you may proceed you may please the court i'm jonathan pitt and i represent danaher of corporation and the manufacturer appellants but will be arguing today on behalf of all appellants this is a case about who the parties empowered to decide whether or not their dispute was subject to arbitration this court's precedent says that when the parties incorporate the american arbitration association rules  the aaa rules into their agreement they clearly and unmistakably delegate that decision to the arbitrator and at least eight other circuits have said exactly the same thing the agreement at issue here fits squarely within these holdings the parties incorporated the aaa rules aaa rule seven provides that quote the arbitrator shall have the power to rule on his or her own jurisdiction including any objections with respect to the existence scope or validity of the arbitration agreement or to the arbiter of billet he of any claim or counter claim as this court has held the parties incorporation of those rules into their agreement therefore means that the arbitrator must be the one to decide whether the arbitration clause covers this dispute and that includes the question of whether or not any exceptions to that clause apply to this dispute so that in our view was the fundamental and dispositive issue in the appeal but the approval for what i'm sorry google for what her act but that's that's the circuits that we may be in a minority but we've got the douglas rule yes that's correct which is an exception from that framework that the douglas rule is an exception and as i believe the ku bhalla case recognized it is a narrow exception and the only exception the holy groundless exception applies under the douglas case where there is no legitimate argument in favor of arbitration we do not believe at all that that is the case here the c also warned that the holy ground the succession stated in douglas must not be used as a way for a court to resolve arbitrate billeted determinations that are more properly left to the arbitrator a narrow exception the fact and douglas of course where that the dispute there really had nothing to do with the agreement could not be said of this one here very clearly this dispute arises out of and is related to the the dealer agreements because the sole claim of injury that archer makes is that their territories which were provided for in the dealer agreements as alleged in their complaint that their territory is rather truncated or terminated so i think this is a very different kind of case in but sorry but here we have this carve out provision yes for cases involving a request in circumstances where there have been arbitration clauses that have exceptions for injunctive relief that has been done that the fact that there is an exception here does not somehow negate the petro fact rule or cause it not to be a political not sure i can answer the question in the abstract in terms of whatever else the parties agreed to but what i what i can say is that it doesn't render the rest of the clause meaningless what it says is uncertain your argument does because it is already disagreement  relief and disputes related arbitration to you don't get to the question of the content of the arbitration what respectfully you do your honor and the reason is this all arbitration clauses have some form of limitation whether that limitation expressed as a limitation of scope by subject matter or an exception there are cases and i would point the court to particularly the ninth circuit cases let me pull you back a knowledge that say with me that that is an argument the inclusion of the of these of a reference to the arbitration rule is preemptive and whatever else the parties may agree to in terms of what is to be arbitra question of arbiter billet he goes to the arbitrator because the arbitrator has to be presumed in those circumstances to be competent to make the arbiter ability determination given that the parties have expressed their clear and unmistakable intent that the arbitrator specifically to matters that are arbitrated and the courts reviewing those clauses say it was the invocation the incorporation of the aaa rules that shows who the parties wanted to make the assessment of whether or not the dispute did or did not fit into the exception i would point the court to the branding case in the ninth circuit for example but give us a case in a circuit that recognizes the holy ground as exception well the respectfully the holy ground less exception it is an exception to that rule and if you can if we grieve with you petra facts suggest it was clear and unmistakable you still then break that into two because of douglas so what case are you citing where the carve out was in the delegation clause and it's in the six the federal or the fifth well i don't know that we have a case with that is freest exactly like that but but in looking for application of the holy ground this rule yet you still prevail when i read your brief it seemed to me you made two factual arguments are three and three legal one is you just say well it's boilerplate over look at the graph and as what you look for two was well it's there but they didn't pursue it they've somehow forfeited it i didn't see case law supporting either of those arguments then you get the legal argument one is and you may be right now douglas may just be wrong there's a pretty healthy split we are at liberty to say that win this was the one that i was going to ask opposing counsel most about is you suggest that even if there is a carve out hence some would go to courts these matt these cases have to go piecemeal and i'd love your best case for that proposition sure  is that because it's the arbitrator that has at the outset to figure out whether or not the exception is even triggered it's the arbitrator that's going to make the determination alas any suggestion is wholly groundless again a very narrow exception it's to decide why that would be holy ground this to say that language doesn't apply what what's the argument well if you're asking me to assume that holy ground that that the argument is wholly groundless obviously we strongly disagree with  that but you do have a piecemeal argument there what's the case that support all that you suggest if it's if it's holy ground less then the court is going to be the entity that makes the determination as to whether or not the scope of the arbitration clause so the cases that we've cited is for example in the supreme court in moses eight cone it held that relevant federal law requires piecemeal resolution when necessary to give  effect to an arbitration agreement we also cited the dean witter case the alfred case in this circuit the harvey versus joyce case and these are cases that say when it's necessary to preserve the party's right to arbitrate piecemeal resolution is required now on the holy ground less point on or i do you know i hesitate to accept the suggestion that that this would be well around us and i guess that's where i want you to go in  is that and the clause to be clear is it's an exception for quote action seeking injunctive relief and disputes related to trademarks trade secrets or other intellectual property that exception is preceded by what is recognized as classically broad arbitration language all disputes arising out of or related to so a classically broad arbitration clause with that exception our view is that in light of the broad arbitration language in the light of the presumption in favor of arbiter billeted the correct reading of the exception is that action seeking injunctive relief can be brought in court but action seeking damages must be arbitrated  in our view the what the parties meant and what that language means and must be interpreted to mean in the light of the relevant presumption under federal law is that if you that a parallel action on it and i think that the presumption would would prohibit that kind of reading if the court were the right entity to be making the determination in the first place so we think that our interpretation is the best one all it has to be is a plausible one given the federal presumption and we think we clearly meet that test it clearly can't be wholly groundless sucks that petro fact would somehow be taken out of play and the in that this dispute has to go to the arbitrator in the first instance to make the determination about whether or not the exception applies to this dispute and that decision cannot be made by the court first because that's good morning little player on behalf of archer and white there are three reasons that we believe that the well reasoned opinion of judge kill strep should be a farm first i think this case is governed primarily by plain contract i mean everyone understands that arbitration is a matter of contract and the most important thing is what does the language of the contract me here the contract is clear and for that reason it not only prevents delegation it not only ensures that there is dispute about that i think that the best way to harmonize that your honor is that if the contract is plain on its face not ambiguous and doesn't require complex factual you've got to take that and look at the lawsuit that that issue and see whether or not that falls within the meaning of even of a trademark or trade secret or other intellectual property or whatever unless you take the it for such things us for damages and such other only for the court might find it in other words there are generic pleas for equitable relief except our complaints don't narrow themselves usually the lawsuit is evolving got a prayer in there for injunctive relief as that mean that that is not covered absolutely i think that that is the choice of the drafter of this contract which this language is very unusual this is not typical language in an alteration clause it is very unusual in the way it is drafted it specifically includes the exception and the exception is not just to arbiter bill of the it's to delegation the delegation doesn't occur so i believe to have your question directly when i can accept that but my question is whether that they did what it what inherent uncertainty still comes with the therefore not harbor trouble that's the language that is the plain meaning of the language and that's why we believe that it is the correct interpretation why the court should rule the way it rules and why it needs to douglas standard because number less is an interesting word but i think if you think about it a contract term it means nothing more than if the plain meaning of the contract language requires no arbitration then there is no arbitration and the court should so rule if it is not clear or it requires complex factual determination then i think it may be sent to the arbitrator for determination  i understand the question is does the language mean you and your car provision doesn't say where any any part of the relief being saw is injunctive relief then it does not say that it also it is what they are doing as we point out of the breach what they are doing is they're rewriting they want to rewrite the arbitration clause and you can't do that what the court has to do is to give it its plain meaning and it should not thought is absolutely true under this clause so before douglas came down the magistrate made a sensible ruling then douglas comes down and you win because the district court applies douglas carette you think the district court decision we're reviewing what he did was just mapped on exactly to douglas absolutely correct your honor i think we wait either way either there's no delegation because this very unusual clause only is a conditional delegation it's only a delegation of cases that don't see can tell they really do agree though that applying ninth circuit tenth circuit law a bunch of other circuits you'd lose oh no i would not because i think if you if you and believe me i've read all those cases if you if you read those cases very carefully there is a consistent thread and the consistent thread is if it's clear implying that the clause excludes arbitration the court should so rule how does belk now the tarts or how does bell now the tenth circuit case that's quite quick critical of us in the sixth circuit allow that outcome they said no it's who al cases and i'm struggling to recall the specific facts about there but my recollection is again you had a rather ambiguous clause and a rather ambiguous set of facts to deal with which is not the plain clear language here what about it a stiffer way of thinking of it there pointing out that just look at douglas the real this is underneath it all the holy ground a succession is a commonsense rule and therefore when it's to extremists from what was discussed like in that case the lawyers account at the bank utterly unrelated that's where the exception applies but here it is the same course of proceedings so it isn't a literal plain language analysis which you're urging but instead it's a separate test that douglas is sort of groping towards nothing there i would disagree your honor respectfully because i think both cases involve plain language reading and our perhaps more significantly that you know as they supreme court loves it i agree completely but everybody comes back to the same thing because it's a matter of contract and it's a question of whether the contract  but what about we are looking at this to nova and all they have to establish is there is some plausible argument and they've said the primary one is it's plausible to think that the reference to injunctive relief the car panel i'm sure has heard hundreds of contract cases on definitely play mating in ambiguity and to say that this language means what they say it means is to twist the like with the on word should be twisted what about what about douglas requiring that skull questions as to disputes go to the arbitrator but scope questions as to injunctive relief go to courts there is the you he cited the supreme court moses decision as to this notion you'd have to bifurcate what's your answer to that my answer to that is there clearly are cases moses is one of them that they allow piecemeal litigation because some parties are our proposal and some parties are not but i am unaware of a case where someone has broken apart the claims in a case and said we're going to piecemeal that i don't think that's possible that i agree with duration and it doesn't make a lot of sense and it's about thank you just a few brief points as well as obviously happy to answer any questions the panel has and first just to note i think that the the articulation you just heard from counsel about the holy ground list test really does do exactly what the koala case said could not be done which is to use that exception as a way to kind of assassin a general way well does this seem like it footnote one it wasn't even brief it's not relevant here is not brief the douglas exception i don't see how you can read kabbalah to work against it well because the certainly the kabbalah court raises that issue in that footnote and says quite specifically we have to be careful not to allow this exception to is somehow a sign if you're right what is left of the douglas exception if parties agree to exact language certain parentheses exception what's left if this isn't a dispute it's holy ground and any number of cases where that dispute either has really nothing to do with that douglas there wasn't even a carve out there was no meeting of the minds it's just we said this looks totally dissimilar here the parties have agreed something is not to be sent and you're saying that's not well know because there is a plausible reading that said that the parties were doing was cutting out action seething injunctive relief and allowing damages which is consistent with the rest of the clause which is a broad arbitrary isn't that the piecemeal argument you're opposing counsel is just discussing  the again the breadth of the clause and given that let me do this let me say that the exception has two parts and i'm raising this because the language in the two parts of the exception is actually quite different th is an exception excluding action seeking injunctive relief and then an exclusion for disputes relating to intellectual property different words are used there the intellectual property exception is a broad one it applies to the entire dispute and it uses the same broad language as the arbitration clause itself by incorporating the same free is related to and by using the term disputes which is broader than action what's seeking drunk of relief not an action seeking damages and drunk if only they could to get to the piecemeal point they could bring a separate action for injunctive relief that would be heard by the court we we wouldn't take the position it it it couldn't be but if we did take that position then the holy ground was accepted might apply but but given that there is a plausible reading we think the best one because we think it on the broad arbitra haven't at all discussed the equitable stoppel issue and if i could just got a whopping forty two say ok now forty so the equitable stoppel issue obviously was not resolved by the district court given the it's rather rulings and we think it's a very clear case for the application of equitable istambul under both of the independent prongs to that and if the panel has no further questions oh there is one second  started the holy ground this exception yes are you where any search activity because there's a split a clear split and now we've been living with it for a while i'm not aware of any search activity on  that i don't know i'm not aware but i do recognize that there is a split and that there is a substantial number of courts that say recognizing the holy ground was exception at all cuts against what we should be doing when the parties clearly