all right our nd case today is number nine team dash one more nine hundred clare lambert versus signature healthcare l l c at all and miss colombo  the district court found that because signature had the ability to revise alter and modify the employment agreement including the arbitration clause at any time without any input or decision making from the employee there was no mutuality of obligation and therefore under florida law the whole agreement black  enforceability and what substantively unconscionable how do you respond to that aspect of the district court's decision thinking you're on a well armed sponsor and not  into it voluntarily st period of five years so our position is that even if they are read together as the other three cases and that is in our briefs acknowledge that simply because a hand vote problematic language any other signature running things or any other writing isn't isn't your best argument that in interpret ing from a grammatical standpoint the senate this is simply an employe handbook which is a very standard thing and that this the senate simply says that signature may change or discontinue any policy whether the policy appears in the handbook or in any other writing it's not all right thank you very much an arbitration agreement at the signature defendants could change or discontinue at any time without notice consent as a threshold matter i'd like to address the appellant arguments in their brief regarding severability and the delegation clause these arguments were waived they were never presented to the district court for consideration and this court should not consider them since the court is concerned with the substantive unconscionable the analysis i'd like to begin with our rebuttal to the appellate arguments it's important to start the analysis by looking at the three documents that are in the record the  document is the arbitration agreement itself which specifically states that it is a condition of employment to sign the arbitration agreement the next document is the handbook acknowledgement that as your owners have already noted grants the signature defendants the right to change or discontinue any policy in the stakeholder handbook or other writing and the way we interpret that provision is they can change or discontinue any policy in the handbook or they can change or discontinue any other writing and we respectfully submit that that is a reasonable interpretation of that language which in and of itself is a reservation of the right agreement however if the court wishes to read this as simply a right to modify policies in the handbook it's important to look at the language in the handbook itself regarding pertinent language reads and i quote as a condition of employment applicants and stakeholders must sign an arbitration agreement signed that knowledge ment of receipt of the stakeholder handbook shall serve as acceptance and understanding of this condition of employment thereby binding stakeholders to the arbitration agreement so all of these documents concern the same subject matter and that is the signature defendant's official policy on arbitration which i might also add the porter representative testified on multiple occasions that it is the official policy of the signature defendants to require arbitration of disputes so in reading all these documents together which were executed at or near the same time concerning the same subject matter and the same transaction  the formation of the employer employee relationship the district court correctly concluded that these documents should be considered construed together and that the unilateral modification provision ind applies to the arbitration agreement itself and we know that because execution of the handbook acknowledgement serves as formal acceptance of the arbitration agreement the only conclusion in our in our view is that the signature defendants were of the right to modify the arbitration agreement as they saw fit without notice or consent at any time and in florida the lack of mutual is evidence of substantive unconscionably we were lying the palm beach motor cars be jeffrey case for this very proposition wherein the purchaser of a vehicle signed a purchase agreement of substantive unconscious billett he as distinguished from an issue of whether or not the contract was illusory illusory deals with consideration and in this case the court found continued employment was adequate consideration so as to defeat any type of illusory argument but instead even if there is sufficient consideration it does not change the fact that the unilateral modification provision is substantively unconscionable and should this court affirm the district court's analysis which we submit that it should this court will be joining the th circuit where it held that an arbitration agreement allowing one party unfettered right to alter the arbitration agreement the existence or scope would render the the contract on enforceable so your honour's i think the district court correctly found that there was sufficient evidence of substantive unconscious building by considering the documents together and finding that there they concerns the same subject matter arose out of the same transaction and were executed at or near the same time and i'd like to just briefly address some of the cases that the appellant's relied on and example the disputed language was as follows and i quote the information contained in this handbook is subject to change at any time and at the sole discretion of oil tr and lemon department language was and i quote i understand that the hand would be updated from time to time and that i will be responsible for receiving and reading any revision of these cases deal with your is a country mile away from these cases because we actually have the arbitration agreement in the handbook and the handbook saying that execution of the acknowledgment which contains the offending e and this case the district court correctly concluded that miss lambert lacked a meaningful choice in ascending to the terms of the arbitration agreement and correctly found sufficient evidence of an enforcer of procedural choice based on the totality of the circumstances i did think that mr mr garcia did did signature submit any evidence on that point or was mis lambert testimony the only thing before the district court on that issue well miss lambert's testimony was the only point on the issue however i think it's important to look at what the dis court relied on and determining what was material the district court found first of all that the arbitration agreement was presented on a take it or leave it basis and on that fact th court relied on the signature defendant's own testimony where they made very clear mr lambert would not have been offered if he did not sign the arbitration agreement now it's indisputable that and the employment context offering an arbitration agreement on a take it or leave it basis is not per se unconscionable so the district court went to the next step and looked at mrs lambert's other employment options because if we're going to look at meaningful choice and whether or not you know we're looking at taking it or leaving it i think it's appropriate to say whether or not the employee had an offer of a realistic a meaningful opportunity to leave it on the table and i'll begin by looking at some of the consumer cases where there is it's almost inconceivable to think of a situation where the consumer could not leave the arbitration agreement because it's a purchase of goods if you don't want the t v you go somewhere else i went for the circumstances and the employment context are much more real as specifically highlighted by the uncontroverted facts of this case mr lambert counsel helpful a high in a point where people don't have a lot of opportunities absolutely not your honor because it's a multifaceted analysis you don't get to lack of employment options unless it's a condition of employment the going to necessarily always be untouchable no your honor again because in florida you need both procedural and substantive unconscience building but you're saying that in an employment context than it is always proceed procedurally unconscionable under your theory no your honor absolutely not because it's based as a case as an analysis on a case by case basis based on the totality of the circumstances and the record evidence before the district court and this case  be missed lambert was unemployed for six months submitted job applications two weeks at a time and received no offers of employment and by the time she got an offer of employment from the signature my interpretation of the law in that specific recitation would apply to substantive unconscionably and it is be the reservation of the right to unilaterally modify who has to arbitrate and what needs to be arbitrated that shocks the conscious and florida be unconscionable only analysis is on a shifting scale where if you find sufficient evidence of substantive unconscionably you do not need equal parts procedural and respectfully i submit that the record before this court would not create some unworkable standard and terms of procedure unconscionably because the employee would still have to substantiate that to the satisfaction of the district court and this would be a good starting point if you contrast it with the facts of some of the other cases there was literally no evidence of a job search substantial evidence which in this case there was competent substantial now the signature defendants also take issue with the fact that they never had a chance to depose mr lambert or take discovery from the slammer their opposition i'm sorry in their motion to stay discovery in this case they specifically said in the court record we do not believe discoveries appropriate so they cannot be heard to complain that they did not have a chance to challenge the weight of miss lambert's evidence when they were perfectly fine with having a district court rule on the papers submitted by the party this issue was breached in full twice and now once that they ever request any type of discovery from ms lambert so the district court was correct in finding substantial evidence of procedural unconscious building and lastly i would just like to address this issue of the presumption in favor of arbitration the supreme court has held that unconscious billeted is a defense to formation and this circuit has held that the presumption is favor of arbitration does not apply to whether or not a valid i see my time's expired may briefly conclude yes go right ahead and so this court has specifically said that the presumption does not apply to whether or not a valid arbitration agreement was formed and so in closing we ask this court to affirm the lower court's decision and employer in this case would have no idea which ones are forcible and which ones are not isn't your isn't your argument isn't your argument weakened a bit by the fact that you did not put on any actual evidence or seek to take discovery on this issue in other words you've got a war that seems to me putting aside the legal issues you've got a one sided or potentially one sided eviden on procedural unconscious ability now that doesn't mean that you lose but it does indicate that factually there's nothing else except miss lambert's testimony on that case we have to be careful that we don't wait any of our rights to enforce arbitration so we agreed actually referenced in our luncheon to say papers that while we don't that record we also said that just the affidavit submitted by mr lambert was not sufficient in and of itself i mean we really felt that way just looking at it it does not meet the standard to show procedural concert ability itself i think it d does not meet the standard because it does not show that this lambert did not have any other alternative employment only that she's been looking for a job for processing less than a year thank you both very much for your appreciate the help thank you