arbitrators acknowledge what the law is but then apart from it based on their own notions of right or wrong practicality and fairness industrial justice whatever you want to call it and when courts and when an arbitrator depart from the law on the basis of a self directed always doesn't apply in arbitration principle courts should be particularly wary particular when that fix was not recognized anywhere in the law first as to the issue of this though what is the law of the ninth circuit on this law the ninth circuit in what respect on well i guess first of all partly hosiery all right and is it is that really clear in the really dealing with an arbitrator's of sky wrong where judge nelson was on the panel and in cairo on the court which klute made clear that it was concerned with who decides the fire will stop the effect of a prior arbitration and the court carefully distinguished example where there are multiple conflicting decisions that is the defendant wins the first twenty five cases loses the twenty six that the second form has you going to say well we don't think it would be fair in that context to apply it that's not what happened here they have the abilities to compare the two forms and say well was the first forum impaired in some way where the procedures in the second not available in the first the ports carefully said where there was jurisdiction where there was discretion that's not what the arbitrators dignus case they did not have discretion to say we refused to find that the district court's judgment was final because as an appeal pending that's been settled law for one hundred years there are no exceptions know that's correct and they did know what the law was they acknowledge what the law was that they were in a court they said we they were sided robey vs five plotters this court's precedent and they said we understand that there would be a compelling case for collateral arbitrator's it's particularly suspicious when self directed and i think the more fundamental question is whether you would apply a manifest disregard standard or the same kind of standard when it's collateral estoppel there's a long line of precedent from other circuits th correct well your honor almost everything is an issue of first impression where if one asks does the substantive law apply in arbitration when arbitrator starts saying well you said to me this is the law from the viewers is there a  whack if they chose it on the ground as to which they had discretion that's correct if they had said for some one of the parking hosiery reasons where they had discretion then we'd be probably be out of luck that is the kind first shot to review it on a different standard because it's so fundamental and it involves the it involves the integrity of the federal court judgement and i would say that's particularly important in the clowder will stop all context because here you have a and they also found i think less in t m a just to the employees but the overall judgment was greater right i'm sorry you have all judgment but the jury verdict share of the stock options times the closing price so his was eighty thousand the same exhibit established what numbers would have been for julie collins rob ryan it's approximately fifty thousand for julie collins approximately seventy thousand for r support to support that verdict and when her analysis of the evidence she indicated the group nature of the group dynamic and it's not for the court and the right of context for the courts say we're not going to look at whether a judge and jury would come out differently when the court rules in this case after a full trial whether it's a bench trial or jury trial and the sides of the issue arbitrator's on that just like courts arbitrators can say well that's a jury and we think we're smart injuries they're not allowed to do that they don't have discretion anymore to say that that judge was wearing a blue shirt and i'm wearing a white shirt and white shirts get to side things differently that's simply not an area of discretion they have no more discretion to say that that judgment as a district court noted that that judgment wasn't final because the appeal was pending there was no law allowing it we think that's manifest disregard to create an arbitration exception to affirm fixed rule for which there's been no contrary precedent for one hundred year we think even if question even applied manifest disregard standard because it's collateral estoppel and this is the federal court should be taking undertaking an independent plenary review to say is this wrong particularly because here no law allowing an exception and right miller discusses all this they go through all the analysis used of the arbitration award could not be and your honor there are ways they could have reached an agreement come to us and said let's hold open the finality until that so it's done go ahead with the arbitration hold open the award there are a lot of mechanical ways to resolve that situation we could have reached an agreement to allow reopening of the arbitration event to reopen those who are on the table the time the arbitrator gave us no chance they is that whether you even apply the manifest disregard standard plug or all stop all we're exporting not to do that because this is a right a fundamental right a fundamental precept and of course this court has long recognized the carpenter's case here are my name is laurie morning your honor is my name is lani williams that along with the elderly that i represent have harnessed ready mather i agree with some comments made that the positions of the parties is like two ships passing in the night they have come to you asking you to reverse and order the district court to enter a judgment that no other court has ever considered in a footnote let me just interrupt that argument  that issue i think when you put it with arbitration you have discretion of the terminal of the collateral staff or the non mutual then you have a review in arbitration which this court has say has to be manifest disregard there is no reason or a law that we would change that so it's a higher birth and then it would be for the trial court trial court it would be discretion did they abuse their discretion because when you're dealing with nine mutual there are in park lane in this court reasons the court can do after it finds the elements even if we assume that in this case you court when you deal with arbitration and you're looking at whether their discretion was abuse they have more they have more latitude because your review of arbitrator's decision is different why wasn't made a decision not that it was that quote final in my opinion i think what they say it is in light of the situation i'm going to exercise my discretion in not apply it now in this have exercised their discretion well the one thing we all have to concede is one of the key factors discussed in the supreme court and discussed by this court as late as january of this year in the i b m case is when the pla in these nine mutual situations takes a wait and see attitude has the ability to join in the hiccups case and be bound by the same jury in this case just under spew that we for we s arbitration before the supreme court decision in circuit city we move to consolidate the two cases they fought tooth and nail in the records before you the judge even said well what about collateral stuff but what about this issue factors that has to be considered centers to adapt the way added to in hopes that the first action by another plaintiff what result in a favorable ruling that enough is counsel said if one of the factors is there so now we're back to the adopted it because the language i just read from you is a quote from the january decision of this court for seventy two f thirteen seventy two when they talk about this very issue so we start with this question this whole idea that this is a manifest disregard it's a clear issue i question the issue of having that standard met when there is discretion involved and then you have arbitration i agree it hasn't been decided by this circuit particularly but they have decided the two issues what is the standard on clairol of stoppel is their discretion absolutely there is discretion and there's a lot of other reasons that the arbitrators could have had based on this record for exercising their discretion for example the fact that they believe that right wrong or indifferent that they may not be able to  do something that is discussed in park why it's discussed we've got in the problems in court the supreme court so we can resolve that there's all kinds of ways to deal with that i don't know that you can resolve it in arbitration remember the district court made a ruling below that she could not remand this back to the arbitrators we asked her to if she said no once the arbitrations over it's over why wouldn't that also apply or why on that precise subject dealing with arbitration and whether or not you could undo it in some of the r v traders could have easily concluded that was a problem you put that together with the manifest disregard standard plus their discretion and i would point out that throughout their briefs throughout their argument council only today acknowledged any discretion on the half of the fact finding of the trial judge or the arbitrator in using this despite the fact that this circuit has made it clear in case after case after case including earlier this year that if there plus as i said he's conceded today at least if any of those factors were there we may not be here now we have to also keep in mind the jets over never never reach the issue that they are asking you to reach for reasons i can't explain she made a real clear footnote to  issue was whether there was manifest disregard by the arbitrator is refusing to hear the issue based on the appeal she said i take no position on whether or not they would have establ was the elements of collateral estoppel so what the plan what they're asking you to do is basically take this case on a whole and make all those decisions and i don't believe that appropriate but if you do we've giv don't understand that argument in this circuit in the stan marine the case which is not that long ago they talk about me that use the words just so overused but they say it has to be more and they  error and they talk about they have to know what ignore it and do it intentionally what error if any do you concede was made here i don't concede any year was made at the time because there was no law in this circuit that said to these arbitrators that in arbitration that you have to apply even pending appeal because somehow it can get taken care of later there was no law for them to look back to the arbitrators as of that time she's confirming that there were right because she's confirming that once they've done once they're done now counsel says we can agree to something well we could have done a lot of things like settle the case and we were in the game here i think all that's the relevant the fact of it is that i do not concede that they made any mistake but if they did it was what you have silver since the mistake was in not hearing the issue fully and agreeing that to hear it without briefing on the appeal issue it's not the mistake of not applying it because we go a lot of things else we have a lot of other places to go i guess there was the element she did not do that jets over did not even touch that issue we go through that we go through that in our grief we go through that in our region pointing out all of the things that the arbitrator's could have use this case but they're different in the allegations and we pointed them out to with respect to the hit cards the third party going to fish ery theory that they had versus what they had in there in other things especially when you're dealing with this type this particular type of allegations of fraud it's not like the unocal situation where you're dealing with an agreement here we're dealing with specific statements of hca on what his reliance was there and the reliance of the others had to be different because he was on the board they all were not on the board and so it's all different so in order and to get to where they want you to get you have to ignore all of that you have to assume the elements the arbitrators would have found the elements were there you have to assume having found the elements of collateral estoppel not mutual the arbitrators exercise their discretion as this court has allowed them to do and found that it should apply and you have to do that face with the un the objective finding that one of the factors that supreme court in this court has found as a reason for the exercise of this question is the wait and see attitude of the plaintiff which we have here when they opposed strenuously right to that they did not have an obligation to agree to consolidation but there are consequences for the position they take it and the supreme court in this court has said you might lose your to the benefit of mutual collateral stoppel and all of that no judge has decided because just still we didn't do it so what we're being asked to do is make all of those  manifestly disregard the law respect to not applying no need to a collateral stop on this case that's really the issue and for all of the reasons the objective what would happen if there were reversed would we be stuck according to get silver we might be stuck maybe they wouldn't found the elements maybe they wouldn't found the elements based on all these arguments all of those are discretionary manners and of those leads to the conclusion that they can't meet their standards they can't meet their burden one or three carts was the problem was that that time your hon circuit was not enforcing arbitration clauses in employment contracts and by the time it was reversed we were in a quandary because we're gone so far toward the trial and it was really a of whether to consolidate i'm only suggesting there's a consequence to that and the consequences was clearly established at the time and judge bolton even raised the issue to them and we've you have the transcript in terms of the fact that may be the consequence of their action in terms of that they are classic this is a classic case for the not applicability of this based on all of the discussions that have gone on over the years in this court in supreme court of certain circumstances why you go apply and i'm even assuming you get there by establishing the elements here i could go on but i don't think there's anything that i haven't i've said in my brief with lester's any question shown then it's up to the trial judge you given the tragic factors to consider and if under review it's an abuse of discretion standard to see if the trial court abused their discretion in deciding assuming not to apply after that there's a you don't need to look to the sixth circuit on this issue because you don't have a guess on this subject in terms of the application of n mutual that when you apply its arbitration i think there's a there's a there's a tougher issue here is my question i'm not i do not think he's developed that because i'm still not clear if that in this case it had been a plied and if hypothetically pick ups had been reversed i'm not sure what my client's remedies would have bet we could not go back to the arbitrators i think that's pretty clear we would have had to go confirmed simply because all the reasons they're arguing i got to confirm judge when i then have the reversal of the basis of that judgment what do i do oh well that's the point and that side but not to you i'm not i'm saying that because of the fact is you have the supreme court of laid out that tell me that this is a perfect case where it should not have been applied thank you very much thank you very much for your argument two principal points from a bottle number one if you arbitrators and said well this was a wait and see situation that's an area of explosive discretion apartment notary they didn't find that nor could they the record is clear we told judge bolton we there was specific ways none of which the unfairness no no no no your honor they said there were four kept areas of unfairness that they could apply for example we could see was one area the second was multiple prior conflicting judgments the third was where the first four had lacked procedures that the second form would have available and there was a fourth one none of them or it's kind of a generic and anything else you think