good afternoon to please the court my name is ross townsend my firm and i appear today on the death of our client we connect ink in the number of two thousand and seventeen our client filed a motion to dismiss the claims filed by document the name on the document that identified the employer was a company was that was the name alternative entertainment ink also known as a on that basis on december twenty eighth the court denied the motion to dismiss and held that because the defendant appellant we connect the name nowhere appeared in the arbitration agreement that we connect could not enforce the provisions of the arbitration agreement against gobbler did we connect or ever sign the contract no sir no your honor that so either so is there a contract here yes your honor we believe there is under controlling law we connect slash eight which is the point we'll get to in a minute offered drafted in offered the agreement to mr gaap when he signed the document and gave it back there was clearly a meeting of the minds there was no questions or attempts by mr goblin to amend or counteroffer so there was an offer and there he would have assumed that that the person who gave him that these papers would have signed it but they never did they never did but the signature is not essential to its enforceability what essential is a meeting of the minds the company offered a document offer made an offer expressed in the document and the company that no longer existed there well no your honor i'm sorry but you're wrong about that in fact the company still exists to this very day and in fact is my client we can i think the cat's out so i map point why on earth didn't you just introduce those corporate documents after it before the channel at the first time because affidavit from the h i mean the district judge craft an argument put it in their order on december twenty eighth that's absolutely what we would have done but of course we weren't pression is the obvious thing to do right at the moment and now you're precluded from introducing them because not it's new evidence it's not newly discovered it's not interest before your honor if you read the brief filed by the plaintiff appellant in opposition to our motion to dismiss they make five casual remarks that's that talk about the relationship between and we connect they they state repeatedly that the name we connect never appears in the arbitration agreement but that doesn't mean anything that is irrelevant because we now know that the name we can  relative well it is unless they developed the argument they never developed the argument there was no citations there was no case law there was no such as we did to the website which showed them by the website and that's not a judicial notice problem with with all  respect your honor they put the citation of the website in in the brief if you google if you put that into the internet you get a four page document and on that four page dotted what are they citing to they don't say they don't repeat the language that they're supposedly relying on they don't they don't read point to any specific language all they say is the document doesn't say we connect well we know the document doesn't say we connect but that doesn't matter because we connect is  and more to the point yes we could have put more evidence into the record but the evidence that we put into the record was more than adequate to establish the fact that we connect was formally known as a what else there's no there's no contention in this case your honor that that the that the affidavit was inappropriate or improper than just discuss the weight in this ability well ok the i suppose we could have had the chairman of the board signed the documents we could have if we had known that this was going to become an issue the if you read through the appellant's brief they do these drive by issues throughout their brief for example they did they made the argument that that judge kettleman just made where they did the document was never signed their entire argument in their brief is the agreement was never signed by by the employer and are we then duty bound to jump on that and include and construe from that passing comment that we are supposed to draft or research the effect of an unsigned document that we are supposed to draft that there were supposed to introduce evidence which says and explains why the document was never signed this will argument this whole issue goes to those cases cited in our brief which say that an undeveloped argument is a knowledge and that's exactly what we have here this argument was never developed until the judge got a hold of it and he looked at the he looked up the the the  web site and he extracted some language from that website language which we didn't know he was going to extract to rely upon he put it in his order and that became the basis for his ruling all the while ignoring the evidence in our r directors affidavit and it's true that we could have had an officer of the company sign the affidavit but in the face of on of the fact that there was no evidence introduced by the plaintiff or the appellee in support of any argument that transactions that this is put in the face of of a complete lack of any contrary evidence there's just no evidence we didn't have a very high burden to meet even if you don't like the evidence that we introduce and even if we could put on more evidence even if it's just a miniscule little weak piece of evidence it's still more than the plaintiff appellee offered and and if you're talking about a i'm sorry let's say the plan the plan if  never cited the website never introduced it into evidence never laid any foundation never explained to us what portion of the website they were relying on or why it was relevant they never argued even that that the fact that the document says one says eighty i but the but the defendant is we connect they never even say explain why that was even relevant this was a drive by issue that they threw out into their briefs and expected us to do all the work for them and in hindsight had i known that the judge or had we known that the judge was going to latch on to that and do his own research and go out and look at the website we would have certainly put on a full blown case we could have we could have introduced dozens of documents which show that we can act is just another name for a guy but i don't believe that my client can be held responsible for the fact that we didn't do more when the plaintiff a pallant did literally nothing you complain because you say the judge went outside the record whatever writing research yes your honor what is it that he found that to different i mean i look at your appendix and it talks about there's nothing more here than a change of name it's not a new corporation correct not it's not a preexisting business right kill you see all that so what and i say can't find in the appendix where the actual agreement is where the where is that anyway it's in the first pages of the appendix the first document there is the order and the second document is the agreement if i understand i don't i don't have the numbers in front of me but i can get them what i will i have got it here it's just what i really were looking for is is that would he ever signed as far as  dig through this because i thought i heard the judge see it one point it was a different corporation that the and that's exactly what the court that's exactly the error that the court mean that's a big error it's a huge error because it makes all the difference in the that's what i'm trying to focus on here the kisser he was let me nearly in what what this shows this was nothing more than a name change that's right and it's not the preexisting corporation or preexisting business or something it's not a merger and acquisition that's exactly right it's not a name change sure and simply it was a name change that's what we believe the that was had enough exposure concerned to show this is only a name change and he was wrong in calling it a different business a different be existing business well it certainly is enough in  light of all of the the record all of the facts are now in the record as undisputed that it was a name change there's no evidence still no evidence anywhere except for that that misconstrued language from the website the website doesn't say there was a merger the website doesn't say that to exist the the web site doesn't say that a p i merged with another different company called we connect enterprise solutions what it says is a p i combined with we connect enterprise solutions and together we're doing great judge bear were that that document wasn't introduced into the record until after the judge took it upon himself to rip to pull language out of the website and rely on that to construe it first of all misconstrue it and then to rely on that language and meanwhile ignoring the evidence that we have presented that it was just a name change and then it concluded the court concluded that big based only soley on that language extracted from the website the court concluded that our evidence was wrong he says if fact it was not just a name change it was a merger and the court relied on the language in the website that said that the two companies combined combined their efforts well i don't know what combine means but i know in this case it doesn't mean merger never said merger accounts of you can see though that we can't look at those documents but they were not for the ship court no i don't because we we introduce those records only after we knew what the argument was what evidence was being used to support the argument at the time we filed our initial brief we had no idea that anybody was going to rely on that website language to argue that there was two separate companies and that that therefore  the document was was void and or or could not be enforced by weakening we had no idea your honor until the judge issued his order on december twenty eighth what we were up against and that's really the whole crux of this appeal so do you think that the judge the discretion at that point to open the record in the sense and he could have at your new evidence i wish he would have invited us have given us an opportunity to come in and address the evidence but in fact we filed a motion to reconsider which was designed to do exactly that and the court that's a discretionary call it is of course so are you basically arguing in the use of this great you know because under the rule under rule two one of the of the evidence three rules the gee if the judge is going to take judicial notice of a fact he has to give the other the of the parties a chance to articulate and explain in have a say in that he he not only didn't give us a say before he ruled but after we asked him to reconsider and give us a say he refused to consider our evidence he just said you should have should have figured out what was going to happen well i don't want to mischaracterize what the judge said but he said we should have presented the evidence before in our initial briefs even though we had no way of knowing what evidence was going to be relied on to formulate the we didn't even know what the argument was going to be thank you tom thank you class action wage complaint and attempt to compel arbitration judge peterson correctly have followed the proper twelve me three standard in which the defendant bears the burden to demonstrate that their motion is appropriate and if there are factual disputes those should be resolved in favor of the nonmoving party as well as drawing all inferences in favor of the nonmoving party it's also important to consider what the record was before judge peterson when he was ruling they happy had the agreement which is on page eleven of the record which doesn't mention we connect it doesn't mention successors it doesn't mention it signed it just says this is an agreement between a guy and  they and we can record the same i disagree that he is he received this document with other documents that employees tend to get the beginning of employment frankly didn't recall that he had seen this agreement and never worked for a i didn't know of the business he worked for reconnect so that was one of the things that played it's brought up when responding to defendants motion seeking to dismiss this complaint and compel arbitration and we act argues that it lacked any notice of this name change argument and we certainly dispute that that's the case as counsel noted it was cited multiple times in our responsive brief but what was said that we can act is not mentioned anywhere in this agreement and again coming back to the standard on the twelve b three motion it was we can expert to show that they could enforce this agreement that they drafted that they required their employees to sign and that they are now seeking to enforce and so judge peterson had only this agreement and this phrase and a declaration stating that we can act as formerly known as a yeah i defendants i'm sorry plaintiffs in responding to that motion are certainly not required to raise every possible argument that defendant could have raised and then respond to it which seems to be the suggestion that we should have flagged some of these additional arguments for the purpose the name change i don't just we don't dispute that point but i do dispute whether the judge made a mistake because again when i think i may be wrong but i thought he called it a i don't know what this was an e mail that said something about combined correct that implies that there's that we can do something other than just so at the point when plaintiffs filed our responsive brief no discovery had been conducted so one of the things we cited to in our response  brief was we connect on website because that is the company speaking for itself and in the website is a line stating that a p i and another company we connect enterprise solutions combined to form a new company judge peterson did include that line in his initial ruling in december of two thousand and seventeen but it wasn't dispositive of the decision that he made and i think that this court's precedent in roe versus gibson is informative to the use of the website in roe this court looked to some internet research not to draw its own conclusions for conduct its own research but to co disputed fact and confirm fact that it already been placed at issue by the plaintiffs in that case all this is kind of a statement by a party opponent i mean this isn't because it was we can x own website it's not like just kidding google and going to find a document on your own and that is why we cited to the website because it's the party speaking for itself again and we didn't have the opportunity to depose mr look lou we didn't have these additional documents that were in the possession of we can act and again it was their burden to demonstrate how the let me ask you something so looking at the corporate documents that they filed too late it does seem like these are not these these this was just a name change that it wasn't a merger so had they introduced those documents earlier you would have lost it seems to me so it seems to me like this whole thing hinges i on the soundness you know are saying the judge was within his discretion to not reconsider once they brought the corporate documents showing that it had been just a name change and not a merger do you agree with that i do with one cavity out that i would get to first i agree that that information shouldn't be considered because again under this court's precedent in a motion for reconsideration they can be filed to correct a manifest error or to present newly discovered evidence none of this evidence was new and this court's been clear on a motion for reconsideration that's not a do over  manifest air you come again what about manifest air again even if it's manifest error they can't present new they can't present evidence that was available to them and could have been presented previously and i know that we can act alleges they had no notice of this argument and that's the reason for not presenting the evidence but to that i'd respond first they bore the burden to demonstrate that an agreement that didn't name them could still be enforced by we can act and that they did have noticed because we raised the name change issue multiple times in our brief as well as citing to their own website and that the carry out i set aside was an additional argument that we raised in our response of reef no before the court today besides the epic systems issue we also raise an unconscionable of the argument so i would ask that if this court reverses that this be remanded for the district court to consider our unconscionable of the arguments opposing this arbitration agreement and there are other issues with it aside from the name change that we allege make an unforeseeable all we could do this address the issue that was addressed by the district court when i asked you originally agreement is that the employer is so are you disagreeing with that conclusion by that this particular no with respect i believe when the court said the only reasonable conclusion is that the either referring to the language of the arbitration agreement so looking within the four corners of that contract which talks about the claims that the signatory is agreeing to bring in arbitration the only reasonable conclusion is that the employer referred to by that agreed there is a guy out of bed but then he goes out to talk about we connect perhaps being a third party beneficiary so it's more than just that and i believe that was the judge attempting to understand me connect argument because we connect didn't develop this name change argument didn't present any information beyond a sentence in the declaration to demonstrate that it could enforce this agreement and so looking to understand why we connect could be enforcing an agreement that didn't name it as an employer as a party at all i think you got it right at the end of your brief by saying that this was sloppily handled by everybody student it but the employee handbook so everything is in there and i soon anybody that signed this before this is this change of name who signed any of these of documents i assume all of those are in forcible right well that would be i think a separate argument well i know but not actually make a separate argument but if somebody signed this six months earlier or whenever the same kind of you want when signs when you look at what that document says and in what someone's on a new job and signs all these other things green this is a good job and i don't know what the dispute is about what they want to arbitrat honor the website was not only dispositive of the court's decision it was the only evidence upon which the court relied the website evidence that the court found and said that the two companies combined that's the only factual evidence you will find anywhere in the record to support the court's conclusion that the two companies were distinct entities the other point is that he was employed by e e i because a is we connect and so we have for today