[00:00:02] Speaker 02:
Good morning.

[00:00:03] Speaker 03:
Good morning, Your Honors.

[00:00:04] Speaker 03:
May it please the Court, I am Michael Clark, appearing on behalf of Appellant Miss Combs.

[00:00:10] Speaker 03:
I would first ask to reserve perhaps three minutes in rebuttal.

[00:00:13] Speaker 03:
My initial comments are very brief.

[00:00:16] Speaker 03:
I would first indicate I believe our position was spelled out quite thoroughly in our brief to the Court.

[00:00:24] Speaker 03:
The issue here

[00:00:26] Speaker 03:
At least from our perspective is is fairly straightforward.

[00:00:30] Speaker 03:
I think it involves an analysis of the catered case Which we believe was not analyzed correctly or applied by the lower court In terms of the legal issue this case involves the accrual versus Well, let me back up it essentially involves when the

[00:00:53] Speaker 03:
Ms.

[00:00:53] Speaker 03:
Combs claim arose.

[00:00:56] Speaker 03:
The Cater Court drew distinctions between.

[00:00:59] Speaker 01:
Council, as you're discussing this, I'd also appreciate your commenting on when you think the dispute arose because the statute refers both to the accrual of a claim and the arising of a dispute.

[00:01:18] Speaker 03:
Thank you, Your Honor.

[00:01:20] Speaker 03:
Quite frankly, the dispute arose

[00:01:22] Speaker 03:
when our client received her right to sue letter.

[00:01:25] Speaker 03:
I think there can be an argument made that a dispute perhaps arose, although we don't agree with that when she filed the actual complaint with the FIHA.

[00:01:37] Speaker 03:
But it's certainly the dispute arose when the right to sue letter was received by our client.

[00:01:43] Speaker 04:
What do we do with the fact that that's an ex-party, right?

[00:01:49] Speaker 04:
I mean, it's not like

[00:01:52] Speaker 04:
Netflix hasn't joined, if that's the dispute, Netflix arguably hasn't joined it yet.

[00:01:57] Speaker 04:
Correct.

[00:01:58] Speaker 03:
And I would clarify further, in any event, a dispute in cases like this arises once the party against whom the complaint is made responds.

[00:02:10] Speaker 01:
For example... Counsel, here, the very problem is that the defendant didn't respond.

[00:02:18] Speaker 01:
So if someone complains,

[00:02:21] Speaker 01:
vociferously about their situation, and they get no response.

[00:02:29] Speaker 01:
Isn't that a form of response where silence doesn't equal consent, but maybe is willful disagreement or ignoring the complaint?

[00:02:43] Speaker 03:
We would argue, and I think we did touch upon that in our brief, that silence certainly would not give our client notice that Netflix was disputing her claims.

[00:02:54] Speaker 03:
I think by its very nature, the court should hold defendants' feet to the fire, so to speak.

[00:03:02] Speaker 03:
Speaking and making one's position known would be a clear indication or evidence that a dispute has occurred.

[00:03:08] Speaker 01:
How about being fired?

[00:03:12] Speaker 01:
Is that an expression of disagreement with what the plaintiff was saying?

[00:03:21] Speaker 03:
Our position is it is not, or at least that was not made clear.

[00:03:25] Speaker 03:
Our client did not file any complaints formally, though we do recognize she complained to supervisors or various other individuals in the corporation.

[00:03:37] Speaker 03:
Netflix

[00:03:40] Speaker 03:
did not give her any indication that they denied her allegations.

[00:03:45] Speaker 03:
In terminating her, they were simply at best making an employment decision.

[00:03:50] Speaker 01:
There's, I don't think there's a- Which you claim was expressly retaliatory for the things that she had said, so.

[00:03:57] Speaker 01:
Yes.

[00:03:57] Speaker 01:
I mean, so why isn't that a dispute or at least the firing is when the claim accrues?

[00:04:09] Speaker 03:
Well, my first response would be Netflix never advised our client of that.

[00:04:13] Speaker 03:
Netflix never advised our client that they disagreed with her allegations.

[00:04:18] Speaker 03:
Their disagreement would be a clear signal to our client that they were disputing it.

[00:04:23] Speaker 03:
Firing her could have been an effort to just simply bury the truth or cover it up.

[00:04:29] Speaker 02:
Can I ask just the rule you're asking us to adopt?

[00:04:33] Speaker 02:
Are you arguing that a dispute doesn't arise

[00:04:37] Speaker 03:
unless there's an external legal complaint filed with a state agency or a court is that the position you're advocating for not strictly your honor okay so what is the position and will the the position is a dispute arises when first of all both parties are aware of it secondly the party against whom as in this case netflix complaints are made

[00:05:01] Speaker 02:
response here affirmatively or negatively so here that the complaint alleges that your client made a number of complaints to management uh... about this conduct yes if netflix had sent a response saying we reject your accusations would you have said that that was a dispute and that arose at that point

[00:05:23] Speaker 03:
I think it's arguable that under what I had just defined as a dispute, some form of a dispute would arise.

[00:05:30] Speaker 03:
Now, I do think it's a different context in terms of legal action or litigation or pursuing claims under various statutes.

[00:05:38] Speaker 03:
But to answer your honor's specific question, under my definition, it would seem that would be some form of dispute.

[00:05:43] Speaker 03:
Yes.

[00:05:43] Speaker 02:
Right.

[00:05:43] Speaker 02:
So I guess, I mean, at that point, when we have allegations that your client made many complaints and that Netflix then

[00:05:53] Speaker 02:
When Netflix was aware of the complaints and then didn't do anything about it, why wouldn't we say at that point that there was at least constructively a dispute because she wanted them to do something and they weren't?

[00:06:06] Speaker 03:
I think it would fall sort of neatly with other types of litigation, employment-related litigation.

[00:06:15] Speaker 03:
There are situations where employees complain.

[00:06:18] Speaker 03:
adverse actions are taken, the court's well aware of the high number of employment-related litigation, we don't think it's sufficient as a matter of law for a company to simply ignore complaints and then later complain or argue.

[00:06:36] Speaker 03:
Well, the dispute arose, so-and-so is out of time.

[00:06:39] Speaker 03:
That might just invite employers, particularly

[00:06:42] Speaker 02:
We're not at a time.

[00:06:43] Speaker 02:
I mean, this is a question, you know, no one's decided that yet, that the district court didn't decide that.

[00:06:48] Speaker 02:
I know that an argument's been made in the alternative, but all that's really the main issue is just where is this going to take place in court or in arbitration?

[00:06:55] Speaker 03:
Correct.

[00:06:55] Speaker 03:
And at the end of the day, we are asking the court to make it possible for our client to bring her sexual harassment claims to court while keeping in mind the intent behind

[00:07:10] Speaker 03:
the Ending Enforced Arbitration Act.

[00:07:12] Speaker 03:
We think this court's decision today is directly implicated with Congress's intent.

[00:07:19] Speaker 04:
Well, what, I mean, I take a look at when we're talking about the dispute, the dispute occurs up in 401-4.

[00:07:27] Speaker 04:
They talk about it means a dispute relating to conduct that is alleged to constitute sexual harassment.

[00:07:33] Speaker 04:
If the, what I'm trying to understand is the difference between a dispute and a claim.

[00:07:37] Speaker 04:
You'd start with a claim.

[00:07:39] Speaker 04:
But it is your claim, and there's a question of accrual, but it is your claim under California law that that failure to respond is itself the actionable harassment.

[00:07:55] Speaker 04:
I mean, at least under one of the statutes, right?

[00:07:57] Speaker 04:
For California law, it says that the employer either has to knows or should have known and fails to take immediate or appropriate corrective action.

[00:08:05] Speaker 04:
So that is the claim.

[00:08:08] Speaker 04:
Can that also be the dispute?

[00:08:10] Speaker 03:
The silence in response to the employees complaint That is a very interesting question I do I'm just trying to make sense of the statute right right and and it could be that that This is an area of the statute that is maybe somewhat contradictory or or not reconcilable Our reading is I think more on the official side the filing of claims with governmental entities what an internal

[00:08:39] Speaker 03:
process a formal internal process do it I would indicate perhaps but again I would also add depending on the response if let's say my client goes internally and says all of the complaints broadly sexual harassment and internally

[00:08:59] Speaker 03:
they say, we agree, then there's no dispute.

[00:09:02] Speaker 04:
But then there would also be, I mean, I understand the question of arbitration primarily to be arising in employer discrimination liability cases, not co-employees.

[00:09:13] Speaker 04:
So that's where the arbitration will be.

[00:09:15] Speaker 04:
And in all of those cases, or at least in most of these claims, that wouldn't be a claim either.

[00:09:23] Speaker 04:
You would have satisfied it.

[00:09:24] Speaker 04:
So I'm trying to prevent these two from collapsing and demeaning the same thing.

[00:09:29] Speaker 04:
mind run of cases under which arbitration agreements would cover sexual harassment claims.

[00:09:35] Speaker 03:
I would encourage the court to adopt a view akin to silence by the employer, as in this case, cannot inform us of the nature of the dispute because the employer, by their silence, hasn't contributed to... But the employer was silent after you filed your administrative claim and got your right to sue letter too.

[00:09:58] Speaker 04:
doesn't seem like that can be essential to it either.

[00:10:02] Speaker 04:
In terms of the, what was the nature of the complaints made internally?

[00:10:11] Speaker 04:
I mean, they seem to be kind of certainly fact-based and don't do this.

[00:10:17] Speaker 04:
Was there a statement made that this is a violation of my state employment rights?

[00:10:24] Speaker 03:
Drawing from my memories, I believe there were allegations in the complaint where our client indicated to various supervisors over the course of her employment.

[00:10:36] Speaker 03:
I could not identify specifically the details of those complaints.

[00:10:41] Speaker 02:
I mean, even assuming your legal position is correct, I don't see how

[00:10:51] Speaker 02:
the case could just automatically remain in the district court without further inquiry because you've alleged obviously that your client made complaints that were met with silence but but i would think the other side if that's the if that is it insufficient i think the other side would have at least have the opportunity to say well no we we need discovery on that to be able to determine well you know maybe they disagree with you on that would come forward and say no we we did actually uh... reject your client's accusations so i mean i don't

[00:11:19] Speaker 02:
Even on, that's why I thought your argument was really more about the external legal complaint being the key thing here, because we know that that was filed after March 2023 or March 2022, and that would get you all the way home.

[00:11:34] Speaker 02:
But if the issue turns on the nuances of the internal complaints, it would seem that there would need to be discovery.

[00:11:40] Speaker 03:
We don't believe they turn on those nuances, but I also understand

[00:11:45] Speaker 03:
there may be a lack of information.

[00:11:47] Speaker 03:
Quite frankly, we've not heard that.

[00:11:49] Speaker 03:
That's not come up between the parties or in any briefing below.

[00:11:53] Speaker 03:
But the impotence, the impetus to many kinds of employment related claims of the failure of supervisors or individuals with authority to respond, to act in time or to act in any way.

[00:12:06] Speaker 03:
And that's kind of where our argument comes with respect to the internal complaint structure.

[00:12:11] Speaker 04:
But that's just, but again, that that seems to be describing a claim.

[00:12:14] Speaker 04:
And if we understand

[00:12:15] Speaker 04:
what Congress is trying to do, maybe it's being redundant, but if we understand that what Congress is trying to do is to enhance the protections and keep the courthouse doors open to a larger class of claims, it seems like it's not the most natural reading to treat those as the same thing.

[00:12:33] Speaker 04:
Again, if that's the dispute, that is going to be most of the claims to the employers in action.

[00:12:40] Speaker 03:
And I would just indicate that

[00:12:42] Speaker 03:
With respect to most or all arbitration clauses, these are disputes that arise out of the employment.

[00:12:49] Speaker 03:
Most of them force these litigants into arbitration because of those types of claims.

[00:12:55] Speaker 03:
To then look back, so to speak, and then examine what an employee did or did not do in terms of trying to seek redress within the HR department, for example, would seem to me to frustrate the act itself.

[00:13:10] Speaker 02:
Okay.

[00:13:11] Speaker 02:
Do you want to save some time for rebuttal?

[00:13:13] Speaker 02:
Yes, please.

[00:13:13] Speaker 02:
Okay.

[00:13:14] Speaker 02:
Thank you.

[00:13:15] Speaker 02:
Thank you.

[00:13:21] Speaker 00:
Good morning and may it please the court.

[00:13:23] Speaker 00:
Ashley Pickett appearing on behalf of appellee Netflix Inc.

[00:13:27] Speaker 00:
The district court correctly compelled arbitration in this case and its ruling should be affirmed for two independent reasons.

[00:13:35] Speaker 00:
First, appellant's complaint alleges real-world conflict and thus a dispute between the parties years before the EFAA was enacted.

[00:13:45] Speaker 00:
Separate and independently, appellant alleges a sexual harassment claim that is time-barred is therefore not plausible and thus cannot be used to invoke the EFAA.

[00:13:59] Speaker 04:
Well, on the first question about what a dispute is, I understand

[00:14:03] Speaker 04:
real world conflict, that may be kind of a good general semantic question, but we're trying to figure out what Congress meant by these words.

[00:14:13] Speaker 04:
And there are these other terms in the statute that, first of all, the fact that dispute and claim are juxtaposed with one another.

[00:14:21] Speaker 04:
Maybe they mean the same thing, but maybe they don't.

[00:14:25] Speaker 04:
And then elsewhere, when they talk about, when Congress actually describes what a sexual harassment dispute is, it talks about allegations

[00:14:33] Speaker 04:
or is alleged to violate state law in this case.

[00:14:39] Speaker 04:
So in trying to figure out what the statute means rather than what the word dispute means, I mean, can you help me with that?

[00:14:46] Speaker 04:
Let's take the first one.

[00:14:48] Speaker 04:
Doesn't every dispute under this definition, almost every dispute, line up with, overlap with the claim when an employer fails to take action?

[00:14:59] Speaker 04:
If the employer takes corrective action, there's no claim.

[00:15:01] Speaker 04:
If the employer is silent,

[00:15:04] Speaker 00:
uh... there is a claim respectfully no your honor okay um... congress was very intentional it drew a clear temporal line and used two distinct concepts of when a conflict can come into existence i'm with you so far when a dispute arose and when a claim accrues a dispute arises when there is real world conflict

[00:15:28] Speaker 00:
a claim accrues when there's legal readiness.

[00:15:31] Speaker 00:
Now, the parties are in agreement that a claim accrues when all elements of that claim have occurred and the plaintiff is entitled to bring a claim to seek legal redress.

[00:15:43] Speaker 00:
The question as to when a dispute arises has been held by various circus courts.

[00:15:50] Speaker 00:
Courts have consistently held that while filing, or in this case, evidently a right to sue notice being issued, may be evidence of dispute, of a dispute.

[00:16:00] Speaker 00:
It's not the definition one, of one, which appellant is really asking this court to hold.

[00:16:05] Speaker 00:
Legislature, the legislature knew what it was doing.

[00:16:08] Speaker 00:
Congress knew what it was doing.

[00:16:09] Speaker 00:
If it intended to say that a dispute arises upon filing or upon receipt of a right to sue notice, it would have said that.

[00:16:17] Speaker 00:
It didn't.

[00:16:18] Speaker 00:
We have to give independent meaning

[00:16:20] Speaker 00:
to the separate and distinct legal terms that the court put forward.

[00:16:24] Speaker 02:
So in your view, does this turn on her allegations that she made internal complaints within the company?

[00:16:31] Speaker 00:
Yes, Your Honor.

[00:16:32] Speaker 00:
And the Cornelius decision by the Third Circuit is directly on point in that regard.

[00:16:37] Speaker 00:
There, the Third Circuit held that a dispute arises when the parties become adverse in the real world.

[00:16:44] Speaker 00:
So when there is a grievance, and that grievance is met with some kind of resistance,

[00:16:50] Speaker 00:
importantly.

[00:16:51] Speaker 04:
Where is the resistance?

[00:16:52] Speaker 04:
In Cornelius, the allegation was that the employer discriminatorily dismissed the complaints, and here the allegation is silence.

[00:17:03] Speaker 00:
They are actually the same.

[00:17:05] Speaker 00:
In Cornelius, it was alleged that the employer constructively resisted the complaints by, quote, doing nothing.

[00:17:12] Speaker 00:
Here, appellant claims

[00:17:15] Speaker 01:
I was just going to say there's also the formulation in the Castillo case, which I think is slightly different, but maybe consistent with the Third Circuit.

[00:17:30] Speaker 01:
It was not a circuit case, but the court has said that a dispute arises when the conduct which constitutes the alleged sexual harassment occurs.

[00:17:44] Speaker 01:
whereas the claim accrues when the plaintiff has a complete and present cause of action.

[00:17:49] Speaker 01:
Is that too broad?

[00:17:55] Speaker 01:
Because if the employer says, oh my goodness, you're right, we're gonna take action against the person who's bugging you, then maybe there was a dispute, but it was resolved.

[00:18:13] Speaker 01:
Or maybe there was no dispute, I guess I'd like.

[00:18:17] Speaker 00:
Certainly.

[00:18:17] Speaker 00:
So what the Third Circuit's holding in Cornelius shows us is that when a grievance is met with resistance, and that can be met with either express resistance, a formal letter saying, we do not agree with you, or constructive resistance, there in that case, the appellant claimed that the employer did nothing.

[00:18:39] Speaker 00:
That is the same as what appellant claims here.

[00:18:42] Speaker 00:
She claims that in 2018 she was sexually harassed, that in 2018 she made a complaint to her employer, and that her employer ratified that sexual harassment, importantly, by choosing to do nothing, by choosing not to take constructive action in response to her complaints.

[00:18:59] Speaker 00:
Now, not only is this case akin and very similar and right on point with Cornelius, which is very well reasoned,

[00:19:07] Speaker 00:
But we have something more here that Cornelius didn't even have.

[00:19:10] Speaker 00:
We have a claim in Appellant's complaint, in her pleading, that Netflix further terminated her in retaliation for making sexual harassment complaints.

[00:19:21] Speaker 00:
So while I believe that the case law supports that the record is clear, that internal complaints as early as 2018 are when the dispute arose, the precise date

[00:19:32] Speaker 00:
of that internal complaint rising to the level of a dispute is really an academic exercise because here we also have a termination based on sexual harassment complaints as alleged by claimants.

[00:19:45] Speaker 04:
And how is that not also the same time the claim accrues?

[00:19:50] Speaker 00:
It may be in some instances.

[00:19:52] Speaker 04:
Again, I guess I'm worried that it is going to be in almost all instances and then we've got superfluity.

[00:20:00] Speaker 00:
I think we're confusing claim accrual with a dispute arising.

[00:20:03] Speaker 00:
It could be, for instance, when the claim accrues for wrongful termination, but it is not when the dispute between the parties first arose.

[00:20:11] Speaker 00:
The dispute between the parties first arose when the parties had a conflict between them.

[00:20:17] Speaker 00:
Here, that happened.

[00:20:18] Speaker 04:
What purpose do you think Congress was trying to serve by?

[00:20:22] Speaker 04:
I think Judge Graber's example suggests that sometimes the dispute may come well before

[00:20:28] Speaker 04:
the accrual of the claim on that definition.

[00:20:30] Speaker 04:
So what was – claim accrual is a very common term, right?

[00:20:36] Speaker 04:
That's no surprise.

[00:20:37] Speaker 04:
We know how that works when Congress is trying to figure out exactly how it's going to phase in legislation, right?

[00:20:42] Speaker 04:
That we're used to.

[00:20:43] Speaker 04:
What work is dispute doing that advances the policy of Congress in this act?

[00:20:51] Speaker 00:
I think it is showing Congress's recognition that while it is a prospective statute, it explicitly is not a retroactive statute, that there are various ways that conflict can arise.

[00:21:02] Speaker 00:
And so dispute can arise in many instances after a claim accrues.

[00:21:07] Speaker 00:
The member court in the Sixth Circuit, for instance, noted that sometimes in sexual harassment claims, hostile work environment claim can only accrue after, or excuse me, a dispute can arise after a complaint accrues.

[00:21:20] Speaker 00:
due to severity and pervasiveness, for instance.

[00:21:24] Speaker 00:
But they are two distinct notions.

[00:21:26] Speaker 00:
So it's, to your point, I think furthering Congress's intent by not limiting it just to claim accrual, it's giving more opportunities.

[00:21:36] Speaker 00:
Dispute arising is a broader term, but it's not a narrow term.

[00:21:39] Speaker 00:
It's not required to be when a filing is made at a party's subjective determination.

[00:21:48] Speaker 04:
Well, how do we know?

[00:21:49] Speaker 04:
I mean, so that there's, I mean, if it is such a broad term, how do we know it when we see it?

[00:21:58] Speaker 04:
The courts of appeals are, I mean, as you point out, they generally tend to be taking a reading that seems at first glance to be more aligned with your position.

[00:22:12] Speaker 04:
But they're kind of all over the map, right, in terms of there's one that says, well, it actually does look more like formal letters and formal process afterwards.

[00:22:22] Speaker 04:
And it just doesn't seem like usually when a legislature enacts a law that wants to create kind of bright lines about when things are going to phase into, it's going to get into not just the already fact-intensive but well-established nature of claim or cruel, but add this new

[00:22:42] Speaker 04:
intersubjective question, real-world question of what is or isn't a dispute.

[00:22:48] Speaker 04:
Even if we adopted your position, it's not clear which of the courts of appeals should we line this up with.

[00:22:55] Speaker 04:
So both employers and employees have the guidance that we want to take Congress to have provided.

[00:23:00] Speaker 00:
The circuit decisions have applied the ordinary meaning to dispute.

[00:23:06] Speaker 00:
Respectfully, I think all of the circuit decisions are aligned with appelling Netflix's position here.

[00:23:12] Speaker 00:
Cornelius, we've already hit on the member court in the Sixth Circuit expressly adopted Cornelius's reasoning and simply there it held that the district court made the error that it didn't

[00:23:22] Speaker 00:
distinguished between claim accrual and a dispute arising and therefore remanded simply for that factual question.

[00:23:29] Speaker 00:
So that does not go against Netflix's position.

[00:23:32] Speaker 00:
Again, it supports the Cornelius's reasoning, which is right on point.

[00:23:36] Speaker 00:
Fomuide, which is the Eighth Circuit, similarly was distinguishable here because there was alignment between the parties until after the FAA was enacted, the court found.

[00:23:49] Speaker 00:
That case, you know, it's clearly distinguishable again from what is pled by claimant.

[00:23:56] Speaker 04:
I guess I took the Eighth Circuit case to be focused on more the question of whether there is a legal demand.

[00:24:02] Speaker 04:
There were letters going back and forth and those weren't enough.

[00:24:05] Speaker 04:
There's nothing close to that here.

[00:24:07] Speaker 00:
Respectfully, I disagree and specifically because in Fumui Day, what happened was the plaintiff was subjected to a sexual assault while at work.

[00:24:18] Speaker 00:
She reported that assault to her employer and her employer placed her on the leave she requested and separately was aligned with her and there was no conflict between them because it terminated the assailant.

[00:24:32] Speaker 00:
At that point in time, the Eighth Circuit found again, there was no conflict between the parties.

[00:24:37] Speaker 00:
There was no constructive resistance to the employees complaint.

[00:24:41] Speaker 00:
Quite the opposite.

[00:24:42] Speaker 00:
They were very much aligned.

[00:24:44] Speaker 00:
Now later,

[00:24:45] Speaker 00:
She had attorneys send a litigation hold and a personnel file request to her employer.

[00:24:51] Speaker 00:
Respectfully, I disagree with the Eighth Circuit that that does not show adversity.

[00:24:55] Speaker 00:
But nonetheless, the District Court, excuse me, the Eighth Circuit found that those specific letters were not enough to show the employer and put the employer on notice and show adversity between the parties because a lawsuit was not necessarily going to happen.

[00:25:10] Speaker 00:
It was not saying that they have these claims that they are going to bring.

[00:25:13] Speaker 00:
It was saying, I want my personnel file, please.

[00:25:16] Speaker 00:
And here's the litigation hold.

[00:25:18] Speaker 00:
Again, I don't think, I don't agree with that.

[00:25:21] Speaker 00:
But nonetheless, here, that is very distinct from what we have.

[00:25:23] Speaker 04:
Can I ask you, I guess, about then the second part of my original question to you?

[00:25:30] Speaker 04:
There's ordinary meaning.

[00:25:31] Speaker 04:
There's also kind of context and statutory definitions.

[00:25:35] Speaker 04:
So 401-4, Congress defines a sexual harassment dispute.

[00:25:40] Speaker 04:
as a dispute relating to conduct that is alleged to constitute sexual harassment under applicable law.

[00:25:47] Speaker 04:
Where here, where in this dispute was it alleged that the conduct constituted sexual harassment under applicable law?

[00:26:01] Speaker 00:
Under applicable law.

[00:26:02] Speaker 00:
In 2018, according to the complaint, an appellant alleges that she

[00:26:08] Speaker 00:
specifically complained.

[00:26:11] Speaker 04:
According to the complaint.

[00:26:13] Speaker 00:
Yes.

[00:26:13] Speaker 04:
Okay.

[00:26:14] Speaker 00:
Um, but contemporaneously, I'm sorry, perhaps I'm not understanding your question.

[00:26:18] Speaker 04:
Well, so the, it's eventually alleged.

[00:26:22] Speaker 01:
I think the question is whether when an employee complains, I have been sexually harassed.

[00:26:30] Speaker 01:
That is, or is not the employees allegation of sexual harassment.

[00:26:37] Speaker 01:
Or does it only mean an allegation in some later court document?

[00:26:46] Speaker 00:
Here we have to take plaintiff's allegations as true.

[00:26:48] Speaker 00:
Her complaint alleges that when she complained of sexual harassment,

[00:26:53] Speaker 00:
appelling Netflix specifically opposed or ignored that complaint and thereby ratified that sexual harassment, which made it a claim at that point in time.

[00:27:03] Speaker 02:
She also specifically alleged that it was unlawful.

[00:27:11] Speaker 02:
So I guess maybe the suggestion is did she need to allege it was unlawful under some particular law or was it enough to just say it was unlawful?

[00:27:22] Speaker 00:
I believe it was enough to show that there was adversity between the parties by an employee raising a complaint.

[00:27:28] Speaker 00:
She terms it as a complaint to her employer and the employer, unlike in family day saying, I agree with you.

[00:27:35] Speaker 00:
Let me take these actions are consistent with your position instead doing the inverse here.

[00:27:40] Speaker 00:
And according to appellant not being consistent with her position.

[00:27:45] Speaker 00:
not taking the corrective action that she claims was alleged.

[00:27:48] Speaker 04:
Again, you're falling back to your lead argument dispute.

[00:27:51] Speaker 04:
My question is how do we make sense of how Congress used the word dispute in this act, which says is alleged to constitute sexual harassment.

[00:27:59] Speaker 04:
I think my colleagues have kind of drilled down a little bit on this question.

[00:28:05] Speaker 04:
You can point to the allegations in the complaint, but of course if what Congress had in mind is that

[00:28:13] Speaker 04:
in order for it to be a dispute, it has to have been alleged to do that, then pointing to the complaint suggests that the complaint is the dispute.

[00:28:21] Speaker 04:
I guess the question is whether if, as Congress understood it, the dispute is at some point an allegation of violation of the law, if that's the rule, where would we find that here?

[00:28:33] Speaker 04:
We've heard a couple of different possibilities.

[00:28:36] Speaker 01:
I know you're almost out of time, but I wanted to raise another possibility about what allegation means in that context.

[00:28:46] Speaker 01:
When an employee complains to the employer that they've been subjected to sexual harassment and it's wrong, or it's illegal, or it shouldn't happen, and it turns out later that

[00:29:03] Speaker 01:
their argument is unfounded for one reason or another.

[00:29:08] Speaker 01:
Doesn't alleged simply mean that the claim or dispute or assertion of harassment doesn't have to be valid to trigger the non-arbitration

[00:29:25] Speaker 01:
In other words, a baseless claim when made is still a claim because it's an allegation or a baseless dispute or a baseless assertion.

[00:29:36] Speaker 01:
To me, that is the role that alleged plays, but I would like your take on that as well.

[00:29:46] Speaker 00:
Perhaps, Your Honor.

[00:29:48] Speaker 00:
That is not what's at issue here, though, because we are required again to take

[00:29:54] Speaker 00:
the allegations of the complaint as true for purposes of the appeal and purposes of this record.

[00:29:59] Speaker 00:
Now, importantly, as to Congress's intent, if it was required that a dispute could not arise until a complaint was filed or a right to sue notice was issued, that would mean that EFAA applicability would depend entirely on when a plaintiff arbitrarily chose to file paperwork rather than when the parties

[00:30:24] Speaker 00:
actually became adverse, it would really render no meaning to the word dispute.

[00:30:29] Speaker 00:
It would condense and really collapse the statute into one term, which is distinct from the two separate bases that the Congress intended to include here.

[00:30:42] Speaker 00:
Now, I think that that is important because it shows why

[00:30:48] Speaker 00:
the ramifications of such a ruling, which, similar to here, where the statute of limitations ran on the sexual harassment claims in 2021, prior to the EFAA, such that this is not even a plausible claim, that nonetheless, the concept that a plaintiff can allege untimely, time-barred claims that are not legally viable and thereby invoke the EFAA clearly was not within Congress's intent.

[00:31:16] Speaker 04:
in making it perspective and not really well i guess uh... uh... i mean i guess it it depends uh... congress uh... uh... it might be that congress says at least some sponsors and suggested suggested wanted to open the doors the courthouse for people who were uh... locked out by arbitration agreements and that only describes people who have claims uh... but not yet disputes but by making it

[00:31:43] Speaker 00:
perspective as opposed to retroactive, Congress drew a clear line in choosing to require sexual harassment claims in the future be heard in court and not choosing to reopen past disputes.

[00:31:59] Speaker 00:
It would have made it retroactive and intended otherwise.

[00:32:05] Speaker 02:
We'd like to go over, but that's because there have been questions, so I want to see if Judge Graber or Judge Johns don't have additional ones.

[00:32:12] Speaker 01:
No, thank you.

[00:32:13] Speaker 02:
Thank you very much for your presentation.

[00:32:20] Speaker 03:
One of the concerns I have in listening to my colleague as it relates to the issues before the court

[00:32:38] Speaker 03:
involves this very topic of the accrual versus arising, if you will, of claims versus disputes.

[00:32:48] Speaker 03:
The Cader Court indicated, quote, a dispute arises when one party asserts a right, claim, or demand, and the other side expresses disagreement or takes an adversarial posture.

[00:33:01] Speaker 03:
The purpose of this rebuttal is just to express concerns about what is an adversarial posture.

[00:33:07] Speaker 03:
We have here a case where Netflix didn't actively respond to our client.

[00:33:13] Speaker 03:
They were silent.

[00:33:14] Speaker 04:
Why isn't the allegations, I mean, set aside the allegations, why isn't the complaint to say, I think you are, let's assume that the allegation is, I think you are unlawfully harassing me.

[00:33:33] Speaker 04:
Why isn't that enough to meet at least Congress's definition, if not the dictionary's?

[00:33:37] Speaker 03:
Quite frankly, it's because that's an expression of one's opinions.

[00:33:42] Speaker 03:
There was some talk about allegations.

[00:33:44] Speaker 03:
The key is the response.

[00:33:47] Speaker 03:
Again, in Your Honor's example, Your Honor did not offer a response.

[00:33:51] Speaker 03:
If I may, I could say, well, if the person who's making that complaint then receives a response, no, I didn't do that, there's a dispute.

[00:33:59] Speaker 02:
But here we have a termination.

[00:34:01] Speaker 02:
So it's not a situation only where somebody made complaints that were then

[00:34:06] Speaker 02:
unheeded, there was also the allegation that your client was actually terminated for making those complaints.

[00:34:11] Speaker 02:
So with that, why doesn't it fit within the rule that you read us from Cater?

[00:34:17] Speaker 03:
Well, at that point, our client hadn't filed any action.

[00:34:21] Speaker 03:
We all understand there were some verbal complaints giving her facts.

[00:34:25] Speaker 03:
There do.

[00:34:27] Speaker 03:
She made complaints to supervisors, presumably verbal, but a more formal complaint

[00:34:33] Speaker 03:
Related to the adverse action or the action that she took to be in violation of statute or law That would certainly start a process, but the termination alone Would not start that there's no indication that our client I'm not trying to sound absurd, but our client or any litigant could have been like well.

[00:34:53] Speaker 03:
Thank God I can go get unemployment now that job's over

[00:34:56] Speaker 03:
So I don't think that would be enough.

[00:34:58] Speaker 03:
Absent some more facts, complaining to a supervisor, then getting fired, I don't think legally triggers any of the rules or procedures under the EFAA or anything that would be required under cater.

[00:35:13] Speaker 03:
The rest of the, well, with respect to the adversarial posture, my concern is to the extent

[00:35:20] Speaker 03:
There's inaction by Netflix here, meaning they said nothing.

[00:35:25] Speaker 03:
I would encourage the court not to find that to be any sort of adversarial action.

[00:35:30] Speaker 03:
It's silence.

[00:35:31] Speaker 03:
It's moot.

[00:35:33] Speaker 03:
And the danger, as I see it, would be any savvy employer, whether they were acting on advice or just happened to keep up with this court's opinions, could then say, hey, we have complaints, or when we have complaints of whatever nature, say nothing.

[00:35:50] Speaker 02:
So are you asking us then to just disagree with the Third Circuit in the Cornelius case?

[00:35:56] Speaker 03:
I think this court should follow the catered case which came out of this district or this court circuit, or the district court here.

[00:36:07] Speaker 03:
I think it's- The state court case, but- Right, right.

[00:36:11] Speaker 03:
That case was decided out of California.

[00:36:14] Speaker 03:
I think the catered case has more value because of that.

[00:36:18] Speaker 02:
Okay.

[00:36:19] Speaker 02:
We've let you go a little bit over your time and I want to thank you for your presentation.

[00:36:22] Speaker 02:
Thank both counsel for the helpful briefing and argument.

[00:36:25] Speaker 02:
This case is submitted.

[00:36:26] Speaker 02:
That concludes our calendar for this morning.

[00:36:28] Speaker 02:
We'll stand in recess until tomorrow morning.