one is that it applies only to non negotiable contracts to take it or leave it offers that are conditioned that the offer of employment is conditioned on the nd is that it doesn't expressly target arbitration and the rd is that it doesn't bar the enforcement of arbitration contracts it just makes it a crime to enter into them and our submission is that settled f a president precludes all of those distinctions and therefore  the statute the just record correctly held that the statute is preempted so let me make sure i understand your challenge here is your challenge to this statute limited to the arbitration provisions or is it rather that our challenge is to the application of this statute to contracts that are covered by the f a a and the district courts relief was limited to holding that the statute cannot be applied to contracts that are protected by the f a a so for example might there and let me love let me make sure i understand your answer you're saying that if i understand you correctly used you're saying that be extent that the statute prohibits the automatic requirement of arbitration the statute has to be struck very statement of your or your i just try to understand understand drummy here let me use let me use the example that my friend used on the other side of a contract provision of an employer that said this job offer is conditioned on a waiver of any employer liability for cohan related illness are submission we are not challenging the application of the statute to that kind of waiver or our contention is that the statute that the preemption only applies if the statute is applied to a contract to an arbitration agreement for tat trace an act and that was the limit of the district court's release the district court did not strike down all statute she said the statute  the the contract your challenge here would cover my situation yes the employer in that situation couldn't be criminally prosecuted for offering name his or her offer of employment on the applicant's agreement to the arbitration costs so is your challenge then solely to be criminal aspect to the criminal sanction of statute if that if that were to be struck down does the remainder of the statute remain an infirmary no because there are both criminal and civil sanctions so our challenge is to both the criminal and civil sanctions that would apply in the situation we've just been discussing well let's talk about the civil aspect of it not the criminal same situation i was a bit myself of for employment but i am statute yet in firm in your eyes yes and maybe i can explain why please do so so california permits employers to make to condition job offers on the employer's agreement to numerous take it or leave it terms such as pay him out work hours and schedule holidays in vacation days and others and because the state enforces those agreements even though the offeree is not permitted to accept the job and refuse the employer's terms section two of the f a a bars california from applying a different rule to arbitration agreements because section two are as the state from treating arbitration agreements different from triggers f a a preemption now the state would say that notwithstanding that differential treatment f a a preemption doesn't apply for two additional reasons  colleague said this statute doesn't bar enforcement of the arbitration agreement it just makes it a crime for the employer to offer the non negotiable term but the f a does not permit states to make it a crime to enter into arbitration agreements the supreme court in concepcion said and i'm quoting are cases places beyond dispute that the f a was designed to promote arbitration and the court said the f a therefore present preempt state laws that i'm quoting again stand as an obstacle to the accomplishment and execution of the full purposes and objectives of congress and it's hard to imagine a greater obstacle to the promotion of arbitration than a prosing criminal and civil or criminal or civil sanctions for entering into arbitration imposed for entering into any other types of contracts and the st circuit reached just that conclusion in the connelly case that we discussed there a state law made it a regulatory violation if broker dealers required customers to sign arbitration agreements that did not invalidate the arbitration agreements and the from your perspective is our panel three criminal provisions in so far as they relate to arbitration but root but preserve the rest of those that you no i think leaving the civil provisions intact as the destroys the district court concluded would still disfavor arbitration compared to the way all these other contracts are treated and in fact in connelly it was a it was a civil sanction it was a regulatory sanction on broker dealers under state law and the court there held even if the contracts would be enforceable imposing that sanction for entering into them violated the f a a and was preempted by the f a a they said the power to suspend the license is the economic question of the death penalty in an obstacle of greater proportion even than the chance that in a given dispute an arbitration agreement might be declared void and here the imposition of criminal or civil sanctions that don't apply to other forms of cause any other kind of contract is exactly the kind of disparate treatment that th e prohibits and the supreme court in the kindred case which we discussed in our brief held that section two applies to contract formation of the section two anti discrimination principle and here obviously imposing their criminal or civil sanctions for entering performing arbitration agreements that don't apply to the other ordinary elements of an employment agreement that i've described is just the kind of by the f a a i don't think that that anything has to be severed it's just a limitation on the scope of the statute that the district court found and i think so i don't think the whole statute has to be invalidated in order to reach that conclusion that the nd basis on which the state tries to to distinguish this case is the argument sort of following up on on your point  judge fletcher that this statute in terms doesn't single out arbitration but in includes other types of waivers the right form a procedure for a violation language that my colleague read and the argument therefore the argument there is therefore there isn't a discrimination against arbitration but the supreme court has made clear that what section to section two savings clause of the f a a which preserves laws that apply state laws that apply for the record to the revocation of any contract is the language means that the state law rule has to be generally applicable arbitration agreements if the state is going to create two categories concepcion case the discover bank rule that was an issue in that case that invalidated class waivers as the supreme court noted it applied both to waivers of class procedures in litigation and in arbitration but the court found it preempted and it's said there that what we're preempting were laws that derive their meaning from the fact that an agreement to arbitrate is an issue and that's what is tru here this law specifically generally calls out rights to the forums or procedures but the last clause of the statute specifically prohibits the waiver of any right to file or pursue a civil action or complaint in agencies or courts making clear that it's encompassing that key element of arbitration which is the waiver of the right to go to court look at what is the limiting princip buying to stick a boat but will go to the biggest computer conceivably benefactor and so all can require all contain warranty and contract provisions providing for because only because the statutes of the type that you're talking about you're you're you're asking us to strike of down getting back to my my situation i up to work in the night circuit i resent myself for employment i meet all criteria the employer is perfectly willing to hire me but for the fact that i don't like arbitration maybe i've had a bad experience that i don't want anything to do with it you say the employer can force me to sign that contract or i get a job just as the employer can say the pay levels are not t you do not get to go to court you have to go to arbitration go to give it the employer gets to make that a condition of employment yes your honor just like the employer can say you get two weeks of vacation and that's a condition of line and if you want more vacation you can go somewhere else he's let me interrupt you again getting two weeks of vacation or three weeks of vacation getting paid fifteen dollars an hour getting twenty dollars an hour that's on a range of  could now be right back into the employment situation as long as the employer in the employee agreed that any violation there of is going to be subject to arbitrary well i think the assumption is that arbitration isn't a valid dispute resolution system and that the assumption the conclusion that congress made in section two has is that it is and just returning to them the question of whether because this certainly if this provision just singled out arbitration agreements and said you can't offer it's a crime to offer arbitration agreements i think it would be pretty clear beyond any possible doubt that singling out arbitration in that manner would fail the obstacle preemption test because it would be quite an obstacle to arbitration agreements to say arbitration and entering into an arbitration agreement is a crime and i think that's exactly what this statute does the only difference is it includes a a slightly broader range of waivers other than the waiver of the right to go to court but in the supreme court southland so it strikes me that's an unfair or statute does no such thing the statue  not criminalize arbitration agreements the statute creates the option for ringback both the lawyer and the lawyer the to use an arbitration agreement and if both parties agree to it there's nothing whatsoever criminal and i don't think your answered judge if you just question is a is is is correct in the assumption that while i apologize your honor it treats by by prohibiting non negotiable arbitration agreements when california permits non negotiable provisions with respect to many other elements of the employment relation ship it distinguishes it discriminates against arbitration in a way that is prohibited by the f a a that's exactly what the th circuit held in the saturn case which involved a very similar statute to the one here that required in motor vehicle dealer agreements a prohibition on of on waivers of procedures forums and remedies and that was interpreted as barring only non negotiable provisions and the saturn court held st of all the fact that it was non negotiable did not take it outside the end but of the f a a because virginia allowed other forms of contract provisions to be non negotiable and that was discriminatory and the th circuit said as the supreme court did in the south one case with a similar statute that the fact that other contract other forms of waivers are included within a within the waiver didn't take it out of the protection of the f a a because arbitration was still applied in that case it's creating a contract offense and specifically discouraging people from entering into arbitration agreements specifically arbitration or brains similarly sat from from a consumer setting when you go into an employment situation you're bringing rights with you you bring statutory rights with you and that's what you're waiting here so that is a great  you couldn't enforce the arbitration clause we did not have that circumstance here and there it was a broader application by the supreme court of consumption we created this rule for t the labor provisions or enforcement should not be of any any issue here but see the said they would interfere with a fundamental attribute of arbitration which i don't think it does point you know you're interfering with the statutory and federal law  and it does not change the arbitration for caesar's undermined its primary finally cannot be that you can reach into situations covered by the labor concession or thirty two point six b where