pointed out the intermediate appellate court decision in our appellate briefing  and we were addressing at the district court level to proceed rural issues and by the by the way even if the payday lending act did apply we did argue that we should still have a forcible form selection clause and we should still have an  forcible class action waiver for those reasons this court can also reverse the district court with regards to the forum selection clause the language of sixteen i think i've got the numbers right sixteen seventeen to a one is that just a venue provision or is it more than just a venue provision i think a lot of georgia statutes have that same language i think it's to see one that you're referring to and it it does not include the word georgia county i don't think it's a venue provision i think when read together with sixteen dash seventeen one d where which is the legislative finding by the church in general assembly assembly that relates directly to form selection clauses the first sentence says payday lending involves relatively small loans and does not encompass loans that involve interstate commerce read together it's reasonable to conclude in fact i think it would be right to conclude that the georgists of step general assembly did not mean to prevent out of state lenders from having cases heard in their own home counties because to decide otherwise which would be to say that the first sentence of sixteen seventeen one d is surplusage and has no meaning so you can avoid the georgia legislature as stated policy just by having the loan originate in a place other than ga well if it's not a georgia company without a physical presence in  stated it's easy to imagine an agreement with a sham contingent repayment provision that reflects an attempt to evade the usury laws and a court properly presented what that claim that a contingent repayment provision is a sham should look beyond the text of the agreement to penetrate plaintiffs will attempt to prove that we fit squarely within the exception of or three cherokee funding and that claim presumably will eventually be resolved on a motion for summary judgment to determine if the case can proceed to trial but there's no reason for this court to raise an argument that has never been raised a low and on this record it wouldn't be appropriate to certify to the georgia supreme court both because the issue hasn't been raised and because discovery hasn't been conducted yet on the presence of sham transaction turning to him about forum and the forum selection out of state over the terms of the payday lending act and the gay lobby which we think is incredibly clear indication that form selection clouds are prohibited i'm not sure that the language the language may be what you said but that requires some parsing i'm not sure that it's as clear as either side claims on acting as a dead devil's advocate to your position one of the provisions to see one says that or suggest that you could have a form selection clause in the county in which the business resides or the loan office is located and the other provision one d indicates that payday lending doesn't involve interstate commerce when you read those two together why is it always this right that the georgia legislature didn't necessarily preclude out of state companies making loans originating out of state to have form selection clauses just kind of three points to response the first is that the analysis should begin with sixteen seventeen one which says that out of state would be unconscionable it would strike me a very remarkable if if sixteen seventeen one georgia found that as a legislative finding and then the very next provision said but some cases that's fine even though we just said it's unconscionable so i think we start from that presumption whether anything in sixteen seventeen two clearly contradicts and requires the general assembly to have contradicted its previous statement in sixteen seventeen one as to sixteen seventeen to first as this court alluded to we think th simple designation of county in georgia law almost universally refers to a georgia county in fact the venue provision in the georgia constitution refers to a county not to a georgia county that has separate clean areas already to address  foreign corporations if county in the georgia constitution were interpreted to mean any county in the state that would actually invalidate the motorist and the state long arm statute because there is no plenary authority for the general assembly to  e venue over in a foreign individual inside the state in less you interpret county to mean georgia county in the constitution as to the point about the limitation on interstate commerce and that issue has been specifically addressed by the georgia supreme court in western sky the georgia supreme court said this language is simply a legislative finding a fact that is obviously factually inaccurate it dismissed the language and said first of all it was intended as a legislative finding a fact not as having statutory significance and second the general assembly was clearly wrong in that legislate a finding of fact the act clearly does as income ties apply to lenders operating out of state and in light of that clear determination by the georgia supreme court to attempt to read that language as clear evidence that sixteen seventeen two creates an exception to the categorical language and sixteen seven d and won but it's unconscionable to have to litigate the case out of state seems to me to make the matter very simple can turn also to the class action waiver of fact we think that this analysis should begin with ga could annotated thirteen eight dashed to which says that a contract that is against the policy of the law cannot be enforced and it gives as an example a contract that is against policy as a contract tending to corrupt legislation so under georgia law up the public policy standard is whether it tends to corrupt legislation it is not required is attempted to function tends to corrupt that legislation and we think there's clear evidence from the text of the legislation that we can at least get to that tending to corrupt standard the first is that in two separate portions of the legislation it refers to the ability of litigants to bring a class action and it creates the availability of that remedy in addition it also refers to that not just as a remedy but as a right and sixteen seventeen dash to it refers to a right to bring class actions in talking about the term untouchability of arbitration clauses and so there's a clear indication in the text of the statute that the ability to bring a class action is an important part of the remedial scheme therefore removing out or allowing its waiver would tend to c legislation in addition some legislative history is relevant here when the general assembly an act of the p l o a at a time to fight again in its legislative findings in the bail not simply from floor statements that payday lending and laws and they point to several examples for exam people forum selection which has made us unconscionable or the attempt to nominally use banks which are exempt from the regulation as the loan provider even though the real party of interest is the payday lender or for example to contracts with the goal of making it harder for people who are obtaining small loans and are under severe financial circumstances to obtain relief in court is to be prohibited so i think the tax and the clear legislative history all  indicative that allowing a class action waiver would tend to corrupt the legislation there are no georgia cases on those issues as of now the most useful georgia case is a case that simply explains the legislative history of w large number of the cases that the appellant cited were cases that arise in the arbitration contacts that is the determination of when there is arbitration clause that includes or would effectively remove the ability to bring a class action whether that is permissible arbitration is whether attempts to limit arbitration under state law are preempted under the f a a it appears that the general assembly attempted to grapple with that concept when they wrote the piece and how they dealt with arbitration is rather than barring arbitration does not survive concepcion which is not before the court and what they say is they identified on relevant factors that the court should consider in determining unconscious abilities to specifically for an arbitration and in that section they identify that there is a right to a class avoids a class action would be evidence that it is unconscionable under georgia law now of course for arbitrations it's only a factor because that was the general assembly's attempt to be consistent with and avoid preemption b provision is that the general assembly considered removing the right to class action to be contrary to the statutory scheme so when you deal with a class action waiver standing on its own not protected by the benefit of the f a a it seems clear georgia public policy would dictate and so we have a very simple ruling that georgia public policy in the context of the statute is that class action waivers specifically in payday loans that would be covered by the p l o or g are not enforceable let me ask you this procedural question i forgot to ask it of your opponent but i'll ask her when she gets up on rebuttal the district court certified at least in its initial order only the class action waiver issue there were no other orders of certification that was it that was the only one no there's that i mean there's a sigh there's a tiny ambiguity in the sort of occasionally to what the what the certification order says is that the class action question raises a question of sufficient complexity for this court review therefore i'm certified my motion and so i think what i let the public speak for themselves i think what they would say is that since the final sentence of that order is certified is certifying the order that they can bring both questions but i'm not clear that that's actually right the district parts finding was only that the class action question warranted review by this court yes i see the sentence you're talking about ok thank you thank you so so so that way you can not and not get interrupted with the rest of your rebuttal you think the district court sort of occasion allows you to bring up all the issues or just a class action waiver issue all of the issues under to section it can even consider different questions and indeed this court allowed interlocutory appeal of both the form selection clause and class action issues i wanted to address a couple of points that counsel made first that discovery is necessary in this case it is not the georgia supreme court was capable of looking at the roof each cherokee agreement and determining that the non recourse contingency was not a loser  there has been no dispute that plaintiffs clients of always this is who do not recover in their personal injury actions oh always this nothing that is not a loser and the georgia supreme court even pondered whether in a in a situation where you have ongoing personal injury litigation could you ever see it say that that contingency is a loser to do so would be like saying there's a zero percent chance in any one of those cases of a defense for ticked there is one hundred percent chance of a sufficient plaintiff's verdict that just he can't say that so i don't see i agree with the supreme court of georgia that case where underlying personal injury litigation is the contingency that  repayment depends on could ever be illusory were guarding councils argument regarding the class action waiver i think he's reading this court's cases and bowen and jenkins and randolph wrong i do understand that they arose in the context of an arbitration provision but this court looked at at least the substantive unconscionable ity of under georgia law in determining in those cases the class action waivers were not unconscionable  reasons first as this court said and when merely permitting consumers to bring class actions under a statute does not create a blanket non waive a bill right to bring class actions and in jenkins this court also noted that contractual provisions waiving class action does not affect a substantive right but the real key here which council didn't mention and which the district court ignored is that oasis is purchase agreements include a fee shifting provision under which the plaintiffs should they prevail would be fully compensated for their reasonable tourney's fees and costs and this court has said repeatedly that in that situation even if you have very small amounts of money at issue for each individual plaintiff that fee shifting isn't enough to bring us out of uncountability it's enough for them to be assured of representation and i would actually argue in this case that the al for cases to be heard not an arbitration which can be expensive or both sides have paid the arbitrators in the companies they have to file in state court in cook county so they would have the very minimal overhead court cost of filing a municipal action in cook county illinois so actually in that case i think this is a more at a class action waiver provision that fits more into the court's precedent i think