there's no reason to delay proceeding on resolving this  citizen but in that case in the digraph a case that focuses solely on the question of procedural unconscionable ity which although that is an issue in this case it's not the only issue in this case there's also a very large issue of substantive accountability which then  graphic case has not touched in any way so in other words the on if the panel adopts the three panel decision of an iraq a decision then i think it will very clearly tell this court that it must reverse the trial court but even if it doesn't it doesn't provide a nice if th specifically through the making and the performance of the agreement the arbitrary and facts that we make if you were on your honor i would say that it is not and part of the basis of that would be this court's clarification of the problem of pain decision in the the ninth circuit said in that case what the court should determine is whether the challenge is one that is separate and distinct to the contract as a whole in other words if the challenge made to enforceability is one that is separate and distinct from the rest of the contract then  just the court can interpret can look at it if the challenge is to have something that affects the contract as a whole it is off limits to the court because it's an issue for the arbitrator it's not that they've lost the argument it's just they need to make it to the arbitrator in other words your honor if you were to take the arbitration clause out of the contract if the argument can still be made then that argument is off limits to the district courts and it's something that the arbitrator must address in the first instance specifically in this case the modification provision of the contract is  if the court were to strike entirely section fifteen c of the contract so there is no arbitration clause that global would still be able to argue to whatever decision making was left well i think the whole contract is unconscionable because of this modification provision supreme court twelve to help us very much now counsel because we don't have the opportunity to review it ok well your honor i won't i won't belabor the case because it really doesn't do anything new with the law it does in that case directed the florida supreme court  improperly rejected a contract which had an arbitration clause finding that the contract was illegal and you serious under florida law the supreme court of the florida supreme court said that the contract was void of an issue as a legal and the united states supreme court unconscionably two of which are find outside of the arbitration hearing of the first one you've already discussed which is the modification provision the other provision that the court looked at was the limitation of live below the provision again that's in section ten of the contract again this is a challenge that does not go to the arbitration agreement it goes to the region as a whole and in so doing the court stepped into the role of the arbitrator improperly intercept his role again we're not saying that not lobel does not have the right to challenge that section it's just a question of what court should be challenged in going to based on those two interpretations by the district court that alone is grounds for reversal of the district court however your honour's i would believe that the courts are going one step farther and actually reverse it with directions because even the same because you have to search someplace to find it if it were and an e mail it would journey in an e mail format directly then that would be a different point but the point here is that you have to search for  but the question then becomes california law clearly allows the parties to incorporate by reference to other contracts and that is well established in california that is what has happened in case so does that make it per se perceived really hard to think operated by reference reference that the terms are incorporated by reference and included in the agreement and that was on the page that he signed it with a five page agreement they said this is the only page we know for certain the next level did look at because they signed it so the question then becomes does that make it per se procedural and fashionable i would say that's not clear california law california law does enforce incorporation by reference i would say specifically in the context of this case given who the parties are it's especially inappropriate the plaintiff in this case is an internet company that's sole business is sending out marketing emails all across the united states it knows how to work the internet it knows how hyperlink it knows how to go to hyperlinks so the concept of and procedural unconscio it was they were surprised i would know that the california supreme court in the next two phone decision specifically indicated that in the context of internet contracts hyperlinking terms of service is a common practice so it is certainly something that  the court found that it was unconscionable because the agreement had a reference to resolution resources corporation the court then found that was a subset of the unconscionable for vision because there was the possibility that the dial tone would have a repeat mere possibility is raised there's no evidence in the record whatsoever to support a finding that dial tone had any improper advantage with r c the only evidence in the record is that it is listed in there more importantly the court ignored the now they have no global has raised a claim that well because of this there this is there's no listing for the arbitrator is and this is nothing more than an unenforceable agreement to agree this court has already rejected that argument in another case and the and basically held that if there's no identification of an arbitrator that doesn't mean that the parties have not do not have a binding arbitration agreement but also note that the f a a the federal arbitration acts specifically provides for a procedure if there is an doesn't that modify the court's first arguments regarding r c from your possibility that's that's an interesting question i would say that in the context of this case the arbitrator's for r c are not california we know is a very large corporation and one company's involvement or choosing of the aaa is not going to mean that that company has an advantage with the aaa because the the chance of a aaa national large corporation is going to care that much about one small player is clauses they are perceval it under california law in this case we have an internet business that global is a nevada corporation actually it happens to have its principal place of business in california it operates businesses all over the united states in fact under the facts of this case its main asset was this database of e mails that database was located and dial tone facilities on the east coast so it's certainly not unreasonable or improper to expect the dolphin would know it might have to go across united states to still exist if you would have to leave the arbitration clause in its entirety and therefore the contract of the claim is not separate and distinct from any claim to the rest of the contract and it's a matter that the arbitrator should decide as a final matter and this is not question of limited next levels right to justice limiting their right to make any of these arguments this is a question of the congress and chance to arbitrators to make decisions as well as of course that's what the supreme court said thirty years ago and that's why we're asking this court  say today and that is to say to the district court you really need to look just at the arbitration clause in this case the clause are clearly not subsidy and conscionable the analysis of procedural constable is wrong and so you should dismiss the case i would add your own is that under the teledyne decision of this case i didn't say to three nineteen federal thirty six in both of those cases the ninth circuit examined the actual fact of the surrounding circumstances on the unconscionable arbitration in the particular even though what of those circumstances of fact of the rest of the contract such as not being able to find the agreement because it's enclosed in an envelope etc nevertheless they could still be gotten there on the arbitration clause in particular and i point that out because in this case as already questioned the service agreement was not merely the additional service agreement it is not part of the original contract with not only just tucked away in  actually tucked away in the cyber space what happened was the email hard copy the agreement says you have to actually do a wedding signature on the hard copy mail it back and fax it back and it's on that hard copy that you find a reference to twelve to east address in cyberspace which is you know twelve throw us is me seventy two strokes to find it if you get there i can't even get through on pacer often which is that your client can i mean you client is global marketing very are in the cyberspace business we don't have here's somebody who just walked in and looks a little computer and says is a television set ri but it was called that provision that was referenced was referenced as a service provision and specifically it says where you will find a disclaimer of liability and is what they are now suggesting is that if you go through all that procedure and you actually get to the twelve page of the seven hundred pages and the fine print is not in bold print as other provisions may have then when you get there what they're now suggesting since there is no actual arbitra r was a one man arbitration selection what you now to do is go file a lawsuit in a federal court asked a federal court to fashion a remedy to rewrite a contract to set up a procedure for finding an arbitrator then go to that arbitrator and have that  arbitrator resolution resources cannot be the arbitrator unless you agree to it that's what he stated well then part of your argument is is gone right i mean i to your approval you have a veto right what's unconscionable about the well in actual fact i believe your honor the language in the contract says we select resolution resources that was  as to what his stipulation was i mean you know like the stipulation tactically ok fine  they would know what the history is that arbitrator here we have a provision that there's no written arbitration decision if the amount to be awarded by the arbitrary decides is less than one hundred thousand dollars that doesn't affect you because if you win you how that arbitron reacts because there's all the decisions because of the limitation of remedy in this case no remedy for destruction of data no remedy for loss of profits kept you know if there's anything left kept by one year's feeds a matter how long you unlike other arbitration associations where you have written decisions you're able to research are able to find out what are those circumstances at least that's what was pointed out that in case limitations and remedies apply whether it's arbitration or whether it's circumstances are we aware of their stipulation until today so when we see it when you know we asked the question was asked when you signed the agreement and you know the consequences i don't believe we did and did your honor that we are we we never even were taking a look at the general circumstances the salon's the arbitration clause think of those circumstances there on the arbitration clause you know the limitation remedy very specifically on that provision i just mentioned about one hundred thousand dollars limit before a written record decision is required and there was also the the fact that it's been brought up that we negotiated california to florida florida company to our knowledge the data stored in florida and indeed your honor this is not like the comparison they make to us a aaa we're aaa good looks at the circumstances looks at the evidence and decides where the best places and certainly the best place would have been california or florida paint as construed by this court of childer time of the grappa made the federal court the gatekeeper and the federal court had an opportunity to take a look at it it's not taking away from them and to take a look at the surrounding circumstances that pertain including the actual written documents that pertain to that clause and i think that that's an obligation that throughout the circuit city throughout tech nor throughout the chain that's what this my circuit has always done and i point out that in you have a sophisticated point of this was a business man whereas in this case you have a two person operation operating sensually out of their home indeed your honor you can't make a distinction because the same effect would take place if this was a patient of a hospital if this was a customer on the internet buying something that would be retail all those considerations still come into play whether it's a person who's in gauging business and by who was the person who's individually vying for what's your client's real objection to arbitration fair enough your honor  first of all i believe that the real objection is the fact that the comfortable in court i think most parties are i have seen the dark side of arbitration i've seen a very dark side pieces of it should last five days last fifty days and which are collecting a quarter of a mind hours in arbitration fees the expense of arbitration is horrendous today thirty five hundred dollars a day  and you don't take a sort of depositions you do everything in arbitration with their picture sitting there i've seen extremely dark side of what comes out of arbitration i think the judge wasn't being fair in the sense to both parties but there's also other agendas of now come into play concern if you lease when you go to court you know some bright lines you have a fairly good idea of what's going to happen and you can buy the client arbitration  e what he is a lying upon is his perception of what you know who he's dealing with of somebody in florida and to say to you know should it right back to us and it looking if you look at the agreement it just says the terms of service the service has on the internet not terms of service and nothing beyond that here we're talking about now what happens if you have a claim well that others will give you service right it's the terms of dial tone serv the i think the perception is that is the terms of service and sensors a great deal of technical material on the underlying agreement on how they're going to operate how they were we're going to provide information on how you can load and unload from the computers and so anyone who buys anything on the internet or gets a license terms of service is one of the terms of art that tells you what the conditions are using whatever service you are using so your client would have known that being in the internet feel would have known the terms of service is a term it's a term of art and gives you the conditions i'm not i can't believe honor he did not know but more importantly in general the whole reason that businesses do it this way is not to make it easy to know what to make it difficult to know otherwise or to just put it in a written agreement and that might be true first it's just been pointed out to someone who's not familiar with the you can't make a transition there's almost no distinction of going from him and anybody else who would be buying something out here we don't look at the sophistication of the party involved we don't look at th well your honor i do believe that even if you look at the sophistication of the party involved i think it's it's i don't i think you come out either way you're going to affect a lot of other people if you say well this guy's a one person business two  n business he's he can go one way and somebody else who's ordering a car over the internet the consequences are different i think that's a hard line when and where where you draw that  is what i'm saying is you are dealing with out on which was a national one of the largest national companies the provider of storage on the internet where he has so there are a large company this is a take it or leave it agreement which is one of case in particular in that case where the court said hey you guys didn't agree on the arbitrator this is a labor dispute we have to keep the labor peace you guys know every time when you agree on these agreements or is an arbitration provision come on i will fashion it for you that's not the situation where it's our knowing that there is the arbitration provision and where there they intentionally left that blank on the contract and one last thing and that is that there's just no expectations here of what you got the hardcopy ended and they asked for an expenditure there's no expectations that you're dealing with a click in point type of circumstance whereas if you are thank your honest just briefly first of all in regard to the lack of a signature of the claim of a lack of a signature by dials on that issue was not raised in the district court the only challenge to the district court was a claim of unconscionable ety so it's not properly before you today has to the degree it's an issue which has been waived at all times in this litigation they've admitted there's a contract and that's the first question a minute there is a contract we're saying shouldn't force it which leaves you in directly to prime pai court of appeal said it's appropriate to let those consumers go to new jersey to litigate their claims so certainly having a sophisticated internet business come to atlanta georgia is not going to be so invalid under california law is to make the clause unconscionable