decision you still have two other considerations you need to take into points one being whether or not there is consideration which one is well on team does not believe exists here and the nd being whether or not you dream in itself was unconscionable because it was not it seems to me that there are some significant very chill disputes here your client said that a manager told her oh don't worry about it you know not a problem the manager has declaration that denies that that was ever saying that may be important under montana law i don't i don't know if it would be or not but in the face of factual  my my procedural question ties into this how can we send a legal question when there are factual issues that need to be resolved in order to understand what the what the legal issue is for example it may be different if a manager says don't worry about this or it may not but it seems to me that that's the sort of factual dispute that something has to be resolved before there is a legal question to certify and i would appreciate your answer what that procedure should be in a case like this your honor in responding to your question just graver and specifically about  so do you read the court's decision that worry him if not how do you interpret exactly around or i don't read the cords interpretation that way when i believe the court looked at was the totality of the circumstances and it is montana law montana law does presume receipt of a valid the address piece of mail and it is insufficient for the person just to say i didn't get it as an excuse to state that they didn't receive it well i think scuse me if let's say you have a with say an insurance company or any any trial and someone says i sent this to the correct address and the addressee and her husband both say it did not a groan are you saying that's not a genuine issue be aware of even all the managers not only reminding them of the arbitration vision but reminding them to tell their employees about it and also to talk to them about the opt out process the effective day holiday also sent i their new was publication that they send out their newsletter the monthly rolls holiday world and there is no denial by ms the hunting that she received the e mails to the managers or that she received the holiday world publication she's the only doesn't recall whether or not she saw the part about right there is no montana supreme court case actually directly on point however we do believe that there is controlling montana law that is working fine and in this situation that would be montana code annotated section twenty eight dollars dash to dash final line which is court looks at the better international systems versus western star trucks cases that he talks about the standard is really whether based on the party's conduct a reasonable person would conclude that they had intended to be bound by the contract and in this situation where she had been given all of those documents by her employer had talked to mr allegedly talked to mr scherer about it continued her employment and never raised any other questions about it until she wanted to holiday at her law that would make that a reasonable expectation what would be the basis for that well i think that najib case that that the court has referred to before is directly on point in that regard it was almost the exact same situation  almost exactly the same that consent can be communicated by omission looking at the totality of the circumstances and the circumstantial evidence that would go to support consent and as you know this her failure and that there's additional circumstantial evidence to find that her conduct objectively manifested her  t for the st time in in the record on her reply appellant has argued that because she was apparently told by mr scherer that she had already signed an agreement that meant that she thought she had opted out of this argument does not m sense because by her own testimony she says she only scanned the st page and the opt out provision was on the nd page so if she believed she had signed one if this conversation with mr sharon had occurred that would have meant that she believed that she had already consented related matters decided in a purpose eating in this equates to consideration contrary to that times position the fact that holiday was the one to propose the arbitration agreement does not mean there was no consideration by the agreements language holiday gave up its right to pursue employment related claims in a court of law appellant cannot reasonably contend that just because the arbitration agreement was closed by holiday that somehow change the fact that it too gave up rights there is no authority to support this position and from a practical matter it just doesn't make sense because any contract provision could be construed as being presented or desired by one party or another in any event in a similar case to this one an exchange in legal positions be that be an arbitration agreement was determined by the montana federal district court to be adequate consideration in that case and this is now on tools to use furthermore our appeal as arguments that she received nothing of value is unsupported in addition to the change in legal positions both parties it seems to me that there really are two options and i would like you to sort of response to this thought it seems to me that either the court should have permitted a full hearing of some time to resolve any factual disputes that may be ruined or we should take the facts in the light most favorable to the employee because you have the burden of proof why are those if you we have conflicting affidavits no a lot of testimony in the district court has pick's why is that i mean that seems quite irregular your honor quite frankly i don't know if it's a regular or not it is what occurred in this case believe that sort of occasion to the due supreme court is warranted in this case as the court's aware that is a discretionary function and in this position we do not believe that the montana state supreme court would be any better situated to apply the controlling montana state law than the th circuit would be while they've got five factual scenario hasn't been dealt with there is controlling state law we cited those statutes and we also believe that certification will result in a much longer delay in this case facts underlying the complaint occurred in april of two thousand and fifteen the complaint was served in two thousand and seventeen and the arbitration was held almost a year and a half ago in july of one thousand and we believe that the nicer guy has been able to address similar issues like this from circumstances looking to the argument by holiday part of that so is how libby is that she continued her employment that should not be considered by those words the fact that she continued her employment was a right and benefit that she