[00:00:13] Speaker 03: And our last case on the docket for today is Turner versus Charter Communications. [00:00:48] Speaker 03: Good morning, counsel. [00:00:52] Speaker 02: Good morning, and may it please the court. [00:00:53] Speaker 02: Javen Soderstrom on behalf of plaintiffs and appellants. [00:00:57] Speaker 02: I'll try to reserve around five minutes for rebuttal. [00:01:01] Speaker 02: This court reviews orders granting motions to compel arbitration de novo, and it reviews substantive and procedural unconscionability issues de novo. [00:01:11] Speaker 02: This appeal presents four primary questions for this court to resolve. [00:01:17] Speaker 02: First, [00:01:18] Speaker 02: Is the degree of procedural unconscionability low or moderate? [00:01:24] Speaker 02: We know it's at least low. [00:01:25] Speaker 02: We believe this court under Ronderos in similar cases should find that it's moderate. [00:01:30] Speaker 01: Didn't the Supreme Court, which would be binding on us under Erie, determine that it was low in Ramirez? [00:01:37] Speaker 02: The court did not. [00:01:38] Speaker 02: The parties just did not argue that it wasn't low. [00:01:43] Speaker 02: And so what happened in Ramirez was that the plaintiffs said it's at least low. [00:01:48] Speaker 02: Charter conceded that issue. [00:01:49] Speaker 02: The court accepted that, but it actually accepted Amiki's [00:01:53] Speaker 02: request to clarify, meaning, yes, me, accepted our request to clarify that it least deserves close scrutiny because it's in the employment context. [00:02:07] Speaker 02: The court did not address additional features that add to the procedural unconscionability, and we believe that question is important and directly placed at issue here. [00:02:17] Speaker 02: because that goes to the sliding scale analysis and the severability analysis. [00:02:21] Speaker 01: Charter's Rule 28J letter in response to your own dealing with Ronderos argued that here it should be low, it would not be moderate. [00:02:32] Speaker 01: You didn't get the chance really to respond to that. [00:02:34] Speaker 01: What's your response to the Rule 28J letter? [00:02:37] Speaker 02: My first response is we're looking at it from the perspective of a lay employee seeking a low-level position. [00:02:42] Speaker 02: That's conceded. [00:02:43] Speaker 02: Second, this is a 29-page composite document that is a nine-point font for five pages, a separate document in 12-point font. [00:02:54] Speaker 02: It has cross-references, statutory references. [00:02:56] Speaker 02: It is quite difficult for lay persons to navigate this lengthy document, and most arbitration agreements are a paragraph, a page, possibly two pages. [00:03:07] Speaker 02: Here we have a lengthy document that seems designed to discourage reading. [00:03:12] Speaker 02: And it has enough features that make it more difficult to understand if you're a layperson without the availability of counsel. [00:03:20] Speaker 02: Again, Charter would like this court to look at it from the point of view of a person who has already hired counsel with a dispute and can analyze all of those features. [00:03:31] Speaker 02: But coming at it from the layperson's perspective, this agreement has multiple features, which the briefing lays out. [00:03:38] Speaker 02: that raised the degree of procedural unconscionability above low. [00:03:43] Speaker 02: How high? [00:03:43] Speaker 02: We're not asking this court to find it's as unconscionable as, say, the OTO versus co-case, which had numerous other features of procedural unconscionability. [00:03:53] Speaker 02: But here, there are at least a few. [00:03:56] Speaker 02: Just not even mentioning the AAA rules is one that [00:04:01] Speaker 02: Ramirez Court declined to get to because the parties hadn't briefed it. [00:04:05] Speaker 02: But charter itself relies on those panoply of rules to support its arguments once a dispute arises. [00:04:12] Speaker 02: But employees are never told those rules exist, let alone have them attached or incorporated by reference. [00:04:19] Speaker 02: So that's another feature of procedural unconscionability. [00:04:26] Speaker 02: So we do believe that ultimately this court should not just accept a low procedural unconscionability finding. [00:04:33] Speaker 02: The court in Ramirez did not directly hold that because the parties didn't brief the issue. [00:04:40] Speaker 02: Here we have briefed the issue and it's squarely before this court. [00:04:45] Speaker 02: The second question before this court is how many substantively unconscionable provisions are there in the agreement? [00:04:51] Speaker 02: We know there's at least three. [00:04:53] Speaker 02: uh... section e section k's uh... fees for compelling arbitration provision and the non-mutuality of sections b and c and the reason you're saying that is because [00:05:06] Speaker 02: We're saying that that's established as a matter of California law already and we have the same exact circumstances as Ramirez based which was charter never tried to justify in the contract itself and it never tried to submit and factually establish any [00:05:24] Speaker 02: legitimate commercial need for any of these one-sided terms. [00:05:29] Speaker 02: Charter had the ability, Armandares expressly puts the burden on parties trying to enforce an agreement to factually establish any justification. [00:05:41] Speaker 02: Charter [00:05:42] Speaker 02: failed to do that, that burden has been in place for at least 20 years since Armandara's. [00:05:47] Speaker 02: And so it would be inappropriate to reopen the record, have charter try to argue business justification based on new facts that aren't in the current record, and then try to back down from what the California Supreme Court has already accepted as this is unconscionable, there is no legitimate commercial need stated in the record, [00:06:08] Speaker 02: and therefore there is no basis to mitigate that unconscionability. [00:06:13] Speaker 02: So we know there's at least three provisions, we believe there's eight, and the briefing goes through each one, and I'd be happy to address any of them if this Court would like. [00:06:22] Speaker 02: The third primary question before this court is, is severance even possible in how Ramirez and how the statute and how this court's suggestions in Ronderos? [00:06:37] Speaker 03: Well, hold on, counsel. [00:06:38] Speaker 03: Why wouldn't we, if we agreed with you, why wouldn't we just send it back to the district court to figure that out? [00:06:43] Speaker 01: Which is what the Supreme Court did to the Court of Appeal. [00:06:46] Speaker 01: The California Supreme Court did. [00:06:47] Speaker 02: The Supreme Court sent it back to the Court of Appeal. [00:06:50] Speaker 02: I don't think it wanted to [00:06:52] Speaker 02: say there is a severability question here and then decide it for itself when the Court of Appeal had expressly said this one term can't be severed. [00:07:01] Speaker 02: That was the discovery deposition's term. [00:07:04] Speaker 02: The reason you don't send it back now is because it wouldn't resolve anything. [00:07:08] Speaker 02: This court ultimately reviews the question de novo. [00:07:12] Speaker 02: The questions of substantive unconscionability are legal issues that aren't subject to factual dispute. [00:07:20] Speaker 02: this court can address those legal issues directly and they're squarely before this court. [00:07:25] Speaker 02: The parties have both briefed them. [00:07:27] Speaker 02: We briefed them before the district court, and the district court didn't analyze any of those features. [00:07:33] Speaker 02: So what we would say is that if abusive discretion is in play here, apart from the de novo review... Well, at that point, though, the district court would have Ronderos, they would have Ramirez, they would have [00:07:45] Speaker 03: all the information they need, don't you think? [00:07:48] Speaker 02: It would on the three primary provisions that have already been decided to be unconscionable by the California Supreme Court. [00:07:56] Speaker 02: It wouldn't have this court's analysis of the other five provisions that just haven't been addressed yet by any court. [00:08:04] Speaker 02: And what I believe the correct standard of review is, is that this court reviews the party's submissions de novo. [00:08:12] Speaker 02: the order abuses discretion in several ways. [00:08:15] Speaker 02: It did not actually [00:08:18] Speaker 02: closely scrutinized, it did not decide what the degree of procedural unconscionability is, which is a legal issue, but it didn't reach that question, it didn't even try to decide it. [00:08:28] Speaker 02: It decided there was only one unconscionable provision, that is the bear your own fees provision in section K, and it didn't, it erred, committed legal error, which is by definition of abuse of discretion, by reaching incorrect conclusions as to the unconscionability of multiple other provisions. [00:08:47] Speaker 02: And so the district court already abuses discretion inadvertently, perhaps, because of Ramirez. [00:08:54] Speaker 02: But abuse of discretion is there. [00:08:57] Speaker 02: The issues are now de novo before this court. [00:09:00] Speaker 02: And this court has regularly decided, if a court did abuse its discretion, what is the proper analysis of procedural and substantive unconscionability? [00:09:11] Speaker 02: And can these terms be severed to further the interests of justice? [00:09:17] Speaker 01: California Supreme Court gave discretion to the Court of Appeal to request further briefing and consider some of the other provisions. [00:09:29] Speaker 01: A ruling of the Court of Appeal would be highly suggestive under eerie as to the unconscionability or not of those provisions. [00:09:39] Speaker 01: And of course, if it was appealed back to the California Supreme Court, and if it chose to grant review, then that would be the last word. [00:09:47] Speaker 01: Would it make sense for this panel to wait to see what the Court of Appeal chooses to do with the discretion it was given by the California Supreme Court? [00:09:58] Speaker 02: I don't believe so for several reasons. [00:10:00] Speaker 02: First, arbitration, even the Supreme Court has recently suggested that arbitration should not just be used, these motions and appeals should not just be used for further delay. [00:10:09] Speaker 02: second charter uh... has already objected in the court of appeals to [00:10:14] Speaker 02: deciding those issues and wants it to send it back to the trial court in Ramirez to then start the whole process over, which would take years. [00:10:22] Speaker 02: The issues are squarely before this court, and we've briefed this issue in other contexts, and Charter's taking the position that Court of Appeals aren't binding on this court. [00:10:32] Speaker 02: They might be suggestive, but this court doesn't have to follow whatever the Court of Appeals would ultimately decide if it disagrees with it. [00:10:39] Speaker 02: So this court has the issues squarely presented [00:10:42] Speaker 02: they've been briefed, they're appropriate for this court to decide, and whether or not the Court of Appeal would ultimately agree would not defeat this court's ability to decide for itself what it believes the California Supreme Court would decide. [00:10:57] Speaker 03: And just a second on Vasquez, do you think that our court decision in Harper sort of answers the question? [00:11:05] Speaker 03: For Section P? [00:11:06] Speaker 03: For Section P. Yeah, I do believe that. [00:11:09] Speaker 02: I believe Charter had complete control over the language it chose. [00:11:13] Speaker 02: And Charter chose broad language. [00:11:15] Speaker 02: It says any lawsuits predating your agreement aren't covered by this agreement. [00:11:20] Speaker 02: So what that leaves us with is no arbitration agreement for Vasquez for claims covered by this lawsuit. [00:11:27] Speaker 02: Now, if there's other claims he may have in some other dispute, that agreement may apply. [00:11:33] Speaker 02: But under the plain language of Section P, charter can't [00:11:37] Speaker 02: squeeze out of the plain language to find a way to just keep claims in arbitration. [00:11:43] Speaker 02: That's where Morgan versus Sundance comes in. [00:11:45] Speaker 02: It can't just find a way to compel arbitration if the party's agreement actually doesn't stand for that. [00:11:53] Speaker 02: Ultimately, the last two issues, I'll save a few minutes for rebuttal. [00:11:56] Speaker 02: The last two issues before this court are, can the court actually [00:12:00] Speaker 02: sever all of these terms. [00:12:03] Speaker 02: We believe section B and C can't cleanly be exercised or severed. [00:12:07] Speaker 02: You have to reform the agreement. [00:12:10] Speaker 02: What it is, is it's an omnibus dispute resolution agreement with lots of waivers that apply both in and out of arbitration. [00:12:18] Speaker 02: So this is not just a simple arbitration agreement. [00:12:21] Speaker 02: You strike a term, you strike a sentence, and it's over. [00:12:24] Speaker 02: What this is, is a package dispute resolution agreement that sends different claims to different fora. [00:12:32] Speaker 02: And to just cut out the entire non-mutuality of the agreement, [00:12:36] Speaker 02: leaves us with an entirely different agreement than the parties ever agreed to. [00:12:40] Speaker 02: A charter will say, we're fine with severing everything now, just to keep arbitration in place. [00:12:46] Speaker 02: But it had that option when it drafted the agreement. [00:12:50] Speaker 02: And going to the final point is, even if it could be severed, would it further the interests of justice to sever everything? [00:12:57] Speaker 02: Here, we have the deterrent effect. [00:13:00] Speaker 02: If the court were to sever everything, [00:13:03] Speaker 02: then there is zero deterrent effect for charter or other defendants to ever take the route of actually having an enforceable agreement to begin with because liberal severance would always be in the interest of justice in its view and it can include as many collateral provisions as it can with no penalty or deterrence. [00:13:25] Speaker 02: So we don't believe that [00:13:27] Speaker 02: clean severance is possible for many of these terms, but even if it was possible, there's no interest of justice in doing what Charter is asking. [00:13:37] Speaker 01: But wouldn't it seem odd for us to decide the severance issue, especially if we didn't agree with you as to all of the remaining clauses on their substantive unconscionability, given that the California Supreme Court chose to [00:13:55] Speaker 01: send the case back to the Court of Appeal for its exercise of discretion, and then the Ronderos published opinion emphasized that the district court there, which was to say me, was really the actor here, was the one that was exercising its discretion. [00:14:16] Speaker 01: Despite those two recent, in a sense, admonitions about the appropriateness of the discretion not being in the appellate court, then we would come along and say we're going to make that choice rather than returning it to the district court. [00:14:34] Speaker 01: Plus, of course, California law favoring severance for the reasons that charter [00:14:39] Speaker 01: So, combining those, basically, it seems to me what you're saying is, well, if you find all of these things are unconscionable, then you just should go ahead and say it. [00:14:49] Speaker 01: So, is there any response to the recent, to Romderos or Muris in that way? [00:14:55] Speaker 02: So, what I would say is that it would be odd to send it back if this court found [00:15:02] Speaker 02: Well, we have three. [00:15:04] Speaker 02: If it found four or five multiple, to the point where it would, as a matter of law, be an abuse of discretion for the district court to just say, we're severing half the agreement, you have what's left. [00:15:17] Speaker 02: That would be an abusive discretion. [00:15:19] Speaker 02: And this court should not send back a case that it would then overturn if it believes, no, that was too much discretion. [00:15:27] Speaker 02: You abuse your discretion by finding all of these features still allow a charter to compel arbitration, even though the agreement is as bad as we just said it was, because we addressed all of the procedural, unconscionable, and substantively unconscionable issues. [00:15:42] Speaker 02: So I'll reserve whatever I have left. [00:15:44] Speaker 03: All right. [00:15:44] Speaker 03: Thank you. [00:15:45] Speaker 03: Thank you. [00:15:51] Speaker 00: Thank you, Your Honors. [00:15:52] Speaker 00: May it please the Court. [00:15:53] Speaker 00: My name is Nathan Chapman. [00:15:54] Speaker 00: I represent the Appellant Charter Communications, LLC, in this matter. [00:15:59] Speaker 00: I want to start out with some questions that were asked about the proper course for this Court. [00:16:04] Speaker 00: And since this party's originally briefed this issue, as the Court knows, Ramirez was decided. [00:16:09] Speaker 00: It changed the legal landscape, raising both unconscionability and severance issues that the District Court should be deciding in the first instance. [00:16:18] Speaker 00: And that's actually in Ramirez. [00:16:19] Speaker 00: It's in the statutes that Ramirez cites [00:16:22] Speaker 00: that the severability and the initial unconscionability analysis need to be done. [00:16:26] Speaker 00: So you're conceding that we should send it back. [00:16:29] Speaker 00: I don't think I'm conceding that I think that is charged position that that the trial court needs to Do this analysis in the first instance? [00:16:38] Speaker 00: So if you want to put it in that in that if you want to frame it like that Yes, but that is that is what we believe the appropriate The appropriate step is here. [00:16:47] Speaker 01: It doesn't excuse me counsel doesn't the district court disagree with that because the [00:16:53] Speaker 01: plaintiffs asked for the court to have its indicated ruling, and then the district court promptly denied that, saying that no, these are the precise issues that are before the court of appeals. [00:17:07] Speaker 01: So why then, if the district court thinks that they're legal matters for us, then why would we send them back to the district court? [00:17:17] Speaker 01: The severance, I understand that, but I mean for the, on the substantive unconscionability. [00:17:21] Speaker 00: Thank you, Your Honor. [00:17:22] Speaker 00: Yes, I believe the way I read, the way Charter reads the district court's opinion is that we are so close to oral argument, we're so close to this being decided, that the court, in its discretion, as it was allowed to, the district court has discretion on an indicative ruling motion as to whether to wade into this. [00:17:39] Speaker 00: And it was quite a cursory opinion to say the Ninth Circuit is about to weigh in on this, so I'm not going to wade into this fray right now. [00:17:50] Speaker 00: Now on remand there are obviously we have Ramirez which has been decided charter does not dispute that that that the California Supreme Court's ruling on those issues is the law that this court would be bound by as a matter as matters of state law. [00:18:07] Speaker 00: But if, as you suggest, that this court is inclined to keep the case here and decide all of the issues itself, then Charter believes strongly that the court should affirm the district court's order because we believe that if, under the rule announced in Ramirez, it would be an abuse of the district court's discretion not to sever the provisions about which the appellants complain in this matter. [00:18:33] Speaker 00: because all of them are collateral to the agreement. [00:18:36] Speaker 00: All of them are capable of severance. [00:18:38] Speaker 00: And we can show, based on the record before the court, that charter did not engage in an illegal scheme. [00:18:47] Speaker 00: It did not do anything in bad faith to try to impose arbitration as an inferior forum. [00:18:53] Speaker 00: What it did was try to draft a 41-state omnibus arbitration agreement [00:18:59] Speaker 00: that would that would stand up in all 41 states. [00:19:03] Speaker 00: Now, was it perfect? [00:19:04] Speaker 00: No, it was not. [00:19:05] Speaker 00: Was this a systematic effort to impose arbitration as an inferior form? [00:19:10] Speaker 00: No. [00:19:10] Speaker 00: And we can get into exactly the aspects of this agreement that show that [00:19:17] Speaker 00: Charter did not engage in bad faith under the interests of justice prong, which, as we pointed out in our papers, we believe is preempted by the FAA. [00:19:29] Speaker 00: Setting that aside for the minute. [00:19:31] Speaker 03: Going back to Judge FitzSherwood's question, now the district court has, among other things, not only Ramirez, but it also has Ronderos. [00:19:43] Speaker 03: Why wouldn't that be sufficient to allow the district court judge to determine whether or not they could sever or not, or whether it's thrown out altogether? [00:19:53] Speaker 00: I think both. [00:19:54] Speaker 00: I think, well, one thing I will say about Ronderos. [00:19:57] Speaker 00: You're correct that district court would have the benefit of both Ronderos and Ramirez on a remand to make those severance evaluations. [00:20:04] Speaker 00: And I was speaking merely if the court decided to keep it here and wanted to decide those issues itself, how it should come out. [00:20:11] Speaker 00: But yes, the district court would have the benefit of Ronderos and Ramirez. [00:20:15] Speaker 00: And I will say that one thing that did not appear in Ronderos was an analysis under Ramirez of the severance issue in detail. [00:20:26] Speaker 00: So that's something that the district court itself would have to apply based on Ramirez, and you wouldn't get a lot of guidance from Ronderos on that specific issue. [00:20:34] Speaker 00: But yes, the trial court would be in the best position to make those calls on severance. [00:20:40] Speaker 00: Only if this court would be inclined to keep it here and decide not only the unconscionability issues, which we don't think should be decided here either, but if the court did decide [00:20:51] Speaker 00: the unconscionability issues that have been raised before giving the trial court a chance to actually go through the unconscionability analysis, because the order below on this, which was pre-Ramirez, as you know, is fairly thin on analyzing the substantive unconscionability issues. [00:21:08] Speaker 00: It referred back to its earlier opinion in a related case brought by the appellant's co-plaint of Mr. Harper [00:21:17] Speaker 00: where it found under a similar version of the agreement that there was no substantive unconscionability, and it did not revisit those findings from that other case. [00:21:27] Speaker 00: So given the decision of Ramirez that has held three of the provisions unconscionable and given that the trial court didn't really address the additional issues, we believe, although this court can review them, we believe the proper course, because of the severance issue, [00:21:45] Speaker 00: that is tied up in this, and if you recall, Armendariz talks about severance in the context of the analysis of whether an agreement is permeated with unconscionability. [00:21:55] Speaker 00: At page 124 of the Armendariz opinion, the California Supreme Court says specifically that you have to look at the aspects, you have to look at whether the purportedly unconscionable provisions are severable [00:22:11] Speaker 00: to determine whether the agreement is so permeated with unconscionability that it can't be enforced. [00:22:16] Speaker 03: At some point, can you also address the issues with regards to Vasquez and our decision in Harper and involving Section P and whether or not you agree that it should be sent back to the district court? [00:22:31] Speaker 00: We don't, we think that this court should affirm on the district court's order holding that Vasquez, that Section P does not exclude Vasquez's claim from arbitration because the, if you look at the context of Section P and in the Harper case, you have to recall that Harper himself had filed the earlier lawsuit, right? [00:22:55] Speaker 00: He filed an initial lawsuit, it was sent to arbitration, [00:22:59] Speaker 00: It came out of arbitration, and then he filed another case, right? [00:23:05] Speaker 00: And then he signed another, I'm sorry, he didn't file another case, but he executed another arbitration agreement in connection with an employment application. [00:23:14] Speaker 00: The question was for the court, was that earlier case, did that earlier case that was filed, the court held, because he had been subject to an earlier version of an arbitration agreement, that that excluded his current claims from being, it did not exclude him from having to arbitrate his current claims. [00:23:39] Speaker 00: Vasquez is very different, because Vasquez did not have any claims against Charter previously. [00:23:45] Speaker 00: He did not assert anything, he did not file a claim, he signed the arbitration agreement, and then later on he tried to join Mr. Harper's lawsuit. [00:23:54] Speaker 00: And if you look at Section P, and you look at the words that it uses, it's clear that it states this is Section P. It says this agreement sets forth the complete agreement of the parties. [00:24:07] Speaker 00: on the subject of resolution of the covered disputes. [00:24:10] Speaker 00: Covered disputes is defined in section B as those for which you or charter have an alleged cause of action. [00:24:20] Speaker 00: Section P only applies to cover disputes between the employee and charter. [00:24:24] Speaker 00: It doesn't apply to any claims that might exist anywhere in the world previously that somebody could latch onto and say, oh, well, I may be a putative class member in this class. [00:24:35] Speaker 00: I may be a putative close member in that class. [00:24:39] Speaker 00: that appellants are advocating for would swallow the rule of arbitration and create an unlimited exception that would always be entitled that anybody who could identify a prior claim would say, aha, well, somebody else filed, somebody else, not me, not one of the parties to this agreement, filed a prior claim and therefore I don't have to arbitrate. [00:25:00] Speaker 01: Well, I understand the logic of your argument. [00:25:04] Speaker 01: Isn't that more or less, though, the same argument that was rejected in Harper? [00:25:09] Speaker 01: I mean, I understand that on the facts, you can distinguish Harper from what was going on here. [00:25:13] Speaker 01: But ultimately, doesn't the actual language and reasoning of Harper essentially show something which is inconsistent with the argument that you just made? [00:25:24] Speaker 01: Because the whole emphasis is on just the plain language there, which, of course, Charter wrote. [00:25:30] Speaker 00: In Harper, it is distinguishable because Harper had filed the earlier dispute. [00:25:39] Speaker 00: He was the one with the claim. [00:25:42] Speaker 00: It belonged to him. [00:25:43] Speaker 00: It did not belong to somebody else in a claim where he might have been a putative class member, and that's what the plain language of the agreement [00:25:50] Speaker 00: If you have to read section P in conjunction with section B, which defines covered disputes, you can't un-marry those two provisions. [00:25:58] Speaker 00: So to say that, to create an exception like this would just eviscerate the arbitration agreement and allow people to identify any prior class or other representative type action and say, oh wait, somebody else filed a claim before me, I'm not part of [00:26:16] Speaker 01: But isn't that an incredibly rare experience? [00:26:18] Speaker 01: You're suggesting that it's going to swallow the rule or you could go around the world against the courts of England and Wales or something or find some other dispute. [00:26:26] Speaker 01: I mean, that he in fact could, was putatively a class member. [00:26:32] Speaker 01: Isn't that going to be a pretty rare circumstance? [00:26:35] Speaker 00: No, not for a big company like Charter because Charter has to deal with a lot of claims and there are a lot of litigations in which there are a lot of Paga cases and there are a lot of different class actions or class and Paga actions in which the plaintiffs that are before you today, the appellants that are here before you today are also putative class members or potentially could point to this. [00:26:59] Speaker 00: So that's not a rare occasion at all. [00:27:02] Speaker 01: Are there any, if there aren't any other questions on Section P, I'd like to go back to the mutual, excuse me, the procedural unconscionability. [00:27:11] Speaker 01: In your Rule 28J letter, which was the last thing we received in this briefing, you made some arguments about why Rondeiros, in fact, was not suggestive of a moderate degree of procedural unconscionability. [00:27:28] Speaker 01: So could you explain those arguments in some more detail now? [00:27:32] Speaker 00: Yes, absolutely. [00:27:34] Speaker 00: Ronderos, the arbitration agreement was presented to the employee with a great deal of pressure. [00:27:42] Speaker 00: You got to sign this now, you got to sign it immediately. [00:27:45] Speaker 00: That does not exist here. [00:27:47] Speaker 00: This is a self-paced application process. [00:27:52] Speaker 00: People can take months, weeks, years, however long they want to go through this process and submit these applications. [00:28:00] Speaker 00: So there was no time pressure. [00:28:02] Speaker 00: They did not do it at a charter location. [00:28:05] Speaker 00: So there was nobody standing over them saying, you need to sign this. [00:28:09] Speaker 00: There's no negotiation, so on and so forth. [00:28:12] Speaker 00: They could have reached out to their recruiter. [00:28:14] Speaker 00: They could have reached out to HR to ask questions. [00:28:16] Speaker 00: They could have hired a counsel. [00:28:17] Speaker 00: to look at this if they had concerns about it. [00:28:20] Speaker 00: So you just don't have that same degree of pressure and oppression that you have there. [00:28:25] Speaker 00: And as to the appellant's remaining points on procedural unconscionability, you don't have, the agreement itself is not long or complex. [00:28:37] Speaker 00: And what they've tried to lump into in the same category as the agreement are the guidelines, which are a very [00:28:44] Speaker 00: It's a layman's explanation of the process that's intended to aid people in understanding this. [00:28:51] Speaker 00: You'd be hard pressed to find another company or another agreement that is accompanied by an explanation manual that's put in very simple terms, explains what interrogatories are. [00:29:02] Speaker 00: It doesn't contain a lot of legal jargon or opaque statutory references. [00:29:08] Speaker 00: It tries to explain the process to people who are laypeople. [00:29:13] Speaker 00: That's what the guidelines do. [00:29:15] Speaker 00: And there aren't any real inconsistencies in that. [00:29:21] Speaker 00: And to the extent they are, the agreement would control that. [00:29:25] Speaker 00: And their complaints about the AAA rules [00:29:29] Speaker 00: There's nothing there because they're not saying the AAA rules are harmful, that they take away rights, that they impact the scope of plaintiff's claims for relief, that they're limiting or somehow detrimental. [00:29:43] Speaker 00: I mean, they go so far as to represent the [00:29:46] Speaker 00: the minimum standards of procedural fairness that the AAA has, as if that's a bad thing that's not specifically attached and included to the agreement. [00:29:56] Speaker 00: But the AAA rules and the minimum standards of procedural fairness are there to protect the employees. [00:30:02] Speaker 00: So that's not a surprise. [00:30:03] Speaker 00: That's not oppression. [00:30:04] Speaker 00: That's something that's beneficial to the employee that charter uses only as a function of the fact that it's in the AAA. [00:30:15] Speaker 00: And I want to go back just quickly while I have a few seconds. [00:30:20] Speaker 00: I just want to, in the context of unconscionability and this third prong, which for the reasons we set forth in our briefing, we believe the third prong is unconscionable, but you have to look specifically at what charter did and some of the beneficial things it did here for employees that it didn't have to do. [00:30:36] Speaker 00: right? [00:30:37] Speaker 00: It guarantees them a minimum of 20 interrogatories and 15 requests for production. [00:30:41] Speaker 00: It guarantees them a minimum of four depositions. [00:30:45] Speaker 00: They didn't have to do that and that's not required under the FAA or California law. [00:30:49] Speaker 00: The timelines that are provided by arbitration are intended to expedite the process and are intended to get a faster resolution than somebody would [00:30:58] Speaker 00: would get in court. [00:30:59] Speaker 00: I know I'm out of time. [00:31:00] Speaker 03: Any additional questions? [00:31:02] Speaker 01: May I have one question? [00:31:04] Speaker 01: We haven't really touched on the remaining clauses of unconscionability. [00:31:08] Speaker 01: I was interested in your arguments as to Section Q, where the severance clause itself, which of course is authorized by California law, is itself unconscionable, and you presented in your brief some arguments as to why that [00:31:23] Speaker 01: in fact, couldn't be substantively unconscionable. [00:31:27] Speaker 01: Is there anything you'd like to say to further those arguments? [00:31:31] Speaker 00: Yes, Section D is a standard enforceable class and collective action waiver. [00:31:36] Speaker 01: I said Section Q, I'm sorry. [00:31:37] Speaker 00: Oh, I'm sorry. [00:31:38] Speaker 01: The severance clause, where the severance clause itself is unconscionable despite being authorized by statute. [00:31:44] Speaker 01: Yes, I'm sorry. [00:31:46] Speaker 01: That was, that's Appellee's argument. [00:31:48] Speaker 00: Yes. [00:31:49] Speaker 01: I mean, Appellant's argument, excuse me. [00:31:51] Speaker 00: This is a standard, basic severance provision that, their argument is that this takes away the arbitrator's discretion. [00:31:58] Speaker 00: But it says in it that it is cabined by applicable law. [00:32:02] Speaker 00: So if it's cabined by applicable law, how could it dispose of the arbitrator's or the court's discretion? [00:32:07] Speaker 00: to sever or not sever. [00:32:09] Speaker 00: It can't do it. [00:32:09] Speaker 00: That is just simply a red herring argument. [00:32:12] Speaker 00: This is a standard severance clause, and there's nothing about this, there's nothing about section Q that is illegal. [00:32:21] Speaker 00: Thank you. [00:32:21] Speaker 00: Thank you, Your Honor. [00:32:22] Speaker 03: Any other questions? [00:32:24] Speaker 03: All right, thank you, Counsel. [00:32:24] Speaker 03: Thank you, Your Honors. [00:32:31] Speaker 03: If we can increase the time to a minute, please. [00:32:36] Speaker 02: Thank you. [00:32:36] Speaker 02: I'll be brief. [00:32:38] Speaker 02: First, Charter wants remand in the Court of Appeal in Ramirez because it wants to reopen the record and start arguing new facts about business justification. [00:32:48] Speaker 02: That's one of its goals stated in its recent supplemental briefing. [00:32:52] Speaker 02: So Charter really wants remand mostly for delay and to try to reopen the factual record. [00:32:58] Speaker 02: That is inappropriate. [00:33:00] Speaker 02: Two, the consequences of remand here would be [00:33:05] Speaker 02: unfavorable. [00:33:06] Speaker 02: What would happen is any time a district court did not go through the proper analysis, this court would send it back. [00:33:14] Speaker 02: The district court would then go through the proper analysis after having already abused its discretion. [00:33:21] Speaker 02: This court is reviewing it de novo. [00:33:23] Speaker 02: The district court here abuses its discretion, and the de novo review would just go back for more. [00:33:30] Speaker 02: We're asking this court to address all of the issues. [00:33:33] Speaker 03: We all make mistakes. [00:33:34] Speaker 03: That doesn't mean we're going to make a mistake going forward. [00:33:36] Speaker 03: I mean, that's, I'm not sure. [00:33:40] Speaker 02: One consequence would be plaintiffs would definitely appeal if the district court went through the analysis and then [00:33:46] Speaker 02: found everything was severable again. [00:33:49] Speaker 02: And we'd be right back here. [00:33:50] Speaker 02: I don't know if charter would. [00:33:51] Speaker 03: That's not our process. [00:33:52] Speaker 03: Isn't that our process, Council? [00:33:54] Speaker 02: Possibly. [00:33:55] Speaker 02: But we do not want remand because we think we win on the merits of all of these issues. [00:34:00] Speaker 02: And ultimately, [00:34:02] Speaker 02: If the court does remand, then the priority motion that was granted should not have been granted. [00:34:09] Speaker 02: That is improper under Sundance. [00:34:11] Speaker 02: The district court can't just prioritize arbitration defenses, avoid class certification of that defense, which is all uniform for everybody. [00:34:22] Speaker 02: It would not be moot in that. [00:34:24] Speaker 01: Just speaking here as a district judge, there's no evidence that the district court thought it was required for priority. [00:34:31] Speaker 01: It was just making a very pragmatic decision of the order, and frankly, I would have made the same decision I think virtually any district judge would. [00:34:38] Speaker 01: I'm sorry, I'm not asking you a question. [00:34:40] Speaker 01: I'm making a statement, but that's the way I feel. [00:34:42] Speaker 03: Any other questions? [00:34:43] Speaker 03: All right. [00:34:45] Speaker 03: Thank you, counsel, and thank you to your co-counsel over there. [00:34:49] Speaker 03: I think she's doing a great job. [00:34:51] Speaker 03: Thank you to both of you. [00:34:52] Speaker 03: I thank the court. [00:34:53] Speaker 03: This matter will stand submitted.