occur only with the clearest of justifications in exceptional circumstances where the order to repaire to the state court would clearly set a and important countervailing interest and a district court repeated reminders from the supreme court that the state courts are equally able to apply federal law including of federal laws such as the federal arbitration act num ber one and the fact that actually in colorado river itself after chatting on about how important it is for federal courts to exercise their jurisdiction and giving giant lists of nine or ten factors supreme court turned around and said oh but in this case the district court should stay its proceedings in favor of the state court proceedings in that instance it happened to be a fairly elaborate system of state law on water rights so the court even in the very foundational case didn't say that the number of times for this kind of abstentions never it's sometimes and it's unclear to me why the district court abused its discretion when the very issue should this be arbitrated is before the california courts well with respect to the supreme court clearly said that federal law must be a major consideration playing against abstention in those circumstances where it all but not necessarily once the supreme court has i'm sorry once the state court has decided the issue it's on appeal in the state court system if the state courts get things wrong when all is said and done there's always a petition for writ of certiorari that supreme court in the supreme court has granted certain certain f a a cases out of state courts there's a process well i think it's very important i didn't quite get submit the court has to distinguish between the s r a petition on the one hand and the cia petition on the other hand be district court was not federal case and here one of the california courts to determination that the arbitration clause were unconscionable and could that these arbitration clauses should be enforced and that's what he'll say off he'll go to commercial arbitration or the aaa everybody will be happy but the issue of parallelism i submit must must be with respect to the underlying claims no this is a this is a matter focusing on who is going to decide that's the issue right now we are not deciding the merits of th decided once the proper forum is established but but if i can give an example if if instead of the sri petition we were here talking about a claim made by by reasonably that that's a powerful proceeding we would not if that were the case and you had arbitrated that the only way you would be here would be on a petition for recognition for some of the arbitrary award and we have thousands of cases  say we don't nd guess arbitrators whatever the arbitrator decided aside from tiny exceptions is what exists it's not a comparable situation  made even though they were under the same contract were distinct and independent of the claims that we're making under the sales representative agreed is independent of anything that is before the the stay cool and the state court doesn't have anything to do with whether the fourteen point one agreement to submit to arbitration any controversy or claim arising out of or relating to this agreement falls within the scope of the arbitral clause i know your whole brief does what you're doing right now your entire brief pushes over to the underlying merits of the claim that i'm not at all convinced that that's where we are now it seems to me we're deciding is this for an arbitrator or not that was the petition before the destroy or the and that's the issue you raised as to both of the contracts before the state court in the motion to compel well well we raised the issue that with respect motion to compel arbitration that's different because the the issue of delegation was not properly addressed not adequately addressed by the state court and it's a threshold issue because the state court under federal law will have no power to issue its decision but we have the right i don't understand that at all state you are you saying state courts don't have the authority to apply the f a a no i'm not saying that i'm saying  st actions of chicago against kaplan but the supreme court has looked at the question of the distinction between giving the arbitrator the responsibility decide the basic let's say commercial dispute and also giv the arbitrator the what would sometimes called an international circles competence competence you know can the arbitrator decide whether that arbitrator has jurisdiction and so forth and the supreme court said st options that's fine too but you need to make a strong showing that that's what the parties did so you do need to go back and look at the underlying agreement to arbitrate arbitration is a creature of agreements and i think that's the only thing the court was doing it wasn't saying that it was going to decide arbitron ability or arbitrator jurisdiction wanted to make sure the recent agreement that gave the competence competence authority to the arbitrator and once that happens then things go one way or the other that's why it was essential for the district court to exercise jurisdiction to knowing what why do you don't trust state courts i mean that's the basically what this if this were if if the california courts had finished and then you would filed this case in federal court you would and looking at the vexatious and contrived nature it seemed that you waited for the a ruling from the supreme court on the not the supreme court from the california court before they appealed to the california supreme court on the issue of motion to compel arbitration rather than immediately but if you were concerned about the delegation provision immediately filing the lawsuit in indiana why do you wait five months well we but if you're concerned about what's going on in the california courts and you're concerned about this delegation provision and you yourself when you filed the motion to compel raised both at the agreements we might be it might be different if you hadn't raised the s r a in your motion to compel so you were concerned about that why didn't you bring it right away because we're not going to i mean i'm not saying you're obligated to but from a strategic standpoint it seems to me like you waited to see if you got a favorable ruling because this was the simpler approach rather than start two separate proceedings is to ask the stay cool in the st instance to rule on the are we have the right to vindicate all federal rights in wet weather right but not necessarily in federal court but i see that where the right is so acute where it goes to a delegation provision that was not recognized by the state good morning and may it please the court i think we focus on exactly the right issues this morning can i just ask you it's my understanding that in the california court of appeal briefing is just about finished on this appeal but the court has not yet said an oral argument date that's correct appeal has asked for a thirty day extension on their reply brief that extension i believe expires in february february th the briefing will be finalized and we would have a hearing shortly thereafter so does that is that the court's normal practice once briefing is complete in other words you know are we looking at a matter of months before the court hears argument of matter of yours you know but i know you're only guessing but it is a smart speculation  statute is really broad in that respect it talks about any proceeding to compel arbitration so whether it's in a proceeding in state court whether it's a proceeding in federal court it would invoke the automatic or mandatory stay of section one four and so again that really points out the the intent of the pew to wait and look and see what the court's decision was going to be in california you didn't like the decision  winds were blowing it's wrong direction or in california we might say the waves were breaking his way and so deep you made a choice at that juncture now having received having actually shopped in the form about the merchandise to go look for another form in indiana so if what significance if any is it that the district court looking at the colorado river potential consciously decides that she's not going to dismiss colorado river grounds she just stays on colorado river grounds which i interpret to mean that depending on what happens in california the parties would be free to go back to the district court in southern indiana and that's exactly right your honor and i think she was trying to follow this court's precedent and making that decision to stay as opposed to dismiss and that's exactly the situation i believe that we've already discussed here today and that is if the california court continues to agree with mr karnow then the matter is going to be resolved as a matter of issue preclusion there's nothing further for the court in indiana to do on the subject of arbiter ability if  are one hundred percent and to pew has made a strong effort to assert that the claims that are existing in indiana are have never been before the california court well those claims have never before the the district court either there is only one claim before the district court and that is to compel arbitration that's it that's the only client and that claim is completely identical with the claim that's before the courts in california and so the this court to examine ask district court to examine where we find ourselves and we say well there are reports that the effort clearly it will king at those factors one of the factors is in convenience at the forum both at the contracts at issue here have a forum selection clause which provides that bring it in indiana haven't you leave your right to argue indiana is an inconvenient forum given that i know the district court on that particular factor found in your favor but it seems that the form selection class would trump that so if we're talking about a form non competing in the analysis then we would get into the whole issue of enforceability of the form selection clause but that is not the role of of colorado river analysis correct it's a separate it's just it's the inconvenience of being there but just like implicitly acknowledging it's not that inconvenient when you have a form selection clause in your contacts in your honor i think that's why the district court found it slightly favored ascension but it didn't carry the day i think the district court found that indeed there was an inconvenience to the parties and  over and over again talked about how important judicial efficiency it is more trying to bring this all in one court all in one place in aaa and opinion specifically the whole the idea of desirability subject to arbitration and and essentially corroborative colorado river says look that's going to happen that's fine but in our case we don't have that circumstance we have all parties that are concerned are are focused on the arb significantly she's saying it's really not material one way or the other yeah it's not going to carry the day and we acknowledge the form selection cause we we acknowledge that that would be an issue we would have to confront head on in terms of a of a motion for form if if we were if we were talking about a much time on convenience but we're not going to be five just california recognize the farm on convenience doctrine oh yes absolutely so a motion could be filed in a california state court asking for dismissal in favor of the selected form presumably if for some reason you are beyond arbitration which is a whole different matter but yes absolutely i really until the paper that all of these these issues that are being argued in california before course that deal with these issues every day as this court has pointed out was concurrent jurisdiction the california courts are bound by the f a a they deal with the f a a every day i would like to address really briefly and quickly this idea of the delegation cla  that that issue was way because it wasn't argued or raised to the trial court again that's a classic issue of of having a nd bite at the apple to you is seeking to have now another court weigh in on this issue is for the courts to decide with the site where the assertion by the claimant is that the parties excluded from the court determination not merely the decision of the merits of the grievance but also the question of its arbiter ability vesting power to make both decisions in the arbitrator the claimant in this case to pew must bear the burden of a clear demonstration of that purpose well that that's right you can have it's permissible st options of chicago says exactly the same thing just as prior wrote the opinion and it is these kinds of clauses are possible the did that what they're calling delegation clause but the court calls for a strong showing that that's what the parties intend to precisely in california we have known no showing and that's the problem and that's an issue that will be dealt with on the f l p level in california and presumably you know that issue will come down as having been precluded as fully litigated between the parties and and we will be there with that issue the the fundamental thing that's happening right here this isn't a david and goliath situation this is more like a world the world situation i don't know how nerdy any of you might be assault by a one billion dollars and what's happening here is we have a one billion dollars billions of dollars behind multiple efforts at litigation and i think one of the underlying themes of the colorado river doctrine is that you can buy manipulation of the courts that's what my client is seeking through this process but i will say that you know when mr hollar argues that the supreme court has sent the message that colorado river should be sparingly used you know courts are supposed to decide cases to fall within their jurisdiction is exactly correct the court has said that this court has said the same thing so you need a pretty strong showing that this sort of stepping back from the case i'll call it abstention people think it's not one of the abstention doctrines but you know the wise judicial administration doctrine is something to be used carefully and i don't know what signal we have from the district courts get that proposition well we wouldn't obviously disagree with that proposition it's well established proposition interesting way to pew has not signed had even one single case in which a motion to help was brought in the state court in last and then a federal petition was filed where the colorado river docked in allowed back you know a disagreed with an again the the state court the issue was presented before the state court after that happened then the petition was brought in the united states district court for illinois when the district court abstained it abstained precisely on the in both federal and state form this court affirmed that decision as modified and i think it this is i mean we haven't talked too much about standards for if you abuse of discretion review novo review review for abuse of discretion the district court's decision whether to abstain and we exercised a noble review to the extent that the decision turns on interpretation of law i think it's pretty straightforward in that respect i don't i wouldn't expect anything different from what we're dealing with me just to stress two or three points st of all with respect to the delegation issue the current state of the lore and of the supreme court and that was articulated in the henry showing case  with respect to the state courts decision the state court identified the issue of potential delegation we did argue that all of the issues before the to the state court and the state court simply did not adequately address and follow the supreme court's mandate in henry showing and i soon you have made these arguments in your briefing in the court of appeal we have but analysis to it and clearly under that analysis comes to the conclusion that given the strong policy favoring arbitration the fact that the state court's decision is not raise doesn't matter if it's on appeal it's not raised to the continent that the federal courts must intervene in those circumstances because the presence federal law is a major consideration of weighing against also i do not i simply do not accept that this case is its power well that i submit we the court must look to the underlying merits because otherwise we have no recourse