arbitration because there is no language in the party's contract showing any agreement to class action arbitration there's no explicit or implicit agreement to class action arbitration the court misapplied the test ying the still nielsen case still nielsen held that courts are arbitrators cannot compel class arbitration unless there's a contractual basis in the parties arbitration agreement for finding that the parties actually agreed to arbitration so you need some sort of language in the parties agreement showing an agreement just like any other contract you need something that says hey these parties agree to class arbitration you need something question was using it may not be relevant here but the question was if the contract is ambiguous and you enter into it knowing them to california law the ambiguity will be fundamental importance for interpret in arbitration agreements it is that arbitration is a matter of consent not coercion consent not coercion so you need to have some sort of consent this is a federal rule of interpretation of arbitration agreements that trumps any contrary state law rule and the supreme court kind of got into this last term with the dreaded t v version a case and in that ambiguities the same way you would create any of the contract you can't single it out for different treatment if that's what the court case yes your and that that case is perfectly applicable here that's in essence what the district court did is the district court treated the arbitration agreement here differently than a regular contract where the district court basically added in an agreement to arbitra district court didn't create this kind of drag any differently than it would any other california country well in any other california contract you would have some sort of evidence of an agreement to a chart you need when a contract is silent on an issue there's been no agreement that has been meet on that issue so the court started with the stipulation of the parties and still nelson that no agreement was reached on that issue said the party stipulated there that there was no agreement of any kind and then the court makes a very clear that they proceed from that basis so they don't look to any state law clear majority rule on looking at contracts like this the key language that i think your honor is referring to is specifically the company in our mutually consensual resolution by arbitration of all claims that arise in phishing scheme and let out all this personal data so you're really just dealing with you know who actually was injured by this of your of your employees and that you are how much damages  but they still found that there was no agreement to a class action arbitration most arbitration clauses use these very broad use very broad arbitration agreements to get all of the types of claims into into arbitration but that doesn't mean evidence to show there is an agreement the supreme court has been very clear that you know the shift from regular arbitration the class arbitration is a is a significant want to completely changes the character and wrists it removes an witness state of california and the supreme court said in that case if you wish that the they didn't look at anything like city state law or the trade the practice in the that was a maritime problem what the knowingly enter into a kind of track which will be construed as affording because patrician since that was one of the claims and the supreme court didn't say anything that would discourage the conclusion that if you fall of the state law it's several times referred to that being what the arbitrator should do was to follow the state law and construe the contract the way the state against you and give it the most favorable construction to your opponent so you know when you have good lawyers that you enter into that you say i'm not going to enter into that contract in california because this is the type of only use as a very last resort when all other interpretive methods are exhausted here a reasonable interpretation of the contract is it's just like any other any other arbitration agreement and the parties agree to that streamlining the normal typical regular two party arbitration that's a very plausible interpretation of the contract and that's what the parties agreed to hear and hope to have that i think if you want to that theory we have whether we want to just delay resolving it joe we see what the supreme court is going to do and if you can head you may have a pretty good idea of what the arbitration agreement it was between two sophisticated business parties that are familiar with arbitration and can anticipate litigation going down the road so they agree to arbitration but on a separate agreement they agree that it's silent as to class treatment so they agreed by stipulation that they would submit that issue to the panel arbitrators to the side and they suggested to the arbitrator's that they look basically not at their agreement and not at the language but try to ascertain whether based on custom and practice in the particular industry class actions are something that's typical and should be applied in their case and therefore that the arbitrator had no reason at all to construe the actual arbitration agreements language and they were and base their decision finding class arbitration permissible on a basic policy argument that had nothing to do with the parties and intent and had nothing to do with the construction of the actual contract at issue unlike here our contract if there is a disagreement from the parties there was no stipulation saying we don't know and we want to give it to somebody else to decide barolo is saying absolutely there should be a class and the other side lambs plus was blocking and and trying to say the silence amounted to a waiver of the fact that they said nothing they want to impose a restriction on the employees from bringing a class action which amounts to the same as an express waiver and last question missed that much on page sixty one of their brief they said even though it's silent legally it has the same effect as an express waiver so  anticipate arbitration rules or if there's going to be litigation down the road he was not aware that he was waiving any rights to arbitration so under california law like you like you've identified the judge has the ability and the responsibility to construe the contract and here it is ambiguous there's they counted up how many eyes we that's irrelevant they're entering into a bilateral contract on an arbitration agreement but that doesn't mean that that blocks an employee from bringing a collective action and any forearm if they wanted that they could have said it they didn't  actions that they could have brought in the civil court have to go to arbitration here that there's no way to even construe that that would block out class actions because they would be able to bring that in a civil action and  you know like we said that the data breach arose out of his employment relationship and and it happened to twelve other twelve hundred other employees and  absolutely no ability to negotiate around that and he said he shouldn't be stuck with the with the ambiguous consequences that shouldn't be construed against him have a significant argument showing why that at the national labor relations act as exclude or that the board has exclusive jurisdiction and by in this data breach case it would not apply to a labor relations statute but yes if the court was going to find against us for any reason on morris we think that the court should stay the case until morris is decided the case you can add if you can and you just want to say you know it's all right procedural device for aggregation so just because there's any claim language in the arbitration agreement doesn't mean that doesn't mean class claims that's just a way you know lawyers use the word but rule twenty three aggregation is not not an actual claim it can arbitrators actually consider concerted collective actions with an arbitration yes your honor there can be the supreme court has ruled that there can be a class action arbitration in the greentree financial but there again and i think my guess my earlier point makes sometimes it makes dealing with something more things right but in your right your honor and we were making that motion because all the court's looking at this same language from pell arbitration on an individual basis so we were giving up those rights to appellate review thinking that would only have you know this would be an informal proceeding with two parties instead of a class act three for it's been very clear that you know the benefits of arbitration are not assured the benefits of a class of arbitration are not a class action arbitration you know it ends up with procedural morass that makes it more expensive we don't have judicial review we don't have the same sort of rights that we get in court so we wouldn't have moved to compel arbitration if we thought it would be a class action arbitration well you know if you look at this specific case you know there are kind of texans where a company you know can face nationwide a class of single issue which and the only difference is you would like each one of you thirteen hundred employees who was affected the same way to have a separate arbitration you'd rather have thirteen hundred arbitration then have one over the same question the only difference could be the amount of damage and no your honor i wouldn't i wouldn't put it like that we just want to have this this particular case arbitrated i know you would want to put it  letter isn't that the result of what i want your honor each employee are saying and they're all covered by this agreement and each one should have a separate arbitration you placing in that nationwide class of attrition with there may be differences in the amount of damages that depend on other facts here it's a very simple reason you're telling us why you wouldn't have arbitration if we thought we would have ended up as a class action arbitration because no defendant wants to be in a class action arbitration because you don't have the same sort you basically are betting the company without a factored means of review we would rather be in court we could have your honor but looking at all the evidence before us at the time we saw no reasonable basis why we would be forced into a class action arbitration and that's why we moved the way we did but class action waiver that does not make make it so that the parties agree to a class action arbitration you stole the olson other case across the country are clear that if you have singular language like this and you interpret the contract