just a minute until the courtroom is settled but we're thank you your honors may please the court my name is sonia winner i am here on behalf of the appellant the central question in this appeal is whether a defendant in a class action that has arbitration contracts with every member of a certified class can be deemed to have waived that arbitration right sol eight because it did not in force its separate arbitration then the supreme court has spoken pretty clearly about that it if there are probably then have several people filed independent lawsuits and the court consolidated them they would also be a  well that i swear i come from about this case it's a classic issue preclusion case in which the issue that was decided in the first case was under certain facts that a waiver occurred yes your honor and  does not apply in this situation because the every wells fargo customer has his or her own contract with the bank has his or her own or rich arbitration obligation under that contract and the mere fact that the bank did not enforce its arbitration right in a different contract with a different customer does not mean that it has waived its arbitration right under its contract with these customers this is analogous also to what this court decided in the ibex case in which the court rejected an argument that a lot of the facts in that case were that a  defendant had a contract with the plaintiff that had an arbitration clause the defendant had sued actually affirmative brought suit against the plaintiffs accountant and the pla argued that that action constituted a waiver of the arbitration right in this court held that no that was not true because the contract under which that others lawsuit had been brought was a separate contract that the defendant had with the with the accounting firm and that therefore you know if the the new lawsuit and which arbitration was sought was under a different contract with a different party and waiver did the these cases everybody has devoted five six six and a half years to litigation on substantive motions to dismiss certification of a class everything else and now if you're allowed to assert the arbitration clause all of that work both for the parties and for the court and the resources expended go by the wayside well but that th and that it all could have been avoided had you initially asserted your arbitration rights with regard to the name plaintiffs and had that issue resolved one way or another well that that is certainly true but it was the defen plaintiffs the chose to pursue this litigation but it was but it was the banks who affirmatively told the district court that they were not going to seek arbitration as to the name plaintiffs and i and i understand that but you can't say that you can't blame the plaintive for filing suit when you tell the district court that as to that plaintive you're not seeking arbitration because you could have gotten rid of those named plaintiffs or potentially gotten rid of those named plain by asserting your arbitration rights in a timely fashion in the first place and you would have never hit the class certification had you been successful that is true but the but the plaintiffs didn't have to move for class certification either i mean this this this motion that we're currently talking about today is not directed at the nameplate if that's been resolved there was a waiver as to them but at the same time we've been very clear from the outset of this case including explicit statements in our answers explicit statements in separate filings with the district court that there were arbitration rights against the unnamed class members the plaintiffs chose knowing that to proceed with the litigation to proceed through class certification at which point we again you know raised it with the district court and said you know there's no numerosity here because every member of this class has an obligation to arbitrate and the  rejected that argument on the ground that it was premature but going back to the procedural history you told the district court that you were not going to seek arbitration against the name plaintiffs and then you did well that was because there was because of the concep decision whatever yeah i mean party chairs are litigation strategy and sometimes they predict the future correctly and sometimes they don't and sometimes they don't and we did not and the cards the cards see a decision is binding in this case so as to the name played it but in the garcia even during while we were litigating what became the garcia appealed all during that time we kept saying by the way we also have arbitration rights against everybody in this class and that's not right yet and the plan it's interesting the plaintiffs never said a word of disagreement during all of this time they never they never said no no it's right it's right be we got to decide this now they didn't raise this that issue they didn't raise that argument until we got to class certification and follow arbitration motions and we started talking a little gating the arbitration obligations of the and then class members and then suddenly said oh now it's too late but they did not they didn't move to strike our answer they didn't have your answer couldn't have been struck at the time i agree but they did not because it was premature i mean that's the point is that the the unname class members now know fed up because it was premature it's because you can resolve they couldn't deny that there was a clause in the contracts but the validity of the enforceability of the clause hadn't been litigated so you couldn't move to strike any part of the answer based on that well exactly your honor because the name classmen as the a name class members they were not yet before the court and that's all you know and that's the position we've always taken we've been very straightforward no federal court has ever held that you have to move to compel arbitration against the unnamed plaintive in order to preserve your arbitration rights against the class well the issue hasn't been presented the issue has been presented numerous times and waiver has been found in situations where in two kinds of situations one situation where after close to class certification people kept litigating for months or years and slept on their rights even after class or vacation that's an easy case i would i would suggest the other situation has been where the defendant hit the ball basically and that's the cox case the cox enterprises cases is that the most often cited case on that point which is that the defendant didn't say anything in their answer about patricia and they didn't say anything during class or vacation they thought class certification without mentioning arbitration and then after that suddenly sprung the arbitration courts have come out different ways in that situation but in any event that's not the situation we have here we did not hide the ball wells fargo was always very clear the only thing that it didn't do is it did not move to compel arbitration from the unnamed class members there was nothing else that it could have done that it failed to do you know until class was certified those parties were not before the court wells fargo did not have an ability to enforce its arbitration rights it kept reminding everybody that they were there but he couldn't do anything else about them and i would submit your honor that to  cases among that line the supreme court's not particularly clear in the class action context that the plaintiff it does not stand in the shoes of of the absent class members the standard fire insurance company wants more than just more than situation where you had a defendant that had had a right had rights or nascent rights the rights had not become right because the parties were not before the court and those those those rights could not be taken away and again it i would  to your honor also the the walmart vs dukes case from the united states supreme court which reminded everybody that the class action mechanism cannot be used to a bridge to the substantive rights of the defendant it is it is a procedural matter mechanism for litigating claims but you cannot use the class action mechanism as a way to take away a defendant's defenses against a name class members simply by bringing them into a class please the court bruce rogo adam webb steven rosenthal for the apple these in this case there are four cases that really designed the outcome of this case spears haman kaleido and garcia we embrace all of them had the bank in forces contractual rights at the very beginning we would not be here if they enforce a contractual rights against the representative plaintiffs the cases would have been sent to arbitration there would be no class action and they made a strategic decision not to do so they took that risk in deciding to do it that way and then the case proceeded to see it as proceeded since two thousand and eight has become so you tying off a lot to lawyer behavior here no none at all to lawyer behavior the bank tried to raise arbitration later that's correct and they lost because they waived exactly ok the court let a gated the waiver issue in garcia yes and that's what was litigated yes all right ok and question is now that there is class certification their position is well that we can raise it again as judge king found no you sips let me ask you this before us out let's suppose there were one hundred cases filed separately by class persons and then work comes nominated by the district court ok yes would you make the same argument if they did not raise that same lawyer same party same everybody instead of having an unnamed class we don't know who they are the the class individual a file lawsuits and they are consolidated by the m d l panel before judge king same arbitration they raise it the district court finds way too late finds a way for appeal this circuit affirms you've waived can't get arbitration a year later two years later with the statute of limitations there are another fifty cases filed by individual plaintiffs and i think judge show flats question to you is would you argue waiver in those that second wave of fifty cases based on the waiver in the first case i think that's what he was asked yes that's the point if they were not a class action i would not know that the two stand i'm saying judge so flat if these are your your how are you saying there's a difference between class action and no class action there is and this court has said forget this court let's assume are on a clean slate yes but on a clean slate clean so we have to consolidate appeals we have this appeal and we have another appeal for the work people in the class independently filed suit and they're all consolidated and the argument has been and they both for arbitration and both settings and the question i have is is that is the rule the same in both cases in both settings and tell far starts class certification and the one and the second one now has the other case will it be that this this maybe i'm confused by the hypothetical i want to know whether or not if your preclusion applie me is there another name up whereby you import a ruling and one case even in a class act issue preclude you've got you've got a thousand people who are not before the court and that you bring  cases lots sidemen criminal contacts some on death row where you have say you got an issue in this case and somebody wants an important another case and on her argument the first case decides everything will there and the cases that there are new they are not there or they couldn't be there because because a case of weren't there they are not there but in the case of the class this this court in your opinion just so fled in i think sets out what this is all about here's how i see it so you have garcia saying that there was way for you have krinsky saying well we'll relieve someone of waiver if the nature of the case has changed and the point here is and that's why i start at the very beginning at the very beginning had they raise and judge jordan pointed to this had they said we are invoking arbitration as to the name class representatives the case would have been over there be no case no class no nothing because nobody could represent a class that would be the end if they if they had raised that they didn't so and so they took that risk and now are in a situation in which the case proceeds for eight years and classes time take take the time a lot of take the time and the work out of the picture and the difference there could be there could be but on the facts of this case there it could be you mean or right and prince if there is a change in the nature of the case if there is a change in the nature of the class a change in the nature of the claims then you can revive your failure to have asserted arbitration i mean if you believe in arbitration then than the key to this is you it's a contract right and you asserted try to way and if you assert it right away the case is out of the court and that's the whole purpose of the f a a so what they have failed to do this is the risk that they took th failed to assert a right away to ensure that this would never be a class action because we'd never get there and then years and years later with much litigation as garcia has pointed out they now come back and say well now we're going to raise it with regard to the class and by the way they said they had an intent to assert it as to the class i said we reserve our rights what does whatever says about are it well i don't think it does make a difference on this record it makes no difference on this record you said you said and again i'm coming back to your decisions you said spears amun we can conceive of no reason why the class one certified can assert that this claim that they had waived and that's exactly what we're doing we're here their that that it was premature to address waiver at that point because the class hadn't been certified and it said when some class is certified then you can address this we're dressing you could you can track you can do whatever it wants at certified yes and approach the issue from a slightly different perspective a class action perspective what is the law to the extent you know of the binding effect on rulings has to name class members on the class once the classes certified in other words there are substantive rulings made on the merits of a case yes before class cert maybe on a motion to dismiss say and then the class gets certified is the class bound by rulings made as to the class and the name class representatives who are supposed to be symbolic of the class they they would be assuming that they haven't opted out therefore they'd be bound by what the nature of the cases and decisions that have been made close is there are no argument that the same sort of general rule would apply here given that the issue is the same although based on separate individual contracts will but certainly one can make that argument and i think that's where we're discussing whether or not they are going to my opponent make says no you can't it's a clean slate once a class is certified these are new people we can do anything we want with regard to them and what we're saying is that's not so you have to take a look at what the litigant has done in failing to to raise arbitration in terms of deciding the effect on the class and our argument is that they better not opt out well they say better out up after certification they'd better not opt out of they lose all of these things that the fifth the first case decided well i think i think the same issue preclusion by the virtue of what had happened before because of what happened in the first case they are but the issue the issue of what kind of waiver of arbitration is settled they f motion to compel arbitration the date after the suit filed and the counter to that is it was waived because the issue with the side and garcia that is that is one answer and the other answer is the answer that there was no change when the class know they were opted out so they're not in the class well if if they've opted out they have a different argument but the four cases really the four cases are garcia krinsky koloff and kaleido and garcia and i think putting all those cases together judge king's decision that the waiver of the substantial litigation results in a waiver and the class can assert that waiver successfully  made as to the name plaintive was wiped out as to the named plaintive because of a change in circumstances in the case so that a rather more on point i would say is probably the collateral case that mr gross wrote also referred to that was not a class action but that case involved a situation in which there were some claims in the case there was a waiver of arbitration rights as to those claims then the complaint was amended so that new claims of state law claims based on largely the same facts were brought into the case formally for the first time and this court held in colombo that because those claims were not before the say that would be a an aborted attempt at law of the case doctrine and i think your honor is definitely on the right track about focusing on the analogy to separate cases that might have been brought in and and i think mr ruggles concession that there would be no waiver in that situation should pretty much decide things here because the fact of lee that's what class certification does class certification brings new claims into the case that were not there before they were not before the court court had no jurisdiction over those contracts over those parties and again we're talking about separate contracts separate obloquy arbitration obligations and in that situation class certification as i think what you're on are seven spears haman that's what what what what brings what used to be hypothetical claims into reifies them as actual claims that are before the court there the that are actually before the court and though the waiver analysis begins at that point can i ask you a practical question certainly your honor if you win and you can assert the arbitration clauses the at the litigate them individually asked every class member we shouldn't have to your honor if they all have what if you are right and they're all different when you oppose class surgeon they all have different arguments as to why as to them the arbitration agreement shouldn't be enforceable the practical answer to that would be the clas certified at that point because you have individualized issues and that's that's what happens when there are individual ised issues as to arbitration in the class context typically class if you're if you're allowed to assert the arbitration clauses but lose you lose as to the class i'm sorry you mean it as to it and force ability yes that what you're telling us you lose class you either win class wider you lose class white is your answer well it depends on how the court analyzes the argument i know from your perspective from my perspective at this point we have a certified class we we don't have in force ability arms that have been really made at this point that you know our position is that the if in force ability arguments have been largely abandoned the plaintiffs have have have have their start to the i think that the wrong metaphor but they they have it there they've gone all or nothing at all on waiver at this point the orbits in the course of  number of banks all the enforceability arguments they could come up with have been decided and they've been rejected which is why they didn't really brief it below they did when they when they drafted opinions that the district court adopted they didn't put any enforceability arguments in the there at this point our position is waiver is the only game in town for them at this point and if there is no waiver there should be simple reversal with the direction that the and for the arbitration clause should be enforced according to their terms while the district court hasn't passed on the arbitration clause is right the only issue before us is whether or not the district court ruling with regard to waiver is correct because