like to resample time yes i'd like to reserve five minutes for a model please may please the court this case is on appeal because the trial court made two key mistakes when it dismissed appellants lawsuit and ordered to  arbitration the dismissal should be reversed because the trial court improperly found that the scope of arbitration receipt drafted by a former employer covered more than what the receipt said it covered the receipt said it covered all disputes arising out of these policies and procedures and mr k s complaint is not one about his former employer his former nonparty employers policies and procedures it's about his claim that the paoli fired him because of his age we've got we got some evidence re problems here  what the evidence you offered with your motion for reconsideration is pretty persuasive i just got to ask why that wasn't originally provided to the court absolutely because the issue was raised for the brief if you go through and you look at both of the original motion to dismiss in our response those two documents focused on the whole scope issue what type of disputes the very first time we see the word judicial admission what happened next was it was procedurally unfair judge train canceled oral arguments and basically did  it is also another case right versus holbrooke's six circuit seven ninety four f f second eleven fifty two is in permission permissible to mention an issue for the first time in a reply brief because the appellee has no opportunity to respond so yes we we were focused on discussing the scope and you can still answer the question the court can still make its ultimate decision on this case based solely on the scope of of this arbitration agreement but we dispute the disagreement we think there are some good contract reasons why it's why it's not an agreement but let's start first second just with the these policies and procedures ok so let's ask one question what are the policies and procedures of the phoenix group and you know there's a record right there not in the record they're not in the record because when the appellee filed this motion to dismiss that prohibited my ability to conduct any discovery i would've been violating rule federal procedure twenty sixty one if i had instituted any discovery and and therefore we have no context about what these policies and procedures are and in fact recently this court two weeks ago issued its opinion in russell versus citi group  and judge mirror i believe was was a panelist on the case and russell versus citi group says that you need to read the contract income context and we have no context here again even assuming that this receipt is a contract we need to know the context how does it relate to policies and procedures and that begs an even more important question how can an age discrimination claim relate to an internal policy and procedure there are completely different black's law dictionary defines a procedure as a specific method or course of action so an employer real handbook there was a provision that said if you bring if you bring a civil right age discrimination case you're going to arbitrate it and everybody signs off on that then you have a contract absolutely and but and isn't that what what russell and actually huffman both say yes what's the intent of the parties what does the contract say absolutely and this court does help numerous times when it's looked at these type of employment excuse me these agreements to arbitrate if you look at the context morrison vs circuit city that was a broad agreement and referenced any legal dispute relating to their employment with circuit city including all state and federal claims e e o c versus franks nursery talks about any claim i may wish to file against the company relative to my employment or terminations including to including but not limited to any claim for tort discrimination breach of contract violation of public policy or statutory cla so we have this whole rich body of six circuit law standing in stark contrast to the proposed the alleged agreement states and in all controversies or claims arising out of or bel findings this court because presumably if that underlying was helpful to a poly it would have introduced it and i think that it would be appropriate for the court to t interesting i predicted appellee will stand up and say well you know this is a company that we purchased some assets from back in two thousand and one you know we just can't find that that old hymn book but it is interesting to know they did and that is the severe limitations that the seat places on the arbitrator with respect to his authority what is what was the arbitrator empowered to do here's a hypothetical in this all policy there is a man his retirement age and every employee shall be terminated by the time they turn it forth the provision in the receipt states that an arbitrator may not amend modify or substitute for any other provisions in these policies and procedures so the position that that would put the arbitrator in was looking at the procedure of policy thing yes here's a here's policy says you have to have you have to leave when you're forty five i have to enforce this policy because the agreement itself says that i can't amend modify or substitute for any of these policies and th courts concerned about the evidence or issues but but there's no contract for many reasons first of all they're not between the same parties second of all there was this there was a break in employment and the company phoenix group who has the signed agreement actually prepared a document and terminated robert case employment we have other documents where the minix company provided you know every couple of years a brand new policy and procedure handbook and those policy procedures handbook superceded prior here books and prior procedures so i think you're absolutely right that that is that is a strong argument that there is there is certainly not a binding contract but funny thing is that even if judge did train was right and the phoenix integrated with the minix corporation with the it became one continuing operation the practical impact of that is that the poly as the surviving corporation their policies and procedures would apply not the old phoenix policies and procedures and this this goes to another distinction the appellee admits on page one of its brief that this was an asset purchase and there's a huge difference about what liabilities and what attorney who has been handling this case up until this point as of a few days ago i was admitted to the hospital so and kind of appeared here in a bad position i'm in a bad position your honor and i'm sorry about that because i have something that i want to probably unfair to you ok but i'm really concerned counsellor that that the minix books have not been placed in the record what was brought below was a klein the th next receipt and contract applies and even that was blighted lee and there's a partial explanation here but what was put in the record afterwards to light in a motion to reconsider were the minix policies and procedures books that say they supersede any prior one and it's in mander standing don't have an arbitration  clause i will say i'm concerned because it seems to me if your client is bringing in a klein that an old book applies in his holding the new book that supersedes it court certainly had the opportunity to address that issue and found that given the agreement which does not say it says arising from or relating to these policies and procedures and it says that every trade agreement says that these policies and procedures you know relates to the employment relationship but the problem is you're making that argument to the district court while you're holding in your back pocket a document that says anything prior to the us in policies and procedures has been superseded we've signed off on a new deal and the new deal that we've signed off on doesn't have an arbitration clause in it that's not about what the court asked for that's about your duty of candor to provide accurate information to the court when you're making an argument b document that you know by your records has been superseded by something that would cause you to lose the case well the arbitration agreement is that was signed in one thousand nine hundred five was a standalone document not contained in the policies and procedures so it was it was referenced the fact that you would arbitrate in any dispute more dispute or were added to look at the exact words are rising under capital first letters the policies and procedures and the title of that received is receipt of policies and procedures with the heading policies and procedures so all it's giving you is the all controversies inclines arising out of or relating to these policies and procedures capital letters shall be resolved by arbitration if you read it then these policies and procedures go away because you have mr case sign a new document that say is any old policies and procedures are gone we are governed by what i'm handing you right n without necessarily invalidating that stand alone arbitration agreement last the new agreement that you sign say is we're superseding everything else it's like a will you have an ol will that gives your your property away but when you put it on when you enter a new will it says i hereby give up everything that was before this it's gone well that's what he signed inclusive document and if an arbitration agreement was contained which we know it can't be in in a handbook and you have a new him working new policies and procedures and we issue new ones and they say these supersede all don't arbitrate ok well then i believe that that would be a question that a court or an arbitrator would have to would have to result but we don't have that question here we don't have that question where we don't have conflicting documents which arbitrate or don't arbitrate we have a document that says arbitrate we have a question as to what policies and procedures may have why and that doesn't in my opinion invalidate the underlying requirement to arbitrary if you look at all of the case law coming out of this circuit coming out of the supreme court if there is a question whether or not an arbitration agreement applies we foll favor of arbitration that's very well settled how does is it heartedness hard to guess effectively since it's not contract heard of this says is if the that the that be   part of the issue that i think has to be borne in mind which you alluded to earlier and i'd like to address some of the comments that my colleague made is that these issues could have been raised at the trial court level that my colleague indicate you know argued that they didn't have time they weren't permitted there are many things they could have done they could have requested to focus or apply brief they could have filed a motion to amend their complaint they had evidence in their possession which said the employment relationship was altered it wasn't presented to the trial court the trial court ruled what they had in front of them what about her argument that you did not r issue until the reply brief certainly she could have filed a motion to file a server play brief that the judge certainly could have requested that they brief the argument but what i don't believe so because the trial court did not believe they were necessary for a resolution of this matter if you look at the trial court's opinion the trial court looked at the complaint looked at what was alleged in the complaint looked at the facts alleged by the plaintiffs applied the proper standard i have to accept i have to accept the allegations made in the complaint as true and the trial court said there's a there you  employed in one nine hundred ninety five there's no facts saying that the employment relationship has changed and your complaint is alleging that there is there are policies practices of discriminatory behavior and out of or related to these policies and procedures we don't have the policies and procedures to know and i don't see civil rights listed anywhere in here so how do you calling that this arbitration if it's a contract actually covers the dispute  because of the broader scope of the arbitration agreement which says related to him that the policies and procedures govern the employment relationship and those facts alleged in the complaint arise out of the employment relationship think i quite frankly don't have much else i think this case has been briefed extensively so unless you have any other questions ok thank you like to direct the court's attention to another admission that the a pelleas made in their but initial brief to dismiss this matter and they stated that minix purchased phoenix as part of an asset purchase in under michigan contract law the liabilities and the contracts do not survive if there is an asset purchase the only survive if there is a merger so because the appellee define the relationship as an asset purchase and michigan law is crystal clear on this issue we had no reason to think that that phoenix five five nine howard johnson's vs detroit local joining secular board there is a us supreme court case for seventeen us two forty nine all talk about how provisions do not survive an asset purchase there's another reason why this is not a valid agreement to arbitrate and that is because the a poly breached it first the alleged arbitration agreement contains a very clear pr and council for a poly was crystal clear in pointing out that it's a standalone document in this stand alone document robert k agreed to presumably arbitrate his disputes about policies and procedures with the phoenix group in exchange for payment of one week severance that payment was never made we know it's never made because in the record we have an a different severance agreement that appellee offered to mr k offering him some severance but we're clearing a waiver of claims in return so the appellee can't even if even if this did survive the asset purchase appellee can't try to enforce an agreement that it breached first and there's just a little bit of common sense with that too why in the world would minix even think to pay severance under the phoenix corporation  pt it's not the phoenix corporation of course it didn't occur to them to pay him pay him that severance it's not their policies it's not their agreement so just their own behavior in the term a nation of mr k indicates that even the appellate did not believe that this was a binding agreement and only pulled it out after the fact to attack their to attack mr k s filing in the us district court your position is that the russell  yes i think another important issue here is the impact of the shortened statute of limitations that's contained in this receipt this court in the  recently addressed this issue and the court invalidated a six month short statute of limitation under the fair labor standards act and it's for the same reason and because of the  a is organized under the fair labor labor standards act and both statutes placed severe limitations on prospect of and retrospective waivers of rights that older workers benefits protection act so runyan said yes employee you can waive your claims then we have the older worker benefits protection act so runyan in fact must stand for the opposite and now and the reason we know that is some key language is contained in runyon runyan says in applying the law to the facts of this case we are mindful that we must assume the congress by referring to the f l s a enforce an acting aid a was aware of the judicial interpretation of the f l s a bus even if the court finds that this agreement survived the merger even if it there was not a substantial breach we