your honor can you hear me now is this mr schuler it is your honor our great all right yes please proceed with your opening statement if you would and my apologize if that was a hitch on on my end may have please the court  the parties agree the judge mcfadden correctly applied the equivalent of a summary judgment standard and ruling on parsons motion to compel arbitration with its former employee mr jim parsons disagrees with how judge mcfadden applied that standard to the facts of record in our view the four distinct e mails parsons delivered to mr gen each with a subject line e d our agreement to arbitrate effectively gave him legally sufficient notice that if he continued his employment with parsons then he was bound to arbitrate any future dispute about his employment mr jenner continued his employment for many years after receiving these e mails this constitutes his assent by action to be bound by the agreement the court below found ambiguity and whether mr ginn can be deemed to have signaled his assent on the premise that his inaction could be seen as rejecting the agreement not so on the facts of this case gentz position is that he does not recall if he saw the e mails or not therefore he cannot say he intended by his inaction to reject the agreement because he claims he does not recall being aware in the st place to have an opinion instead the law permits and we contend it requires that this circumstance be treated exactly the same as when an individual asked to be excused from a contract because he claims he didn't bother to read it it is presumed that he did under the rules of receipt and deemed notice followed by the decisions in the th and th circuits cited in parsons briefing the party which sends a notice by email as entitled to the presumption that the email was not just received but read that the recipient knew of contact mr jen cites no counter authority to these decisions and parsons contends they are persuasive authority mr jim has not rebutted this presumption he doesn't claim he chose not to read the emails and deleted them instead his rejoinder is merely that he does not recall therefore he cannot rebut and has not rebutted the presumption that he knew the contents of the four e mails if mr jenner either knew or is presumed to have known that his continued employment constituted his assent to arbitrate his disputes then he must be held to his agreement because he took no steps to signal his descent so differently parson's position is that this factual circumstances aligns with this court's recent decision and come our own versus mastro his restaurant in that case the court look to the restatement nd of contracts section one hundred percent to which instructs that a party's conduct is not a manifestation of his and assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he a sense here mr jim intended to continue his employment with parsons and he did continue it for many years that is an affirmative act he knew or had reason to know that parsons would infer from his conduct that he assented to arbitrate parsons expressly told him as much for time on the flip side of the coin mr gentle no action that signaled anything to the contrary to parsons all right let me ask you mr schuler i'm confused about what the email said the employee had to sign the district court says said st that employees were asked quote to complete a certification acknowledging receipt of the agreement nothing about signing the agreement but the next sentence in his order says parsons advised employees that quote if you do not sign the agreement to arbitrate so did the e mail require them to sign two times once to certify receipt and another to agree to the agreement the email your honor had a click the link below embedded in it and at that point there would be an electronic signature on read the material was enough to sell that he didn't have actual knowledge so why why this creates a question of material fact a disputed to have knowledge and he says i didn't have knowledge i understand your argument that or an argument that at the next phase either jury or judge fact deciding somebody will decide whether that so your honor the the answer is that we think that the logic of those th and th circuit cases which i will concede were not contract cases but they were notice cases  that if somebody is in a setting in which it would be expected for them to read the document and these were work e mails delivered by mr jens employer to his work e mail box it was his job to be aware of them and not to ignore whether in a work setting like this there can be there should be a presumption that the person not only received the document but was aware of its contents and and the same way that we presume that someone is aware of the contract a contract once they've signed  anderson all right judge pillar good morning mr schuller my question is about whether the appeal is proper here and i realize that it of disputed fact as to whether there is an agreement to arbitrate the district court should then under the federal arbitration act hold a mini trial a threshold trial whether by jury or bench depending on the opposing parties request to resolve that material issue of disputed fact and that didn't h and i and i know that your briefing has said that at least we should go back for that to happen and what did you do to bring that sort of half baked character of the determination to the district court counsel if you will at that point in the proceeding my colleague who was lead counsel is now deceased and what happened was we did both but we filed a notice of appeal before we filed a request with the district judge to reconsider his decision and hold a mini trial and at that point judge mcfadden i think correctly it's too late you're already in the court of appeals but you would agree think on the records of the case this court can make that determination because it becomes a question of law not a question of fact but if the fact question is open then yes it was not determined by judge mcfadden because he said it was a fact that could only be determined after a trial on the merits rather than through the summary judgment proceeding because it were so if we were to disagree with you that it's a question of law in the sense that the facts of record that you have presented would suffice to support mr generous agreement to arbitrate if we were to disagree with you on that and agree with the district court that there's a disputed issue of material facts going to that then basically we don't have collateral are to review under section sixteen and we should say we should just be man for that reason your honor yes i think that would be the proper application of the interplay between sixteen  agreement as well as the balance because the judge mcfadden at that point had everything consolidated in one package you know but but then but but did he confuse it says a in his because parsons filed an interlocutory appeal on the belief that it was judge mcfadden's position that the we were going to proceed to an initial scheduling conference for the entire of the case and that the question of arbitron billet he was going to be rolled into a trial on the merits of everything ok where do i notice that and his opinion is  something if they're in order that says that that both they i mean what are the i don't understand how it could be put into one if the jury decided  trial on both questions at the same time that that was how i believe the parties understood his position subsequent to the notice of appeal being filed when there was a review of parsons admittedly belated request to him to hold the section for trial and he said i don't think i can do that now because the case is now out of my hands he suggested to the parties that perhaps we could resolve this by agreeing to dismiss the appeal and proceed to a section fo trial in the parties could not come to agreement on that and let mr during and speak to that of his recollection is different answer to the complaint and he does actually in the order so that's that's before us on appeal did not i motion to stay proceedings and compel arbitration rather than move on to the next phase in but we filed it after filing the notice of appeal i understand and what was his ruling he denied it without any explanation or did he deny it and say he denied it for lack of jurisdiction all right the docket shows it having been filed on the same day the motion for reconsideration and the notice of appeal but there but your and in fact a motion for reconsideration appears on the docket before but it actually was submitted after and the arbitrate or the new arbitration policy effective date i gather was some weeks even before the emails were sent to the employees so you wouldn't you wouldn't dispute that continuing to work after the effective date but perspective the effective date was an amendment to an existing a t r program with an agreement to arbitrate so there was one in place this this agreement to arbitrate was actually an amended agreement but if you hadn't failed to show that this employee had ever agreed to the underlying which i gather you're not claiming that he had agreed to the underlying ninety and i can any eight policy it is is is parsons was on paper records at that point in time and to date mr jenner records from that point in time have have to the extent that they still parsons had not met its burden applying a summary judgment standard to demonstrate that there was a valid and enforceable agreement a contract between it and mr jen to arbitrate any employment plans under c contract law principles and the circuits interpretation of that law there must be a meeting of the minds as to all material terms and the party sought to be bound to an agreement must have taken some affirmative undisputed that mr jenner did not sign the arbitration agreement and he provided a sworn declaration a sworn affidavit that he had no recollection of receiving the e mails and also that he had never reviewed the agreements prior to grammont he also filed the charges which obviously has not foreclosed by the agreement but it was an additional indication as mr jen said and as sworn declaration that he had no knowledge of the disclaimed any authority or intention to fire an employee who rejected the arbitration agreement and light of those facts we held that the employees continued employment could not constitute acceptance but here given mr tomorrow's sworn declaration that he hadn't seen the agreement and signed it or agreed to its terms and also the fact that there was no evidence that a manager or a coworker discussed the agreement with him this court found that there was not before us and you had filed a submission last week saying that you would limit your argument and not address whether this district court errored in and not going to an evidentiary hearing and i'm just confused what your position is on that are you i think that the district court only as i mentioned all i got to the point of identifying an issue of material fact material to whether or not there's arbitra collateral review send it back and get the district judge to finish deciding whether there's an agreement i think that is the right answer judge and i apologize for our late notice that we were conceding that issue and did not jury trial to resign these disputed facts whether we would have approached it differently but but we do concede at this point that there should be a a bench trial by the district court judge to to resolve it to the question  merits and have one trial and that's that was part of the confusion was that a factor so i do think that's a fair reading of the judge's order it was simply silent in terms of whether there should be any kind of hearing whether a bench trial or a jury do not have jurisdiction to do because it's not final decision and that's the end of it nothing ability and nothing more actually can be said i didn't hear what you said  anything is that wrong or right that's all i'm testing well certainly i believe that could be a supportable decision judge i mean the fact is just because it has mr schuler explain to the timing of parsons appeal merits correct but you're saying you would basically waive your rights for jury trial on the threshold question whether there is an agreement arbitrator we would are standing on the federal betray should act is that only the with respect to rebuttal i would like to hear you say whether or not you agree with mr harrington on the resolution of this case and if so then that will be the end counsel and ask the clerk to call the next case your honor just for my sake as a professional i would like to say to judge garland that i was incorrect in remembering that we had cited a case in our appellate briefs on a  party being bound by an agreement even if he hasn't read it that was actually in our briefing to the court below and was reciting by the district court so i apologize for my mis recollection thank you your honors no problem there's lots of cases