court's ruling with respect to the arbitrator's clause construction or we respectfully disagree this court's ruling in two thousand and eleven authored by judge paul was very narrow with respect to the contract interpretation issue the issue of whether or not resolved the arbitration agreement could be read to allow for class arbitration this court ruled that the arbitrator did not exceed her authority when she found implied consent to that method of arbitration as to the fourteen named claimants in sterling the court ruled that the arbitrator did not exceed or authority in determining that the agreement permitted the plaintiffs to proceed with their effort to certify a class we submit before the court however today is very different the majority panel in two thousand and eleven did not determine the separate and distinct issue before the court as to whether simply signing the resolve agreements absent class members therefore consented to the arbitrator's authority in this particular specific arbitration this panel in two thousand and eleven did not consider the issue of how the arbitrator somehow might have acquired hers diction over class members w never opted in never submitted an arbitration claim or signified their consent to participation in the proceeding it was not until the class certification award was rendered that the arbitrator reached the pre issue of the actual scope of the class and the classes numbers about forty four thousand as determined by the arbitrator correct your honor and this is just a declar honor with respect to the title seven disparate impact claims in the case and your concern is that if this arbitration is proceeds to conclusion that the class members who have not affirmatively joined the class will not be bound by any any determination by the arbitrator that's correct your honor that's one of our concerns in terms of the the i'll participate if claimants win but i won't be bound by it if they lose one of the concerns addressed by justice alito in his concurrence in the oxford health care case the actual class or vacation word is one hundred eighteen pages long the section at issue before this court is from pages one fifteen to one seventeen where the arbitrator we believe conflates the issue of the hareem meant in resolve that an employee would sign to agree to a specific procedure she conflates that with consent to participate in this particular arbitration example would be a female retail sales employ ninety eight was a blank check to consent to participate in the two thousand and eight arbitration filed ten years later we believe that's inconsistent with the touchstones of arbitration with respect to consent and and and stretches consent through the concept of consent to the breaking point to address your issue that problem of collateral tacker inherent unfairness with respect to that choice by the absent class member of claimants when i'm in of claimants lose i won't plaintiffs also say that's argument from sutter was waived the arbitrator in the class certification award at page one sixteen discusses sutter and the argument as well sterling waive that argument because it asks the arbitrator to undertake a contract analysis but actually the record before this court shows that sterling was forced to do to leaven of the record are sterling's motion that we filed before judge ray cause that asked him to resolve the arbitration issue that resolve only allowed individual bilateral arbitrations in that arbitrations at page one a one twenty one of the record is the counter claim that sterling filed against the fourteen claimants at paragraph fifty one of their counter claim we asked the court to declare that the arbitration under resolve must be conducted on an individual basis and not a class or collective action on the average haitian agreements themselves do do say questions have our bitch ability shall be decided by the arbitrator likewise procedural questions which grow out of the disputes are also matters for the arbitrator so it puts a lot of the hands and in the hands of the arbitrator i'm just making sure i'm understanding cracker the record correctly but it's your position that whatever the agreement said before the district court you consistently argued we do not want the arbitrator to decide the issue of whether class arbitration is proper under these agreements that's correct your honor and there's also i believe a clause in resolve allowing a court the district court judge to determine this issue also but judge ray cough on july fifteenth denied our motion rejected or counterclaim sent us to aaa where we then had to participate in the claim that the law of this case though that it's up to the arbitrator to interpret the agreement that to put it bluntly sterling and each of its employees sign i mean they there wasn't a bilateral negotiation employee to company for each each signature that was on their sterling of all this document it wanted it arbitrated and it said that the arbitrator would decide what this means they agree or honor that it is law the case with respect to your ruling in july of two thousand and eleven with respect to the issue of what sort of process resolve provided but it didn't address the issue of the extent of the authority of the arbitrator rights and your in your argument is of sterling in this case for instance how could that possibly be any persons who have not elected to affirmatively join the arbitration well the reason they can bind the women who are members of class who have not elected to participate is because they signed to resolve agreement everyone signed the same agreed to same language this court the arbitrator interpreted and the court upheld that they intended to hold to pursue claims their title seven claims it expressly mentions title seven in the agreement through as a potential as a class so we filed a class action complaint in arbitration putting the aaa in sterling on notice that by virtue of which we could invoke the supplementary rules of class arbitration because that's what the supplementary rules apply these women by virtue of having signed this agreement have agreed to allow their claims to be adjudicated in a common arbitration having never before challenge to whether they signed under duress whether they knew what they were signing they were not part of this proceeding that's taking place now in arbitration and arbitration is a creature contract right well the it's true we don't know whether they signed under duress but let's be clear they they entered into the agreement as a condition of their employment so their continued employer i meant if they remained employees presumably they accepted and ratified the agreement there's there's no and let me be clear they're the by the rules that the they agree to follow through the resolve programme or rules that expressly provide for a rule twenty three type class certification that is rule four of the aaa rules expressly provides for the agreement says nothing about class arbitration well the well the agreement of course was that they signed that was that was the subject of the first says nothing about class arbitration why would they not be able to litigate that big well because the the that they've all entered into an agreement that provided that their title seven claims may be submitted to or to class arbitra there is nothing in rule for the aaa rules or in rule twenty three which normally applies to title seven claims that permits people to it requires people to specifically elect to participate let me draw a distinction for you if i may between the way this has been handled this agreement as opposed to the equal pay act claims which of course arise under in rely on normally in court under the fair labor standards act opt in process the process that sterling argues should apply here  we argued that because of the aaa rule for in fact the opt out process of that rule should apply some courts have adopted that position the arbitrator concluded however that there was nothing in the green meant to suggest to the parties intention to supersede the opt in process the congress created the governs equal pay act claims even in arbitration i submit the same reasoning applies here there's nothing in the reflects an intention by the parties to separately require for every dispute that arises a new opt in process this is this the process that applies was provided by rule four and the supplementary rules expressly say they applied to the and the employment rules that are incorporated in the specifically in the aaa in the resolve program and as i said before the child seven any event people are generally on notice that the rule twenty three process would apply so there they have by virtue of entering into an agreement which the arbitrator interpreted as reflecting an intention by each of them that they intended pursue to submit their claims to arbitration to binding arbitration they have agreed to participate in this class and as a result if the there were ruling adverse to the claimants in favor of sterling they would be foreclose from  separately their disparate impact claims and let me just because sterling would hold up the agreement and say this you have to do is time is your foreclosed and and and what limits what other point about the dispute claim here specifically and that is the by virtue of the nature of a distance disparate impact claim which here has to do with questions like whether sterling relied on the proper factors in setting starting pay rates and whether they had an adverse effect on women the ruling that the arbitrator issues would have close to effect anyway because the with the same issue would be presented if these women pursued claims individually the same issue would be presented and indeed we've spent millions of dollars in expert costs here that we have been able to do because we're doing it on behalf of the group if these women had to separately litigate this they would be it would be an affordable but we have a process in place the agreement doesn't modify the process agreement for flex as the arbitrator said an intention by these women to participate to greta submit their title seven claims to binding arbitration in a class proceeding if if if the arbitrator by the way left to step out for important if the arbitrator finds that the right requirements of a a lot of action are met that the that the individual named representatives and satisfy the requirements to that are needed that their claims are typical that they're challenging a common practice all the requirements that are patterned just have like titles like the rule twenty three so the the due process provisions of rule twenty three are incorporated by reference here in general four of the  supplementary rules of the aaa so i submit that the the that the agreement provides for this there is a separate process that we recognize that governs equal pa possibly considering a stream of procedure for damages in the future could you to tell me what that was referring to ensure the foot footnote for twenty five we know it well we argued that there were methods available to  kind of the right to return to it and some kind of process she has yet to articulate i will just add that we know as a result of inference as recent authority from the supreme court in the tyson foods into fake decision among other things and other the arbitrator that provides for a collective adjudication of the back paid claims rather than doing it individually we will revisit the question of the right to opt out because at that point the differently as the supreme court in the wal mart decision made clear their differences may be sufficient that they ought to have a right to opt out in a way that the pursuit declaratory injunctive relief they do not i am almost out of time if i may i just want to briefly address a question which i think is clear but just to make the point and that is the the question about who gets to decide i know sterling insists that it has reserved its right to argue that the court not the arbitrator should decide i think the arbitration agreement itself is very clear that the arbitrator normally decides it does vest the court with true discretion to determine whether it wishes to decide that judge or a cough was presented with that question he court before and wasn't so it's now we submit an issue that is it is too late to raise i think it was the right decision to begin with and as i said it was a matter of discretion so even if this court were to review it it would be for an referred to a finding that all of the class members agreed to participate in the case i believe the record shows only two hundred fifty four opted in and participated in agreed not all forty four thousand there was no such finding in the four corners of the class certification awarded hence we go back to the touched of the federal arbitration act that at arbitrator only has jurisdiction over persons who have submitted  arbitrate a specific dispute and you have submitted that dispute to be resolved by the armor so on this record we submit that this is the argument on the other side and please correct me if i'm misunderstanding this that by signing off on the agreement which contains as we now know several courts having essentially suggested that it's up to the arbitrator to decide what it contains that de facto they have signed onto the agreement apparently the argues that cards what's wrong with a blank check because that's a specific dispute and not this proceeding that that person agreed to participate in and i believe up to the arbitrator to decide that right i mean sterling wanted it that way or set up the agreement and that's that's what sterling got if that's what she wanted to say she didn't find that she didn't say that she didn't articulate it she simply conflated the issue of you signed the resolve agreement therefore you consented to be in this case we believe that squarely presents this court with the issue that justice alito put forth in oxford health because of the issue requires this court to examine these questions and sterling submits that for the reasons set forth