not his st experience on the bench is maiden voyage was in fact in and bomb last month which i can assure you is one heck of a way beginning your experience as a member of  of appeals i went through the same periods a good many years ago but be that as it may we we welcome you judge media and we look forward to many years of your service with us on the rd circuit is it is intimidating is a guy fifty eight to be wedged between these two guys fortunately we have chairs to kind of even things out someone the one matter  i understand the condition of the record and that the district court has properly compelled arbitration of the rico claiming that  not an issue in this case the reason i asked the question is because your appeal appeal is from the entire judgment and i want to be clear that we're addressing only  argument that citi group is making in reliance on the st liberty investment case i understand them to be lenient on language that says when a party seeking to void mr deluding to agree it's about policy within thirty days to ok so they they they followed their own rules to a man but you can amend things in part without amending things completely i take their argument to be in they'll speak for themselves or we you know we made some changes but that didn't mean that we meant it completely over right into play did before what is it in there in the language of that new arbitration  implies that they meant to change everything about the two thousand i'm not actually it the position is not even that they intended to change anything the only thing that they changed from the st arbitration policy t and clearly sarbanes oxley is included in arbitration under two thousand and nine clearly by implication it has been excluded in essentially that in that case you're familiar with the language that is being referred to because there that there would otherwise be some tension is tension between  i do see him at a time mansur free to issue questions that would be a question of federal law under the under the policy favoring arbitration but this is not what we have as your honor explained a moment ago the st do we need to even and i certainly don't consider nationalization but but thank you tell me more about the state law of genesis of this agreement because as i understand what your or you mean if you have said we don't even need to reach the answer whether a valid arbitration agreement even exists and the crucial point is that the parties do not disagree that the st arbitration agreement cover stocks claims the latter arbitration policy does not cover sox claims because it cannot after group says that we don't need to reach the question i mean if the plain language says what it says the plain language says would say yes yes yes i mean the contemporaneity of the deletion certainly might the agreed form is raised to a substantive rate by the f a a so in light of what we've said in old discount how can you argue that this is merely a a generally does apply and does have a liberal policy favoring arbitration unless overridden by express congressional command and significantly they provided an illustrative example which reads no greatest fear arbitration agreement shall be valid or on  papers that it's merely procedural it's only jurisdictional question it's where it's going to be decided not whether it's going to be decided so don't worry about it you don't have to worry about retroactivity i'm trying to get you to respond to their argument that old discount not affect substantive rights so i think the supreme court has responded to that so you think that me to be she affectively makes whatever we said and all discounted accurate  i wouldn't say inaccurate i would just well there are two different things right i mean either we got it right in all discount or we didn't that's what i'm trying to get you to address i would i would just emphasize that the supreme court is really really repeatedly held that contracting parties a great arbitration do not forego any such a device and now they submit their claims to a different form so the inverse of that is agreeing taking something out of arbitration and into a judicial form has the same that it doesn't affect substantive right but rather it merely changes the tribe you know that will hear the case let me ask a question the answer to which  may be obvious but we're dealing here at the early stages of the litigation that is we're looking at not only complaint but a pro se complete but am  i correct that what the complaint raises is a sarbanes oxley claim based on the april rd teen terminations i ask that question because there is a short series of other adverse employment actions here at least one of which i think would have predated the effectiveness of there after which in this case it has back to my st point about the so the expectation citigroup's own conduct illustrates that they were on notice of the dark frank amendment because whether by circumstantial evidence alone affected on page thirty one dollars of the supplemental independent and appendix policy of the policy states that these policies and benefits are constantly under review and it is the employee's duty to keep themselves up to date furthermore on that same page of the supplemental appendix this policy states that the provisions of this handbook are do not supersede any law and where a specific law like in this case is more generous than a particular provision then that law applies sense and a functional judgment as it requires to reasonably rely on a provision that was rendered and forcible and invalid by federal law in two thousand and ten to which citigroup itself amended their contract to two thousand and eleven agreement does not require arbitration his sarbanes oxley claim so if there was no two thousand and nine agreement we cannot compel arbitration of that clause so if that's the case  what is it about the two thousand help us understand why in looking at a two thousand and nine agreement that says hey you got it you have to a rbitrate all your claims including but not limited to sarbanes oxley and then in two thousand and eleven it says you've got to arbitrate all your claims except the ones that are not arb will by statute and there's no mention of sarbanes oxley why why and look at that later one would we say well you know what we think sarbanes oxley is still arbiter bill what's the reasoning in looking at the pla language of two thousand that would lead us to say ok we've got to go back to two thousand and nine and and say that's our bitter bill because the two thousand and eleven agreement says nothing about how sarbanes oxley does disputes will be resolved it statute it says that that is what sorry that's what the dodd frank are we maybe i should take a step back do you disagree that the don franc member and the stock sarbanes oxley specifically say sachs claims will not be subject which is what we're talking about here right question so it falls directly within the doj frankenheimer right it does ok so if you choose your client chooses to put into its two thousand and seven agreement language it says you're going to arbitrate everything except things that are forbidden by statute to be arbitrary all and you agree that the dodd frank amendment exactly said that how can you say to us this says nothing about whether how to treat a sarbanes oxley claim isn't it treated by time would include a sarbanes oxley claim it doesn't say it what happens there after and it doesn't say we are just a retroactive analysis can you ground us in the language of the agreement the language of the agreement which says disputes which by statute are not bill what does that mean it means in this context that if there's a statute that says this claim cannot be subject to a preterist view of arbitration agreement it is not subject to arbitration under this agreement so it's necessarily a limited arm of attrition agreement here are the claims that you are required by agreeing that to the u s to arbitrate there are claims arbitrate workers comp claims so on and so forth it in numerate the claims that under this agreement you're obligated to arbitrate which is not all claims and there are claims that fall outside of the scope of this arbitration agreement which will be dealt with elsewhere if there's no other agreement they would be dealt with how they are got with under the law but if there's another agreement nothing in this agreement says we're going to say now that agreement is invalid that agre it's true that in two thousand and eleven we recognize that our policy does not include disputes which by statute are not arbitrary but by that we didn't really mean oh and it's true that we said nothing about sarbanes oxley in this after saying that language but what we really meant was you're still going to arbitrate sarbanes oxley that's your that's the arc of your logic right it depends if i'm hired independent i'm just like it's a yes or no or yeah i'll have it is it has to be back to two thousand and nine because this doesn't say specifically in language in hot verb and you'll never have to arbitrate sarbanes oxley again it doesn't say that it doesn't say this supersedes that two thousand line agreement it doesn't say does amends the two thousand line agreement it doesn't say this is the complete expression of the people use did you follow the exact pattern that you had laid out in your two thousand one hundred remit for amending that agreement the two thousand and nine agreement set an amendment might be communicated with an updated handbook for how you were going to amend and change your arbitration agreement the answer is yes we said an amendment may be communicated with an updated hand but we might have said we're going to post the amendment on the on the bulletin board that doesn't mean everything make but it may be a little tough for me to accept we've that we would we could go back and like walk through step by step and show yes that is exactly what you did so any logical reading of this would imply you did it because you meant to amend it and you in fact did amend it isn't that a question to state law council it is a lot of questions a lot is it a question of whether or not these two agreements can be read together or whether the nd supersedes it a issue of whether an arbitration agreement has been superseded by a subsequent agreement is one a federal law and one to which the presumptions in favor of arbitration apply and fundamentally that makes sense because it's a scope question pretty clear that they said this is not about the scope yeah dasher did say that but what basheer addressed was a total agreement governing the relationship of the parties an account contract was we're looking at a question of whether this total over all the way sion ship agreement with superseded in its entirety and they said that's a question that's not about scope it's a question about whether they agreed to arbitrate or not in light of your own earlier argument which i take to be we said nothing in two thousand and eleven about sarbanes oxley why isn't that a concession sort of the dasher nature that says we're talking about whether there was an agreement not scope we said enough and so well there's two issues there are isn't there not scope the question is looking at the two arbitration agreements contractual arbitration agreement in the st one so interest you can't you can't answer the question by putting the word scope into the question that is the question the question is is this about scope or is it about whether or not you arbitrary so framing the question as the question is whether this is within the scope doesn't assist us in getting to the answer the question is when you got a two thousand and eleven arbitration agreement which by your account says nothing about arbitrary socks playing does that mean you're talking about scope or does that mean you're talking about whether it's there at all as a credit card which is the logic that you're pressing on the one hand about it's not there so it's not superceded actually hurt you when you have to get to the point of agreement we determined that it fell short of that and dasher again distinguish this court case in in patent securities group by saying we're talking in dasher about this overall the lation chip agreement th say and in the briefing i thought i saw that everybody agreed sarbanes oxley is in the two thousand and everybody agreed that sarbanes oxley is not mentioned in the two thousand and eleven that's plain isn't it sir that's plain isn't it correct so if everybody's agreeing to that i'm just puzzled about why you're making a scope argument because nobody seems to be arguing about the scope what people seem to be arguing about is not how big this thing is they seem to be arguing so since it's not in two thousand and eleven does that mean the agreed to arbitrate or not not does not scope but did we agree to arbitrate or not and eleven agreement does not include a an obligation to arbitrate that in another self would not extinguish the two thousand i'm going out what might extinguish it would be an integration clause a reference to an amendment and indication that supersedes prior arbitration agreement those are the interpretations if we if we thought we were on question one you'd have to agree we're a state law question right and you're the presumption for our particular he wouldn't apply them so i would question  year if if we thought if if we disagreed with you that this was a question too that is a scope question and we thought we were a question one that is whether there's an arbitration agreement at all at that point it's a state law question really not in dispute that's the state law question the question of whether there was ever any arbitration agreement at all is a state law question that gets answered without the presumptions of arbitrary on it we have an offer did we have acceptance do we have agreed to arbitrate this to speak unless you overcome the presumptions in the presumption is all the more appropriate here but we if you're saying you're argument is if if there's an agreement to argue  all tort claims arising from a certain action and somebody comes in and says i have a contract dispute the assumption the presumption is europe treaty every it can overcome the clear intent of the parties it's not to negate the clear terms of the contract that's not that's not the presumption but my point is if the presumption is going to be triggered simply because we know you're going to argue arbitrate something here apply the presumption in favor of arbitration because we're further down the road than the typical situation in which the presumption applies let me ask you about a additional argument you made with the end of your not his we have three points on the bottom st is my colleague indicated that the nd arbitration policy so there's nothing about how claims should be adjudicated or what we know is that it says that they're not going to be adjudicated in arbitration in front of finra or triple that how do you know that because the speakers are good directly his argument is because it says it's not the exclusive arbitration i excuse me a lot of agreement said the claims were not be arbitrated it would be handled by the bank or in court that court said that it is clear that the parties intended or disputes not to be arbitrated here we have the same thing we have a l says we're not going to arbitrate sox means you're not well if it's not exactly would be great because then we wouldn't be here but it doesn't say that what it says is it won't be the exclusive play right it says it says this is our exclusive set of things and it doesn't mention sarbanes oxley but it doesn't say we won't arbitrate sarbanes oxley that's the whole fight so how do you get around their research which is since it doesn't say we won't you go back to two thousand  a difference in the two thousand and thirteen arbitration agreement that was it issue i sick because it talked about being subsequent to or inconsistent with and here it had to be subsequent to and inconsistent with and that's important because lasik only said it subsequent to and that's enough it never addressed the point you're trying to address which is inconsistent with you have a response to that yes it the arbitration policy and that's the one that governs thank you thank you very much a thank you to all of council for very helpful breeds you're very helpful arguments and special thanks to the drexel federally geisha peals clinic for their work on this case we'll take it under advisement thank you