a cause of action they continue to accrue my question is is that in terms of what you did here's let me go at a different way i suppose that you th employee i take it can at some point complain that he was working hours for which he was not being properly compensated under federal law correct yes correct drug that juncture that you maintain you could have fired him for making that complaint no we do not your honor if you would have difficulty in doing that i think you'd agree that's correct ok now instead you didn't fire it but what you did as you called in the employ question has to do is that is that you basically say the employer you either accept this agreement or you're far now you're out of here ok you have a right to do that  i made reference to the fact that the company became aware of the dispute i was a to me to go away the supreme became aware of the dispute in the context of being served with the lawsuit prior to the date that they began contemplating the policy agreement on march twelfth by its own terms it became affective irrespective of us to ensure as of march thirteenth and it's true it is true that he found his loss a little more tonight but that has to be understood in the larger context of the practical realities here the practical realities are that supreme began contemplating implementation of the arbitration agreement well before march two thousand and fifteen says that by march first they actually have a written comprehensive document so this was well in advance of the time in which they had any reason to suspect that mystical or anyone else for that matter was contemplating a lawsuit and  had the diskos slightly beyond the scope of the issues that the court is required to consider the day one of the reasons that supreme had no reason to anticipate this type of lawsuit is because of the particularly generous manner in which its employees were being compensated the record reflects that these gentlemen in some cases were making between our one hundred to two hundred thousand dollars a year and i do not mean this to be bridge or tails but we're talking about individuals who not only don't have college degrees but in many cases did not have high school diplomas so the notion that they in specific way or even in a generalized way beyond just say the bottom the notion that all companies have a right to play in indication and there's nothing here that a company being aware of the lawsuit then responded by intentionally trying to undercut the individual's right to see the law so then that would be a close question but that's not what the record reflects here  that's a statement made in the briefing by the app elite and i think that's also interesting roger in the sense that mystical balik quite clearly was represented by counsel by no later than more it's like because he filed a lawsuit but he nonetheless voluntarily signed the agreement to arbitrate on march twelfth and otherwise was informed that by the express operation of the arbitration agreement if he wanted to continue his employment and i might add this is permissible under the reality burton decision of the texas supreme court where you can alter the terms of employment relationship as long as you provide no is as is occurred here and you inform the employee that if he continues his employment he does so only subject to the arbitration agreement the fact that mystical boller after having fouled a lawsuit nonetheless signed an agreement that obligated him to arbitrate any matters going forward and then immediately had elected your honor elected to continue the employment knowing that the arbitration agreement would control the parties relationship i would respectfully submit as a factor that could strongly in favor of what we do in the briefing you're braving which is just that you're only talking about a prospect of exclusively with the authority to resolve precisely the kinds of issues that you are raising so i'm not suggesting assuming for the sake of argument that these concerns are not legitimate jurado i'm instead suggesting that the parties only the arbitrator is delegated the power to do that perhaps it could cover pre arbitration agreement claims or it could be the case that the arbitrator looks at the agreement and concludes that only the claims that continue to accru compensated mr coo boller continued his employment after march thirteenth when the arbitration that we became affective so for each of those subsequent pay periods his claim literally did not approve o hypothetical if you do agree with him that that the arbitration agreement here is for the prospect of claims only then then i there is no it's not there is no room that this arbitration agreement is to have prospect of effect only only from this day forward then they would be no scope to be determined everyone agrees that on march ninth the day that mr cabala filed his last there was no agreement no policy nothing that required arbitration of his claims f l a say or other at the time it took about a filed his complaint the court there was absolutely nothing requiring arbitration two days later the folks from supreme brought him into a meeting along with a group of other employees and presented him with an arbitration every that arbitration agreement says and i quote you agree that any quote covered dispute as that term is later vic's explained that you may have at any time following the effective date of this policy against supreme is subject to arbitration now the my colleague has made cabala signing arbitration agreement i just want to be clear that their motion to supplement the record with evidence that mr cabala signed the agreement was not allowed by the court that can be found in record three three three that's actually not part of the factual record but even if it is that doesn't change the fact that an agreement that is that is limited to that you may have in the future does not apply to disputes that you have already have in the past and i was trying to think of how i would analyze this if i was you can you can prospect of we have a dispute about something that happened actual number of years ago it can be a current dispute about past events you certainly can't and in fact it in in this case this arbitration agreement or arbitration policy has been applied to workers who raise their claims after the effective date of the policy and so even though there are claims there's just no way around i mean and whether it's two days whether it's three days whether it's four days you know you can see that that your client musk let's say from an arbitrator of anyone honest with you is that now on appeal they want to split the case into what goes before the court what goes to arbitration but and i think you saw in our response that we said look at it the arbitration agreement defines w the company for work following i think the signing of that document who did what would accept as effective date of the instrument if i understand your question i for any work at all let got to be decided by an arbitrator i don't think so under the purpose of this arbitration because under the terms of this arbitration agreement they very they very specifically chose language that relates to what you're saying of the effect of the contract but i see this whole case at least on appeal as being rather the question of who decides all of that in other words to contention that you're making it seems to me is a contention and the delegation clause that has to be made to an arbitrator who may very well agree with your position i don't i don't think that's right because the delegation clause is limited by the same language that appears in sentence one paragraph one page one that there are betray ssion policy and that it applies only to things that are in the future as judge a i understood judge t and the employment contract it said either march thirteenth two thousand and fifteen i'm going to hire you and i had filed a lawsuit saying you failed to hire teddy cabala on march ninth two thousand and fifty four supreme could say ok we we have a contract but it's from march thirteenth so we didn't breach that i guess i could understand that too that's i think the way you are construe my argument is not how i  were to take it on his terms of the delegation clause it's certainly not clear or unmistakeable that this delegation clause would apply to this dispute because again the  after marcel and i want to proceed with respect to my years of claims that accrued prior to that would be a rational response because recall we're trying to figure out whether or not there was a meeting of the minds between these two parties right and under the interpretation that i had that i think i'm hearing the terms of the arbitration agreement says neither filing or serving a lawsuit stops the applicable imitation from continuing to run which would mean mr cabal zero would have had to agree that although he had filed a lawsuit stopped the statute of limitations with respect to his claims he nonetheless agreed or agreed to unstopped the statute of limitations and require self to proceed to arbitration which makes absolutely no sense and does not in any way reflect a meeting of the minds no no one would agree and i think to follow up on on your point judge that it is always the case that there is something for the court to decide with respect to whether or not the scope of the arbitration even if we are quote language from the arbitration agreement well that's what they say the agreement is right that judge todd lee obviously disagree she said that's not an agreement that a that applies are right and we believe that we have we believe that there is no  whether we agree with your argument or not we can look at the language and decide that is again that is certainly a rational way to look at it i think i believe that is that is not position there would still be the question of does the delegations laws apply it does not because of the same limitation in terms of temporal limitation so it does not apply even if it did apply there would still be a question as to whether or not this a this dispute came within the terms of the policy and we know that it does not we can go back to eighteenth tee versus communication workers of america  and we know from the from to again the first line of their their policy that it applies to disputes that you may have at any time following the effective date this policy and we may decide that claims regarding i agree i agree i don't quite understand how you read the rhetoric senator case how i read that is that a delegation delegation cause operates to no i don't think so i mean they're there the determination of whether or not there's agreements arbitrate is is a gateway question that that has to be decided by the courts because it and think about why that must be settled otherwise respectfully and i get it and you know again that's not the analysis judge togolese employed and so and we're here today you know sending judge togolese order so let's let's think about it if even if it does with respect to scott i mean this court and to my knowledge every appellate court that is directly addressing issues has decided that even when there's a delegation clause that still doesn't mean that there's no role for the court to play in determining whether or not the the scope of the arbitration agreement can even arguably reach and the qualcomm case out of the federal circuit addresses this issue directly and it says that it's it's it's i've forgotten the precise language but it it's only groundless groundless standard says and under qualcomm which has this court adopted says that what you should do is you should look at the scope of the arbitration the court should look at the scope of the arbitration agreement and the claims that are alleged to be other than at the time that they filed this motion they say this arbitration agreement covers all f l s cycl that can't that can't be true even if you say it covers claims after march ninth or march thirteenth two thousand and fifteen there's no way to say that it covered product and so it would be groundless for them togolese earlier opinion that she believes that there's no way to interpret the agreement as covering it i know in qualcomm they did in fact remain to the district judge but if i could quote judge toggling there is no indication and no legal support to find the cabal it's continued employment meant that he had to submit past disputes that had already been filed in federal court arbitration nothing in the record demonstrates an intention to form a contract as it relates to disputes that were already filed and that's a record three three two and so i think i don't want to speak for but i think we know how she would she would  post and tell them that if he wishes to pursue them he needs to pursue them in arbitration or thank you mr thank you tonight you say time for about respect i do not think that there is a serious dispute with respect to whether or not an arbitration agreement even exist but i'll briefly address that issue i think a careful reading of just togolese opinion actually flex her acknowledgement that an agreement exist and that from her perspective cover claims applied after a date certain the march thirteenth day that is not a finding that there is no agreement it is a stead jeffs togolese respectfully intrusion upon the delegation issue where it is only an arbitrator who gets to decide whether or not certain claims are or not covered by the dispute and that with respect to the delegation issue i would remiss if i did not mention this court's holding in agri which i think specific specifically to the types of arguments that i've just heard from opposing counsel weighing the relative merits or from his perspective lack of merit of treating some planes as if they are within or without the arbitration agreement page three forty of agri the court wrote there's a legitimate argument that this arbitration clause covers the present dispute and on the other hand that it does not the resolution of these plausible arguments is left for the arbitrator this is not the qualcomm dynamic or as this circuit adopted for that which is that as a matter of law his claims after march ninth on march thirteenth livery didn't exist they could not have accrued until the subsequent pay period you cited the pre march ninth sufficient clarity to cut off this type of continuing cause of action where it portion of the claim predates the arbitration agreement but it continues after i would however concede that  observation that our made in addition to the legal principle that the subsequent pay periods in the cause of action though accrue and to the actual pay period mr cobol that in essence affirmed the operation of the arbitration agreement by making the choice to continue to be employed into accept the payment or ratification perhaps would be a better word in those subsequent pay periods so this is not a dynamic where mr obama has been denied any rights or somehow has been unfairly treated he