suit its customers are clients in order to stop arbitrations from proceeding before then right the sad irony of this case ended up in litigation is that there was actually no underlying dispute between the parties that the case belonged in arbitration in other words the dispute was not a cloud whether the parties agreed to arbitrate the dispute once it's district court called it they initially offered the aaa as an option to its customers and they objected to arbitrating before finra even though their indisputable e a member of finra and obligated under fin was rules to  hundreds of thousands of dollars in attorney's fees against our clients for filing an action that we submit never should have been filed in court what's surprising to us about everything that's transpired here is how strong the law is in the th circuit against doing what f c c stone has done and what the district court has ordered the th circuit for decades is strongly discourage pre arbitration litigation and we get strong a statement of that in eighteen cheap broadway where this court said that a party to an arbitration clause quote unquote must abide by a system that postpones any judicial review of even the question of arbitrarily until after the arbitration decision does that matter most the question of which arbitrator is that something is going to be decided early on i don't think that changes idea that you could end up with two different arbitration but the fallacy in that distinction is a is a couple fault but one of which was that without the court district court's assistants the arbitrations in the n f l you were never going forward so there was never this problem of two different arbitration panels that the court had resolved moreover i would submit if comes out of your lawn in eighteen t broadband trustmark in other cases if a party that tests whether they have any obligation to arbitrate it all has to wait through the arbitration to come to court and debate then why does someone who agrees that they have an obligation arbitrary but claims they're being forced to arbitrate the wrong form have more rights it just doesn't make sense in the rationale underlying this court strong last stopping people from putting our patrol disputes into litigation is to avoid the cost of litigation because that denies the very promise of arbitration our clients gave up their rights to go after war with the hope that they were going to get a process that was faster and cheaper than litigation that's what moses cone talks about in many other cases including many decisions in the th circuit but that promise of arbitration has been taken away from us by ending up in protracted litigation in the district court and bradford got seven circuits opinion talks about this is the worst possible well the outcome we've already achieved in this case is worst i think the judge easterbrook could have imagined it would be and bradford's guide on that issue mister rule fifty eight dollars requires every judgment in the to judgment must be set out in the separate document in the district court record is there a document that sets out a judgment setting forth a relief for one party or not another or another there are declaratory judgments against decision and the district court's decision in june was a final decision because it gave f c stone all the relief it needed and result all the motions pending before the court including the customers motions for and sanctions so the district court's order undermines the decisions of this court it undermines the seven circuits strong discouragement to litigants to come to court before arbitration and start fighting in court about arbitrary issues in the district court's decision creates conflicts in the decisions below in the northern district of illinois now including judge fireman's very right decision which follows eighteen t broadband in a case we cite you know university of chicago underlying  rule that bars litigants from coming to court to challenge arbitral matters before the arbitrary decision or a few other ideas one is the reality is a court that it takes one of these cases has no power before the our patrol decision to stop the arbitration or otherwise impact it meaning they can't show they cannot show their entitle me to a marion junction although they try to do it because they can't show irreparable harm and they can't show a lack of adequate remedy of law and that's where we got unhappy because they came in they claim that the cost of having arbitrate was irreparable harm over the law the th circuit could not be clearer that it's not in this court's called a quote unquote sanctuary frivolous to seek a anti arbitration injunction in tory judgment action when the same parties in the same issues are pending in another matter while they were they were pending before finra f c stone put its objections for and the district court could have made this and if they won that the whole case was resolved if they lost they could come back to court in argue that finra lack jurisdiction and at that point they were entitled to judicial review that's their adequate remedy and the parties disagree with regard to that how do you respond to the ma glia case from two thousand and eight about section sixteen be here for bidding appeals and  don't have a twelve minute to order here is your is your argument we all know where this case is heading as a result of the last page of the district court order because that it strikes me that there's daylight between the last page of the district court's order and a judgment under rule fifty eight you that's that's not or even the muglia case doesn't apply to what model it basically says is that pro arbitration decisions are not appeal well this was an entire situation decision i mean the original purpose in filing this lawsuit was to stop the finra arbitrations and to get declar court did enter an injunction it ordered us to take our claims which were pending in finra and to refile them in a different form in the n s a every nd year law student knows that's and that's an i order granting an injunction against an arbitration and that's what we had here in addition as i've said we do have the final decision and i think again the law on this but what doesn't matter is whether there is an actual separate judgment what matters is there is a final decision and again the court result all the issues pending before court was concerned with was a part of being forced in arbitration that it never agree to arbitrate here f c stone by virtue of its membership in finra agreed to arbitra disputes with its customers in finra the question is they wanted to lodge various challenges to finda proceeding with the case the st of which was they argued in in their papers in the away in their complaint that by signing the separate arbitration agreement the customers waive their right to go to federal well what do we know about that argument it sounds in waiver and what it means is it's a question that is outside the authority of the court to decide under the house and divide and that's abundantly clear from this court's decision in lumbermen's as well it's the supreme court decisions that the seven circuits decision and lumber of fall that answer your question no food so the district were further erred in taking decisions that belong to the arbitrator and deciding them and what's interesting is about some of the arguments they make is that they're intertwined with the underlying when your decisions are intertwined with the ultimate merits decisions that everybody agrees would be decided by the arbitrator's then that's a factor that weighs in favor of the court deferring and allowing finra to decide the issue at c stone delegated the issue of arbitrary billeted to the arbitrators in two ways one was they put forward they drafted if we didn't our clients signed it but they put forward  agreement that said any controversy will be decided in arbitration any controversy arising from the agreement will be decided in arbitration in addition as i've said they agreed papers and then styled it is a petition to compel but as i've said that was still injunctive really and the important point i want to emphasize is the f a a does not allow and that's exactly what it was when it when the june order said to the customers you have to take your claims pending before finra and you've got to file them in the  in addition the district court error in holding in making this decision that the arbitration agreement specified the n f l eg if you look at that one page arbitration  because the customers did not elect their form within forty five dollars days there are a couple of basic factual problems with that the st was that it is a basic equity  arbitration agreement didn't tell the customers that they had to file it within forty five days in fact the december th e mail that f c stone sent to the customers giving them the three choices including the one impartial forum if you will the aaa didn't tell them they had forty five dollars days to respond the forty five dollars day rule comes from the sea f t c rules but it was basically unfair to enforce a forty five day requirement when s c stone didn't provide notice to it as it should in addition the basic point is that one hundred and sixty six point five is set  agreement to arbitrate it did not acknowledge that it offered aaa arbitrations an option and it basically sent a message not only to the customers that if the filing arbitration but to all the customers who might file in aaa later that they would never consent to arbitrate before the aaa so at that point they've reputed their own agreements and it was simply bowl to use that against the customers to force them into the national futures association when federal law is clear that you have to go there voluntarily i see good morning police the court tom crabs on behalf of the stone i want to start with addressing the appellate jurisdiction issue because that really is the threshold issue here and appellants have advanced two grounds for a series of declarations interactive pollens to arbitrate their claims before the th with national futures association pursuant to section four of the federal arbitration act again there was no injunction here because there was wasn't a final decision here with respect to arbitration once again the count for injunctive relief it remains pending before the district court in fact the district court just last week stayed it for an additional thirty days  marg same question i posed to mr subi about the stays where they're coming from what their purposes sure so the most recent thirty day stay we addressed the fact that there are serious concerns that  not complying with the district court's order and section four of the federal arbitration act by actually arbitrating their claims in this district which is what section fo docket sheet judge lefkow sought contra contributions from the parties in writing and then she issued more directive type decisions it was unclear as to whether or not this that order but that is correct yes now the panel act correct case the mike lee a case that case stands for the proposition that a pro arbitration decision coupled with a stay which this is rather than a dismissal which this is not is not appealable that's the end of the story this kate this case is not appealable should be dismissed and my plea doesn't stand just what about mr krebs if we were to come to a conclusion that we all know where the case is heading after the one thousand page opinion in order from judge lefkow for efficiency's sake we should keep it what are your thoughts on well i mean there is no provision in nine u s c section sixteen stating that we all know where this case is going to go because we don't necessarily know where the going to go there's still business left before the district court and what is that business and what are the give us the flowchart as to what could occur while the case would still be in the district court located if the defendants do not agree to arbitrate their claims in the north and just of illinois as required by section four of the federal arbitration act f c stone in all likelihood is going to have to file some sort of pleading paper compelling them to do so under section four of the act and the  at a minimum that is still pending out there it's this is not just a theoretical exercise it's a reality winner reynolds for two thousand and two under house on the gateway question of whether the parties had submitted a particular issue or dispute to arbitration which is the question of course which ability is an issue for judicial determination unless the district court properly rejected that argument for a number of reasons st the district court's holding that it had authority to determine this issue is consistent with the wealth of case law where courts have decided the proper and by the way there is a i realize that this is a district court case from the northern the district of illinois but it is right on point and it is the bear stearns case and i believe the panel should find that case persuasive because it in the records they have asked to united states district courts in nearly identical proceedings to resolve this very same gateway issue in the north and district of it's proper for the district courts in georgia in florida to decide that gateway issue it certainly is proper for the district court to have decided that gateway issue here and so for all these reasons i submit that the district court correctly determined tha agreements clearly in unmistakably delegate the issue of arbiter believe to the arbitrators and that's what they actually have to do under a lot has to be clear and unmistakable well that simply is not correct in the story point here is the arbitration clause you can find that in the supplemental appendix on page sixty five ok and that agreement provides at least and relevant part as follows any controversy or clane arising out of or relating to your four and there the court found that in even broader arbitration clause did not clearly in unmistakably provide that the parties agreed to submit the issue of arbiter ability for the arbitrators now there were two clauses and i'll read the broader one just to give you some context it provides any dispute or controversy arising out of or relating to any interpretation construction performance or breach of this agreement shall be resolved exclusively by arbitration as i just read covers only any controversy or claim arising out of or relating to your accounts it doesn't cover the interpretation construction or performance of the agreement well the point x the clause in this case clearly is not broad enough to delegate our bitch ability to the arbitrator to palates courts in this district must always wait until arbitrations are completed to rule on whether the arbitration form was proper while the district court properly distinguished eighteen t broadband because broadband didn't address the issue that was here and a t t broadband there were not two competing arbitrations one of which needed the district court's assistance to proceed in the plaintiff in eighteen to broadband was not seeking to compel arbitration the pla to block arbitration in fact it was an eighty arbitration action but below that system was seeking a pro arbitration order compelling arbitration before the proper arbitration form it was an eighty arbitration action arbitrate it was a pro arbitration action and by the way the district courts result it's consistent with section four of the federal retrace an act that section specifically empowers the court compel arbitration when a party refuses to arbitrate as provided in its written agreement so council in his opening statement was saying that there was no authority under the federal arbitration act the district court to do what it did it well that's wrong just look at section four of the federal arbitration act it's not an injunction it's a motion to compel if it were an injunction every single motion to compel arbitration that has ever been entered would be an injunction tell us also contend that the arbitration agreements aren't forcible because they did not agree to arbitrate in front of the n f l once again and the starting point here is looking at the agreements the arbitration agreement itself and like i said that's on supplemental appendix page sixty five dollars well this is part of the st sentence of that clause any controversy or claim or arising out of or relating to your accounts shall be settled by arbitration either one under the code of arbitration of the national futures association the n f l so clearly there was an agreement to arbitrate in front of the an effect if you read through this entire clause it doesn't qualified arbitration organizations the customers then required to select one of the three within forty five days in the event of customer fails to select one of the registrar has the exclusive right to select one of the three arbitration options by the way one hundred and sixty six five contrary to what the palace council may imply does not require the registrar in this case f c stone to tell appellants that they had forty five days before the n f l it says the list must include the list of three a registered futures association that's been the relevant dates for this analysis is december th that's  six point five in the party's agreements because two reasons why they didn't use it within forty five days and they rejected the forums on two separate occasions and demanded to arbitrate in front of finra i want to know i don't have much time but i want to address one of these arguments made by palance about a letter that was sent out pellets contend that some of them did not submit their arbitration form selection within forty five days as required by c if the c rule won sixty six point five  doesn't make any sense the party's disagreement over the proper aaa arbitration forum did not stop appellants from sending election two days after the expiration of the forty five day period well if it was good enough to send two days after it there's no way it should stop them from doing the sending it earlier once again that mistake is on appellants our policy council is not on s c stone  with respect to customers the district court correctly determined that customers require and based on case law from numerous circuits that one that refers to this definition one not a broker or dealer who purchases commodities or services from within remember in the course of the members business activities is so far as those activities are regulated by finra namely the investment banking in securities business activities well none of these activities here are related to securities are investment banking like a set these were futures accounts in fact the account agreements prohibited appellants from trading securities the specific product natural gas well well it is a specific it is a specific product now they could have traded other futures products but they were not allowed they were prohibited for trading securities products and that is why they are not customers under the definition of customer for the finner arbitrations and hence they are they don't even qualify to be able to bring in arbitration in front of the general and that's the whole point so i basically used up my time you although i do have a couple extra points to make the of the motions for sanctions the court district court clearly didn't abuse its discretion in denying much of what they were doing from the clear prohibitions of this were against doing it this was not a pro arbitration they asked for and got from the district court declaratory judgments against pending arbitrations and th at's entire betrayed in addition they got an injunction they got in order commanding us to take these orders and transfer them to the n f a if you rob peter to pay paul paying paul is a good civic act but you still rob people and that's their focus on paying paul we're talking about robbing peter i would commend of the court bradford scott it tells you and i are patrician decisions are immediately appeal and greentree which says that a you have the final decision what ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment that's where we is there's no serious work thanks to both counsel and the case will be taken under advisement