[00:00:05] Speaker 06:
I'd like to reserve two minutes for a bottle, please.

[00:00:10] Speaker 06:
As he suggested, Judge Friedland, this is Arissa in Arbitration and Consent 2.0.

[00:00:15] Speaker 06:
I've listened very carefully to the judge's comments on consent.

[00:00:18] Speaker 06:
We have the same issue present

[00:00:36] Speaker 05:
I think the questions I was asking in the other case don't apply here because we definitely have at least some individual claims.

[00:00:41] Speaker 05:
Is that right?

[00:00:42] Speaker 06:
I would agree that the plaintiff has tried to bring a claim under section A1B of ERISA, 502A1B, and that would be an individual claim.

[00:00:53] Speaker 06:
They also have brought A3 claims, but the A3 claims use the same language.

[00:00:58] Speaker ?:
The allegations are the same between the A3 claims and the A2.

[00:01:03] Speaker 06:
with my friend from Live Nation that A3 claims can be brought on an individualized basis here because that is true.

[00:01:11] Speaker 06:
And because it appears that they brought the A3 claim by choice as an individual claim, I don't think there's any dispute that that claim is arbitrable under this arbitration agreement as an individual claim.

[00:01:26] Speaker 06:
If individual consent is not needed.

[00:01:42] Speaker 06:
And in this case, we have a 502A2 claim, which would suggest, as we've been discussing, that's the plan's claim and the plan's consent is the only thing that matters, and here the plan consented.

[00:01:57] Speaker 06:
As for the individual claims, this plan has very specific language that says, and I'll read it to the court just in case.

[00:02:12] Speaker 06:
And suddenly I'm not finding it in my notes.

[00:02:14] Speaker 06:
But it says that, oh, here we go, I'm sorry.

[00:02:18] Speaker 06:
The plan says that participants agree to accept the provisions of the plan as they are today or as they may be amended in the future.

[00:02:27] Speaker 06:
But this, what the court in Monroe and Dorman suggested that plan, and in other Ninth Circuit cases, that plan participation is enough to consent.

[00:02:43] Speaker 06:
you agree that this plan may be amended and you accept those terms.

[00:02:47] Speaker 05:
So this language you're pointing to, I believe I noticed it in a citation in your reply brief, but I did not see you make an argument anywhere really explicitly that the language of consent you were relying on was what you just said.

[00:03:04] Speaker 05:
Can you point to a

[00:03:06] Speaker 05:
or even in the district court where the argument you just made is the argument you made about consent.

[00:03:12] Speaker 05:
As we stand here today, I am not going to remember if we did that elsewhere.

[00:03:16] Speaker 05:
I could not find it in the district court or in your opening brief or any kind of express argument to that effect in your reply brief, although I thought you might make it.

[00:03:25] Speaker 06:
Is it a citation?

[00:03:26] Speaker 06:
We did make it circular.

[00:03:34] Speaker 06:
And we did point to that language in the record, if I am not mistaken, Your Honor.

[00:03:39] Speaker 06:
Maybe it's a sentence.

[00:03:40] Speaker 06:
It's not a very fleshed out argument.

[00:03:42] Speaker 06:
I think it cites back.

[00:03:43] Speaker 06:
I agree that it is a reference to the language, Your Honor, and the language is contained in the record in the plan documents, which were made part of the record.

[00:03:51] Speaker 05:
And so I had understood you to be focusing a lot more on the receipt of something.

[00:03:56] Speaker 05:
I mean, this language was there in 2018, as I understand it, the language you just recited to us.

[00:04:01] Speaker 05:
But I thought your argument was all about whether you received this email that was later and whether it was a fact mistake about the receipt of that email and the other documents.

[00:04:11] Speaker 05:
But now you're going back to an entirely different point.

[00:04:13] Speaker 06:
Well, yes and no, Your Honor.

[00:04:16] Speaker 06:
We were responding to the plaintiff's argument that they needed to consent and they had not consented and they were the ones relying on an email which is not relevant in this context versus the email that we actually did send to Mr. Platt.

[00:04:32] Speaker 06:
I think all of that is a red herring because we

[00:04:40] Speaker 06:
A2 claim and Mr. Platt's participatory consent for the A1B and the A3 claim.

[00:04:50] Speaker 05:
And the participatory, so I think you need to have some warning as a participant that if you continue to participate, your participation will be read as consent.

[00:04:59] Speaker 05:
And the only way that you get there is this language you're quoting from the 2018 that you like quoted to us today.

[00:05:05] Speaker 06:
The language is there, Your Honor, but to be clear, an email was

[00:05:14] Speaker 06:
added, that email, if you don't click on the email within 30 days, or if you have otherwise not elected to receive electronic notices, then the summary of material modifications, which was 25 pages long, not 170 as the judge found, was mailed out.

[00:05:33] Speaker 06:
Mr. Platts

[00:05:45] Speaker 06:
The SMM does not contain that language, Your Honor.

[00:05:48] Speaker 06:
The plan document and the SPD do.

[00:05:51] Speaker 05:
They say if you continue to participate, can you point me to where?

[00:05:55] Speaker 05:
Or is that the same 2018 thing you just started with?

[00:05:57] Speaker 06:
It's the same language, Your Honor.

[00:05:59] Speaker 06:
It's always been in the plan.

[00:06:03] Speaker 06:
The language about if you consent to these terms as they exist or as they may have been amended.

[00:06:08] Speaker 06:
That's always been in the plan.

[00:06:09] Speaker 06:
That's not new.

[00:06:15] Speaker 03:
So the plan was amended in 2021 but Mr. Platt changed his nicotine status back in 2018.

[00:06:25] Speaker 03:
So how can

[00:06:46] Speaker 06:
There are changes to coverages.

[00:06:47] Speaker 06:
There are changes to deductibles.

[00:06:49] Speaker 06:
There are changes to copays.

[00:06:51] Speaker 06:
No one could legitimately argue that if I have to change your copay today, that you are entitled to the copay that existed three or four years ago.

[00:07:00] Speaker 03:
But that's not what the argument is.

[00:07:03] Speaker 03:
His nicotine status changed in 2018, so his payment from that point on would change because of that.

[00:07:12] Speaker 03:
But the plan didn't include arbitration until 2021.

[00:07:17] Speaker 03:
So why would a claim from 2019 be subject to arbitration that didn't come into effect until 2021?

[00:07:28] Speaker 06:
came into effect, then I can see where your point might be well taken, Your Honor.

[00:07:33] Speaker 06:
But the fact is, he brought this claim after the arbitration agreement was already in effect, and he is a plan participant.

[00:07:40] Speaker 06:
So in that way, it doesn't affect any of you.

[00:07:42] Speaker 06:
But don't you look at the plan at the time that his claim arose, rather than the time that it was made?

[00:07:47] Speaker 06:
I don't think so in this context, Your Honor.

[00:07:49] Speaker 06:
Again, because particularly health

[00:07:51] Speaker 06:
It's more fluid than that as a practical matter.

[00:07:55] Speaker 06:
These plans have to be amended.

[00:07:57] Speaker 06:
And again, if we had a change in a deductible, for instance, or a change in a copay, the plan participant cannot say, you know, I want that copay, I want the copay I was paying five years ago because it was in effect five years ago.

[00:08:12] Speaker 06:
We have a right to unilaterally amend that.

[00:08:22] Speaker 04:
Where I think the argument gets a little difficult is when you are considering the overlay between the FAA and ERISA.

[00:08:30] Speaker 04:
So the language that you're talking about in the plan document that's always been the same, the problem with sort of relying on that is that you're really not grappling with the overlay of the FAA, which doesn't allow those unilateral amendments to occur.

[00:08:53] Speaker 04:
this argument, which may or may not be forfeited because it wasn't raised before, even if we were to consider it, I think it doesn't really address the FAAO claim.

[00:09:04] Speaker 04:
So, I hear your point.

[00:09:06] Speaker 06:
We have other reasons why that A1B claim, I think the court

[00:09:24] Speaker 06:
about and I do want to get to that.

[00:09:26] Speaker 06:
The A1B claim here was manufactured to try to plead around this arbitration agreement.

[00:09:32] Speaker 06:
It did not exist in the amended complaint and the A1B claim would be a claim for benefits and I think that's what you would be focusing on here, Your Honor, since we know that the A2 claim are

[00:09:49] Speaker 06:
that it's different.

[00:09:50] Speaker 06:
It's an individual claim.

[00:09:51] Speaker 06:
There's no doubt about that in my mind.

[00:09:54] Speaker 06:
But it's a sham claim here, Your Honor.

[00:09:57] Speaker 06:
It was – But it hasn't been dismissed and summary judgment wasn't granted – Well, no, Your Honor.

[00:10:01] Speaker 06:
– saying it was a sham claim.

[00:10:03] Speaker 06:
Because we're not allowed to get to that argument on the merits when – before we move to compel, which is an awkward construction, I agree.

[00:10:11] Speaker 06:
But we are certainly argued

[00:10:17] Speaker 06:
It was literally brought in an amended complaint only after Mr. Platt's counsel were notified of the existence of the arbitration agreement and its carve-out for claims for benefits under 8.1b.

[00:10:30] Speaker 06:
So I don't think it's a real claim in this case, which takes care of the court's concern over the consent issue.

[00:10:38] Speaker 03:
So let's say for purposes of argument that it's not a sham claim.

[00:10:43] Speaker 03:
So let's get to the consent issue then.

[00:10:45] Speaker 06:
So I believe that this court has already held that mere participation in a plan is consent.

[00:11:20] Speaker 06:
ER-221 language.

[00:11:24] Speaker 06:
Let me just confirm that we're on the same page, literally, Your Honor.

[00:11:38] Speaker 06:
Are you referring to the language saying you agree to abide by the plan's terms, Your Honor?

[00:11:44] Speaker 05:
The ones that can be amended in the future or

[00:11:49] Speaker 05:
And so I was – I believe that that 221 language is in a document that was given in 2018.

[00:11:57] Speaker 05:
You represented a moment ago that it's in every document that they would receive.

[00:12:01] Speaker 05:
I'm not sure I see it anywhere else, so I'd be interested to know if you can point to it anywhere else.

[00:12:06] Speaker 06:
Your Honor, the planned documents that were submitted in this case were the planned documents during the relevant time period, but – Sara, what you're saying that if you get an if

[00:12:28] Speaker 04:
a plan document always has language that says, you know, the plan as it exists today, before, or later, that together, even though you're never providing express information about the inclusion of an arbitration permission, that's enough.

[00:12:42] Speaker 06:
I'm not sure what your honor is referring to as express information about an arbitration agreement.

[00:12:47] Speaker 06:
In this case, he was provided with express information.

[00:12:52] Speaker 06:
point to any any language in that communication the one that told him now there's an arbitration agreement that also said if you continue to participate I see what you're asking now your honor no there are there's more than one document for that argument there's the plan document and the summary of material modifications which went out at the time so when a plan is amended if it

[00:13:21] Speaker 06:
And it was the SMM that contained the arbitration agreement.

[00:13:26] Speaker 06:
Eventually, that language makes it into the plan document.

[00:13:30] Speaker 06:
They're just not required to send out an entire new plan document every time an amendment is made.

[00:13:35] Speaker 06:
They get to wait till they, meaning the plan sponsor, can wait till the next cycle to formally include or incorporate that information in the plan.

[00:13:43] Speaker 05:
Okay, so when the arbitration clause was sent, I think this is 2021?

[00:13:49] Speaker 05:
Yes.

[00:13:52] Speaker 06:
communication does it have any language that says if you continue to participate you're agreeing to this so if you got the email there's an email that links the SMM which does not have the language your honor is referring to and the SPD which does have the language your honor is okay but plaintiff says he didn't get the email so then you go back to the mailing so the mailing he received a copy of the SMM and here's the problem your honor these go out in bulk so there is not a record other than they say

[00:14:21] Speaker 06:
electronically will get it, and that's in the Carson Declaration.

[00:14:25] Speaker 06:
So I can't tell you what he saw or didn't say.

[00:14:29] Speaker 06:
He's saying he never got it, but he got a copy of the SMM, and the SMM also refers to the SPD, which has the language that you're concerned with.

[00:14:38] Speaker 05:
So you're saying the only way you get to 221 is by some sort of incorporation by reference?

[00:14:42] Speaker 05:
It didn't go out in the mail?

[00:15:00] Speaker 06:
has always been present in the SPD.

[00:15:04] Speaker 06:
There's – and I will – I will say, Your Honor, there's no – certainly no case law on this point requiring that when we add an arbitration agreement to a plan that we also point you back to the language that says that you, by the way, agree to this arbitration addition.

[00:15:21] Speaker 06:
That sort of would

[00:15:26] Speaker 06:
consent for every amendment that we make.

[00:15:29] Speaker 06:
We know, for instance, Your Honor, from the Supreme Court and the Heimschaff case, that we can add limitations periods.

[00:15:35] Speaker 06:
And there's no requirement for plan of participant consent for that.

[00:15:38] Speaker 06:
We know that we can add choice of law provisions.

[00:15:42] Speaker 06:
We can add form selection clause.

[00:15:43] Speaker 06:
And no case has ever said that we need plan of participant consent, I'm sorry, for those types of provisions.

[00:16:00] Speaker 06:
in an ERISA plan should be treated differently than other provisions which the plan is allowed to add or amend.

[00:16:15] Speaker 06:
that you're to say we actually intend an ERISA for the FAA provisions not to govern with respect to the consent actually I would say your honor in epic systems the court held the opposite in epic systems in epic systems the court was talking about the analysis

[00:16:36] Speaker 06:
Act, a collective action waiver.

[00:16:38] Speaker 06:
And in that court, in that case, the court said that it was the FAA, it was the NLRA that had no mention that it was meant to override ERISA, that it had no mention that it was meant to, I'm sorry, that the NLRA had no provision in it saying that it was meant to override the FAA or that it was any hint that

[00:17:05] Speaker 06:
collective action.

[00:17:06] Speaker 04:
But it doesn't need to, the FAA doesn't need to override or rescind this context.

[00:17:10] Speaker 04:
What we have are two statutory schemes that we have to read together because neither one addresses the other in terms of which one trumps.

[00:17:22] Speaker 06:
I agree and just to go back to a point though, we're allowed to add all kinds of provisions like choice of law, like form selection, like limitations period,

[00:17:37] Speaker 06:
period to a plan that does not require participant consent to do that.

[00:17:43] Speaker 06:
So to say that in order to add an arbitration agreement, we need participant consent puts the arbitration agreement on unequal footing with all other contractual plan provisions, the Supreme Court has specifically said

[00:18:02] Speaker 03:
another federal statute, the FAA.

[00:18:05] Speaker 03:
Don't you have to comply with that federal statute?

[00:18:09] Speaker 06:
In this context, and I agree there are no answers here yet, and I believe we do have to harmonize them, but we have to harmonize the FAA and ERISA also based on the practical considerations

[00:18:27] Speaker 06:
matter, particularly in a health plan case, we cannot get plan participant consent every time we amend the plan.

[00:18:40] Speaker 06:
I see that I am way over my time and we haven't had a chance to talk about effective vindication and I don't know how you want to move on from here.

[00:18:51] Speaker 05:
Yeah, I think, well, I actually think why don't we give you

[00:19:00] Speaker 05:
We do have a lot of issues that we need to resolve here that are novel.

[00:19:04] Speaker 06:
So can we just give her two minutes?

[00:19:08] Speaker 06:
Let me ask you, Your Honor.

[00:19:09] Speaker 06:
I have a lot to say about effective vindication, but you all have things maybe that you think are also present here.

[00:19:16] Speaker 06:
There were a lot of issues, so I'm happy to take questions on those as well.

[00:19:25] Speaker 04:
In addition to the effect of vindication, your sort of response to our questions about unconscionability and what you think that unconscionability standard is under federal common law or if we should be, you know, sort of.

[00:19:39] Speaker 06:
So we have this, the Ninth Circuit's decision in Noker or Necker, I'm not sure how it's pronounced, that held that the plaintiff's unconscionability and public policy arguments are preempted by ERISA.

[00:19:50] Speaker 06:
That is the law of the Ninth Circuit.

[00:19:52] Speaker 06:
Now, that was not in the arbitration context, if I remember correctly.

[00:20:01] Speaker 06:
Robertson and our friends in Live Nation and Cleveland versus Oracle which followed Necker.

[00:20:09] Speaker 06:
In this case if the question is do I believe that I do not believe that

[00:20:24] Speaker 06:
this be federal common law?

[00:20:26] Speaker 06:
I would agree, and I think in this way I may disagree with my friend at Live Nation, that if an unconscionability argument can be made, it would be made under federal common law.

[00:20:36] Speaker 06:
And what would the standard be under federal common law?

[00:20:38] Speaker 06:
That I'm not sure, Your Honor, to be honest, but what I can tell you is, again, because of the requirement of uniformity of administration or risk plans, which is a bedrock principle here, that that federal common law could not

[00:20:54] Speaker 06:
be guided as much by state law, because then we would end up with the same problem that we have with and why we have a preemption clause.

[00:21:03] Speaker 06:
We can't have plans subject to different state laws.

[00:21:06] Speaker 05:
But we could survey the states and choose the best rule as the federal common law, as long as it's a single one.

[00:21:12] Speaker 06:
As long as it's a single one and applied even handedly and in the same manner across all states, I think that might work, Your Honor.

[00:21:22] Speaker 06:
Do you disagree that we need to do that here?

[00:21:26] Speaker 06:
I do, actually, because I don't think there are valid unconscionability arguments here on the merits themselves.

[00:21:32] Speaker 06:
OK, well, let's not get into that.

[00:21:33] Speaker 05:
We could remand that.

[00:21:34] Speaker 05:
But if we believe you, it doesn't even sound like you've made an argument yet that that isn't available.

[00:21:40] Speaker 05:
So we have to figure out what the federal common law rule is, and we should send it back on remand to figure out unconscionability.

[00:21:45] Speaker 05:
I think you have to send this case back, Your Honor.

[00:21:47] Speaker 05:
And you're not disagreeing?

[00:22:05] Speaker 06:
The only thing

[00:22:29] Speaker 06:
Yes, because the court didn't get to any of that, not just unconscionability, didn't get to effective vindication, didn't get to whether the A1B is a legitimate claim or not, didn't get to unconscionability.

[00:22:39] Speaker 04:
I mean, if we didn't address unconscionability,

[00:22:49] Speaker 06:
I think I'm understanding that.

[00:22:50] Speaker 06:
I've already used up my two minutes.

[00:22:52] Speaker 06:
If the court is, again, the effective indication was such a big deal in terms of the briefing, obviously not in the district court.

[00:23:01] Speaker 06:
I would like to address that, but I also will sit down if you want to.

[00:23:05] Speaker 05:
I think maybe we better have you sit down at this point.

[00:23:06] Speaker 05:
Thank you.

[00:23:09] Speaker 05:
So I know it was supposed to be 10, but let's give 15 because of what I just did.

[00:23:42] Speaker 01:
are all guided by the extensive discussion that I have already heard thus far.

[00:23:46] Speaker 01:
My first point is that

[00:24:11] Speaker 01:
of 502A1B, which is the claim for benefits, which is not a sham claim.

[00:24:17] Speaker 01:
I'm happy to address if the court has questions about it.

[00:24:20] Speaker 01:
My second point, I will keep it very brief because it was addressed extensively below, which is that it is Mr. Platt's position

[00:24:36] Speaker 01:
But understand there was extensive discussion about that.

[00:24:39] Speaker 01:
And my third point is that if you agree with the first two, you can affirm completely.

[00:24:45] Speaker 01:
But third, even if you find that you need to reach effective indication on the breach of fiduciary duty claim, then we respectfully suggest that if you agree that the representative action waiver works a prospective waiver

[00:25:06] Speaker 01:
in on itself in terms of scope.

[00:25:08] Speaker 01:
And so there would be no point to send it back down.

[00:25:11] Speaker 01:
There's only one question.

[00:25:13] Speaker 01:
There's only one answer that can result from it.

[00:25:15] Speaker 05:
Well, I mean, we have lots of issues to talk about here, but maybe we start with the last one.

[00:25:20] Speaker 05:
I don't think there's been discussion about severability.

[00:25:24] Speaker 05:
So could you speak to whether we would have to figure out severability or whether that would need to be remanded?

[00:25:27] Speaker 05:
Because you might have an effective vindication argument, but I think we'd have to look at severability when we

[00:25:32] Speaker 01:
So I appreciate you asking that question, Your Honor, because under LIM versus D4, severability is going to be reviewed under an abuse of discretion.

[00:25:40] Speaker 01:
So you would be within your rights to send it back down to Judge Carter to make that assessment.

[00:25:46] Speaker 01:
But one of the last points that we made in our brief was that the agreement collapses in on itself if you find in our favor on effective vindication.

[00:25:59] Speaker 01:
Here we have the first sentence of the arbitration provision says, we agree to arbitrate.

[00:26:04] Speaker 01:
The plan agrees to arbitrate all claims under ERISA consistent with the AAA rules.

[00:26:08] Speaker 01:
The second sentence prohibits representative actions.

[00:26:13] Speaker 01:
And so if we agree that the breach of fiduciary duty claim is a representative action, we cannot now read back into the first

[00:26:32] Speaker 01:
and why not can you say that again sure so and I'm gonna this is a little bit attenuated in terms of looking at here but limbers a t-force looks back to Armand are as the California Supreme Court discussion on severability and one of the key concepts that comes out of that is the question of whether you can reform an agreement so if you if you strike a provision and it is it it does

[00:27:07] Speaker 01:
And the point that I'm just making is a simple one, which is that if the plan purportedly agreed that you cannot arbitrate representative actions, and if a breach of fiduciary duty claim is a representative action, that it's unenforceable and you agree with that, violates effective indication doctrine, we cannot now read into sentence one of the agreement an agreement to arbitrate representative actions.

[00:27:30] Speaker 01:
That's the sole point that I'm making there.

[00:27:32] Speaker 01:
But otherwise, with respect to

[00:27:37] Speaker 05:
for that, but wouldn't it be federal common law?

[00:27:39] Speaker 05:
Like maybe we would say under federal common law, there's a presumption.

[00:27:42] Speaker 05:
I'm just, I'm not saying we would do this, but just hypothetically, why couldn't we say under federal common law, there's a presumption of favor of arbitration and we can say that the person is what's left after we suffer the improper part, which would mean every claim is arbitrated.

[00:28:02] Speaker 01:
analysis and developing a federal common law, you would see that there's courts are discouraged from adding terms post-hoc into arbitration provisions to make them enforceable.

[00:28:15] Speaker 05:
If we thought that this issue needed to be decided, should we get supplemental briefing on that question?

[00:28:21] Speaker 05:
I don't think we have briefing on like what the 50 states say about this or anything that we would need to decide that question.

[00:28:26] Speaker 05:
Should we decide it by getting more briefing on that or would we remand it?

[00:28:30] Speaker 01:
The severability analysis.

[00:28:48] Speaker 01:
effective indication.

[00:28:50] Speaker 01:
It's meant to be consistent with what the Third Circuit did in the Henry case, where the consent issue was framed and the court skipped over and went straight to effective indication.

[00:29:00] Speaker 01:
Because you could make a finding on effective indication without deciding whether to sever it.

[00:29:05] Speaker 01:
But I do want to circle back to one point that I just think is crucial here, which is my first point, which is that, if there are no questions about this, I can quickly move on from it.

[00:29:18] Speaker 01:
that owns, only his consent is necessary.

[00:29:23] Speaker 01:
It's actually the only consent that matters is his consent to arbitrate those claims.

[00:29:28] Speaker 01:
And I think that's entirely consistent with this court's Monroe decision in that Monroe versus USC case, where, as we've talked about earlier, there's kind of this focus of.

[00:29:38] Speaker 05:
And so if we agree with you, I think the argument today is that the language in the 2018 document said

[00:29:51] Speaker 05:
And so why is that not consent?

[00:29:54] Speaker 01:
So first I think that that argument has actually been waived.

[00:30:41] Speaker 01:
that there's nothing that we can point to in Judge Carter's factual findings that rise to the level of pure implausibility and being completely illogical, which would be the standard under the pump wonder.

[00:30:52] Speaker 05:
Why do you think it's a fact question?

[00:30:54] Speaker 05:
I mean, wouldn't it be a legal question whether something counts as consent?

[00:30:57] Speaker 05:
I mean, if we have this language and we have to figure out is that kind of warning enough, isn't that a legal question?

[00:31:03] Speaker 01:
That is a legal question if Sodexo carries its factual burden of evidencing it, which our contention is that they did not do that at the district court.

[00:31:12] Speaker 05:
Well, I think there was a dispute about whether you got the 2021 document, but I thought you got the 2022 document and also the 2018 document.

[00:31:23] Speaker 01:
Well, and I think this is part of part of the issue about why this is in London.

[00:31:42] Speaker 01:
with respect to the other things, the 2021 email, the only evidence in the record regarding that is Mr. Platt's statement that he went back and looked and he did not receive it.

[00:31:54] Speaker 01:
And then as the proponent of the arbitration provision, the alleged agreement, it would be Sodexo's burden to show that he did and they did not carry that.

[00:32:03] Speaker 01:
And then if you try to follow their reasoning, they say they had a corporate executive put in a text and say, well, we don't know

[00:32:16] Speaker 01:
and something would have been mailed to him.

[00:32:18] Speaker 01:
Mr. Platt says he has no recollection of receiving it.

[00:32:20] Speaker 01:
They have no evidence of sending it.

[00:32:23] Speaker 01:
And in fact, the only evidence is that he says he did not receive the email and they did not provide evidence they sent it.

[00:32:30] Speaker 01:
So it doesn't really make sense to me to then give them the benefit of the doubt that, well, they don't have a record of sending him

[00:32:45] Speaker 03:
say that the language was included, why do you think it's not sufficient notice?

[00:32:51] Speaker 01:
I think that you have to have informed consent.

[00:32:55] Speaker 01:
You know, if you look at lamps and basically every Supreme Court case that has addressed consent in the context of arbitration, they say it's strictly a matter of consent.

[00:33:06] Speaker 01:
Just by continuing to participate,

[00:33:23] Speaker 01:
in the future.

[00:33:25] Speaker 01:
That's not sufficient under the FAA and under this courts Jackson v. Amazon case to create a binding agreement to arbitrate absent something else.

[00:33:34] Speaker 05:
So I think Jackson was applying California law, maybe Washington law, state law.

[00:33:40] Speaker 05:
This would be federal common law.

[00:33:41] Speaker 05:
So do we have a federal common law rule on what kind of consent is needed to

[00:34:07] Speaker 01:
of California law.

[00:34:09] Speaker 01:
And so I don't think it really makes sense to say that federal law, whichever it may be, is going to be wildly different from California state law.

[00:34:21] Speaker 01:
Consent is consent.

[00:34:23] Speaker 01:
And here, as a matter of fact, Judge Carter found that there was no consent based on the heaven and earth record.

[00:34:29] Speaker 05:
Is it your understanding that Judge Carter did not consider this language as their

[00:34:40] Speaker 05:
that you think it wasn't raised in the district court?

[00:34:44] Speaker 01:
That's my recollection.

[00:34:45] Speaker 01:
I don't remember having any argument on that below.

[00:34:48] Speaker 01:
But I think that we can assume that Judge Carter properly evaluated all the arguments that were raised and gave the factual propositions the way that they deserved.

[00:34:57] Speaker 01:
I think he's owed that deference under the clear error standard.

[00:35:06] Speaker 01:
And lastly, Your Honor, I think

[00:35:09] Speaker 01:
When we talk about effective indication, when we talk about the 502A1B claim, I think that would be remiss if I didn't mention this.

[00:35:22] Speaker 01:
The question obviously of whether or not it states a claim is something for the district court to decide.

[00:35:27] Speaker 01:
We think that it plainly does under the Forsyth versus Humana case that we cite in our papers, which stands for the proposition that

[00:36:03] Speaker 01:
that claim should be compelled into arbitration beyond the defendant's position of their responsibility.

[00:36:08] Speaker 05:
So could I just try to give an outline of what's going on here?

[00:36:10] Speaker 05:
So your primary argument as to the individual claims is lack of consent.

[00:36:15] Speaker 05:
Correct.

[00:36:15] Speaker 05:
But you also have claims on behalf of the plan, or at least a claim on behalf of the plan.

[00:36:19] Speaker 05:
We haven't talked about that, I don't think, at all yet with you.

[00:36:22] Speaker 05:
So for the claim on behalf of the plan, I think the argument on the other side anyway is all that matters for the consent is the plan's consent.

[00:36:32] Speaker 05:
Do you have an argument against that that you want to mention before you sit down?

[00:36:37] Speaker 01:
Yeah, the argument against that is going to be similar to what we heard from the Havasia case, which is that the only ways that we view that you can read Comer v. Micor and Monroe v.

[00:36:58] Speaker 05:
when we're going to get to the vindication and the unconscionability as to the claim for the plan, as the arbitration issue of the claim against the plan.

[00:37:08] Speaker 05:
That's correct.

[00:37:10] Speaker 01:
I would make one quick note on that that I think dovetails nicely with something that your honor had said earlier, which is that I think the idea that those claims are exclusively

[00:37:30] Speaker 01:
matters and the participants consent doesn't matter.

[00:37:47] Speaker 01:
the FAA on contract formation.

[00:37:50] Speaker 01:
Because if it's true that what was said in Comer, that the claim really does, the cause of action belongs to the participant, while the relief belongs to the plan, then I think it does follow that the participant's consent is necessary.

[00:38:05] Speaker 01:
And I think the only way that you can get around that and draw a distinction between Comer and it being in a plan document versus in some other collateral document that provides the plan's consent,

[00:38:24] Speaker 01:
And I think that that's not consistent with this court's case law.

[00:38:29] Speaker 01:
So we would ask that your honors.

[00:38:57] Speaker 02:
And as referenced, I'm here to discuss the effective vindication doctrine, which to be clear applies only to the 502A2 claim that plaintiff has brought.

[00:39:08] Speaker 02:
And just to sharpen the question before the panel on this issue, the question is whether courts must enforce a provision in an arbitration agreement.

[00:39:16] Speaker 02:
in an ERISA covered plan that bars participants from bringing a representative proceeding and requires them to assert claims only in their individual capacity.

[00:39:25] Speaker 02:
This court should join the five other circuits that have looked at this issue and found that arbitration provisions are unenforceable when they would deny participants the rights and remedies provided in ERISA.

[00:39:37] Speaker 02:
So just briefly, the court has already, I think, heard a bit about the nature of the claim under Section 502A2.

[00:39:48] Speaker 02:
only a representative claim that is brought on behalf of the plan.

[00:39:51] Speaker 02:
There is no individual claim available under section 502A2.

[00:39:58] Speaker 02:
And in fact, appellants agree with that point, at least thus far, as for their consent argument, noting in their brief that A2 claims belong to the plan, not the participant.

[00:40:09] Speaker 02:
And so the representative action waiver here directly bars participants from asserting that claim in arbitration.

[00:40:20] Speaker 02:
cannot alter or abridge substantive rights.

[00:40:23] Speaker 02:
And it has held that the representative action is a matter of substance and not procedure.

[00:40:29] Speaker 02:
And so putting those together, the arbitration provision here, bars.

[00:40:34] Speaker 05:
Can you just help me with where you think they held that this action, that it's a matter of substance?

[00:40:41] Speaker 05:
Because I think I looked at the site in your brief and didn't quite think that it said what you were saying.

[00:40:45] Speaker 05:
What are you relying on for that?

[00:40:47] Speaker 02:
Sure, so largely Viking River, that's the most recent.

[00:40:50] Speaker 02:
Supreme Court cases on this issue.

[00:40:53] Speaker 02:
And there, that's not an emergency case.

[00:40:54] Speaker 02:
But it did discuss in quite a lot of detail the distinctions between a representative action on one hand, which is brought by a single agent on behalf of a single principal, and compared that and contrasted that to a claim-joinder or a class action procedure where one individual litigant can bring together, can aggregate together other individual claims

[00:41:24] Speaker 02:
where, again, a single-agent, single-principle claim and the court in Viking River said that that represented an action as a matter of substantive rather than procedural law.

[00:41:37] Speaker 02:
And the other way you can... Do you know what page reference you're using for that?

[00:41:42] Speaker 02:
Yes, that's 656 at Viking River, 596 U.S.

[00:41:47] Speaker 02:
at 656, explaining that the non-class representative action is part of substantive law.

[00:41:55] Speaker 02:
And then it goes on to give examples that are helpful here.

[00:41:58] Speaker 02:
One of those examples is a trustee action, and that I think is quite analogous to the A2 claim

[00:42:09] Speaker 02:
authorizes a participant in the same manner as it authorizes a fiduciary or the secretary to bring a representative action on behalf of the plan to redress harm to the plan.

[00:42:24] Speaker 02:
I'd like to speak briefly about Appellant's reading of the provision, which, again, they on the one hand seem to concede that an A2 claim belongs to the plan.

[00:42:35] Speaker 02:
But they also argue as an effective indication issue that plaintiff could somehow still bring an E2 claim on an individualized basis and seek individualized recovery.

[00:42:47] Speaker 02:
And again, we don't believe that's the case based on the nature of the claim being inherently representative.

[00:42:52] Speaker 02:
But even if we take that as true, then the provision would operate exactly the same as the provisions at issue in the other five circuit cases,

[00:43:07] Speaker 02:
And so in an appellant's reading, this provision operates in exactly the same way and cuts off the plan-wide remedies that are available under 409 and 502 by 2, and would limit the claimant to only his individual, for some sort of individual recovery.

[00:43:26] Speaker 02:
And then finally, just a brief note on Dormin 2, which appellants have relied on to support the idea of an individualized arbitration.

[00:43:35] Speaker 02:
So first, Dormin 2, if it's relevant at all, is relevant only to defined contribution plans, which is not the issue here.

[00:43:44] Speaker 02:
But we would also suggest that Dormin and the way that Dormin read Le Rue to support the idea

[00:44:05] Speaker 05:
this ban on the representative action.

[00:44:09] Speaker 05:
It seems like you think we need to look at severability, though.

[00:44:12] Speaker 05:
So the Secretary is not taking a position on severability or the other mechanics of the provision.

[00:44:16] Speaker 05:
I know you're not taking a position on whether it's severable, but are you taking a position that we need to think about whether it's severable?

[00:44:24] Speaker 02:
I mean, I think the Court would need to make some sort of decision as to how to move forward with where the matter would proceed, of course.

[00:44:37] Speaker 05:
So sorry, I know you don't want to tell us whether it is separable.

[00:44:41] Speaker 05:
But do we need to ask whether it's separable, or you don't want to tell us the answer to that either?

[00:44:45] Speaker 02:
I think the only point I'm authorized to make is that this provision, the representative action waiver, cannot be enforced.

[00:44:54] Speaker 02:
And beyond that, I will leave it to the other parties to address.

[00:44:59] Speaker 02:
Thank you.

[00:45:00] Speaker 05:
Thank you.

[00:45:08] Speaker 05:
I don't have any time left, so let's put three minutes on the clock.

[00:45:11] Speaker 05:
We'll do three.

[00:45:19] Speaker 06:
I'm going to speak very quickly, despite my Southern upbringing, because I want to hit these very important points on effective vindication.

[00:45:26] Speaker 06:
Really important here.

[00:45:27] Speaker 06:
In Monroe, the court made clear that you don't even get to an effective vindication argument unless you demonstrate a conflict between two federal statutes.

[00:45:35] Speaker 06:
But the amici and Mr. Platt have

[00:45:40] Speaker 06:
So we don't even talk about effective vindication, point one.

[00:45:44] Speaker 06:
But since we are, to try to meet their burden, Mr. Platt and the amici rely heavily on this quintet of cases from other circuits, all finding that in the A2 context, the effective vindication doctrine means you can't have a waiver of a representative action.

[00:46:06] Speaker 06:
But then when they get to Dorman, and I'm sorry, let me step back.

[00:46:12] Speaker 06:
contribution context.

[00:46:15] Speaker 06:
When they get to Dormin 2, which was also in the defined contribution context, because it does not help them, they suddenly say Dormin 2 doesn't apply.

[00:46:23] Speaker 05:
Well, Dormin 2 is not published, so at least in my view, we act as if it doesn't exist.

[00:46:29] Speaker 06:
Fair enough.

[00:46:29] Speaker 06:
I'm just responding to their point that it doesn't apply because the difference here is that this is a health plan.

[00:46:35] Speaker 06:
Well, if that's the distinction that needs to be drawn, then that

[00:46:50] Speaker 05:
asking to answer this question without talking about Dormin-2.

[00:46:53] Speaker 05:
So why would effective vindication not apply to a health plan?

[00:47:00] Speaker 06:
Well, this is what they're arguing, Your Honor.

[00:47:02] Speaker 06:
They're arguing that a defined contribution context case, just said it, should not apply here because this is a health plan case.

[00:47:13] Speaker 05:
Okay, I'm going to ignore what she said about Dormin-2 and I'm going to ignore what you said about Dormin-2, so just give me an argument.

[00:47:24] Speaker 06:
I think it's not so much that effective vindication doesn't apply as the cases that are being relied upon don't apply because they are all outside of the health plan context.

[00:47:33] Speaker 06:
And why should that matter?

[00:47:34] Speaker 06:
Because in the DC plan, the defined contribution context, you have individual accounts and that's what LaRue was all about.

[00:47:42] Speaker 06:
The case which the Amici and Platt rely so heavily on, the Supreme Court's case of LaRue versus DeWolf was in the defined contribution context.

[00:48:00] Speaker 06:
that the Supreme Court in LaRue and in Russell made reference to claims on behalf of the plan for an A2 claim.

[00:48:09] Speaker 06:
But to be sure, the LaRue case was about someone who was bringing an individual claim.

[00:48:14] Speaker 06:
And the issue in LaRue was whether an individual

[00:48:22] Speaker 06:
a 401K plan could be brought under 502A2, and the court held that it could.

[00:48:29] Speaker 06:
So, if you look at LaRue, what it really stands for, and this is what Dorman, too, said, which is you can bring an individualized claim under 502A2.

[00:48:51] Speaker 06:
defined benefit context.

[00:48:53] Speaker 06:
And in that case, the issue was not whether you can waive a representative action, nor was that issue present in LaRue.

[00:49:00] Speaker 06:
The issue in Russell was only whether extra contractual damages were available under ERISA in an A2 claim, and the court held that they were not.

[00:49:09] Speaker 06:
The court correctly held that.

[00:49:11] Speaker 06:
But I think the Sudanuk descent in this case, which is one of the quintet, actually makes an extremely important point, and that

[00:49:24] Speaker 06:
the Thole versus US bank case.

[00:49:27] Speaker 06:
And in that case, and if you don't mind, I'm going to quote the language to you.

[00:49:31] Speaker 05:
I think we're over time.

[00:49:33] Speaker 05:
So I think you've named the case and we can read it.

[00:49:34] Speaker 05:
We don't need you to read it to us.

[00:49:36] Speaker 05:
I think you should wrap up if you could.

[00:49:38] Speaker 05:
Thank you, Your Honor.

[00:49:39] Speaker 05:
So we'd ask the court to reverse and revamp.