the first thing i'd like to do is apologize to the court for my scratchy voice there was no voice yesterday so luckily the court's only give me ten minutes and i'd like to reserve two of those for rebuttal and i will be brief may please the court room and morgan l i think the distinguishing most salient feature of this case is that the employment arbitration agreement signed indisputably by mr martin includes an expressed severance clause that express severance clause should can and should be applied to the fee sharing provision of the arbitration agreement which at the time this arbitration agreement was made in one thousand nine hundred seventy was valid pursuant to code of civil procedure twelve thirty four point two two and a half years later the california supreme court held was an enforceable one arm and heiress the express severance clause in this case should be applied to excise that clause leaving a perfectly valid and none of those agreements was there an expressed severance clause health a feeling which touched ashima and just there you were on the panel obviously ingo adams mansoor no expressed severance clause in the circuit city  issue was application of sixteen seventy point five which gives the court the discretion to start when and under certain circumstances and you looked at the policies for example saving a contractual relationship and not giving one party an undue advantage or unduly punishing another party in this case where you have an expressed contractual severance clause that expresses the intent of the parties that discretionary  in expressed severance provision and notwithstanding and in this case decided in our briefs and notwithstanding the fact that there were still several objectionable provisions of the circuit city d r p statute shorten statute of limitations limitations on remedies that the plaintiffs could have pink you had to pay circuit city seventy five dollars to arbitrate all those objections provisions because it was an express severance clause the end bank decision in morrison first circuit city severed the objection provision the plaintiffs here are fully capable of indicating the statutory rights and there is no argument otherwise in the brief under the arm interest factors the cold factor is the factors that are routinely considered there are no limitations on discovery in this arbitration agreement t plaintiff has full federal rule of civil procedure discovery there are no limitations on the remedies the plaintiffs may have pain for their statutory claims they get a neutral arbitrator mutuality mutuality your honor is an issue that was not raise below and cannot be raised on appeal because of the factual issues that are wound up and that if the plaintiff below had challenge the mutuality of this agreement my clients would have had the opportunity under arm and harrison under sixteen sevent point five which is the unconscionable of the statute if he had argued that below we under the statute my client's shall mandatory shall be permitted to present evidence regarding the commercial setting purpose and effect of the very limited carve out provision in this arbitration agreement there's a carve up provision in the agreement is mutual it would be a mistake i think to say the agreement is non mutual this is an arbitration agreement that ha carve out for certain trade secret related claims if that argument had been raised below teletech would have been able to to make the factual presentation that sixteen seventy point five permitted to make it was not read below and obviously i cannot come here procedurally on constable because it was a condition of employment i don't your honor because i believe the case law and it's pretty clear that merely as a imposing an arbitration agreement as a condition of employment is a procedural and controversial unconscionable so we did not breach the issue i believe that issue is currently being considered by the california supreme court in the gentry case but the current law is procedural unconscionable it's not an issue here because it was a condition of mr martin's employment but the easily excised all the cases in our brief including only provision of substantive unconscionable of the shall and will feature correct secondly are you abandoning the issue as to whether the arbitrator should be the first person to determine  unconscionable i'm not your honor i think it's fully briefed and i think that that would also be a correct disposition here the under first options and house in the supreme court cases and then we've cited the new york cases interpreted that there's the stewart versus paul hastings case judge kaplan in the southern district of new york interpret ng first options and how some help that in agreement almost verbatim the same as our agreement here one that gives the arbitrator and i'm  ting here from section eight point two of the arbitration agreement an arbitration agreement that gives the arbitrator exclusive authority to resolve any dispute regarding the enforceability of the arbitration agreement send the issue represent robert martin the plaintiff and he happily in this case i think mr shulman made it clear there is no question that the teletypes arbitration agreement was procedurally unconscionable because it was a contract of adhesion the next question substantively i don't think and i don't think he admitted that i think he did say that it was a condition of mr martin's employment but he was also saying that california law of the mere fact that it was only if the only fact was those conditions because there are more than one unconscionable provisions in the agreement obviously i think it's a matter of stipulation that the mandatory fee shifted that mr martin would have to pay the arbitrator is unconscionable they sever that part that he should have an opportunity to more fully develop the record here is my response and it's really in two parts first it's an issue that is a matter of law and it's a matter of settled law from this circuits opinion wound what's  that that when a arbitration agreement on its face by its terms reserves the company the right to sue an employee in court for the claims that they are most likely to bring like trade secret claims proprietary information claims but at the same time requires the employee to submit to arbitration the claims it is most likely to bring this is not the employee is not likely to bring claims that the employer rarely steals the employee whether there's a business reason why the employer needs a type of remedy was arbitration can i give them because in these injunctive relief such as a temporary restraining order from a court from the carols and in ferguson the court addressed exactly or almost exactly the language we have here where the employer reserves the right to sue for trade secrets i'm going to call it the trade secret carve out and in fact that's the language that's used by some volo they presented to him simply a motion to compel arbitration saying here's our agreement it's perfectly fine please enforce it we respond and say judge it is not find it is both procedurally and substan y unconscionable in their original motion they never move or ask in the alternative or raise in any way the issue of severability in other words our response to judge hatter met the substance of their argument but we did not anticipate that they would then come back and say oh yes you we agree it's unconscionable but now you should stop on a motion to compel arbitration there is a response from the party who does not w action of the employer why should i i think you can ask me what no one waiver of rights and i but i thought you were talking about their waiver not yours i'm saying when they say that we waive this argument the issue of severa defense for you to raise it and we did show that the agreement was unconscionable and we and that was an argument that we raise now on appeal when they now make which was raised for the first time in their reply get brief the issue of oh severability raised in the first time in their reply and what the issue was severability does your honour's is it requires now us to go back and look at the whole agreement to see if there are other unconscionable provisions that can hold back the others in reserve here's what i'm saying i'm saying that when we oppose the motion to enforce the arbitration we appropriately appropriately raise to the most glaring and the most recently added a way that you don't have to raise all your grounds for saying i wando that the arbitrator fee split is unconscionably all judges should go ahead and separate anyway and that is where the briefing and so it is not a situation where we are which is the only issue that you raised as a are adequate based on what he did if you hold that there are material facts questions that need to be evaluated by the court i think it probably would be improper simply to say denied but but the contract the arbitration agreement on its face is unconscionable because of the two provisions i mentioned the fee split and the lack of mutuality and because the court had before it the contract under ferguson under the other recognizing that as a matter of law there is no business justification under under california law for creating a non mutual arbitration provision of the type that  my question what the sixty seventy point five b me nothing you know it does mean something it means that in cases where there can be an argument in certain types of non usual agreements no not every agreement has to be the other side should be able to present evidence of the commercial setting and so forth as to why son unconscionable where would that apply and i anticipate i'm off the top of my head in an in an in an arm's length commercial setting where you have two parties a relatively equal bargaining power where they negotiate a non usual arbitration provision which may reserve one bargaining party the right to use the courts for some of its limited purposes and the other side negotiation agrees with that i would imagine that the court would take into account all the attendant facts circumstances not rendering the california code on that point surplusage what is happening though in the unique employment context where you have a contract  hundred seventy point five b two in the employment arbitration context to permit the employer to provide business justifications for an allegedly non mutual arbitration agreement and cited in  doris the california supreme court the final arbiter of california law say it's not a question of law it says although the employee employer may be able in a future case to justify a unilateral arbitration agreement the employer in contain any employer justifications and the employer chose not to provide any then that's the reason why the opinion reads perhaps the way it does i'm familiar with the case i don't think it's it does not say this is a question of law and indeed in the light of our interests this is a california issue ferguson could not say it's a question of law because the california supreme court has made clear that it's not i'm sorry i didn't hear your honor in ferguson coming after armand yours you did it did but but the point is that we don't know what the employer said in the same thing goes for the other cases that mr hanson cited in martinez in an whatever and in abramson juniper there did attempt to provide some justification that this is a factual question teletech was intitled under six hundred seventy point five b to present its evidence the statute permits evidence and we didn't get the chance to to address that here my own my final point before my time runs out is that there is no reason why the expressed severance clause in this case i don't think for all the reasons we've been discussing the c this mutuality question but if it did there's no reason why the trade secret carve out which has nothing to do with mr martin's claims or nothing to do with this case that off there's no reason why the express severance clause in this agreement could not be applied to that provision as well and as i've said there are many cases including the morrison versus circuit city's case and the very recent decision from the first district i'm sorry the first circuit in the christian case which was cited in our rule twenty j letter both of which imply an express severance clause to exercise more than one allegedly unconscionable provision so i don't think the court should reach the question for all the reasons we've discussed but if it does you still have the expressed severance clause which i think is the distinguishing feature of this ca