court reversed the district court's decision the district court had determined that a arbitrator would be the entity who would be determining whether or not class action arbitration was allowed under these agreements this court reversed and indicated that it would be a court decision upon remained to the district court the district court considered the agreements considered the arguments of the parties and determined that there is no xpress nor any implicit agreement to class action arbitration accordingly this appeal brings forth that issue to this court under the law that has been developed by the u s supreme court on this issue a class action arbitration is only allowed under agreements if there in which complete silence was held to not preclude class wide arbitration because of surrounding circumstances no your honor i do not the so the question becomes at what states does it have to be and that's what's before this court truly this case presents a question of whether or not and what the linney aids an implicit agreement for class action arbitration we have argued from the beginning the pharmacy's of argued from the beginning that these agreements were one agreement negotiated by one attorney in fact negotiated by for with one company all of these pharmacies are controlled by one agreement negotiated at one time it is a single contract negotiated by one party and all of them are bound by that party by that agreement when catamaran took over s x c it then instituted a new what it what happened was there were two separate companies and there were separate pharmacy agreements that existed catamaran takes it over and molds it into one agreement and it says by this agreement now controls your provider agreements these policies then we're controlled by this one agreement by that one action of catamaran that one action is challenge to and the terms of that agreement are challenged in this class action arbitration both agreements and the new agreement that was imposed upon these pharmacies per this merger that occurred of these two companies provided wide class divide arbitration all issues were to be cited in arbitration accordingly for pharmacies filed this action for a class arbitration to have these issues decided what relevance you emphasize this throughout your brief what relevance is there to the fact that these were negotiated collectively out and let me give you a little background on this which is that many could be that they wanted to get a better deal that's one reason why you negotiate collectively i don't know if that happened here i mean there's a whole host of reasons maybe the individual pharmacies don't want to go through the trouble of negotiating so they do you know they grouped together i don't know what the reason would be able why does that necessarily show class white arbitration is available because when when one contract is negotiated by these parties and that one contract isn't set aside by the merger and that contract has to be arbitrated because the can turn or that the fact that it was one contract for whatever reason they negotiated it makes it an agreement that is that int that has joint negotiation or joint arbitration if i may your honor let me explain eleven additional issue on it because i think it goes a little bit you know on that let's assume for the moment that there were just four pharmacies that the go she did the agreement and they negotiated it with four corporations and so you have a firm a party negotiation on both sides the question is is it implicit in that agreement that there would be joint arbitration or is this court and the u s supreme court going to say that all four polity on the one side and all four parties on the other side have to do separate arbitrations or exception for collectively bargained agreements your rule what essentially say we're going to put the thumb in favor of class white arbitration if it's collectively bargained by a group of companies individuals or whatever am i wrong about that i don't see anything else of this record that suggests class arbitration i would agree that your honor that the that is a concept that's involved in the reason i ask about these four parties my forte named the representatives have individually arbiter ability and who gets to arbitrate and so forth you can you can't poll but i put that i kill him wide you're talking you're probably not talking about class wide litigation you're probably talking about four party situations where an issue has come up and how many did it affect and so forth it is so let's and i understand you frame this in terms of all we want to do is arbitrate this this declaration that the manual trumps the provider agreements but as i understand the import of your argument everything every dispute under this agreement then become subject to class white arbitration action if one pharmacy said  you didn't you didn't pay you only paid eighty percent of what you should have paid on this claim and i know you do it you do you have done the same thing to a lot of other pharmacies so i'm going to challenge this particular rate decision on behalf of everybody that we can through discovery learn has suffered the same fate that's that's you're saying that's right i mean in other words you're pinning it on i think it i think it's the interactive way to make your position is to take this one declaration in the manual and say well we've got to have class white answered this but in fact your argument is much broader than it would have and could have implications that far your honor i would agree that it could and that's exactly indicating this should be individual there were proximately eighty five or one hundred different pharmacies and there can be eighty five dollars to one hundred dollars different arbitrations relating to this examining the same issues examining whether they had the right to come in and impose this whether they had the right to come in and institute a pharmacy manal whether or not they are their method of determining the pricing was appropriate or whether they were violating the pricing and what kinds of  damages in punitive damages could be allowed all of that can occur but it all is occurring under a collectively in this case bargained agreement where everyone is subject to the same rules the same regulations and it was done at one time it's not as if catamaran put an agreement together and then went out to each one of the individual pharmacies and said here agreed to this no actually catamaran goes to in this case  blue cross blue shield catamaran enters into a contract with blue cross blue shield saying we will in fact provide all of the medicine for your subscribers we will do all of that and they then work with a group of these identical you know cell phone contract with i t eighty n t and so everything looks the same but yet the supreme court was very clear they don't get clear class white arbitration there how is that different the difference is that in those particular cas each individual entity entered into that contract separately in this case it was one contract and all we're talking your honour's is that that would be an implicit concept that implicitly it would be understood that if catamaran you enter into one contract with one group of one particular turning in fact in you're negotiating for all of these people and that contracts controlling all these implicitly within your conduct it's catalans conduct that did this your conduct implicitly understood that if you violated the terms of that agreement that you did it one time with all of these people that would be sufficient to allow the class wide arbitration to resolve those why didn't we just require why should we just require this to be in the contract so exactly what you're saying so we believe negotiated this collectively and therefore any violations of this green meant can be enforced collectively and class white arbitration that would be the that would be your honor the alternative to what i believe we are arguing in this case and we believe that stuff nelson said implicit or explicit and that would be expressed and that would be essentially changing what has been developed so we're trying to see if this fits with the implicit the district court said no it doesn't there could be further reasons and we're not going to allow that we believe that this is an example of where commercial entities such as catamaran should be told if you're going to go out and negotiate these agreements and you're going to negotiate one agreement at one time with multiple parties there is an implicit understanding class wide arbitration would occur i'll reserve the rest of my time thank you police the court i'm jason cassini of whitfield netty and good morning for catamaran corp i'd like to introduce my co counsel jackie samuelson in the st appeal this court held that there was no contractual basis to find that catamaran had agreed to having an arbitrator decide whether it consented to engage in class arbitration the same controlling precedent and the same factors that this court applied in the st appeal are also determinative in this appeal in fact the controlling precedent is now even stronger with the united states supreme court's decision in lamps plus which was decided on april th two thousand and nineteen in that recent case the us supreme court held that neither silence nor ambiguity provides a sufficient basis to conclude that a party consented to engage in class arbitration explain that under the federal arbitration act consent requires affirmative contractual basis to conclude that a party consented to class arbitration so the position that the pharmacies are asserting in this case is contrary to still nielsen the pharmacy's have conceded that the provider agreements at issue in this case are completely silent with regard to class arbitration is your argument that the land was which i haven't read that effect effectively over rules are eliminates the implicit or explicit or explicit language and still i don't believe the lamps plus majority decision goes so far as to overrule scold me also and it puts a significant gloss on the school nielsen standard so there's language installed nielson that leaves open the possibility that you can find consent to class  on through quote implicit consent but it is very clear that the lamps plus decision to the extent still olson left that window a jar slightly as what implicit consent might look like lamps plus majority decision slams that window shut or at most leave that leaves it open a very slight crack because under lamps plus state law principles of contract interpretation are not sufficient to infer or imply consent to class arbitration under lamps plus ambiguity of contract terms is not sufficient to infer or implied consent to class arbitration and as this court decided in the prior appeal the reason that there's this inherent tension between the concept of implied or inferred consent to class arbitration and the strict consent that the federal arbitration act requires under the supreme court precedent are these fundamental and crucial differences between class arbitration and bilateral arbitration and this court in the prior appeal in its decision correctly applied that supreme court precedent and that supreme court precedent has only gotten stronger now in the interim with the lamps plus decision lamps plus prohibiting finding of infer inferred or implied consent through contractual ambiguity it's basically what the pharmacies are trying to do in this case as the court noted that the concept that just simply because the circumstances involved an agent or attorney in fact negotiating one contract for multiple pharmacies that that somehow can get you to inferred or implied consent to class arbitration is problematic for several reasons number one as the court noted there's absolutely no case law still nielson to support the position that you can infer imply consent just from those circumstances in fact still nielsen which is one of the two leading supreme court cases on point actually involved charter parties standard maritime contracts some of which the facts and still nielsen make clear were entered into on behalf of the parties by an agent so that distinction made no difference in still nielsen and the pharmacies cannot identify any cases in the post still nielsen realm that indicate that those sort of circumstances make any difference at all  record in this case it is not extensive because of the point in the case that the district court disposed of the claims that catamaran was making and directing that this case go to bilateral arbitration prohibiting class arbitrations but it is clear in the record exactly what was going on these pharmacies are businesses they are not consumers they are not employees they are businesses who entered into the access health network for exactly what this court was was presuming which is bargaining leverage to get a better deal with catamaran and catamaran with serving the well mark network in iowa during this time period and so you have businesses that consented to terms that require clearly require bilateral arbitration no one is is arguing otherwise but the provider agreements between the parties do not refer at all to class arbitration under the school neilson regime had we been arguing just based on still the else in which was the case when the parties were submitting their briefs you can go through the provider agreement and show term after term where it is referring to a binary two party relationship between the pharmacy on one hand and catamaran the p b m on the other the pharmacy fills claims in the network it seeks reimbursement from category on catamaran reimburses those claims and if there is a dispute about the maximum reimbursement amount which is what these disputes fundamentally are about and what will ultimately be arbitrated there is an appeal process but that is between the pharmacy a pharmacy and catamaran with the lamps plus case the analysis of well can you infer or implied consent to class arbitration because of the structure of the contract the surrounding circumstances or trying to strain to come to some ambiguity in the provider agreements that might show an inference or implication that catamaran ever contemplated class arbitration of these types of claims is basically eliminated lamps plus forecloses that contractual analysis and to the extent there is a state law principle in these provider agreements are under illinois law and maryland law regardless even if there is a state law principle out there that would otherwise get the pharmacy's to that ambiguity so it could be construed against catamaran as the drafter of these contracts that is now completely foreclosed by lamps plus lamps plus majority saying that that is preempted by the federal arbitration act so i want to go back to i'm thinking about  there's an there's an attractiveness to closing council's assertion that the question of whether the manual trumps the prior agreement as declared by or as allegedly be cleared by your client seems like something that should only have to be litigated once stepping outside of the arbitration context would necessarily need a class action you just need a test case is there is there and i want to sue for a greater reimbursement on behalf of everyone who's been treated the same you're out of the question before this court right now is whether it's not differentiated in this way well but whether anything in the provider agreements which do reference this provider manual anything in those provider agreements or the provider manual can get to express consent to class arbitration which the pharmacy's concede that there's nothing explicit nothing express in the provider agreement or the provider meaning if their position is they're looking somewhere in the provider manual to find implied or inferred consent to class arbitration their act from that i mean if you were if you were going to negotiate a class arbitration provision between the two parties you might very well pick and choose among issues given the what i refer to is complete silence or the lack of explicit affirmative agreement consent to class arbitration the question is whether is it is it all or nothing in the courts or is is there the ability based on circumstances to sort of pick and choose what you imply or infer they must have meant to arbitrate collectively i don't believe there's any factual basis or legal basis to pick and choose what would be  class arbitration issue and what would be separate i think that that is a plausible possibility for sorting this out i think the controlling prostitute from the united states supreme court and in fact this court's prior decision forecloses sort of picking and choosing the issue that's determinative is did catamaran consent to engage in class arbitration period and there's nothing in the record here  these provider agreements from which you can find that certainly not by express consent there's nothing that would allow a finding of implied or inferred consent when you look at the record in this case and these provider agreements in the context of what the u s supreme court is now telling us with these recent case i mean let me ask you this so lamps plus talked about ambiguity and as i recall in that case some of the provisions indicated class arbitration and some of them didn't and the court said well that's not enough you've got to have no ambiguity or a clear consent for class white arbitration but then you have stole nielsen and silence and ambiguity you know they're they're related concepts but they're distinct and it's don't nielson it seem to suggest that silence could be enough as judge logan is suggesting if there's other indicia so how do we reconcile put together though and i think i asked you a version of this question earlier those two cases and then apply it here right i think how it's applied concept that it under some scenario implicit consent could be found but then you get two lamps plus and it eliminates reliance on state law contract principles in particular ambiguity and in this particular case you look at what the pharmacy's position is in terms of trying to pick and choose you know definitions and sub definitions or this term could be read to be broad enough to be consent to class arbitration as well as bilateral arbitration or look at the structure of the way this particular contract was entered into that is all sort of a species of a search for ambiguity that the lamps plus case now clearly foreclose so you you think at the very least it elevated what you define to find implied good sax i think the critical term in lamps plus is it describes the contractual basis standard that nielson laid out as it now requires an affirmative contractual basis so that seems to create a lot of tension with the concept of implied or inferred so maybe there would be a case where implied or inferred could be found but it's not this case not based on these provider agreements or anything the pharmacies are arguing i want to go back to the prior question though about whether there might be some efficiencies you know as to how to deal with common questions within the arbitration st of all i think that's something that the arbitrators would need to determine in the context of the bilateral arbitrations that would happen under the district court's order but going back to those fundamental and crucial differences you know that the supreme court has made it clear and i think this court made it clear in its prior decision that there may be an arc there might be an argument that well under this particular you know fact pattern the scenario in some ways class arbitration might be advantageous for one or the other party certainly the pharmacies seem to think so they've tried very hard to try to get this case to the triple a as a class arbitration but whether they believe it's tactically better than they believe there might be some advantages to it that's not the law in this circuit that's not the controlling president of the united states supreme court in fact quite the opposite it's not about what's most efficient it's not about what is the best approach it is about whether class arbitration was consented to by cat and you know back to those fundamental and crucial differences if these disputes get arbitrated as a class arbitration you have the concerns about confidentiality that were addressed in the in the brief you have concerns about lots of arbitrator decisions that would not be subject to any meaningful judicial review and you have a major concern about due process considerations of the absent parties the pharmacy's that wouldn't be part of that class arbitration and then might get a nd bite at the apple later by challenging whether they had actually consented to engage in it i see my time's up so unless the panel has any other questions thank you very much thank you  please the court in response to the issues of the effect of lamps plus it is true that lambs plus dealt with the issue when it dealt with the ambiguity but it dealt with a policy decision of ambiguity that was inferred by law it didn't try to get to the intent of the parties and that's what lamps plus a stand the distinction well the cicle term ok when it says when a contract ambiguous slams plus looks when it's ambiguous all states say if it's ambiguous you construe it against a drafter therefore policy decision that construes it against the draft or and therefore it is not trying to get to the intent of the parties it's just a policy of trying to get it to their the difference between that in the impl agreement is implicit is trying to get to the intent of the party and when there is an implicit understanding that is why when catalans council argues basically you can't infer anything that's not correct that's not what lamps plus inferring is still a man a bow and limbs plus keeps that alive lamps plus just says you cannot infer or by referring to some standard rule that a state may create to construe the contract instead you still need s n l to make concept to look for the intent of the parties to look for the consent that's what you're trying to get to and so when you're looking at this contract and you're saying when these parties negotiated this one pharmacy agreement and then catamaran comes in and imposes the one on everybody and then their provider manual now controls everybody can it really be said that the intent of catamaran was not to understand and agree that there was a class don't you think you mean with separation or it's getting at reading those two opinions together is that maybe you don't need the words class wide arbitration you don't even need the words collective enforcement you don't need any of those types of words but at least have some have to have some indication on the face of the agreement that the parties might have contemplated perhaps a set up procedures for how to deal with disputes and in doing sell they talked about the fact or at least contemplate the possibility that in this case pharmacies could could collectively enforce their benefits but that's on the of the agreement itself is not really the only way you can you can reconcile these two cases it is that is one way you can your honor yes i agree with you it is that is one thing you can do to try to put the reconciliation together that is still trying to say there has to be something expressed in there as opposed to saying these parties implicitly understood that this would be class wide relief for these types of things in a method of reserving it because otherwise you're going to require everyone to be individually arbitrating all of these issues and when you have one contract even if you haven't set up a specific procedure really be said that in the minds of these parties they thought well this contract provider manual and it's the l a t all has to be individually arbitrated by all of these people can that really be reasonable and understood  intent was we believe that a reasonable understanding of the intent of the parties which the supreme court said is the primo issue and i don't understand how a position someone in  suppose ition could ever be in could ever be sure that it wasn't implicitly agreeing to class white arbitration when it was the last thing on the world that would agree to it would have explicitly agreed to hear ear you're saying you know put the put the contract aside let's look at what makes sense and what sufficient and in this situation in the for these parties and that that's completely contrary to the all the way back to st st options versus kaplan parties have to agree to arbitrate i understand that is what the argument i understand that argument your honor and i understand why they think in this day and age all of all of the providers and suppliers of the catamaran didn't impose that's the catamaran didn't impose the prob rider manual because it didn't believe it had a right to do so it did so believing it had the right to do so it would make sense that it would then therefore understand that since we're imposing this under