[00:00:00] Speaker 04: A helpful dialogue. [00:00:02] Speaker 04: We'll move on to the next case this morning, which is also an arbitration case. [00:00:09] Speaker 04: Odell versus Aya. [00:00:13] Speaker 04: And I believe Mr. Hughes will be starting us off. [00:00:23] Speaker 04: The same drill as last time when you come up [00:00:28] Speaker 04: state your name for the record and then and then let us know how much time on reserve for a bottle. [00:00:32] Speaker 04: People get a little confused sometimes. [00:00:34] Speaker 04: The clock is your whole amount of time. [00:00:36] Speaker 04: So if you're if it says one minute, it's not in your opening. [00:00:39] Speaker 04: It's in. [00:00:41] Speaker 04: They may also be used by the fact that Wednesday I just got let things get out of control. [00:00:45] Speaker 04: I'm trying to be myself better. [00:00:46] Speaker 03: Go ahead. [00:00:48] Speaker 03: Good morning, your honor. [00:00:49] Speaker 03: Paul Hughes for the appellant. [00:00:50] Speaker 03: I a health care. [00:00:52] Speaker 03: I'd like to take five minutes for a bottle, but we'll see how much time we we have when I sit down. [00:00:57] Speaker 03: In applying non-mutual collateral estoppel for the first time to the question of whether an arbitration agreement is valid, in argument the district court advanced Sue Esponti, the court erred in three independent ways. [00:01:10] Speaker 03: And to be clear, I think there are three different ways the court can resolve this case in our favor. [00:01:15] Speaker 03: I'll list those and I'd be happy to start anywhere that the court might prefer. [00:01:18] Speaker 03: The first is the delegation clause. [00:01:20] Speaker 03: We think this is an issue that should have been decided by the arbitrator in the first instance. [00:01:25] Speaker 03: And the easiest way to resolve this case is to say the delegation clause exists. [00:01:29] Speaker 03: This should get kicked to an arbitrator. [00:01:31] Speaker 03: And the more difficult question I'll talk about second is not something the court needs resolved. [00:01:36] Speaker 03: The second point, though, is there shouldn't be non-mutual collateral estoppel in the context of arbitration at all here. [00:01:43] Speaker 03: The first argument is California law applies for a very specific reason. [00:01:47] Speaker 03: They'll be happy to apply. [00:01:48] Speaker 03: And California has decided this question under Vandenberg. [00:01:52] Speaker 03: And if I'm wrong about that, [00:01:53] Speaker 03: The same result accrues under the FAA as a matter of federal law as well. [00:01:58] Speaker 03: And then the third point is, setting all of that aside, there shouldn't be non-mutual collateral estoppel here at all because there were split decisions. [00:02:06] Speaker 03: There were four arbitration decisions. [00:02:08] Speaker 03: Two came out one way, two came out the other. [00:02:10] Speaker 03: This is a very classic case where you don't apply non-mutual collateral estoppel just to pick two decisions that the court will apply to essentially delegate [00:02:23] Speaker 02: to the trash bin to that the court dispreferred so can we discuss your first option that this dispute should be kicked to an arbitral body to decide so you're saying that an arbitrator can then decide whether non-mutual offensive issue preclusion ought to apply and invalidate the contract absolutely your honor and kieran in the ninth circuit [00:02:44] Speaker 03: has said that issues like res judicata objections are here and didn't involve non-mutual issue preclusion, right? [00:02:51] Speaker 02: It was just res judicata. [00:02:52] Speaker 02: There was mutuality there. [00:02:54] Speaker 03: Yes, your honor. [00:02:54] Speaker 03: I think that's an even better reason why this goes to to the arbitrator here. [00:02:58] Speaker 03: And so it is this is a broad delegation clause. [00:03:01] Speaker 03: So all issues that go to whether or not there is an enforceable arbitration provision as a whole. [00:03:08] Speaker 03: Those are delegated to the arbitrators. [00:03:11] Speaker 02: In your first option though, counsel, sorry to interrupt. [00:03:13] Speaker 02: Please. [00:03:14] Speaker 02: In conflict with your second potential independent basis, if the question is, we kick it to the arbitrator, arbitrator can decide this issue. [00:03:23] Speaker 02: But your second proposal is potentially that the FAA prohibits the application of non-neutral issue preclusion. [00:03:30] Speaker 02: So the arbitrator, if the arbitrator were to decide that issue, it would exceed the arbitrator's power under the FAA. [00:03:38] Speaker 03: It's true, Your Honor. [00:03:38] Speaker 03: I think the arbitrator has to come out to the right results. [00:03:41] Speaker 03: And if the arbitrator applying the FAA, arbitrators, of course, can apply federal law. [00:03:45] Speaker 03: If the arbitrator reaches the wrong result, could you have a claim to a court later that the arbitrator misapplied the law? [00:03:53] Speaker 03: It's a tough standard. [00:03:54] Speaker 03: But could that be argued? [00:03:55] Speaker 03: Yes. [00:03:56] Speaker 03: So I mean, I do think the answer pursuant to my second argument is essentially preordained, because I have confidence that I'm right about that. [00:04:04] Speaker 03: But we do think that [00:04:06] Speaker 03: Fairly applied that is a question for the arbitrator to decide in the first instance And we think it's appropriate to put that question to the arbitrator Okay, is that that raised interesting because isn't the standard on the back end? [00:04:19] Speaker 04: You know, it's not just that the arbitrator got it wrong. [00:04:21] Speaker 04: It's not really even they got it really wrong. [00:04:23] Speaker 04: It's not that they got it Hellishly wrong. [00:04:26] Speaker 04: It's that they completely ignored the law or something like that and and so I'm just wondering as a practical matter if this goes to an arbitrator where would you ever [00:04:36] Speaker 04: If you're right on the second question, how would that ever get decided? [00:04:40] Speaker 04: That creates a weird. [00:04:42] Speaker 03: Your honor, I appreciate it. [00:04:43] Speaker 03: It's a tough standard. [00:04:44] Speaker 03: But what I want to be clear about is what we have agreed to do is arbitrate on an individual basis. [00:04:49] Speaker 03: And that means these kinds of questions we have no problem saying need to be arbitrated on an individual one off basis. [00:04:56] Speaker 03: The problem with what the district court did here is the exact same thing the Supreme Court said in Stolt Nielsen in lamps. [00:05:02] Speaker 03: Plus you can't do is you take [00:05:04] Speaker 03: an individual arbitration case where everybody agrees to the informality, the expedient process, the less costly approach, but then have one agreement, then all of a sudden effectively have class wide implications. [00:05:21] Speaker 03: That's the problem with what the district court did. [00:05:24] Speaker 03: And again, this is the analysis of the California Supreme Court in the Vandenberg case fully endorses that in this context. [00:05:32] Speaker 03: And I can talk about why we think it is that the California law [00:05:35] Speaker 03: applies here to this issue of confirmation. [00:05:38] Speaker 03: But taking that back to the delegation question, this is our point, and I'm not gonna run away from the fact that the natural upshot of that is this is to be decided on an individual basis because of the delegation clause puts this to the arbitrator. [00:05:53] Speaker 03: So we do think that is the first place. [00:05:55] Speaker 03: Now if the court disagrees with me, I have no problem if the court turns to the second question and says we're right there, but I just think appropriately construing the agreement [00:06:04] Speaker 03: this is first and foremost a question for the arbitrator. [00:06:07] Speaker 02: Can we reach the second question without deciding the first question? [00:06:12] Speaker 03: I think that's difficult, your honor. [00:06:16] Speaker 03: I think that my friends say that this is a question that is sort of outside the scope of what can be delegated. [00:06:21] Speaker 03: I think that's just wrong. [00:06:22] Speaker 03: So I think the court would decide delegation. [00:06:25] Speaker 03: My friends say that we've waived the delegation argument. [00:06:29] Speaker 03: I think that's just wrong because in our briefs below, [00:06:31] Speaker 03: We explicitly say the only question here is whether or not the delegation clause is enforceable. [00:06:36] Speaker 03: As we pointed out, the district court previously enforced this very delegation clause. [00:06:40] Speaker 03: That's why we had these four arbitration results, because the court has already found the delegation clause enforceable. [00:06:47] Speaker 04: Is that a different district court judge than the current district court judge? [00:06:50] Speaker 03: Same district court judge. [00:06:52] Speaker 03: Same judge, I believe, Your Honor, and had sent these out to arbitration, brought them back, confirmed three of the four awards. [00:06:58] Speaker 03: and now here we are on. [00:07:02] Speaker 01: Yes your honor. [00:07:07] Speaker 01: Why would we need to reach the first issue if we looked at the. [00:07:14] Speaker 01: Offensive non mutual collateral estoppel question as a matter of. [00:07:20] Speaker 01: California substantive law which I think is the same under federal law which is the parties must agree in advance to the application of the doctrine. [00:07:31] Speaker 01: look here to see that there was no such agreement, therefore, that is unenforceable. [00:07:37] Speaker 03: And we would have no quarrel with that at all, Your Honor. [00:07:39] Speaker 03: I think that would. [00:07:39] Speaker 01: So we wouldn't need to answer Judge Choms' question. [00:07:41] Speaker 01: We wouldn't need to reach the first issue as to who makes that determination if our conclusion as a matter of law is whether it's a court or an arbitrator who declares that it's not a valid theory to apply. [00:07:54] Speaker 03: Certainly would welcome that, Your Honor. [00:07:55] Speaker 03: I think that is all correct and is an appropriate way that the court could resolve this. [00:07:59] Speaker 03: I think there are three independent roads that the court could enter to resolve this for my client. [00:08:04] Speaker 03: The third and final one is simply saying, this is a classic case where you, even if it's available, you want to apply. [00:08:10] Speaker 04: You're not really arguing they're independent and answer a judge's question because you're saying that we shouldn't reach the second one unless we disagree with you on the first one. [00:08:17] Speaker 04: Is that right? [00:08:18] Speaker 03: Well, you know, I think the court does have some ability to order the questions as it sees fit. [00:08:22] Speaker 03: We certainly put them in the order that we saw, which was you start with the question of delegation. [00:08:26] Speaker 03: If it's, if it's, uh, goes to an arbitrator, [00:08:29] Speaker 03: We're fine with it going to an arbitrator. [00:08:31] Speaker 03: But I think to Judge Tallman's question, if the court is prepared to decide it's just a matter of law, this is unavailable. [00:08:38] Speaker 03: It pretermits the question and is an appropriate resolution. [00:08:41] Speaker 03: But I think the court can approach that in the order that it sees fit. [00:08:46] Speaker 02: Counsel, I want to raise a jurisdictional question with you. [00:08:50] Speaker 02: Should we or should we not hold this case pending the Jules case before the Supreme Court now? [00:08:56] Speaker 02: In other words, whether the district court, the first time around, had jurisdiction at all to confirm the arbitral awards? [00:09:05] Speaker 03: Your Honor, I think there would be no problem holding this case for Jules because the court will have more guidance once the Jules decision comes down. [00:09:12] Speaker 03: I believe that'll be out by recess. [00:09:15] Speaker 03: So June, so that is there, and I think that would- But do we need to reach that question? [00:09:20] Speaker 02: Or because it's a jurisdictional question, we have to address it? [00:09:24] Speaker 02: Or is this different because we're dealing with the effect of a prior judgment? [00:09:30] Speaker 02: Whether or not the district court lacked jurisdiction, if we find that non-mutual offensive issue preclusion doesn't apply, that's all right, too. [00:09:38] Speaker 02: We can decide on that basis. [00:09:40] Speaker 03: I hate to call it a one-way ratchet, Your Honor, but I think I can sort of [00:09:43] Speaker 03: win here without the court having to decide that, but I don't think you can apply it non-mutual collateral offensively if there was no jurisdiction for those at all. [00:09:52] Speaker 03: So I think Jules candidly can only help our position, and if that's where the Supreme Court comes out, that would gut the basis for the application of collateral estoppel here. [00:10:02] Speaker 03: But all of my arguments prior to that, we would prevail irrespective of the result in Jules. [00:10:08] Speaker 02: Okay, just to clarify, you don't think this court, we would have an obligation [00:10:13] Speaker 02: to decide the jurisdictional question? [00:10:16] Speaker 03: No, Your Honor. [00:10:17] Speaker 03: I don't think you have an obligation to decide it. [00:10:19] Speaker 03: Our point is that there shouldn't be non-mutual collateral estoppel to arbital awards that shouldn't have been confirmed in the first instance because there was a lack of subject matter jurisdiction to them. [00:10:29] Speaker 03: And further, because they are still part of this case, we think those are just interlocutory decisions that merge ultimately with the final judgment in those cases. [00:10:37] Speaker 03: So they will be ripe even once there is a later final judgment, should that get there. [00:10:40] Speaker 03: But again, that is [00:10:42] Speaker 03: in my view, very independent of the principal reasons we have that we've advanced as to why it is that we think that what the district court did here was an error. [00:10:50] Speaker 02: Council, can you address section 13 of the FAA? [00:10:53] Speaker 02: The text of it says that judgments confirming an award shall have, quote, the same force and effect in all respects as a judgment and an action. [00:11:02] Speaker 02: So judgments have potentially offensive non-neutral collateral stopple effect. [00:11:10] Speaker 02: Parkland Hosiery case, Blonder Tongue, those cases say that that kind of effect is available. [00:11:17] Speaker 02: So if we were to treat this judgment confirming the awards the same as we would treat any other judgment, why wouldn't offensive non-mutual issue preclusion apply? [00:11:24] Speaker 02: Just looking at the text of the FAA. [00:11:27] Speaker 03: Well, because I think you take the FAA with what was understood in 1925 both about non-mutual collateral preclusion, but also you look to what the [00:11:36] Speaker 03: The analysis of the California court, if not in Vandenberg, if not binding on us, because we think this is California law, is still highly instructive, which is to say, when you engage in arbitration, the assumption of the parties is that this is an individual on individual kind of approach. [00:11:51] Speaker 03: And the argument that Your Honor suggested would be an exact argument for why Stolt Nielsen and Lamps Plus should have come out to the contrary way, that in the presence of silence, that there could be [00:12:01] Speaker 03: Class arbitration because that is would be an available procedure and what the Supreme Court said and Stolt Nielsen and lamps plus is Parties who engage in arbitration know that they are making a trade They're making a trade for the efficiency and the ability for a claimant to get expeditious individualized relief much more cost-effectively and faster But the trade-off is because of that informality parties are not signing up for one arbitration to bind [00:12:27] Speaker 03: everyone down the road. [00:12:29] Speaker 03: And that's completely consistent with park lane hosiery, I think it's footnote 14, where the example of the railroad where you have all these cases that are coming out one way for the railroad and then all of a sudden a case comes out the other way and you can't say, aha, we're gonna attach non-mutual claim preclusion to that. [00:12:48] Speaker 03: That's the same kind of effect here just applied in the arbitration context. [00:12:52] Speaker 03: And so I think that the analysis that Vandenberg did admittedly under the California Arbitration Act [00:12:57] Speaker 03: coupled with Stolt Nielsen and Lamps Plus shows why there's nothing inconsistent with Section 13's text to concluding that there is simply no non-mutual collateral estoppel that would be available in this context. [00:13:10] Speaker 04: May I reserve my time. [00:13:12] Speaker 03: Thank you, Your Honor. [00:13:16] Speaker 04: I'll hear from the appellees. [00:13:24] Speaker 02: Thank you, Council. [00:13:26] Speaker 00: May it please the court, my name is Yasmin Zainalbhai on behalf of Plaintiffs at Belize. [00:13:32] Speaker 01: Could you pull, yeah. [00:13:33] Speaker 01: Sorry. [00:13:33] Speaker 01: You have a very soft voice. [00:13:35] Speaker 00: The question before this court is whether the District Court properly utilized the tools available to it under the plain language of the FAA to preclude IA from continuing to defend the enforceability of its arbitration agreement when that issue has been fully and fairly decided against it. [00:13:54] Speaker 01: Council, what do we do with the provision that says the parties have to agree in advance before they can be bound by that doctrine? [00:14:05] Speaker 00: There is no provision saying that, so that provision comes from Vandenberg, which is an interpretation strictly of the CAA, so the California Arbitration Act. [00:14:16] Speaker 01: Why isn't that the same as any other limitation on the scope of the arbitration? [00:14:21] Speaker 01: The parties have to agree [00:14:23] Speaker 01: what it is that they're gonna arbitrate and what the scope of the powers of the arbitrator will be. [00:14:31] Speaker 01: And as you point out, there's case law that says if they don't agree to it in advance then they can't be bound by it. [00:14:38] Speaker 00: So to be clear, Vandenberg is only under the CAA and it specifically exempts the FAA. [00:14:43] Speaker 00: It says we have no cause to consider. [00:14:46] Speaker 01: Isn't federal law to the same effect? [00:14:50] Speaker 00: No, I would disagree with that. [00:14:51] Speaker 00: So the plain language of the FAA [00:14:53] Speaker 00: says that a confirmed arbitration judgment shall have the same force and effect in all respects as a judgment in an action. [00:15:01] Speaker 00: This court in Hanson v. Musk described that as an express statutory command that a confirmed arbitration award be given the same preclusive effect as a judgment. [00:15:15] Speaker 02: invoking Section 13 or otherwise that would accord offensive non-mutual issue preclusive effect to a confirmed arbitral award. [00:15:24] Speaker 02: Do you have any case? [00:15:25] Speaker 00: No. [00:15:25] Speaker 00: So I will admit... You have no case? [00:15:27] Speaker 00: No. [00:15:27] Speaker 00: So I will admit that this is a rare circumstance. [00:15:31] Speaker 00: I think the fact that it is rare does not make it unforeseeable under the plain language of the FAA, which clearly allows this result. [00:15:39] Speaker 00: But the reason I think that goes to show that Aya's interpretation that if non-mutual collateral offensive estoppel is allowed, sort of the floodgates will open and arbitration will be undermined, will not come to pass. [00:15:55] Speaker 00: Because in fact, the plain language of the FAA has allowed this non-mutual collateral estoppel effect to attach since 1979. [00:16:04] Speaker 02: What an application of this doctrine effectively [00:16:07] Speaker 02: transform individualized proceedings into bellwether class actions? [00:16:13] Speaker 00: No, they would not. [00:16:13] Speaker 00: So IA for that proposition relies on the line of cases like Stolt-Nielsen. [00:16:19] Speaker 00: And Stolt-Nielsen had a very different concern. [00:16:22] Speaker 00: So in that case, it was whether the arbitrator had jurisdiction to preside over a class-wide arbitration absent the party's clear consent in their arbitration agreement. [00:16:35] Speaker 00: Here, there's no dispute that the arbitrations themselves were strictly bilateral. [00:16:40] Speaker 00: And the district court did not, the arbitrators did not purport to bind anyone other than the parties before them. [00:16:47] Speaker 00: Instead, it was the district court that afforded that effect. [00:16:51] Speaker 01: And I think there's- So your answer to the railroad derailment hypothetical is that when case number 26 is decided, finding liability by the railroad, then it can be applied [00:17:02] Speaker 01: offensively against the railroad in claims 27 through 50 or 100 or however many other unresolved claims there are arising out of the derailment no respectfully that's not my answer because we're not in has to be so [00:17:21] Speaker 00: No, because a non-mutual collateral estoppel test protects against that. [00:17:26] Speaker 00: So first, the parties had to have a full and fair opportunity, but then to litigate the issue in the prior action. [00:17:34] Speaker 00: But then further, there is a fairness element that's baked in. [00:17:37] Speaker 00: So the district court, as it did here, has to consider whether it would be fair. [00:17:42] Speaker 01: It's unfair to apply the ruling in case 26 to case 27 through 100? [00:17:48] Speaker 00: Perhaps in that case, but that's not the case we have here. [00:17:51] Speaker 01: Why wouldn't the same be true here, where we have multiple employee claims that have yet to be arbitrated? [00:17:58] Speaker 01: I don't understand the difference here. [00:18:00] Speaker 00: Well, we are applying the, we are applying collateral estoppel to the claims that have been arbitrated. [00:18:06] Speaker 02: Not, so we- Counsel, but you're ignoring two other arbitral awards that went the other way. [00:18:12] Speaker 02: that found that the agreement was enforceable. [00:18:15] Speaker 02: So there were a total of four arbitral awards. [00:18:17] Speaker 02: Two of them found the agreement unenforceable. [00:18:20] Speaker 02: The other two found it enforceable. [00:18:22] Speaker 02: And what the district court did here was only credit the two arbitral awards that found the agreement unenforceable while disregarding the other ones. [00:18:30] Speaker 02: How is that fair? [00:18:32] Speaker 00: So collateral estoppel is focused on the quality of the process. [00:18:36] Speaker 00: to that led to an award. [00:18:38] Speaker 00: That's exactly what the district court was concerned with when she reviewed the four different arbitration awards. [00:18:45] Speaker 01: I've never seen a district judge do that. [00:18:48] Speaker 01: The district court actually looked down and examined what kind of briefing the arbitrator had called for. [00:18:55] Speaker 01: In essence, it was sort of de novo review of the arbitrator's decision, and we don't normally permit that when we're confirming arbitration awards. [00:19:04] Speaker 00: Well, first, the district court had gone through a comprehensive review of the record because the parties had cross moved to confirm. [00:19:12] Speaker 01: To me, like the district court initially sent these four cases to individual arbitrations. [00:19:17] Speaker 01: But then the district court didn't like two of the four and it picked the two that it liked the best. [00:19:22] Speaker 01: And then it tried to justify its choice by looking at the procedures that the arbitrator followed and declared that the two the district court liked best were the ones that involved more comprehensive briefing and so on from the two that the district court didn't like. [00:19:39] Speaker 01: And if a district court can do that under the guise of enforcing an arbitration award, [00:19:46] Speaker 01: I think it turns the whole question of arbitration on its head. [00:19:50] Speaker 00: So first, I did want to respectfully correct the record on that. [00:19:54] Speaker 00: So it was a different district court judge within the same court. [00:19:58] Speaker 00: Oh, you're right. [00:20:00] Speaker 01: Judge Benitez was the one, and then he retired, and then the new judge came in. [00:20:06] Speaker 00: Correct. [00:20:06] Speaker 00: Well, he recused himself. [00:20:08] Speaker 01: I'm not sure that that provides a legal justification for resolving the question that we're wrestling with here. [00:20:17] Speaker 00: So the legal justification is first, the grounds on which the district court compelled arbitration was different. [00:20:24] Speaker 00: So the parties initially challenged the arbitration agreement [00:20:28] Speaker 00: on fraudulent inducement grounds. [00:20:31] Speaker 00: And so what the district court found was that particular challenge, fraudulent inducement, did not specifically challenge the delegation clause. [00:20:41] Speaker 00: And so the parties had to go into arbitration. [00:20:44] Speaker 00: In arbitration, the four named plaintiffs raised two claims. [00:20:51] Speaker 00: So they initially raised fraudulent inducement, which they ended up not pursuing. [00:20:54] Speaker 00: But then they also raised a different challenge. [00:20:57] Speaker 00: So unconscionability. [00:20:59] Speaker 00: So the issue the district court initially compelled arbitration on was different than the one raised now, but it was also different than what the parties ended up litigating an arbitration. [00:21:09] Speaker 01: And do you think a district court has the authority to do that under the guise of applying normal defenses to enforcement of court judgments? [00:21:19] Speaker 00: I think the plain language of the FAA mandates that. [00:21:22] Speaker 01: I think everything that Aya is raising is policy judgments that count as to why the plain language shouldn't be enforced, but I think this... Even if the district court looks at the first two Arbitrator awards and says, well, I just think the Arbitrator was wrong, and we have case law that says the Arbitrator can be wrong, but unless the Arbitrator is egregiously wrong and there's a gross miscarriage of justice here, federal courts are powerless to overturn the award and must confirm and convert them to judgments. [00:21:52] Speaker 00: Here the district court was not acting on the basis of the outcome of the award. [00:21:58] Speaker 00: She was acting on the basis of the process. [00:22:01] Speaker 02: Can we talk about the process? [00:22:02] Speaker 02: Didn't the arbitrator in Bailey address the savings clause issue and expressly uphold the arbitration agreements because there was a savings clause? [00:22:11] Speaker 00: So AYA did not raise that issue in its briefing. [00:22:14] Speaker 00: It did not defend its arbitration agreement. [00:22:16] Speaker 00: based on the savings clause language. [00:22:19] Speaker 02: Didn't they argue that, didn't they quote the savings clause in their brief in Bailey? [00:22:23] Speaker 00: So quoting the language of an arbitration provision is not the same as raising an argument based on it. [00:22:29] Speaker 00: And I think if you look at the record, you can see AYA points to SER 182 in the record for the proposition that it pointed to the savings clause language defense. [00:22:39] Speaker 00: But if you look, that's actually in the section discussion discussing procedural unconscionability. [00:22:45] Speaker 00: If you look at SER 186, that's where Aya is discussing substantive unconscionability. [00:22:52] Speaker 00: And you can see that it underlines the language that it's relying on, and it does not underline the savings clause language. [00:22:59] Speaker 00: That's actually one of the few phrases that it does not highlight and underline, because it was not relying on that language. [00:23:07] Speaker 00: The first time in the Bailey arbitration, [00:23:11] Speaker 00: that I raised its savings clause defense is it inserted it into a proposed order. [00:23:17] Speaker 00: And then the district and then the arbitrator signed that that proposed order wholesale with no changes. [00:23:25] Speaker 00: So I think we can all agree that inserting language into a proposed order is not the same as briefing it. [00:23:31] Speaker 02: So you're saying they did make the argument, but in the procedural unconscionability context. [00:23:37] Speaker 02: They put it in a heading that should have been put in a different heading. [00:23:40] Speaker 00: No, I don't think they ever made the argument. [00:23:42] Speaker 00: I think naturally when you are defending your arbitration clause, you include it, you quote it, but you have to call out what your argument is based on, and they never did that. [00:23:54] Speaker 00: They just quoted it. [00:23:56] Speaker 00: And then when you look at the actual arguments they raise, none of them defend that provision based on the savings language. [00:24:03] Speaker 00: This is a belatedly raised argument. [00:24:05] Speaker 00: And in fact, the arbitrators noticed. [00:24:07] Speaker 00: That's why two arbitrators requested, accepted supplemental briefing. [00:24:14] Speaker 00: The Zimmerman arbitrator, ER 137, note three, said, I had changed its position. [00:24:23] Speaker 00: And then in fact, Aya knew it changed its position because it is the one that asked for the additional briefing. [00:24:30] Speaker 00: If you look at ER 158, the court, the Zimmerman order noted that in the course of the hearing, respondents sought additional briefing opportunity. [00:24:41] Speaker 00: So this was all a result. [00:24:42] Speaker 00: All the processes were a result of Aya's own process. [00:24:47] Speaker 00: It chose to belatedly raise an argument that had not been briefed before the court. [00:24:52] Speaker 00: the arbitrators really split on how they handled that. [00:24:55] Speaker 02: Well, I mean, let's say I just, I mean, I'm looking at SCR 182. [00:25:01] Speaker 02: They do discuss the cost provision. [00:25:04] Speaker 02: And it was, this issue was also raised at oral argument before the arbitrator, was it not? [00:25:09] Speaker 00: So correct, because the arbitrators asked about it. [00:25:12] Speaker 00: Yes. [00:25:12] Speaker 00: So I'll put it this way. [00:25:14] Speaker 00: So for example, a district court reviewing this would look at that and say, okay, it was, [00:25:20] Speaker 00: raised at oral argument, but a district court would never say, you know, there's no need for briefing. [00:25:30] Speaker 00: We can just decide this complicated issue based on oral argument before the court. [00:25:35] Speaker 00: But it wouldn't go the other way. [00:25:36] Speaker 02: You're saying the arbitrator should have, in order for its judgment to get issue preclusive effect, it needed to have ordered supplemental briefing on an issue that was raised in briefing and that he discussed at oral argument? [00:25:49] Speaker 00: It was not raised in briefing. [00:25:51] Speaker 00: That is our view. [00:25:52] Speaker 00: And I participate in every single one of those arbitrations. [00:25:56] Speaker 00: I remember. [00:25:57] Speaker 00: the change that took place when AYA changed its argument because I was on every single one of those. [00:26:03] Speaker 00: And the arbitrators noticed too, right? [00:26:05] Speaker 00: Two of them, Zimmerman and O'Dell, accepted supplemental briefing on that. [00:26:10] Speaker 00: It is fair for arbitrators to ask for process, right? [00:26:13] Speaker 00: It is an arbitration, it is a dispute resolution tribunal. [00:26:18] Speaker 00: It is still, however, [00:26:20] Speaker 00: something that the federal courts are required, they are required to treat confirmed judgments as their own and they are perfectly within their broad discretion and looking at the processes that were involved in these judgments that they confirmed and deciding and looking at these four judgments that two of them followed, two of them afforded a full and fair adjudicatory process and two did not. [00:26:49] Speaker 04: So a lot of discussion we've been having with you has been on what I, the third issue sort of, of did the district court err by applying non, whatever it's called, claddle-staff-worship-proclusion, non-mutual. [00:27:08] Speaker 04: Of course, there's the kind of, another question of whether you can even do that to an arbitration agreement, right? [00:27:13] Speaker 04: And then as I understood the briefing and counsel, at least at the beginning this morning, [00:27:17] Speaker 04: his view was you don't really reach the sort of the important non-decided issue as far as I can tell in our and by any appellate court of whether or not you you can on the FAA apply non non-mutual issue preclusion you don't even reach that because you need to send these people straight to arbitration because of the delegation clause which maybe he's regretting that now because he's like oh I feel like I got a you know friendly panel or something on the legal on that secondary legal question but on that first question [00:27:47] Speaker 04: What is your position? [00:27:48] Speaker 04: I know you, in a perfect world, you would like to get non-issue, non-mutual issue preclusion from the federal court here, and none of the, I guess none of the rest of these would need to go under the district court's rationale to arbitration. [00:28:01] Speaker 04: But if, if we just took them at what they said, said, no, these have to go because of the delegation clause, wouldn't, in theory, you could argue to the arbitrator non-issue, non-mutual issue preclusion, and when, [00:28:16] Speaker 04: And then you heard what I said to your colleague on our side. [00:28:19] Speaker 04: I mean, that'd be really hard for them to overturn. [00:28:21] Speaker 04: And so you could just, I don't know, I guess, how arbitration works. [00:28:25] Speaker 04: I guess you'd have a whole bunch of different arbitrators, so you couldn't get the benefit of that. [00:28:28] Speaker 04: You might win some on that. [00:28:29] Speaker 04: You might lose others. [00:28:31] Speaker 04: Why is that a terrible alternative for you to just, for us, if we throw them in the, [00:28:42] Speaker 04: in the briar patch on the first issue and say, no, okay, we'll send these off and then you can make these non-mutual issue preclusion arguments to the arbitrator. [00:28:52] Speaker 00: Right. [00:28:52] Speaker 00: So I think Aya's argument is that the district court should have enforced the delegation clause. [00:28:57] Speaker 00: But our position is that AYA has skipped a key predicate step, which is, is there a valid agreement to invoke? [00:29:05] Speaker 00: And the Supreme Court has been clear that a court must consider that question before ordering compliance with a delegation clause. [00:29:14] Speaker 04: You can't delegate that question. [00:29:16] Speaker 00: You can't delegate that question, right? [00:29:18] Speaker 00: So the delegation, you know, so for example, perhaps [00:29:21] Speaker 00: The delegation clause is sometimes referred to as question one when you're faced with an arbitration agreement. [00:29:26] Speaker 00: I think there's a predicate question before you even reach that. [00:29:32] Speaker 01: We determined that the district court erred by applying a non-mutual offensive collateral estoppel here. [00:29:41] Speaker 01: Should we decide whether or not the delegation clause is enforceable or should we send it back to the district court? [00:29:47] Speaker 04: So that is kind of similar to the question I'm asking. [00:29:50] Speaker 04: I'm asking literally the opposite. [00:29:51] Speaker 04: Can we even get to that if we think that this should be sent back? [00:29:56] Speaker 00: Well, so clearly we think that this court should affirm the district court's order. [00:30:01] Speaker 00: If it remands. [00:30:02] Speaker 00: I understand what you want us to do. [00:30:02] Speaker 00: Yes, if it reverses. [00:30:04] Speaker 01: And I'm just asking you hypothetically, you know, if you may win, you may not win. [00:30:08] Speaker 00: If you reverse and remand for any reason, we think that the district, that this court needs to do so with the instructions to the district court to consider the unconscionability of the delegation clause. [00:30:21] Speaker 00: So. [00:30:22] Speaker 04: You think that unconscionability affects not just the rest of the arbitration agreement, but also the delegation clause? [00:30:28] Speaker 00: So we, when I initially moved to compel arbitration, we opposed, and in opposing we launched a challenge to both the delegation clause. [00:30:39] Speaker 04: But if we disagreed with you on that narrow question, that the unconscionability reaches the delegation clause, then that kind of goes to my question, why wouldn't we just say, okay, send it off to the, and we don't reach the non-mutual issue preclusion issue, that's for the arbitrator to decide. [00:30:57] Speaker 00: Well, we think that it is not for this court to reach that question, because the district court explicitly did not reach it yet. [00:31:06] Speaker 00: So the district court did not reach a ruling on the unconscionability of the delegation clause. [00:31:12] Speaker 02: But it is fully briefed here, right? [00:31:13] Speaker 02: And it's a question of law? [00:31:15] Speaker 00: Uh, it's not a question of law, so I respectfully disagree with that. [00:31:18] Speaker 00: There are 14 factual, uh, factual declarations in the record. [00:31:24] Speaker 00: Um, I actually, in urging this court to reach that issue, didn't even bother to put those declarations in. [00:31:30] Speaker 00: So this is an issue that, uh, requires, uh, it requires review of those declarations in the first instance that is clearly within the province of the district court. [00:31:40] Speaker 00: This is a court of review, not first instance. [00:31:44] Speaker 00: So that issue should be remanded to the district court. [00:31:47] Speaker 00: We clearly challenged delegation before the district court. [00:31:51] Speaker 00: That is, it is fully briefed, but the district court did not reach it because collateral estoppel was a predicate question. [00:31:58] Speaker 00: So this court, and then furthermore, I think we put in a 28-J letter on this. [00:32:04] Speaker 04: California... Now, it already sent four of these, but you have new arguments. [00:32:08] Speaker 04: It sent four. [00:32:10] Speaker 00: No, so there is. [00:32:11] Speaker 00: So one of those 28 J letters is on the California Superior Court. [00:32:17] Speaker 00: faced with the exact same question, has found AYA's arbitration agreement unenforceable and full, and it included a challenge. [00:32:26] Speaker 00: It found the delegation clause unenforceable and the arbitration agreement unenforceable and full. [00:32:33] Speaker 01: So you've got a superior court. [00:32:34] Speaker 00: Superior court, but that has been appealed. [00:32:36] Speaker 00: So AYA has already appealed that. [00:32:38] Speaker 00: So if this court should remand to the district court, [00:32:42] Speaker 00: so that it can decide this fact-intensive issue in the first instance, but it can also do so with the benefit of a California appellate court's ruling on this issue of California state law. [00:32:54] Speaker 04: Why is it—you say in the first instance, but I'm thinking in the fifth instance, right? [00:32:58] Speaker 04: Because it already sent four of these to arbitrate, but you're just—these unconsciously arguments weren't addressed in the first four? [00:33:05] Speaker 04: They just weren't raised? [00:33:07] Speaker 00: Well, they were raised, so it was raised for those four named plaintiffs. [00:33:13] Speaker 00: Then what happened was that the stay on their claims was lifted and opt-in plaintiffs, these are different plaintiffs, joined the case because there's an FLSA claim. [00:33:22] Speaker 00: So 250 additional opt-in plaintiffs joined the case. [00:33:26] Speaker 04: What makes these different than on the unconscionability of the delegation clause? [00:33:30] Speaker 04: What makes these different than the four that were already sent by the district court? [00:33:34] Speaker 00: Well, our arguments are primarily the same, except this time we've launched an express challenge to the delegation clause. [00:33:43] Speaker 00: And if the district court finds that the delegation clause is unenforceable, then it has the authority to address the arbitration agreement as a whole. [00:33:53] Speaker 01: But two of the arbitrators said it was proper, and two said it wasn't. [00:34:00] Speaker 00: So that was for the four named plaintiffs. [00:34:04] Speaker 00: These are as to different plaintiffs. [00:34:06] Speaker 00: I am moved to confirm arbitration again. [00:34:07] Speaker 00: No, no, no. [00:34:07] Speaker 00: I understand. [00:34:08] Speaker 01: I just want to be clear as to what the arbitrators did. [00:34:10] Speaker 01: I mean, they decided the unconscionability issue, did they not? [00:34:14] Speaker 01: Two said yes, two said no. [00:34:17] Speaker 00: Correct. [00:34:18] Speaker 02: Well, they decided the agreement as a whole was unconscionable or not. [00:34:24] Speaker 00: Correct. [00:34:25] Speaker 00: And now this is framed differently. [00:34:26] Speaker 00: This is framed before the district court. [00:34:28] Speaker 04: You say it's very factual, but are there different facts for some of these opt-in plaintiffs that you think would influence the unconscionability analysis? [00:34:37] Speaker 04: I understand your argument that, generally speaking, that unconscionability arguments, procedural or substantive, can have a factual component, right? [00:34:44] Speaker 04: You gave me three seconds to review this agreement before you made me sign it, right? [00:34:47] Speaker 04: That's a factual, but are there are you relying on different facts for these these number five through whatever the then the first ones or Or are the same same facts that you'd be making? [00:35:02] Speaker 00: No, there are there's they're very similar facts So there are 14 different fact declarations that we put in to confirm sort of common-sense propositions as to how a travel nurse would interpret a claim and these were and these were [00:35:15] Speaker 04: These you put in for the for the original four or not or these are [00:35:20] Speaker 04: for the original four that the district court sent? [00:35:22] Speaker 00: No, so this is separate. [00:35:24] Speaker 00: This is a separate challenge. [00:35:26] Speaker 00: I am moved to compel arbitration again of plaintiffs that it had not yet moved to compel arbitration of. [00:35:33] Speaker 00: So this was a separate motion to compel. [00:35:35] Speaker 00: I had never moved to compel these particular plaintiffs into arbitration, so it had to do so again because they were now parties to the action when they filed their opt-in. [00:35:46] Speaker 01: because they opted in. [00:35:48] Speaker 01: They're separate party clean tests. [00:35:51] Speaker 00: So Aya has to defend again. [00:35:53] Speaker 04: I'm just trying to figure out what's different about these five through whatever than one through four. [00:35:59] Speaker 04: It's a different district court, right? [00:36:03] Speaker 04: Different district court judges, I guess. [00:36:04] Speaker 04: Is that right? [00:36:06] Speaker 00: Correct. [00:36:06] Speaker 00: But it's also an entirely different argument that the first, it's a different argument than the first. [00:36:11] Speaker 04: Is it not a different argument that you all are making? [00:36:13] Speaker 04: So I'm just curious, why didn't you make that with regard to the first four? [00:36:17] Speaker 00: Why didn't we make that? [00:36:19] Speaker 00: Well, we were focused on a different argument, which is fraudulent inducement. [00:36:22] Speaker 00: And when we got compelled into arbitration, because we did not sufficiently challenge the delegation clause as fraudulently induced, then we had to start to try to initiate these arbitrations. [00:36:34] Speaker 00: And then when we really started to interact with that agreement, there were provisions we thought were problematic. [00:36:41] Speaker 00: But when we actually had to work through this agreement and try to initiate arbitration, [00:36:46] Speaker 00: That's when we started to realize how problematic these clauses are. [00:36:50] Speaker 00: We said, you know, this is a really hard agreement to work under. [00:36:54] Speaker 00: We have to. [00:36:55] Speaker 00: We have no choice. [00:36:56] Speaker 00: And that's, and then when we started to research it, we said, this is unconscionable under California law. [00:37:02] Speaker 00: And we experienced that in trying to initiate arbitrations, the cost provisions, the mediation provisions. [00:37:11] Speaker 00: That as we actually worked with that agreement, we identified this new argument. [00:37:16] Speaker 00: And that's what we raised before the arbitrator. [00:37:19] Speaker 00: But that was not what we raised before the district court. [00:37:22] Speaker 00: And that is not the argument that is now before fraudulent inducement. [00:37:28] Speaker 00: That is off the table now. [00:37:29] Speaker 00: We're not arguing that anymore. [00:37:31] Speaker 00: We have now raised a new argument to the district court that the district court has never considered. [00:37:37] Speaker 00: The arbitrators did. [00:37:39] Speaker 00: she confirmed their awards but now because we've launched a direct challenge to the delegation clause the court has to consider it in the first instance if this court reverses on collateral estoppel that is an outstanding challenge that is for the district court to decide all right well we've taken you way over but it's been very helpful actually i think it's been very helpful um and uh well i think we had a few minutes left uh council [00:38:09] Speaker 04: But we did take our way over, so. [00:38:13] Speaker 04: But I'm going to be a meanie. [00:38:14] Speaker 04: At least I want you to think I'm going to be, so. [00:38:18] Speaker 01: Mr. Hughes, can you address my question with regard to what do we do with the enforceability of the delegation clause? [00:38:26] Speaker 03: I think this Court can and should decide that because it's been briefed. [00:38:31] Speaker 03: I think it is all straightforward of a question that's before the Court. [00:38:36] Speaker 03: It's been fully briefed by both sides. [00:38:38] Speaker 03: The features of this agreement are straightforward. [00:38:41] Speaker 03: It's a mutual agreement. [00:38:42] Speaker 03: It's broad. [00:38:43] Speaker 03: It's a short agreement. [00:38:44] Speaker 03: It's two pages. [00:38:46] Speaker 03: It has basic procedures prior to arbitration that this court has long endorsed. [00:38:51] Speaker 03: It has a delegation clause. [00:38:52] Speaker 04: What about their point? [00:38:53] Speaker 04: I guess the thing that sounds the most convincing is that aspects of unconscionability can be driven by disputed factual things. [00:39:06] Speaker 04: To the extent, you know, that's one reason I have a district court decided in the first instance, as opposed to us, if there are unresolved possible disputed factual. [00:39:15] Speaker 04: She talked about 14, 14 affidavits, I guess. [00:39:18] Speaker 03: Well, two things about that, Your Honor. [00:39:20] Speaker 03: First, during that exchange, I didn't actually hear specific facts that are in dispute because we don't really think there are any. [00:39:25] Speaker 03: But the second point is, this is not about the agreement as a whole. [00:39:28] Speaker 03: This is about the delegation clause. [00:39:30] Speaker 03: And in Karamark v. Chickasaw Nation, this court was very clear in saying, [00:39:34] Speaker 03: when you're looking at the Conscionability of a Delegation Clause, you're taking a much more narrow view than you would if you're looking at the whole provision. [00:39:43] Speaker 03: And why is that? [00:39:44] Speaker 03: Because lots of these cases turn on the question of, well, even if there are unconscionable provisions, which we don't think there are, there's another question of, do you sever? [00:39:53] Speaker 03: Do you modify the agreement? [00:39:54] Speaker 03: What happens? [00:39:55] Speaker 03: And the question is, who does that analysis? [00:39:58] Speaker 03: Is it the arbitrator? [00:39:59] Speaker 03: Or is it the court? [00:40:00] Speaker 03: And we think the answer to that is it's squarely the arbitrator. [00:40:03] Speaker 03: So that's why, as this court said, I think it's footnote 13 of Caremark, you look pretty narrowly in understanding the delegation clause, because that ultimate, there's a discretionary piece as to severability analysis, that should be done by the arbitrator in the first instance. [00:40:21] Speaker 03: And so that's why I think when you're looking at the cautionability of the delegation clause, that doesn't have the same kind of [00:40:28] Speaker 03: I don't think it really facts throughout this, but certainly not when you're looking at just the question of can the delegation clause be enforced such that an arbitrator can then decide the consumability parts down the road. [00:40:40] Speaker 02: Even on the severability question, could there be factual disputes surrounding that that permeate, the consumability would permeate the whole contract such that we don't apply the severability clause to sever the unconscionable provisions? [00:40:57] Speaker 03: Theoretic possibility, Your Honor, that that can exist. [00:40:59] Speaker 03: I don't think that is anything that would be in the context of this contract. [00:41:03] Speaker 03: Again, we're looking at a straightforward two-page contract. [00:41:07] Speaker 03: It's mutual in all respects. [00:41:08] Speaker 04: So let me, and I'm not aware of what these facts are, so I didn't really look at that, but the ones I've seen in other arbitration cases, you know, a lot of times, the argument, I got rushed to sign this thing. [00:41:21] Speaker 04: Well, that would, it would equally apply to the delegation clause as it would [00:41:26] Speaker 04: as it would apply to the rest of the unconscionability argument. [00:41:31] Speaker 04: So just sitting here today, and I could be wrong, but it seems to me a lot of factual disputes would go to both, right? [00:41:39] Speaker 04: A lot of factual claims about this is unconscionable because of some factual thing would go to both? [00:41:48] Speaker 03: Well, so first, I don't think we have that here. [00:41:50] Speaker 03: And second, I do think there's a distinction. [00:41:52] Speaker 03: So to the first point, taking the rush point, [00:41:55] Speaker 04: This was an agreement that was emailed, and it tells the... No, no, I'm not... I'm just saying, so what are the factual... I guess I'm asking you to make their argument for them, but what are the factual things that they're pointing out? [00:42:06] Speaker 03: I think it is this question of when it was emailed to them, and the agreement says, if you wish, have your counsel review this before you sign it. [00:42:14] Speaker 03: This is not on the site. [00:42:15] Speaker 03: You have to sign this now and then get on the job. [00:42:16] Speaker 03: This is a... If you want to have counsel look at this, you have time for counsel to look at it. [00:42:20] Speaker 03: That's the one issue. [00:42:21] Speaker 03: I think the other issue, in fairness to them, as I see on the procedural, [00:42:24] Speaker 03: or the substance of unconscionability is there is an agreement that the arbitration proceed in San Diego or another place if the law requires. [00:42:34] Speaker 03: We think it's hard for them to make that this is procedurally unconscionable when they themselves decide to file a lawsuit in San Diego. [00:42:41] Speaker 03: There's pretty straightforward case law in this court that when a plaintiff chooses voluntarily to file a lawsuit in a particular jurisdiction. [00:42:49] Speaker 04: Yeah, so that second one, it seems to me, wouldn't really go to unconscionability [00:42:53] Speaker 04: of the delegation provision. [00:42:55] Speaker 04: So that actually, that is helpful because it's a factual thing that might go to the, it's unconscionable because it's too hard to make somebody travel to actually do the arbitration. [00:43:02] Speaker 03: And most arbitrations are via Zoom anyway. [00:43:04] Speaker 04: The first one seems like it would be if you're making some argument about you tricked me into signing this thing, that would include being tricked into signing the delegation. [00:43:13] Speaker 03: Well, I do think the materials are, you know, before the court, but this is where Caremark says you don't do that full deep dive into things like cost splitting and all these sorts of questions or else [00:43:23] Speaker 03: You basically negate the impact of the delegation clause, the whole purpose of the delegation clause, and it played out here because as we've spent the morning talking about, there were four arbitrators and they came to different views as to the enforceability of the arbitration agreement as a whole. [00:43:41] Speaker 03: What you don't do is basically front load all of those conceivable questions into the delegation clause because it's appropriate for the arbitrators to decide that question. [00:43:50] Speaker 03: and to make that view again. [00:43:51] Speaker 04: I'm not sure that makes a lot of sense to me. [00:43:53] Speaker 04: It's sort of like class actions. [00:43:55] Speaker 04: You can have heavy overlap on the class action factors with the merits. [00:44:00] Speaker 04: But you've got to get the first question right. [00:44:03] Speaker 04: And I think the Supreme Court eventually explained that you can't just avoid those. [00:44:07] Speaker 04: And courts had the same concern. [00:44:11] Speaker 04: And so they were giving short shrift to issues that mattered for whether or not you grant the class action. [00:44:18] Speaker 04: eventually, I think the Supreme Court clarified what makes sense to me, which is you got to get it right. [00:44:22] Speaker 04: You got to get the initial question right. [00:44:24] Speaker 04: Same thing would be true here, too. [00:44:25] Speaker 04: You know, if something's horribly unconscionable, but we just aren't going to really, like, look very hard at that, the delegation clause, because we don't want to step on the later arbitrators' toes on all the other stuff. [00:44:39] Speaker 04: I don't know. [00:44:40] Speaker 04: That doesn't seem right. [00:44:40] Speaker 03: Well, that goes to Judge Tong's question. [00:44:42] Speaker 03: I think I agree with you, which if something is [00:44:45] Speaker 03: horribly unconscionable that infects the whole agreement if it's so sort of outside the pale. [00:44:50] Speaker 03: That is a circumstance where your sort of quick look on the delegation clause could find things are outside that infect. [00:44:57] Speaker 03: But again, hate to keep going back to Caremark, but what the court has said is you have to be cautious with that so as not to negate the effect of the delegation clause deciding the threshold questions of arbitrability in the first place. [00:45:10] Speaker 03: So that is the balance the court has to draw. [00:45:13] Speaker 03: And so there is, though, it's not a full look as to the whole of the agreement, but is there something that is so clearly unconscionable that you can't even enforce the delegation doctrine to allow the arbitrator to do the arbitrator's work for him or her to decide the question, including a severability or modification analysis [00:45:31] Speaker 03: that really should be the role of the arbitrator, not the role of the court. [00:45:35] Speaker 04: So we've taken you way over, not as long as we took her over. [00:45:39] Speaker 04: But these are some really challenging issues here. [00:45:41] Speaker 04: And I found argument very helpful. [00:45:42] Speaker 04: But I want to make sure that there's any other issues my colleagues want to ask you about. [00:45:47] Speaker 04: Otherwise, I'm going to make you sit down and only have me take five minutes over. [00:45:51] Speaker 04: Thank you. [00:45:51] Speaker 03: All right. [00:45:53] Speaker 03: Thank you. [00:45:53] Speaker 04: Thank you to both sides. [00:45:54] Speaker 04: This is very helpful. [00:45:55] Speaker 04: Thank you all.