notion of unconscionable and procedural unquestionably the previously operated i don't hear it in that sense that you just quoted well here's al ok with regard to if you go through the list for a section there is a definition in a footnot why it is using the term compulsory arbitration and that is have agreement that one must agree to in order to get or keep the job what that means and the decor goes on to say near the end of the decision in regard to the retaliation argument race and lose for that we don't see that there's a retaliation issue because if an employer can require this type of agreement then or doesn't violate any law by terminating someone who want to they were concerned because after lucia's more they felt employers now had full authority to require compulsory arbitration agreement both judge gregersen and judge reinhardt wrote at length about the problems they option of going to work somewhere else there's no constitutional or statutory right if you will to work for circuit city if mr c or in mr happy or and or the kids use them versus interstate jo arming terrorist talks about the circumstances and well you know i think the word mandatory is slipping between two meanings one is one signed is mandatory another one is it's man to try to use sign and i'm using it in the latter context because i think that's how the california courts have looked at this and i think i recognize clearly that in the atoms in goal and mantra cases judge gregersen a judge just said you can't force people to agree to these  arbitration of the high claims and if you're going to have these as an employer of your levi criteria that you have to have now with regard to those criteria the sort of study agreement isn't forcible it provides for a neutral arbitrator it is mutually binding on both circuit city and the employee it provides for significant discovery albeit somewhat less then it would be available in court you have a written arbitration decision there arbitrator applies the law of the jurisdiction  you know i look like i got some difficulties just with the language of rule nineteen trying to figure out what version of the rules to apply you just turn to ru provided all claims arising before alteration of terminations shall be subject to the arbitration in effect the time of the word before in that first sentence is giving me trouble but all kinds arising before alteration or terminations what happens if the claim arises out of the combination itself it still would be governed by procedure rules in fact at the time the claims brought and wha is paid a very simple reason for that that means that all arbitration is happening at one time or being governed by the same rules but when i'm actually here this appears to give us two sets of rules one set of rules or at least potentially two  rules one set of rules for and as for one of the combination that is to say that's governed at the by the rules at the time of filing and the other set of rules governing terminations that's at the time of combination or the  really a problem but i understand you might want to avoid that functionally did percent problems what with what the rules were designed to do was to make this an evolving document everyone knows and everyone knew situation we had here where they filed a lawsuit we come to court to compel the arbitration under the f a the requirement that mr c or d mr happy or agree to that if they had any employment related legal dispute any kind with circuit city arising out of the application for employment employment or terminations of what they were going to arbitrate that ok but i'm trying to find out but if we're trying then to evaluate the rules to figure out whether or not the and i think that is a legal fiction that we have to indulge in that years we would have to assume that at the time they filed their claim that they should have f subsequent amendment to the rules in two thousand and five takes away the filing fee there is no more filing fee for an arbitration and so under this version of the rule and under the questions we've just gone back and forth on may mean we look at the two thousand and five after someone leaves employment in the court wrestled with the ganglia very case out of washington the majority i think misinterpret that case and i think judge be interpreted it correctly to say that was the agreement the agreement was if accept future changes we're going to hold you to that if the employer does something that is clearly in bad faith no court has the obligation to enforce that you know your time is running so let me ask you one question before you sit down i noticed th exactly the opposite way and the one that i think is is right and hope will carry the day is the one that says that would be an arbitration specific rule that the f a a with priya you can't simply carve out  that nothing since these cases should make a difference has changed the law on what to look at in determining whether to enforce these arbitration of this arbitration agreement  does not apply to our situation in that in that case first of all the word unconscionable is not discussed it's simply not within the case the case is a case about whether or not you can waive a jury trial by going to arbitration for certain types of federal claims this case is a case based on state law here because of diversity jurisdiction this case is simply determine found to be the operative ones by judge fees are the basically contain numerous of the same clauses found unconscionable in prior ninth circuit opinions  the bilateral nature of the most recent arbitration agreements and the unilateral nature of the arbitration agreements that are operative in our case ninety seven two thousand either or those are some of the unconscious being the controller of his own courtroom chose the agreements of ninety seven and two thousand as the operative agreements seeing as there or in no other awkward no other agreements he could have recently chosen to be the operative ones two thousand and three the first notice posted at the stores and the varying along these four years of agreements is the time when that notice is given it usually is either march march or december of each year there's a brought subsequent to that there is no agreement we don't have the rules presumably presuming that the ninety seven agreement is operative originally operative when he signed it and the two thousand going for security is operative if you follow the n procedures there is no opportunity to figure out what the rules are for getting the lists to change the rules because we have gaps in the record judge fears looking at this we presume so is ninety seven to two thousand being as those are the ones that a blanket ability to retain any sort of arbitration agreement prior to employment and that because of that there is now no longer procedural unconsciously believe we would strongly disagree for that for a number of reasons including several policy reasons another way of looking at it is it's in a foreign language nobody knows what it is you know if you clearly understand what those are surprising terms no different than if you were presented a lease agreement with a tiny provision and that made made it so co this is clearly a year or more after yes on those i mean that's one of them to work it was trying to perform was not to hold to set the claim that something was or was not a contract or that he's in but was rather trying to distinguish between they chose an agreement which in their life was probably the most favorable for them but the one had one in regard authority of were terminated in two thousand and two we brought this lawsuit in factor january or february of two thousand and three before there was a chance to modify