[00:00:00] Speaker 00: And we wish you a good day. [00:00:03] Speaker 00: We will now hear argument in the case of JJ Bozzi versus JP Morgan Chase Bank. [00:00:38] Speaker 00: Ms. [00:00:38] Speaker 00: Rotkis? [00:00:46] Speaker 00: I know you're going to start right off about the Supreme Court's recent case and tell us what you think. [00:00:54] Speaker 02: Thank you, Your Honor. [00:00:55] Speaker 02: May it please the Court? [00:00:58] Speaker 02: My name is Susan Rotkis. [00:00:59] Speaker 02: You can call me Susie. [00:01:01] Speaker 02: I am representing J.J. [00:01:03] Speaker 02: Bassey, the appellant in [00:01:06] Speaker 02: his appeal of the district court's decision to compel arbitration in his Equal Credit Opportunity Act credit discrimination and adverse action case. [00:01:16] Speaker 02: It's class action. [00:01:17] Speaker 02: The district court dismissed it. [00:01:19] Speaker 02: We appealed. [00:01:21] Speaker 02: Last week, this court asked us to address whether the Supreme Court's decision late last term in Smith v. Bezzeri had any impact on this appeal. [00:01:35] Speaker 02: And it seems like a rolling theme this morning, whether this court has jurisdiction to decide this appeal. [00:01:45] Speaker 02: On Monday, a panel of this court decided another case. [00:01:49] Speaker 02: It was filed yesterday by JP Morgan Chase Bank, the appellee. [00:01:53] Speaker 02: And I spent most of- The Woody case you're talking about, right? [00:01:56] Speaker 02: I beg your pardon, Judge? [00:01:57] Speaker 02: The Woody case? [00:01:58] Speaker 02: The Woody case. [00:01:58] Speaker 02: Woody et al. [00:01:59] Speaker 02: versus Coinbase Global Inc. [00:02:02] Speaker 02: et al. [00:02:04] Speaker 02: We spent the better part of yesterday trying to figure out how we were going to modify our argument about whether Spazeri and how Spazeri applies to this court's jurisdiction and whether this court actually has to follow anything that was said in Woody. [00:02:21] Speaker 00: Woody was a... Let's assume, argue, and know that we don't. [00:02:24] Speaker 00: Of course, it's not a precedential decision. [00:02:28] Speaker 00: But as you know, and I'm just going to read this, the court said, [00:02:34] Speaker 00: Reaching the substance, the plaintiff's challenge would contravene the FAA structure and purpose if Coinbase prevails at arbitration and the district court does not vacate the resulting award. [00:02:48] Speaker 00: Nothing precludes plaintiffs from appealing at that time as Congress intended and so on. [00:02:53] Speaker 00: So admittedly, some of our colleagues in a non-binding opinion, but they're basically saying in light of the Supreme Court's recent case law, [00:03:03] Speaker 00: We kind of have to pause here, because sooner or later, you're going to have to go back and get that order. [00:03:09] Speaker 00: Isn't that right? [00:03:14] Speaker 02: Judge, I want to answer your question, yes or no, but of course I can't, because I really want to plead my client's case here and why this court doesn't have to follow the woody panel. [00:03:26] Speaker 02: I mean, you do have to follow Spazieri, obviously. [00:03:28] Speaker 02: It overturned longstanding Ninth Circuit precedent for a reason. [00:03:33] Speaker 02: And the Justice Sotomayor in her opinion says, look, section three of the FAA means what it says. [00:03:42] Speaker 02: When a party is, when a case is compelled to arbitration and a party requests a stay, you have to do it. [00:03:48] Speaker 02: You can't, you don't have discretion to dismiss. [00:03:51] Speaker 02: And of course, the dismissal is a final order from which we appealed in this case and from which anybody appealed. [00:03:57] Speaker 02: In this case, our, so I'm wondering, [00:04:02] Speaker 01: Is that the only fact that matters for jurisdiction? [00:04:04] Speaker 01: For jurisdiction, right? [00:04:05] Speaker 01: I mean, you could read Woody as sort of a, what's the word, you know, a good advice, you know, as opposed to a strict legal requirement to not address the merits of a question when the district court should have granted a stay as opposed to entered a dismissal. [00:04:26] Speaker 01: So we can all agree after Spaziri that should have happened. [00:04:29] Speaker 01: We shouldn't be here. [00:04:30] Speaker 01: The district court should have granted a stay. [00:04:32] Speaker 01: We wouldn't have had a final order. [00:04:33] Speaker 01: But that isn't what happened. [00:04:35] Speaker 01: The district court did grant a final order. [00:04:37] Speaker 01: We have jurisdiction over final orders. [00:04:40] Speaker 01: We have a final order in this case. [00:04:42] Speaker 01: Why shouldn't we just deal with it? [00:04:45] Speaker 02: Well, Mr. Bassey thinks you should reach the merits of this case because a couple of things. [00:04:54] Speaker 02: Woody did not address whether the Spizzeria case is retroactive, right, but it did say [00:05:00] Speaker 02: Look, even though the court was following Ninth Circuit precedent in dismissing the case, just like the district court did in Bazzi's case, and it wasn't raised on a cross-appeal, that was a decision specific to that panel. [00:05:18] Speaker 02: This panel could decide differently that this issue wasn't raised on appeal. [00:05:24] Speaker 02: The dismissal order was not raised. [00:05:26] Speaker 02: They could have raised it. [00:05:27] Speaker 02: They didn't. [00:05:29] Speaker 02: It was a final order. [00:05:31] Speaker 02: It's fully briefed. [00:05:32] Speaker 02: The Spizzeri decision crossed paths with the briefing in this case. [00:05:37] Speaker 02: All of the principal briefing was completed when Spizzeri came out. [00:05:43] Speaker 02: The appellant did still have time to file a reply brief. [00:05:46] Speaker 02: It wasn't on our radar that we should argue that the court didn't have jurisdiction. [00:05:51] Speaker 00: That's all true. [00:05:52] Speaker 00: That's all true. [00:05:54] Speaker 00: I totally credit that. [00:05:56] Speaker 00: But let's just say, arguing though, we followed your approach. [00:06:00] Speaker 00: And let's even say further, arguing though, that we decided in your favor. [00:06:04] Speaker 00: Couldn't the bank then say, wait a minute, you can't do that. [00:06:08] Speaker 00: The Supreme Court has said the district court has to grant a stay that you requested. [00:06:13] Speaker 00: What you just did is invalid. [00:06:16] Speaker 00: How do we deal with that? [00:06:18] Speaker 02: I don't know that that's a question for you to resolve right now. [00:06:20] Speaker 02: This is a jurisdictional question. [00:06:22] Speaker 02: Do you have jurisdiction to hear this appeal that's fully briefed up on the merits? [00:06:27] Speaker 02: And it's an important one. [00:06:29] Speaker 02: It's about contract formation. [00:06:32] Speaker 02: It is about whether there was an arbitration agreement and whether the district court applied the correct standard in resolving factual disputes when it's supposed to use the summary judgment standard. [00:06:47] Speaker 02: It creates a big problem for consumers, for plaintiffs who aren't equally matched to their opponents. [00:06:57] Speaker 02: Whether there was contract formation, it should be subject to what this court has said, trial, a trial of the disputed facts. [00:07:06] Speaker 03: We can't solve those sort of policy issues and societal problems if we don't have jurisdiction. [00:07:11] Speaker 03: So I think you hit on the key. [00:07:13] Speaker 03: issue a moment ago when you said Woody doesn't discuss whether SPASERI is to be applied retroactively. [00:07:19] Speaker 03: That seems to be the issue. [00:07:20] Speaker 03: Is it retroactive? [00:07:21] Speaker 03: If it is, then we are bound by it. [00:07:24] Speaker 03: If it is not, we could do what Woody did, which was to decide that we would send it back to the district court in any event. [00:07:32] Speaker 03: So did you look into that issue? [00:07:34] Speaker 03: Do you have any authority to suggest that SPASERI should not be applied before the date it was issued? [00:07:41] Speaker 02: Thank you, Judge. [00:07:42] Speaker 02: I did look into it, and I did not find anything dispositive that says you cannot apply this retroactively. [00:07:47] Speaker 02: In fact, I found cases, and I think the leading case is a very old case from like 1991, I think, called Harper versus Virginia, Department of Taxation, that basically says these kinds of civil orders, these types of civil cases and Supreme Court rulings should apply retroactively. [00:08:07] Speaker 02: However, in every case that I read, even though I couldn't find any authority directly on point, [00:08:12] Speaker 02: And I'm not saying that my research last night was exhaustive. [00:08:16] Speaker 02: I would like the opportunity to brief it if it is a question in the court's mind. [00:08:23] Speaker 02: Seeing as how Woody just came out two days ago. [00:08:26] Speaker 02: The dicta, and it's not even really forceful dicta, it's just like, oh, in some civil circumstances you might not apply [00:08:35] Speaker 02: a decision retroactively. [00:08:37] Speaker 02: And this seems like one that I could argue, and that on Mr. Bazzi and all consumers' behalf, I would argue, is the perfect kind of case where you might not apply the Supreme Court's decision retroactively, but it would require the Court to reach into what the merits of the appeal are, and that it is, going back to Sotomayor's opinion, she says, [00:09:04] Speaker 02: we're applying Section 3 as Congress intended. [00:09:09] Speaker 02: The plain language means what it says. [00:09:12] Speaker 02: If you want to appeal a decision, if you want to appeal something related to the Federal Arbitration Act, you look to Section 16. [00:09:18] Speaker 02: And you can't appeal anything under Section 16 that's been stayed until the end of arbitration. [00:09:25] Speaker 02: So you try to square that with the fact that Congress enacted something like the Equal Credit Opportunity Act. [00:09:32] Speaker 02: so that consumers, so that normal people could vindicate their human rights and their civil rights to further the anti-discrimination purposes of the statute, created an entitlement to an adverse action notice that had the actual reasons for denial of credit. [00:09:51] Speaker 00: And you're an able advocate for that point. [00:09:55] Speaker 00: I guess what we struggle with here, though, is this is a procedural issue. [00:09:58] Speaker 02: Yes, Judge. [00:09:59] Speaker 00: It doesn't decide the point you're talking about. [00:10:01] Speaker 00: It simply delays it. [00:10:03] Speaker 00: And initially, you had asked for the very thing that the Supreme Court seems to be saying we have to grant. [00:10:10] Speaker 00: What am I missing? [00:10:14] Speaker 02: Well, here we are appealing the merits of the case. [00:10:17] Speaker 02: And I see what you're saying. [00:10:20] Speaker 02: Chase did request a stay in this case. [00:10:25] Speaker 02: Under Spazeri, I think it's clear and the implications of Woody are clear. [00:10:30] Speaker 02: The district court should have dismissed. [00:10:32] Speaker 02: Because the question is right now, do you have jurisdiction? [00:10:35] Speaker 02: I would urge the court to accept jurisdiction based on the state of the law as it was when this case was fully briefed. [00:10:42] Speaker 02: And going forward prospectively, Spazeri applies. [00:10:47] Speaker 02: We would know then, everybody would know what the implication of a stay is versus a dismissal. [00:10:53] Speaker 02: We could have made different decisions back at the trial court stage if he had dismissed it. [00:11:00] Speaker 02: I'm sorry, if the district court had not dismissed it. [00:11:03] Speaker 02: We would probably be concluded in arbitration by now if that were the case and maybe we would be back in the district court. [00:11:10] Speaker 03: Don't you still get your day in court? [00:11:12] Speaker 03: So if we were to remand and instruct the district court to just stay the matter rather than dismiss it, [00:11:23] Speaker 03: You'd go through arbitration and you could come back and make all of the arguments you want to make about whether the case was subject to arbitration, you know, all of the things you're talking about as a policy matter. [00:11:34] Speaker 03: I mean, you still have that opportunity. [00:11:37] Speaker 02: It's true, but for the practical impact, I mean, just setting the table what it's like for a consumer to have to go through arbitration and then, I mean, depending on what the result of that might be, still deprived of, [00:11:52] Speaker 02: the ability to arbitrate in class. [00:11:55] Speaker 02: It seems like duplicative, wasteful, and not bending towards the ends of justice to require a consumer to go through all of that when their opponent is the type of large, powerful financial corporation that's present in this case. [00:12:16] Speaker 03: But isn't that what Congress and now the Supreme Court have said we're required to do? [00:12:20] Speaker 02: Well, it's what they've said. [00:12:22] Speaker 02: Section 3 of the FAA, it's plain languages. [00:12:26] Speaker 02: But at the time that this case was decided, that was not enforced. [00:12:33] Speaker 00: I mean, you're dealing with the Franz Kafka problem. [00:12:37] Speaker 00: It just goes on and on and on. [00:12:39] Speaker 00: We understand that. [00:12:40] Speaker 00: We really do. [00:12:41] Speaker 00: On a personal level, we can empathize. [00:12:43] Speaker 00: But the reality is that you'd ask for this day, if you'd been granted in the first place, you'd be right back where [00:12:51] Speaker 00: at least the Woody case says we're supposed to go. [00:12:53] Speaker 00: I just worry that if we decide the merits, and again, arguendo, we may not like what, you may not like what we decided on the merits, but say we did. [00:13:06] Speaker 00: The bank could then raise the very question we're talking about and you'd still have a Kafkaesque problem. [00:13:13] Speaker 00: So litigation by its very nature today is of that nature and it's frustrating for [00:13:20] Speaker 00: consumers and so on, and certainly for class action attorneys. [00:13:25] Speaker 00: So you're a very able lawyer. [00:13:26] Speaker 00: We appreciate the argument, but you can see what we have to struggle with here in light of this Supreme Court case. [00:13:33] Speaker 00: Do you want to save any of your time for rebuttal? [00:13:36] Speaker 02: Oh, yes. [00:13:37] Speaker 02: Thank you. [00:13:37] Speaker 02: I forgot to mention that at the beginning. [00:13:39] Speaker 02: I'll save two minutes, so my time is nearly up. [00:13:42] Speaker 02: Thank you. [00:13:43] Speaker 02: I knew there was a metaphor involved. [00:13:45] Speaker 02: I didn't think of Kafka. [00:13:46] Speaker 02: I was thinking of [00:13:48] Speaker 02: Schettinger's cat, or Damocles' sword, or Hobson's choice. [00:13:53] Speaker 02: So thank you very much. [00:13:54] Speaker 00: Not because the trial, I think, really captures this. [00:13:57] Speaker 02: Say it again? [00:13:58] Speaker 02: The trial. [00:13:59] Speaker 02: Yes, Judge. [00:14:00] Speaker 02: Often. [00:14:00] Speaker 00: A lovely piece. [00:14:01] Speaker 02: Often in this business. [00:14:02] Speaker 02: Thank you. [00:14:03] Speaker 00: Thank you. [00:14:04] Speaker 00: Very well. [00:14:05] Speaker 00: All right. [00:14:06] Speaker 00: So Michelle, is it you? [00:14:08] Speaker 00: Is that correct? [00:14:09] Speaker 04: Yes, Your Honor. [00:14:12] Speaker 04: May it please the court, Michelle Park Chu, on behalf of APOLI JP Morgan Chase Bank. [00:14:17] Speaker 04: As your honors have noted, it would be entirely appropriate and consistent with the Supreme Court's instruction in Spazeri to remand this case for the limited purpose of issuing a stay pending arbitration. [00:14:30] Speaker 04: By doing so, this court does not need to address the substance of the challenge [00:14:34] Speaker 04: that appellant raised to the district court's order that compelled arbitration. [00:14:38] Speaker 04: And that result would be consistent with the unpublished opinion in Woody v. Coinbase that was issued earlier this week. [00:14:46] Speaker 04: Therefore, JP Morgan Chase Bank respectfully requests that this court vacate the dismissal and remand with instructions to the district court to stay the action pending arbitration. [00:14:56] Speaker 01: So, counsel, I think that you're entirely correct that we don't have to address the merits. [00:15:01] Speaker 01: The question that I'm wrestling with is, [00:15:03] Speaker 01: Do we lack the power to address the merits? [00:15:06] Speaker 01: Because there is a huge inefficiency issue here. [00:15:08] Speaker 01: If we don't, because the parties have both fully briefed the issues, the issue is squarely in front of us, we can answer that. [00:15:16] Speaker 01: I don't know who benefits from the delay. [00:15:18] Speaker 01: Frankly, I don't know, on either side, does anybody benefit from the delay, or the time and money has been spent to queue this up for a decision? [00:15:26] Speaker 01: So that's what I want to know. [00:15:28] Speaker 01: Why does Spazieri say we lack power to address the merits that have been presented? [00:15:34] Speaker 04: Yes, Your Honor, we believe that this court does not have jurisdiction under Spizzeria and that it would be the appropriate result to remand. [00:15:41] Speaker 04: As Your Honors know, the Spizzeria case was issued three days after appellee JP Morgan Chase submitted its brief to this court. [00:15:48] Speaker 04: Therefore, its instruction was not available to us to brief before this panel or before the court. [00:15:54] Speaker 04: But now that we have that instruction, we see that the interpretation of the language of Section 3 of the FAA is clear, that the district court should have granted the stay, which is what JP Morgan Chase requested in filing its motion to compel. [00:16:09] Speaker 01: So what tells us in that statute and in Spazeri that by not following the directed procedural course, we lack [00:16:18] Speaker 01: jurisdiction? [00:16:20] Speaker 04: I think we are in a procedural, the chronology of the procedural issue here is a little complex. [00:16:27] Speaker 04: I think what we can look at is that this court can look at an issue that was not brought up on cross-appeal, and we did not have the time to do so based on the timing of the briefing, as justice requires. [00:16:37] Speaker 04: And that is the same procedural analysis that was looked at in the Woody case, and that this circuit, this panel, can exercise discretion [00:16:46] Speaker 04: as in the Coinbase case here, because the time to file a cross-appeal on this issue of dismissal versus stay had lapsed and therefore there was no opportunity for appellee to raise that with the court. [00:17:00] Speaker 04: I agree with Your Honors that there is no clear instruction to this circuit, to this panel, to say Spazzeri should be applied retroactively. [00:17:09] Speaker 04: However, we do think that doing so would be in the interest of justice. [00:17:13] Speaker 04: Again, as Your Honors noted, appellant will have his day in court pursuant to the arbitration agreement that he accepted. [00:17:21] Speaker 04: We understand that they contest the merits of the district court's finding regarding arbitrability. [00:17:28] Speaker 04: but he will be able to proceed with his claims on an individual basis in arbitration, and as a result will have his ability to have his day and his claims addressed by a panel. [00:17:38] Speaker 00: The bank takes the position that we don't have jurisdiction. [00:17:42] Speaker 00: It seems like in our Woody case they didn't say that. [00:17:46] Speaker 00: They simply said that the plaintiffs would have an opportunity to relitigate the issue after arbitration under 9 USC 16A1. [00:17:57] Speaker 00: Is that your position as well? [00:17:59] Speaker 04: We think that is consistent, yes, Your Honor. [00:18:01] Speaker 04: And I think that the issue here is that this appeal should never have come under Spazeri, as there would be no final order. [00:18:09] Speaker 04: But we think the analysis in Woody v. Coinbase, again, as an unpublished opinion and non-precedential, is instructive here because the procedural posture is so similar. [00:18:18] Speaker 01: But of course, to do what you're asking us to do, we have to have jurisdiction first, right? [00:18:22] Speaker 01: You want us to remand. [00:18:23] Speaker 01: That means we have to have jurisdiction over the order that's sitting in front of us to some extent. [00:18:28] Speaker 01: Otherwise, we have no power to even do that. [00:18:29] Speaker 01: That is fair, Your Honor. [00:18:30] Speaker 04: I just have to dismiss. [00:18:31] Speaker 04: Yes, yes, that is fair, Your Honor. [00:18:32] Speaker 01: But then I come back to, and maybe you answered, or maybe I'm not understanding, what in the FAA provision and in Spaziri tells me that if I have a final order, whether it should have been granted or not, it was, that I only have jurisdiction so far as to remand it, I don't have jurisdiction over the full order. [00:18:51] Speaker 04: Your Honor, I think that the language in the Woody case is helpful in stating that reaching the substance of plaintiff's challenge would contravene the FAA structure and purpose. [00:19:05] Speaker 04: The reason being, we are only here because the district court was following precedent that has been overruled. [00:19:11] Speaker 04: And so this court has the jurisdiction to correct that error, to say, [00:19:17] Speaker 04: that the Smith v. Pezzeri instruction should apply, and this case should be remanded with instructions to stay pending arbitration. [00:19:25] Speaker 04: But to go further into the merits would basically give this court an ability to review an issue that should not properly have come here, and that because the district court has found that the lawsuit involved... Well, no. [00:19:41] Speaker 01: It's an issue that is properly before us. [00:19:42] Speaker 01: It's just the timing. [00:19:44] Speaker 04: That is, yes, Your Honor, the timing of the issue has created a situation where the district court should have stayed the action and then instead dismiss it at its own discretion. [00:19:56] Speaker 01: Can you tell me what's the benefit to your client of not getting an answer to the merits right now? [00:20:03] Speaker 04: The benefit to our client is that we believe, and our priority has always been, that this case should proceed in arbitration. [00:20:09] Speaker 04: And so to go forward in arbitration has been our goal, and that was why we originally requested the stay, consistent with section three of the FAA. [00:20:19] Speaker 01: That makes sense in terms of the benefit. [00:20:21] Speaker 01: If procedurally things had gone the way they should have, and you would have never been here, and you wouldn't have had the delay built into the appeal process, I get that benefit, but we're here now. [00:20:30] Speaker 01: And the issue's been briefed, and you've [00:20:32] Speaker 01: side of the matter before us. [00:20:34] Speaker 01: And so in that circumstance, what's the benefit to your client of not getting an answer and having to re-brief this after you go to arbitration? [00:20:42] Speaker 04: And in that sense, Your Honors, there are really either a result. [00:20:45] Speaker 04: There is no substantive benefit in that sense. [00:20:49] Speaker 04: We did not raise or object to the dismissal by the district court at the time because [00:20:55] Speaker 04: Again, the priority was for these claims to be compelled into arbitration. [00:20:59] Speaker 04: And for that priority, whether it was versus a dismissal or a stay, didn't materially impact the outcome for our client. [00:21:07] Speaker 04: And so because the priority was to proceed in arbitration. [00:21:10] Speaker 04: But now that we have the instruction for the Supreme Court, we believe it's clear that the instruction, the district courts following the Ninth Circuit precedent at the time was erroneous. [00:21:21] Speaker 04: And now that we are here, that sending the case back to the district court to be remanded consistent with our request would be the appropriate result. [00:21:32] Speaker 00: I gather your position is that the Supreme Court's case is retroactive. [00:21:38] Speaker 04: Yes, Your Honor, we believe that is the case. [00:21:39] Speaker 04: And there have been other Ninth Circuit opinions that have corrected remand orders consistent with Smith v. Spazeri. [00:21:49] Speaker 04: We did not submit those to the court because it wasn't directly on point, but we do know that there are Ninth Circuit opinions that have done so previously, which we'd be happy to submit to this court if helpful. [00:21:59] Speaker 01: Are you aware of other situations where, and frankly I'm not, which is why I'm asking the question, and we don't have this fully briefed. [00:22:07] Speaker 01: Other situations where a federal court has jurisdiction over an order, but only for a limited purpose, as opposed to just you have jurisdiction. [00:22:15] Speaker 01: Is it a yes, no? [00:22:17] Speaker 01: Or can it be more nuanced than that? [00:22:20] Speaker 04: Your Honor, I would not be able to answer that question. [00:22:21] Speaker 04: I have not looked at that so broadly. [00:22:24] Speaker 04: So I unfortunately cannot provide a helpful response to that. [00:22:28] Speaker 00: I gather you do agree that we have jurisdiction sufficient to remand the case. [00:22:33] Speaker 04: Yes, Your Honor, I think that is correct. [00:22:35] Speaker 04: I think that is consistent not only with the Woody opinion that was released earlier this week, but with prior Ninth Circuit orders that have corrected remand instructions to be incorrect, to be consistent with Smith v. Spizzieri since that opinion was issued. [00:22:51] Speaker 03: So I gather from your answer to Judge Forrest's question that you're relying on some other Ninth Circuit orders. [00:23:00] Speaker 03: more decisions to conclude that Superior is retroactive. [00:23:05] Speaker 03: But did you just, did you investigate and then research the issue, should the Supreme Court decision be applied retroactively? [00:23:11] Speaker 03: And if you did, what answer did you find and what case law did you rely on? [00:23:15] Speaker 04: Yes, Your Honor, we did look at that question. [00:23:17] Speaker 04: And similar to Appellant's counsel, we weren't able to find anything that was very, that was dispositive one way or the other on this question. [00:23:27] Speaker 04: And so we weren't able to identify any case that we could say is the actual answer for this particular situation. [00:23:35] Speaker 04: We were able to look at other circuit courts and how they have treated Smith v. Spazeri. [00:23:41] Speaker 04: But again, there was no bright line [00:23:44] Speaker 04: consensus on how that is being applied retroactively for cases that are on a similar procedural issue. [00:23:50] Speaker 00: Together, it is clear if Beziri had been in effect before this appeal took place, you wouldn't be here. [00:23:59] Speaker 00: The court would have been required to issue the stay order. [00:24:02] Speaker 00: You'd have gone to arbitration and you'd have, you know, the opposing side would have an opportunity under the case law. [00:24:10] Speaker 00: to appeal from there to the degree one can appeal an arbitration. [00:24:16] Speaker 00: So if we say that Spazeri is retroactive, are we really saying we put ourselves back in the situation where we would have been if this case had been decided when Spazeri was in effect? [00:24:30] Speaker 04: I believe that would be, yes, correct, Your Honor. [00:24:34] Speaker 04: That would bring this case into, and I can imagine there are not too many cases that are in this procedural situation, but by applying Smith v. Pezzeri retroactively, that would be the result. [00:24:45] Speaker 04: We would agree with that. [00:24:50] Speaker 04: We believe that doing so is appropriate not only with the Supreme Court's instruction, but also with other opinions that are coming from this circuit, which as the Woody V. Coynebase panel concluded, Section 3 is mandatory, and thus we think it would be appropriate and in the interest of justice for applying that case here. [00:25:14] Speaker 04: And most importantly, because similar to the facts in the Woody case, Smiths versus Vaziri was not available to JP Morgan Chase when we submitted our brief to this court. [00:25:24] Speaker 04: And therefore, while there was no cross appeal, this circuit has broad power to address an issue that was not raised on cross appeal when justice requires. [00:25:33] Speaker 04: And we believe that those are the situation and circumstances here. [00:25:38] Speaker 04: So JP Morgan Chase would respectfully request that this court vacate this dismissal with instructions to stay pending arbitration. [00:25:47] Speaker 04: Unless there are any other questions from the panel. [00:25:51] Speaker 00: Question? [00:25:51] Speaker 00: I think not. [00:25:52] Speaker 04: OK. [00:25:52] Speaker 04: Thank you. [00:25:53] Speaker 00: All right. [00:25:54] Speaker 00: So, Ms. [00:25:57] Speaker 00: Rodkis, you have some rebuttal time. [00:26:03] Speaker 02: Thank you, Your Honors. [00:26:04] Speaker 02: It's weird and uncomfortable when I don't have anything to powerfully rebut my opponent. [00:26:13] Speaker 02: Just asking the Court to thoughtfully consider that this case is fully briefed up. [00:26:20] Speaker 02: instructions from the Supreme Court in Spazeri were not available to us, and they weren't available to the district court at the time that the decision was made. [00:26:29] Speaker 02: The court had, and I think continues to have, jurisdiction over this case, over this appeal, based on the state of the law as it was when the appeal was made. [00:26:39] Speaker 00: Let me ask you this, counsel. [00:26:42] Speaker 00: As you know, under our Miller versus Gammie case, when we have supervening authority, [00:26:49] Speaker 00: that overrides our precedence, we have an obligation to do that. [00:26:54] Speaker 00: It seems pretty clear that Missouri does override our pre-existing precedence regarding stays and the like. [00:27:02] Speaker 00: Doesn't that argue in favor of that we have to vacate this and send it back to the district court? [00:27:11] Speaker 02: Judge, I'm going to have to agree with you on that. [00:27:16] Speaker 02: It's, you know, I've [00:27:18] Speaker 02: put our best argument forward in the interest of justice. [00:27:21] Speaker 02: Obviously, Spazeri controls. [00:27:24] Speaker 00: Appreciate your honesty. [00:27:26] Speaker 00: That's a difficult spot. [00:27:27] Speaker 00: The Supreme Court sometimes hasn't agreed with the Ninth Circuit, too. [00:27:30] Speaker 00: What can I say? [00:27:32] Speaker 00: It's a rare thing, of course. [00:27:34] Speaker 02: Thank you, Judge. [00:27:35] Speaker 02: I have nothing else unless the Court has any more questions for me. [00:27:38] Speaker 02: Thank you. [00:27:39] Speaker 00: Thanks to counsel for your argument. [00:27:41] Speaker 00: We appreciate it. [00:27:41] Speaker 00: This is an interesting and challenging case. [00:27:44] Speaker 00: The case just argued is submitted.