should employees and employers be allowed to agree that any disputes between them will be resolved through one of the an arbitration or should employees always be permitted to bring their claims in class or collective actions no matter what the agreed well i think know the waiver you know that that part of your case is done at icsa since the said that the waiver as valid right so wanted to talk about what happens from here who decides now whether you know there's this argument that potentially even though the waiver was included that there's an because the agreement says that it will be the rules of the american arbitration association will apply and that that was and that it may be the case that the waiver is still not there know that there still may be you're saying let's see my question is getting winding what do you want to do from here i want you to reverse and remain with instructions that the district court follow the terms of the arbitration agreement as written so the district court decides the question of whether it's our bit of ball and class proceeding the day of the arbitrator decide that the judge is there any question that somebody has interpret the contract so we know that the waiver can't be invalid because of epic systems but someone still has to interpret the contract right and decide whether it's subject i agree that kaiser c v moments forty five four fifty five u s seventy two gives the federal court authority to invalidate a contractual provision that violates the legality of the arbitration agreement is at first an issue for the court the court in this case said illegal i'm going to i'm going to decide this is illegal and so i'm going to strike a provision then sent it to the arbitrator to interpret the rest of the agreement what was left not my problem we have precedent in the circuit we had this blue cross blue shield case where we held that the question of whether you could have a consolidated arbitration or it was one for the arbitrator and that opinion you know there is that there's other circuits have gone a different way on that and said the question of whether it is something to be arbitrated as a class is one for the district court and not for the arbitrator but the language in the blue cross blue shield opinion is pretty broad in the thrust of it makes it arbitration according to the terms of the agreement and if it's if the individual arbitration the district court says individual arbitration then there's nothing to interpret if on the other hand you have what you have in the blue cross case or in the state nielsen case or in the what was the recent case before american express before italian colors american express there was a drawing a blank but in that case it was ambiguous so an ambiguity in the greenman knock yourself out submit to the court depending on what i there was no either a class waiver or the mandate for individual arbitration in that case it was simply to arbitrations arbitration agreement what do we do with that maybe that is a procedural question ok what do we do when there's ambiguity nobody knows rigorously enforced arbitration agreements according to their terms you can't ignore a class waiver and say i'm going to allow arbitration i'm left arbitrator figured out he can't do that and here's why when you bring a motion to dismiss the case because it's removed to dismiss class or collective claims alternatively we sought to compel the parties to arbitrate pursuant to the terms of the agreement and that's at appendix forty we stated plaintiff should be limited to pursuing her individual claims against waterstones in arbitration then by the time we get to arbitration theoretically the arbitrator is like well meant to interpret this agreement i've been order by the district court to allow jointer or some sort of multi party proceeding i've been ordered to ignore the individualized arbitration provision so i have to figure out what's left right in this case there was no ambiguity the only ambiguity was created by judge perhaps erroneous ruling in striking that provision into clearing off so i submit to your honors that there is a distinct the distinction should be made in cases where there's a class waiver in cases where it's clear and unequivocal the individualized arbitration is required you have a choice you dismiss a class the putative class case or you compel individual arbitration and then if the parties want to do something different or your honor sir the arbitrator in this case independently decided how the arbitration would go forward he did that based on and and he is an experienced arbitrator he was a jurist the judge on the second circuit court of appeals he construed the arbitration clause written by waters he did it independently he did it jets but such crap decided the yard in that case we'd have a different situation here and maybe something to go back to him but in this case the arbitrator said i'm bound to follow judge crab's decision and furthermore moreover i understand that the arbitration clause is ambiguous on the one hand it has this waiver admittedly the waiver language has ambiguities because all the employees are so i'll call and reading the transcript he was really talking about whether the schwab kind of class that should this be an opt out i mean it in context it does not read like he was making an alternative holding on this agreement permitting class action well your honor i would disagree the employees and waterstones both asked him to address the question independently the the aaa rules require him to address as first as a question of clause construction i interpret the clause this way the arbitrator absolutely could have at that point say i interpret it as as waiving the class but judge crabb told me to do something different he didn't say that at all he said judge crabb told me to do this and furthermore i find independently that the clause requires class treatment counsel if we disagree with you on that you know just this question of remedy if we send it back is this going to be a question for the district court a question for the arbitrator to decide whether it can go forward as a class they did this is the district court has already address that question when judge crabb to time said she found the arbitrator independently determined this on on clause construction grounds and water stone never challenge that t issue that issue will they never said judge krebs suggested she didn't outright say yes i find i mean that that wasn't before her so she didn't say yes i definitively find she said the arbitrator suggested it might seem like he thought that  justice blue cross blue shield question if the question of whether something is arguable in a class proceeding a question for the arbitrator or for the district judge in this instance the arbitrator independently  had to decide that i'm saying as a matter of law and the circuit in the blue cross blue shield case given that there is a division in the district courts of our circuit about whether the decision whether something as i've been able in a class proceeding is f i'm sorry on the question of the review of the arbitrator in paul street associates the supreme i'm sorry in oxford health the supreme court says will require we require to do two things one is to ask the  if the arbitrator interprets the arbitration clause then we're obligated to follow it there is no further review by the court if the arbitrator didn't clearly decide we have the ability to interpret it as if we did and that's that was the see there was a reference to this court's decision in a full court persons united steelworkers and oxford health says i quote the question is whether the arbitrator even arguably interpreted the party's contract not whether he got the meaning right or wrong so if you find that the arbitrate arguably interpreted the contract which is clearly judge crabbe said at least arguably decided that then you have to affirm there is only this court's review is only let's say we don't find that though and send it back to the district court is the question of class arbitrary or arbitron ability one presumptively for the district court or for the arbitrator in the case in this instance because the arbitrator let's assume put aside this instance if it's remained it to go to the district court who present to flee makes that that i'm sorry i thought i was you know you're not if we send it back to the district court and we say what are we going to say ok let's say that we disagree with you that we don't think that i betrayed or even arguably decided this question if we send it back to the district court just the district court decide whether this is article as a class or does the district court say yes this agreement says that this was a subject i betrayed i'm going to enforce it as an a where the district court should make the decision informed by what the arbitrator did and that's just a question so i would say that yes but it would be based on what the arbitrator in fact did here so the authority in my view rests with the arbitrator under the aaa rules to to decide that question in the first instance but that he did that here he was required to say what is the party's intent the order trader said five different times at least at eighty one seventy seven at a one seventy nine at a one eighty one eighty one and one eighty two i find that the arbitration clause require class arbitration and i meet him independently determining that he the savvy arbitrator he knows that this swift and speed this has been dragged down for seven years i think there's no question but that the arbitrator thought he was deciding that issue that he was deciding at an independent grounds that he clearly intended it to insulate the review water stone at mit's he independently decided it in its mouth practice action against its former attorneys they specifically stated in the sworn pleading that the arbitrator independently determine that question so everybody from the judge to the arbitrator to need to the defendant has said that the arbitrator arguably interpret it the clause at a minimum are you saying that you think a going to the contrary now because of the malpractise complaint no i think there is stop because they it i think it's evidence that they said it and further that they didn't not challenge on the section nine and ten review they didn't even raise the question of having judge crabbe review whether the arbitrator decided that on section one and thank you  two things plaintiff said quote judge crabb well reasoned decision permitting class arbitration should be followed as it is the law of the case that's plaintiff's appendix for forty seven to forty eight and that's precisely what judge arbitrator pret did he said the district court has concluded the way because it's contrary to federal law it must be separate from the rest of the agreement since i am bound to follow the court's order i must read the agreement as if there were no way because he did the the arbitrator did not deal decision in blue cross blue shield about consolidated our pitch i think those are two different things i think again as i said one question is how do i read an arbitration agreement under section four and enforce it rigorously according to its terms when it's got an individual arbitration