Legal Case Summary

The statutory language in this case is clear. Unless an arbitration agreement carves out Dodd-Frank-Lisselblower claims, it is invalid and unenforceable. Compliance with the statute is easy. All the employers had to do was modify and revise their arbitration agreements to make them enforceable. Accenture chose not to do that even though its lawyers recommended it until after they fired Mr. Santoro. The Supreme Court in the Compu Credit Case cited the exact provisioned issue here as a model of clarity in restricting the reach of the Federal Arbitration Act and eliminating arbitration. The only remaining issue in this case is whether the plain language of the statute means what it says. It says that agreements that don't comply with the form prescribed by Dodd-Frank are invalid and unenforceable. I think you have to read a language of a statute in context of that statute. As a general proposition, yes, but not to defeat the plain language. If it's clear enough that the provision is clear on its own, you can't- Do you think you could take any one sentence from any statute and read that, what it says on its face, with no context, and that's what you have to do? No, generally, statutes are read in context. But this fits because- I'm asking. So then what is the context of this language? Do you think it's in the context of Dodd-Frank or just in the context of law generally? Well, it's a part of the Dodd-Frank, but Dodd-Frank- I'm asking that question. I know it's a part of Dodd-Frank. I said, you think this has to be read, this language has to be read in the context of Dodd-Frank or the fact that it's in Dodd-Frank has no bearing on it whatsoever. It's just a statement of general law. I'm asking you what you think. It's clearly part of Dodd-Frank. But that's not what I ask you. I know that. So I'm asking you is your view that to read this provision and to understand it, you have to read it in the context of Dodd-Frank or the fact that it's placed in Dodd-Frank doesn't matter. It could have been placed in Obamacare. It could have been placed anywhere. Is your view that the context of Dodd-Frank doesn't really in any way matter. Well, obviously, we agree that it has to be read in the context of Dodd-Frank. However, that doesn't change the result here. Dodd-Frank, well, it might, you have to allow it, might change it, because it could be read in the context of Dodd-Frank as it's limited to the cases covered by Dodd-Frank. No, Your Honor, that would be torturous reading of the language itself

. Let's try with the language. No, then answer your question. I want to be sure. I think your position is that it, does your view of this language change depending on where that language is found in the law, or it doesn't matter? It's a statement of general law about arbitration agreements, no matter where this paragraph is found. That's your view, isn't it? It's neither extreme. Well, generally, the provisions are read in the context of the statutes where they're contained. This is a 2300-page statute. It also is read plainly, and here it's a rational way to get employers to change their agreements. That's because... But you have an answer in my question. Well, I'm trying to get there. Well, I'll have to use the answer. Your view of it is, I'm not trying to badge it, I'm trying to understand it. You believe this language, no matter where it appeared, anywhere in federal law, gives you the same result that it covers all arbitration agreements. Don't you think that? Well, yes, if that sentence applies anywhere, but that's part of the Dodd-Frank provisions. Dodd-Frank is replete with provisions that limit arbitration, and many of them are hoarded differently. In fact, we have one in our addendum, which specifically applies to claims, but includes any claim under any federal law, specifically including more than Dodd-Frank. And that's, of course, 15 USC, 1639C. It first says no residential loans can contain arbitration agreements in the future, but then on paragraph 3, as to existing agreements, it says no provision of residential mortgage loans, blah, blah, blah. Shall we apply it or interpret it as a barriconsumer from bringing in action in appropriate district or the United States under this law or any federal law, any other federal law? So Congress specifically, in other parts of Dodd-Frank, prospectively said it applies way beyond Dodd-Frank. There is a great mistrust of arbitration in Dodd-Frank. It is a cutback on FAA, and the Supreme Court's case of CompuPreddit cited the provision we're talking about today as a clear example of cutting back on the federal arbitration and extroist prudence. So the only issue is does it apply to agreements, and it's a rational way to accomplish the purpose of Dodd-Frank. On this provision, the employment provisions of Dodd-Frank, employers all they had to do was revise their agreements to comply, because many employees look at their agreements, and if the agreements themselves on the force corners say you have to arbitrate whistleblower claims, they wouldn't know any better, and they'd be forced into arbitration when Congress clearly wanted to eliminate that. So Congress said employers, you cannot force employees to arbitrate these claims. Now they could have said, and if you don't revise your agreements, you're subject to a fine, or we'll have an audit, or we'll have a regulatory scheme to enforce to make sure you change your arbitration agreements

. All of that is much more complicated. This is so self-enforcing, it's brilliant. The government doesn't have to then involve it all. It says, if you want to keep arbitration as to come along on other statutes, fine, but you have to revise your agreement. You have to put notice in the hands of your employees, it's specifically carve out whistleblower claims. As an accenture, and most employers have now done as far as we can tell in our office. The thrust of Accenture's argument, though, is that the statute applies only to claims and not to agreements, but that's not the structure of the statute. What it says is, no predispute arbitration agreement shall be valid or enforced if the agreement requires arbitration of dispute arising under this section. It applies to agreements, not claims. Contrast that with the appendix, it's four pages from the back of the blue brief, where it says claims. Here, on the mortgage ones, they said, you can't arbitrate any claim under any federal law, but it leaves intact arbitration agreements under common law and state law. The same argument Accenture makes is they use different language regarding arbitration, the same statute, it has to be a different effect. When they want to eliminate just claims, they can't. So, it is a rational way to get employers to change the agreement. There is a penalty. If you don't carve out the claims, you lose the right to enforce it across the board, and we know employers love their arbitration agreements. This takes regulators out of it, it takes the SEC out of it, you don't have to have fines, you don't have to have anything else. The other argument Accenture, I don't think, work much talking. It's obviously not a retroactive application since the contract was renewed twice after the passage, and the conduct addition of the lawsuit is a firing that had more than a year after the official enactment date. There are no questions, I'll reserve the remainder of my time. Thank you, Mr. Turner. Mr. Cohn. Good morning, and may it please the court, Jonathan Cohn, for the appellate. Plaintiffs argument that Congress invalidated innumerable arbitration contracts in their entirety has been rejected by every single court that has addressed the issue. What about this specific language makes your argument? Did he have the better of the argument on the language of the exact words he's pointing to? With respect, Judge Shed, no, for a point. Why not? He, his argument is entirely based upon the implicit and erroneous assumption that the word agreement means the entire arbitration provision

. But nowhere in the statute did Congress say agreement meant the entire arbitration provision. In the Supreme Court and Rent-a-Center, a case we cited, and he failed to cite, made clear that arbitration provisions are not single monolithic agreements. Instead, they have multiple subsidiary agreements. So the arbitration provision in this case, clause four, is not one agreement. It's one provision, but it contains multiple agreements as the Supreme Court made clear in the Rent-a-Center. We cited that case throughout our briefs and his reply, Mr. Santoro, had no response whatsoever. So that provision is multiple agreements. But also as Judge, as your honor noted earlier, you have to look at the provision in context. What he does is he pulls out one isolated parameter. I don't know if I know to that. I asked that about a way of question. And I'm asking you the same thing. Sure. Your honor. And so what he does is he looks at one provision within one subsection of that section. But that section of Dodd-Frank, 748 and 922 likewise, is all about whistleblowers. The beginning, middle, and end, is all about protecting whistleblowers. If prohibits retaliation against whistleblowers, it provides a cause of action to whistleblowers. Do you think his argument, I ask him out? Don't you think his argument is premised on that language could appear anywhere? And he would give the same meaning, no matter what statute it's saying, as long as those words are in the federal law, his argument would be exactly the same. Right. That is his argument, and that's no way to read statutes. Because as the Supreme Court and this Court have said time and time again, you have to read the statute as a whole. You have to look at the structure of the statute, and this statute was about protecting whistleblowers. By way of background, you originally had in sorbete. By the way, didn't Congress know how to limit the language? Didn't Congress have any shown us to know the statutes? They know how to limit, put a limitation on language like that. On language? Yeah. And this one's actually limited because you look at the provision

. Let me say, limited in a way that makes it clear on its face. It only appears to dispute a rising under this act. Congress knows how to do that, don't they? It does, and sometimes it is more clear. But if there's any doubt whatsoever, and we're not saying the statutes abundantly clear in its face. We're saying the statutes ambiguous, which it is. Congress could be more clear, it could have been less clear. But it is ambiguous than how do we resolve it? Then you have to affirm the decision below for a few reasons. First and foremost is you have the backdrop of the Federal Arbitration Act, the FAA. And effectively- Anything in legislative history, a sponsor statement to talk about what this station means. Non-House reports, but here's the background. You had sorbeteens oxley which provided a cause of action to whistleblowers. But said nothing about these predispute arbitration provisions. So the second circuit in guidance said these sorbeteens oxley disputes can be arbitrated. And so the Dodd-Frank provision, 922, is a response to guidance. It makes clear that these whistleblower disputes can't be shoved off to arbitration in a predispute arbitration agreement. So that's the legislative history. It's a response to guidance. And the structure of the statutes consistent with that, because the beginning, middle and end of these provisions is all about- Let me ask you a question. Isn't all this premistone what the court has said, which may be a fallacy. And that is a Congress knows what they're doing when they pass a statute. They know the language of it. That is the legal fiction that court subscribed to. And the reality sort of runs a center problem sometimes, doesn't it? Sometimes and the reality is Dodd-Frank is an 848 page. You know my background? You know my background? Yes, Your Honor. You know I used to work for the Senate staff? Yes, Your Honor. You know I have drafted legislation that the Senate has passed. I'm aware of that, Your Honor. We just surprise you that not only did they know what it meant, but sometimes I didn't know what it meant

. I would, it's law, that's the concern. I wouldn't think you never knew what it meant, Judge Shed. But I'm just saying, except that for my hypothetical, then. No, but yes. Let me say, take a minute and give you it. I worked on a conference bill one time, and as a conference bill is, you have the House and the Senate go together to try to resolve the differences. And what really happens is the members push their staffs in a room, maybe go background too, and you work through it. And we couldn't resolve one section. We told our sponsors, we've got everything done in this 500 page bill or whatever it was. But this one section, we just can't resolve it. They were anxious to get to compromise. So guess what that section said? Staff will resolve this later. That was passed in the law. If you look to that law, that section said staff will resolve this later. You just have some idea that goes, but it is, we find ourselves, I think, on this. You look at it. Is there anything about that language predispute arbitration agreements? No predispute arbitration agreement shall be valid or enforceable if the agreement requires arbitration of a dispute arising under this section. And reading that language, why doesn't that language, in its broadest reason, cover what the other side says? Because the word agreement does not mean the entire provision as the Supreme Court made clear and rent a center. But I said, what in that language says that? Oh, nothing, that's why it's ambiguous. And because it's ambiguous, you got to read that provision in the context of the status. What's ambiguous about agreement? What's ambiguous about agreement? Agreement could mean either the entire contract or it could mean the subsidiary agreement to arbitrate retaliation claims. Well, neither will we valid. No, no, no arbitration agreement shall be valid. There's not any ambiguity in that, is there? But it says if the agreement requires, and this agreement, this arbitration agreement, does not require arbitration of whistleblower claims. Because we're not looking at the contract as a whole, we're looking at the particular agreement to arbitrate ADA claims. But the very least, Your Honor, as the Court made clear and rent a center, there's a separate agreement of who's going to decide arbitrability. And here there's no dispute that this contract has a provision, a delegation provision, as the Supreme Court called in the Rent a Center, which says the arbitrator decides arbitrability. And we explained in our brief on page 43, at the very least, the arbitrator has to decide this arbitrability question

. And Mr. Santor's reply says nothing about that. So there's any doubt whatsoever. We don't think there is, because we think it's clear what's going on here. But if there's any doubt, this entire dispute should be resolved by the arbitrator under Rent a Center, which makes clear that when there is a delegation provision, the arbitrator gets to decide arbitrability. And that will be the end of the case with one caveat, which is issue preclusion. And there's also retroactivity, but on issue preclusion, that issue the Court can address, even if it says the rest of the issue. Is there any indication in the record anywhere that any member of Congress at the time this language was approved, had any idea that it would affect every arbitration agreement in the world? Absolutely not. There's no suggestion anywhere, and you'd think that for such a monumental sea change in employment law, someone somewhere would have said something. And no one said any such thing. No one thought this is anything more than a response to guide. And no one thought this was going to wipe out millions of employment agreements across the country. No one thought that. And all five courts. Justice Scalia says often, he doesn't care what they thought and what their intent was. So what they wrote that he construed as on the Supreme Court. And really likewise, as we take our direction from the Supreme Court, we also stuck with what was written. My question I asked this, that was just a segue to the side. But the real question is, is there any way that a whistleblower could be fall under this arbitration, be required to? I know we get about the cover you have a narrowing revision. But a whistleblower be forced to arbitrate under this, because you say it's not related to whistleblower, but could a whistleblower claim be arbitrated under this agreement, total agreement? Under this agreement, which predates Dodd-Frank, yes, yes, because of the retroactivity question. Right. So that's good. And it could. And seven of the nine courts that address the arbitrability question have rejected plaintiffs position here. And this is actually the A4-Shiari case. Because in all of those cases on 748 and 922, the courts were assessing a whistleblower's claim. And the court said Dodd-Frank, 748 and 922, do not apply retroactively even to whistleblower claims. Well, this case is the A4-Shiari one, because this is not even a whistleblower

. The expectations that were settled, that plaintiff is seeking to unravel, are monumental compared to the expectations in those cases. Because again, those cases were just whistleblowers. This is the millions of employment contracts that had the standard language, which say, hey, you can arbitrate. Every one of those contracts would be invalidated under Mr. Santoro's reading. So again, this is the A4-Shiari case. Seven of nine courts rejected that position on the much different case of just whistle blowing. This is the A4-Shiari case. There's no basis for traveling all those settled expectations. As this court recognized in Raymond James, among others, you have settled, you have justified expectations in arbitration contracts, which are valuable economic rights because of efficiency, speed, and economy. And those justified expectations are being destroyed completely in all these cases, in the millions of contracts, in light of the reading that plaintiff is giving. And that interpretation has been rejected. The retroactivity issue, seven of nine courts ruled against it. But on the bottom line issue of whether or not Dodd-Frank even applies to non whistleblowers, it's 0 for 5. Five courts have reached the issue. Five courts have rejected it. The fifth circuit, two district courts, the DC Superior Court. In this case, when he took the first bite at the apple and then EDVA, that argument is 0 for 5. The retroactivity argument is 2 for 9. And again, this is the A4-Shiari case. So Mr. Santoro's position has no merit on either of those two grounds. But again, if there's any doubt whatsoever, any doubt, that under rent a center, this court should allow the arbitrator to decide the arbitrability question. We don't think there's any doubt. Congress did not mean to obliterate millions of arbitration contracts. Congress did not intend to impliedly repeal the FAA, which is his position. The FAA has been, in effect, for decades and reflects a strong national interest in arbitration. The language is ambiguous, don't you? The language is ambiguous

. And Justice Scalia, when he allows the language is ambiguous, he has to look somewhere, doesn't he? Absolutely, you're right. When it could on unusual punishment, he would look to the standards at the time that language was adopted or used, didn't that correct? Absolutely. I'm not suggesting we get to it. And I'm not suggesting Justice Scalia would agree with me on this. But I at least think if the language is ambiguous, and I'm not saying that it is, if you think it's ambiguous, where would you tell us to look? When you suggest you look to see if there's any legislative history or any comments that everybody would agree based on legislative debate, what Congress meant that word to be at the time they passed that word. I would look to foretold it. I'm saying, but you would have to do with that process. You would have to do with the process to see if there were any such language or debate or history or announcement, wouldn't you? I would. But you just say part of that process is it's not there. There's nothing there. All we have is you have guidance which interprets Sarbanes oxley. So what do you do? How do you resolve the ambiguity in your mind? Where do we look to see how we resolve that ambiguity? I do a couple of things. One, you look at Rent the Center, which makes clear that an arbitration contract has multiple agreements. Agreement does not mean the entirety of the contract. I look at that. If I think it's not ambiguous, if we think it's not ambiguous, do you lose? No, no, Your Honor, because... How do you win if it's clear on its face and the words themselves are unambiguous? How do you win? Three things, Your Honor. First of all, even the case that he cites Ron Pear, Supreme Court case, says if it would lead to results, they're demonstriply at odds with the intent of the drafters absurd. You don't uphold the plain language. How do you know? How do you know that? This one I'm never quite understood. How do you know that somethings absurd, absurd, in light of what the drafters meant? Can't they pass a stupid statute if they want to? Because Congress did not intend to obliterate millions of arbitration contracts. How do we know that? That I understand that absurd language sometimes strikes me. I know that's what we say. I'm quite puzzled. How do we know when it's absurd if you allow Congress can pass a stupid statute if they want to? Why can't they do that? I trust that judges like Your Honors can recognize when a result is demonstrably at odds with the intent of the drafters. This was a statute designed to be a response to guidance

. Well, my point is this. My point is this. Isn't it not so much what the intent of the drafters is, other than what the statute where it's placed in says? Do you think it goes beyond that? This is just an interesting question I'm asking you. When you look to whether or not it's absurd, do you look to that really in the context of the statute where it appears? I'm asking. I think you do, but I think that looking at the statute in the structure and where it appears also goes to the first step analysis of construing the plain language. Because you don't read isolated snippets by themselves to understand the plain language you look at the structure of a whole. So that structure animates both questions and context and the context of the statute. Right. And here the context is Dodd Frank plus the FAA. And he's seeking an implied repeal of the FAA. And there has to be a clear manifestation as this court said in Ray Maharaj. And there's no manifestation that Congress intended to repeal the FAA. Nothing whatsoever. And it's no surprise that five courts have rejected the position of Mr. Santoro. Five courts have said these Dodd Frank provisions apply only to whistle blowers. So that's one ground to reject Mr. Santoro's position. Also, you have the severability clause in the contract, which he never grapples with. And that clause essentially says, if any part of this is invalid or unenforceable, then you simply excise that part and you retain as much as possible. So here, there might have to be a carve out. The statute says you can't apply this to whistle blower claims. But severability clause clause seven says the rest of the provision remains. That's another basis to reject Mr. Santoro's position. Then you have retroactivity. Seven of nine courts have ruled against his position on retroactivity. And this is the A4 Shiauri case

. You have the Supreme Court of West Virginia among the seven courts rejecting that position. And again, this is the A4 Shiauri case. But if there's any doubt whatsoever, then again, under rent a center, these issues of arbitrability should be decided by the arbitrator. I have a rent a center. That analysis is almost like the Campbell's nose under the tin. Once you let the Campbell's nose under the tin, then arbitration, that's the whole idea. If it's invalid, then people ought to have access to the courts. So that's sort of a hybrid type remit, isn't it? If there is no arbitration requirements, then like anyone else, you go to courts. But you're saying, well, we're applying that. Let's let an arbitrator decide what those claims are. And here, it seems to be there are argument under the Dodd-Frank. No, we don't have to do that. If we apply them, as Lisa is saying, I don't think that seems to be a weaker argument in terms of addressing what you're trying to get it. Because I think the point is Dodd-Frank was trying to make sure that whistleblowers would not be interfered with. And we have free willing opportunity for people to disclose the wrong doings that may have gotten us into other things. And therefore, I guess, in the sense, your argument is that we ought not throw out everything if we can comply with the law by tweaking every agreement to make sure none of them will be enforced as whistleblowers. That's your basic argument. Well, our argument, you don't have to reach that rent to center issue. Right. Because we think looking at the FAA and the structure of the statute, this is something that, you know, it's clear that Congress did not intend to wipe out millions of arbitration agreements. And the court can stop right there. I was just saying that if there was still doubt at the end of that, you could, but the court can stop before you even get there. But there's a separate third ground for Rejection, Mr. Santor's position. And this is very simple. It's issue preclusion. Here, you presented these exact same issues in the DC Superior Court, the same exact ones. And he lost there, and he's simply trying to get two bites at the apple. This is standard black letter, textbook issue preclusion. And there's one point that is reply I want to respond to, because in his reply, he said he couldn't have raised these federal claims in his DC case. And that's just completely wrong on the law and the facts. Do you find any assistance in your argument in the word requires? I do, Your Honor. Tell me why. Because there are two things first, as we explained in our brief, in this case, nothing is required because there's no whistleblower claim. But also because of our contract, the severability provision? What are, because of that provision, we don't require that doctrine. No, no, I was wondering, do you, I'm not sure of this, carries much, I'm just asking. Do you think requires can be read in a way that's different than covers? I think it could. You see what I mean? Just the word requires being read with some connotation that the agreement itself would specifically require that, rather than it just looked like it could cover those types of. I think that's right, Your Honor. I think it requires some, the word requires can note some more specificity. And when you take that point in conjunction, no other words, you think that perhaps a way to read this on its face would be, if the agreement, if the agreement, wherever and whenever it is, if it had a requirement that whistleblower type things or invalid, I mean, it cannot, it had to be arbitrated, that that might then, that specific requirement in the agreement might lead to an application of this, if it stated in a positive way. Do you think that? I think, I think that very well might have been in Congress's intent, and when you take that point in conjunction with the severability provision, it's clear we're not requiring arbitration of Dodd-Franklames because what the severability provision essentially says is we want to have arbitration as far as law allows. And if law says you can't do something, that's fine. You can't arbitrate that, but the rest of the agreement stands. And then if I have, I know I'm over my time, but just to say one thing about issue preclusion, he says he couldn't have raised his federal claims because he had a way for the EEOC letter. That's incorrect as EEOC's own website makes clear with ADA claims. You don't have to wait for the right to sue letter. You can file your claim in court anytime after 60 days after filing your charge with the EEOC. He filed his charge with the EEOC December 9, 2011. He didn't file his complaint in DC until March 6, 2012, that's more than 60 days after he filed that charge. He give it put all these claims, all the federal claims in DC. He didn't do so, probably because he was trying to preclude us from removing, but in any event, he had one bite at the apple, he lost at DC, he shouldn't get a second bite at the apple, issue preclusion is an independent grounds for affirming the decision below. Unless this court has questions, so I'd be happy to rest in the briefs. Okay, thank you so much. Thank you, Your Honor. Mr

. This is standard black letter, textbook issue preclusion. And there's one point that is reply I want to respond to, because in his reply, he said he couldn't have raised these federal claims in his DC case. And that's just completely wrong on the law and the facts. Do you find any assistance in your argument in the word requires? I do, Your Honor. Tell me why. Because there are two things first, as we explained in our brief, in this case, nothing is required because there's no whistleblower claim. But also because of our contract, the severability provision? What are, because of that provision, we don't require that doctrine. No, no, I was wondering, do you, I'm not sure of this, carries much, I'm just asking. Do you think requires can be read in a way that's different than covers? I think it could. You see what I mean? Just the word requires being read with some connotation that the agreement itself would specifically require that, rather than it just looked like it could cover those types of. I think that's right, Your Honor. I think it requires some, the word requires can note some more specificity. And when you take that point in conjunction, no other words, you think that perhaps a way to read this on its face would be, if the agreement, if the agreement, wherever and whenever it is, if it had a requirement that whistleblower type things or invalid, I mean, it cannot, it had to be arbitrated, that that might then, that specific requirement in the agreement might lead to an application of this, if it stated in a positive way. Do you think that? I think, I think that very well might have been in Congress's intent, and when you take that point in conjunction with the severability provision, it's clear we're not requiring arbitration of Dodd-Franklames because what the severability provision essentially says is we want to have arbitration as far as law allows. And if law says you can't do something, that's fine. You can't arbitrate that, but the rest of the agreement stands. And then if I have, I know I'm over my time, but just to say one thing about issue preclusion, he says he couldn't have raised his federal claims because he had a way for the EEOC letter. That's incorrect as EEOC's own website makes clear with ADA claims. You don't have to wait for the right to sue letter. You can file your claim in court anytime after 60 days after filing your charge with the EEOC. He filed his charge with the EEOC December 9, 2011. He didn't file his complaint in DC until March 6, 2012, that's more than 60 days after he filed that charge. He give it put all these claims, all the federal claims in DC. He didn't do so, probably because he was trying to preclude us from removing, but in any event, he had one bite at the apple, he lost at DC, he shouldn't get a second bite at the apple, issue preclusion is an independent grounds for affirming the decision below. Unless this court has questions, so I'd be happy to rest in the briefs. Okay, thank you so much. Thank you, Your Honor. Mr. Chair, I'll... Thank you. The main problem that Accenture has is the language is extremely clear in both the arbitration agreement. The arbitration agreement covers everything, every claim under federal state law or common law, which violates a Dodd-Frank provision. And the language of Dodd-Frank is very clear. It prescribes the form of an arbitration agreement and all they had to do was revise it, which they've since done. Do you use the word requires interchangeably with covers? I think yes. That's how you read it, you say that's what you should be read. I can't see any difference there in this context. The... It's a ZIF Congress in a credit card bill said no credit card agreement can be enforceable unless the interest rate appeared in 18-point type both letters on the first page. And a credit card company comes in later and says, all right, our agreement doesn't comply with the form, but we have a savings clause or we have something else or please don't invalidate our agreement. When Congress prescribes the form... You've got to finish that hype, Paul. It's open ended. You've got to at least match it a little bit. When Congress passes a law, I'm sorry, I might... No, no, I like the one about the points. How does the.

. Chair, I'll... Thank you. The main problem that Accenture has is the language is extremely clear in both the arbitration agreement. The arbitration agreement covers everything, every claim under federal state law or common law, which violates a Dodd-Frank provision. And the language of Dodd-Frank is very clear. It prescribes the form of an arbitration agreement and all they had to do was revise it, which they've since done. Do you use the word requires interchangeably with covers? I think yes. That's how you read it, you say that's what you should be read. I can't see any difference there in this context. The... It's a ZIF Congress in a credit card bill said no credit card agreement can be enforceable unless the interest rate appeared in 18-point type both letters on the first page. And a credit card company comes in later and says, all right, our agreement doesn't comply with the form, but we have a savings clause or we have something else or please don't invalidate our agreement. When Congress prescribes the form... You've got to finish that hype, Paul. It's open ended. You've got to at least match it a little bit. When Congress passes a law, I'm sorry, I might... No, no, I like the one about the points. How does the... What provision gets the round not having the 14-point warning in your hype? Nothing. The credit card company has to revise it or they can enforce their interest rate. That would be... That's my hypothetical is that when Congress prescribes the form, you can't come in and say, well, we have a sentence buried in the miscellaneous saying, well, if we don't comply with some law, it should be deemed to comply with the law. But that provision would impact all of the people who hold the card. Right. And this... But that's why you lost the Apple in orange. Here, this has nothing to do with whistleblower. It prescribes this form that Dodd-Frank had. Right. prescribes the form in which employment arbitration agreements must be in order to pass mustard to be valid after Dodd-Frank. Whether they want to... They have any relationship to Dodd-Frank. Again? Whether or not the claim has any relationship to Dodd-Frank. We've got to buy that in order for you to win, don't we? Yes, although, of course, you have to be a covered entity. So, essentially... It's a public.

.. What provision gets the round not having the 14-point warning in your hype? Nothing. The credit card company has to revise it or they can enforce their interest rate. That would be... That's my hypothetical is that when Congress prescribes the form, you can't come in and say, well, we have a sentence buried in the miscellaneous saying, well, if we don't comply with some law, it should be deemed to comply with the law. But that provision would impact all of the people who hold the card. Right. And this... But that's why you lost the Apple in orange. Here, this has nothing to do with whistleblower. It prescribes this form that Dodd-Frank had. Right. prescribes the form in which employment arbitration agreements must be in order to pass mustard to be valid after Dodd-Frank. Whether they want to... They have any relationship to Dodd-Frank. Again? Whether or not the claim has any relationship to Dodd-Frank. We've got to buy that in order for you to win, don't we? Yes, although, of course, you have to be a covered entity. So, essentially... It's a public... The responsibility argument, the Mr. Cun just may, because the severability argument is predicated on the employment agreement that does not say if any agreement is invalid, it says if any provision in this agreement is invalid. So, why doesn't the severability argument kick in if we were to agree with you otherwise, why wouldn't the severability argument make a difference here? Primarily because of the way they've drafted their own arbitration agreement. Unlike rent essentially. Well, no, I want to talk about the severability provision that any agreement under miscellaneous in the employment contract where it says if any provision of this agreement is left in valid or unenforceable, the invalidities shall not affect any other provision of the agreement. So, it can be dissected in terms of individual provisions as opposed to a general agreement regarding arbitration. Correct? Well, probably not, because under federal, under Buck Ey, severability is in the state law issue in the arbitration context. But putting that aside, we don't have to get there. If there was a provision that could be excised, they would be in better shape on that argument, but there isn't. Their entire positive arbitration agreement is in a single sentence. It appears in Joint Appendix page 24A, and it basically says with a lot of parentheticals, any and all disputes under any law must be arbitrated. And then in a parenthetical, it says, including validity scope, enforceability, blah, blah, blah. There is nothing to be excised. If they could come in, like it's in Rentacenter, for example, which really did have, it had the arbitration of disputes on page 29 and the delegation agreement on page 32. They were really separate provisions there. Rentacenter on its facts doesn't say that every one line of arbitration agreement is really 10 or 20 or 1,000 separate arbitration agreements for every statute. Here, they have a single arbitration provision. Any and all disputes relating to this contract or employment have to be arbitrated. Here are you. If we excise that sentence, I'm fine with that, we win. If you don't excise that sentence, we're back where we are. We have to construe the statute to say, this form of agreement is invalid. So your point in your sentence is nothing to sever. Exactly. What about severing the word any and all and it wouldn't be any at all? It didn't, I guess it still says, disputes relating to employment have to be arbitrated. So it's so violates Dodd-Frank. They're really, they have not argued anything

.. The responsibility argument, the Mr. Cun just may, because the severability argument is predicated on the employment agreement that does not say if any agreement is invalid, it says if any provision in this agreement is invalid. So, why doesn't the severability argument kick in if we were to agree with you otherwise, why wouldn't the severability argument make a difference here? Primarily because of the way they've drafted their own arbitration agreement. Unlike rent essentially. Well, no, I want to talk about the severability provision that any agreement under miscellaneous in the employment contract where it says if any provision of this agreement is left in valid or unenforceable, the invalidities shall not affect any other provision of the agreement. So, it can be dissected in terms of individual provisions as opposed to a general agreement regarding arbitration. Correct? Well, probably not, because under federal, under Buck Ey, severability is in the state law issue in the arbitration context. But putting that aside, we don't have to get there. If there was a provision that could be excised, they would be in better shape on that argument, but there isn't. Their entire positive arbitration agreement is in a single sentence. It appears in Joint Appendix page 24A, and it basically says with a lot of parentheticals, any and all disputes under any law must be arbitrated. And then in a parenthetical, it says, including validity scope, enforceability, blah, blah, blah. There is nothing to be excised. If they could come in, like it's in Rentacenter, for example, which really did have, it had the arbitration of disputes on page 29 and the delegation agreement on page 32. They were really separate provisions there. Rentacenter on its facts doesn't say that every one line of arbitration agreement is really 10 or 20 or 1,000 separate arbitration agreements for every statute. Here, they have a single arbitration provision. Any and all disputes relating to this contract or employment have to be arbitrated. Here are you. If we excise that sentence, I'm fine with that, we win. If you don't excise that sentence, we're back where we are. We have to construe the statute to say, this form of agreement is invalid. So your point in your sentence is nothing to sever. Exactly. What about severing the word any and all and it wouldn't be any at all? It didn't, I guess it still says, disputes relating to employment have to be arbitrated. So it's so violates Dodd-Frank. They're really, they have not argued anything. We've been around this a while. That there's any particular provision that you can ex out and leave them forcing Mr. Santorad arbitration and not violate Dodd-Frank's form prohibitions. Just saying a law can violate all common sense but still be the law. Isn't that pretty much what your position comes down to? No, no, no, no. Accenture looks at this and it's interesting to me. They cite zero legislative history and therefore they say it supports us. If you come at it saying, well, Congress couldn't have invalidated public, this only applied by the way to publicly traded companies, this provision, that Congress couldn't have wanted publicly traded companies to have to revise our arbitration agreements. Well, then you're gonna see that in the language. But the language is clear and it's a very sensible, non-regulatory, no fines. It's an easy way to get employers to actually change their agreements and it's worked. Every arbitration agreement I've seen in our practice in the last couple of years, CarvesOut Dodd-Frank claims. You didn't need to set up a fine, you didn't need to set up audits, you didn't need to set anything, it worked. And it contrasted. It worked being that sense because it's almost like a lawyer relief bill. I mean, you had to hire lawyers to do that, but it essentially works by saying, from now going forward, no arbitration agreement or vision or whatever, or publicly traded companies are gonna apply to whistleblower disputes and claim. The period, you don't, that's the practical side of it, isn't it? That's what really, seeing that Congress was doing. Yes, Dodd-Frank wanted publicly traded companies to notify people. If you wanna blow the whistle, you would have to sort of have some words, Smither, pay $1,000 an hour to put that in and can it be categorically that way? It was almost like the 13th amendment was the past. Or the 13th amendment is the best one. Any contract that you have, I mean, it's just not gonna apply to force servitude, but you answer, well, no, no, it, I mean, but if you have others that you said you employed other people and you paid them money, others that you didn't, wouldn't it be the effect of anybody that you, and your employer, that's there by force servitude, it is from now on, null and void? What you're saying, somebody go around to every contract in the whole America and actually put in, and that what your argument is? No, your honor. A publicly traded companies revised these documents all the time. There's new compliance issues all the time. When Sarbanes actually came out, there was training and compliance, every publicly traded company did it. When Dodd-Frank, there was, there was millions of effects of Dodd-Frank on publicly traded companies the way they did business. Having to revise their arbitration agreements or send out an email saying, here's a new paragraph, was easy. We get it when credit cards and health insurance, you get letters in the mail all the time. But that doesn't mean anything because any good lawyer could look at a statute and go, my gosh, it can't possibly mean that, but I guarantee you, somebody's gonna say it means that

. We've been around this a while. That there's any particular provision that you can ex out and leave them forcing Mr. Santorad arbitration and not violate Dodd-Frank's form prohibitions. Just saying a law can violate all common sense but still be the law. Isn't that pretty much what your position comes down to? No, no, no, no. Accenture looks at this and it's interesting to me. They cite zero legislative history and therefore they say it supports us. If you come at it saying, well, Congress couldn't have invalidated public, this only applied by the way to publicly traded companies, this provision, that Congress couldn't have wanted publicly traded companies to have to revise our arbitration agreements. Well, then you're gonna see that in the language. But the language is clear and it's a very sensible, non-regulatory, no fines. It's an easy way to get employers to actually change their agreements and it's worked. Every arbitration agreement I've seen in our practice in the last couple of years, CarvesOut Dodd-Frank claims. You didn't need to set up a fine, you didn't need to set up audits, you didn't need to set anything, it worked. And it contrasted. It worked being that sense because it's almost like a lawyer relief bill. I mean, you had to hire lawyers to do that, but it essentially works by saying, from now going forward, no arbitration agreement or vision or whatever, or publicly traded companies are gonna apply to whistleblower disputes and claim. The period, you don't, that's the practical side of it, isn't it? That's what really, seeing that Congress was doing. Yes, Dodd-Frank wanted publicly traded companies to notify people. If you wanna blow the whistle, you would have to sort of have some words, Smither, pay $1,000 an hour to put that in and can it be categorically that way? It was almost like the 13th amendment was the past. Or the 13th amendment is the best one. Any contract that you have, I mean, it's just not gonna apply to force servitude, but you answer, well, no, no, it, I mean, but if you have others that you said you employed other people and you paid them money, others that you didn't, wouldn't it be the effect of anybody that you, and your employer, that's there by force servitude, it is from now on, null and void? What you're saying, somebody go around to every contract in the whole America and actually put in, and that what your argument is? No, your honor. A publicly traded companies revised these documents all the time. There's new compliance issues all the time. When Sarbanes actually came out, there was training and compliance, every publicly traded company did it. When Dodd-Frank, there was, there was millions of effects of Dodd-Frank on publicly traded companies the way they did business. Having to revise their arbitration agreements or send out an email saying, here's a new paragraph, was easy. We get it when credit cards and health insurance, you get letters in the mail all the time. But that doesn't mean anything because any good lawyer could look at a statute and go, my gosh, it can't possibly mean that, but I guarantee you, somebody's gonna say it means that. So my advice to you, client, is change your arbitration agreements. I don't think the statute requires it but I'm telling you, it's sort of to prevent litigation over that issue. Doesn't that make sense? Well, isn't that a justification for why you change it? Not because the statute requires it but just because somebody's gonna make an argument that it requires it. Which probably, that's certainly possible too. But getting back, we should be tied to the words of the statute. The statute is unambiguous and clear as can be. It applies to publicly traded companies. Mr. Santoro's firing was a year and a half and two new contracts after, let me ask you just if you had an arbitration agreement about a bank on a credit card or something like that, a federal statute. And let's just presume that the statute, arbitration statute, own bank arbitration and credit cards, says in any arbitration, it's just a freestanding section. In any arbitration, the customers or the claimants bank must first post a thousand dollar amount in case the arbitration benefits the person bringing the arbitration. Got me? Think so. Would that apply in every arbitration in America? No, if you wanted to bring an arbitration under a plea under an appointment agreement, some, your bank would have to first post a thousand dollars. Would that language apply? I guess I don't understand. It sends me how it's worded. I mean, here's how it's worded. In that bank bill, there's a section, a freestanding section and it says this. This is a bill to protect customers, own credit cards or some such thing. Some such thing. And one provision, freestanding provisions, and it goes through and it says these disputes will be arbitrated. And there's a freestanding provision that says in any arbitration, comma, the bank, the customer or the claimant, whichever other party is, bank shall post a thousand dollars at the beginning of arbitration. And all that language says, does that cover every arbitration agreement in America on every subject? If the hypothetical is what the bank have to post a thousand dollar bond, in a case where it's not a party to the arbitration, that seems like a stretch to me, Your Honor. But we're not asking, No, no, no, that's what the language says. Your Honor. No, no, no, the language says that. So it is your view of the law that sense that freestanding provision, that's all it says, in any arbitration, the customer's bank must post a thousand dollar surety bond before the proceedings begin. Would that apply? That's the case. I think it would be justified for the court to have to find some support for the notion that an non-party to an arbitration has supposed to bond with an arbitration

. So my advice to you, client, is change your arbitration agreements. I don't think the statute requires it but I'm telling you, it's sort of to prevent litigation over that issue. Doesn't that make sense? Well, isn't that a justification for why you change it? Not because the statute requires it but just because somebody's gonna make an argument that it requires it. Which probably, that's certainly possible too. But getting back, we should be tied to the words of the statute. The statute is unambiguous and clear as can be. It applies to publicly traded companies. Mr. Santoro's firing was a year and a half and two new contracts after, let me ask you just if you had an arbitration agreement about a bank on a credit card or something like that, a federal statute. And let's just presume that the statute, arbitration statute, own bank arbitration and credit cards, says in any arbitration, it's just a freestanding section. In any arbitration, the customers or the claimants bank must first post a thousand dollar amount in case the arbitration benefits the person bringing the arbitration. Got me? Think so. Would that apply in every arbitration in America? No, if you wanted to bring an arbitration under a plea under an appointment agreement, some, your bank would have to first post a thousand dollars. Would that language apply? I guess I don't understand. It sends me how it's worded. I mean, here's how it's worded. In that bank bill, there's a section, a freestanding section and it says this. This is a bill to protect customers, own credit cards or some such thing. Some such thing. And one provision, freestanding provisions, and it goes through and it says these disputes will be arbitrated. And there's a freestanding provision that says in any arbitration, comma, the bank, the customer or the claimant, whichever other party is, bank shall post a thousand dollars at the beginning of arbitration. And all that language says, does that cover every arbitration agreement in America on every subject? If the hypothetical is what the bank have to post a thousand dollar bond, in a case where it's not a party to the arbitration, that seems like a stretch to me, Your Honor. But we're not asking, No, no, no, that's what the language says. Your Honor. No, no, no, the language says that. So it is your view of the law that sense that freestanding provision, that's all it says, in any arbitration, the customer's bank must post a thousand dollar surety bond before the proceedings begin. Would that apply? That's the case. I think it would be justified for the court to have to find some support for the notion that an non-party to an arbitration has supposed to bond with an arbitration. That's what the law says. It strikes me as a quite different than a line that Dodd-Frank would theory, your theory's not any different. No, it's not your honor. Because Dodd-Frank applies to the relationship between publicly traded companies and their employees, and it specifically talks about what form the arbitration agreement is. I know this much. So then you say, you first started your argument. I think your answer was either implicit or explicit, that this provision of law is, this language applies no matter where it's written. That's what you say. It's a general provision of law, and you don't look to the context of the statute. Well, you do for coverage. It wouldn't apply to a small shop that's not publicly traded. Well, but then why do you do that? Because it doesn't, it's set. Why do you do that? Because the section applies to publicly traded companies. It's the same reason that we haven't relied on this provision that clearly eliminate more arbitration. What is this saying? What does it say that that section applies to publicly traded corporations? In the beginning of the whistleblower section, I think I'm reading it right. This says, this says, predispede arbitration agreements, period. No predispede arbitration agreement shall be valid or enforceable if the agreement requires arbitration of a dispute arising under this section. I believe that in that same chapter, it talks about covered entities as being publicly traded company. But if that's a necessary decision, I can't find it on my feet in this moment. But let's compare what the point is, but the point is the argument then is, you do look to other places in the statute for application of this provision. That's what you think. I believe I answered yes, though. You have to do it in context. But what we get off the train here, is it eccentric with no support says, I just don't like this result. Therefore, it couldn't have been with Congress intended, but they cite nothing. I see the result is very logical. If you want employers, I know how you see it. To change, but my question is, do we look at the rest of the statute to find context, yes or no? You say we look at it for some purposes, but not for other purposes

. That's what the law says. It strikes me as a quite different than a line that Dodd-Frank would theory, your theory's not any different. No, it's not your honor. Because Dodd-Frank applies to the relationship between publicly traded companies and their employees, and it specifically talks about what form the arbitration agreement is. I know this much. So then you say, you first started your argument. I think your answer was either implicit or explicit, that this provision of law is, this language applies no matter where it's written. That's what you say. It's a general provision of law, and you don't look to the context of the statute. Well, you do for coverage. It wouldn't apply to a small shop that's not publicly traded. Well, but then why do you do that? Because it doesn't, it's set. Why do you do that? Because the section applies to publicly traded companies. It's the same reason that we haven't relied on this provision that clearly eliminate more arbitration. What is this saying? What does it say that that section applies to publicly traded corporations? In the beginning of the whistleblower section, I think I'm reading it right. This says, this says, predispede arbitration agreements, period. No predispede arbitration agreement shall be valid or enforceable if the agreement requires arbitration of a dispute arising under this section. I believe that in that same chapter, it talks about covered entities as being publicly traded company. But if that's a necessary decision, I can't find it on my feet in this moment. But let's compare what the point is, but the point is the argument then is, you do look to other places in the statute for application of this provision. That's what you think. I believe I answered yes, though. You have to do it in context. But what we get off the train here, is it eccentric with no support says, I just don't like this result. Therefore, it couldn't have been with Congress intended, but they cite nothing. I see the result is very logical. If you want employers, I know how you see it. To change, but my question is, do we look at the rest of the statute to find context, yes or no? You say we look at it for some purposes, but not for other purposes. I said, well, if I was unclear, obviously you read the statute in context. I think that's a general provision. But you can't use that provision, a general statement of statutory construction, to vision the clear language of the statute. And here, it's such a rational way to get there. How would Congress otherwise get employers to change the agreement? You've made that already. Okay. And that would compare to, if you have four pages back from the end and the end of the blue brief, in the mortgage context, Congress explicitly, prospectively, said that without invalidating the mortgage agreement, they said the arbitration provision stands, it just can't be enforced on any federal statutory claim. What if in my hypothetical, the statute said, this applies to any person who has a credit card in America? They can do that. I know they can. And then that language owned down there about any arbitration agreement you first have to post. And so if anybody in there has a credit card, then any arbitration agreement, the bank would have to post $1,000. You know, why is Judge once said, Congress can pass a stupid law? Congress can do that. The same wise judge asked you a question. Congress could do that. And your analysis would be, then anybody who went arbitration for any reason, any reason, an appointment contract otherwise, their bank would have to post $1,000. I think other provisions come into play. At some point, there's a due process concern. If a non-party has to be, no no no no wait, wait. As opposed to bond. You may be exactly right. I'm talking about statutory construction. I think you have to say that under my hypothetical, if the statute is aimed at, it supplies to all bank credit card holders. And that sentence in there says, in any arbitration, in the arbitration, the person, the credit card holders, bank must first post $1,000. Then you would have to say, you would say I think that that would apply to any arbitration agreement that the credit card holder has whether it's with the bank or not. I find it hard to believe I'd argue that a non-party would have to post the bond. I think that there are other provisions that would say that. What is the language that I gave you would say that's not so? My knowledge of due process law, that a non-party can't be.

. I said, well, if I was unclear, obviously you read the statute in context. I think that's a general provision. But you can't use that provision, a general statement of statutory construction, to vision the clear language of the statute. And here, it's such a rational way to get there. How would Congress otherwise get employers to change the agreement? You've made that already. Okay. And that would compare to, if you have four pages back from the end and the end of the blue brief, in the mortgage context, Congress explicitly, prospectively, said that without invalidating the mortgage agreement, they said the arbitration provision stands, it just can't be enforced on any federal statutory claim. What if in my hypothetical, the statute said, this applies to any person who has a credit card in America? They can do that. I know they can. And then that language owned down there about any arbitration agreement you first have to post. And so if anybody in there has a credit card, then any arbitration agreement, the bank would have to post $1,000. You know, why is Judge once said, Congress can pass a stupid law? Congress can do that. The same wise judge asked you a question. Congress could do that. And your analysis would be, then anybody who went arbitration for any reason, any reason, an appointment contract otherwise, their bank would have to post $1,000. I think other provisions come into play. At some point, there's a due process concern. If a non-party has to be, no no no no wait, wait. As opposed to bond. You may be exactly right. I'm talking about statutory construction. I think you have to say that under my hypothetical, if the statute is aimed at, it supplies to all bank credit card holders. And that sentence in there says, in any arbitration, in the arbitration, the person, the credit card holders, bank must first post $1,000. Then you would have to say, you would say I think that that would apply to any arbitration agreement that the credit card holder has whether it's with the bank or not. I find it hard to believe I'd argue that a non-party would have to post the bond. I think that there are other provisions that would say that. What is the language that I gave you would say that's not so? My knowledge of due process law, that a non-party can't be... But that's not a constitutional question. That's not a statutory interpretation. But a constitutional question can invalidate another statute that otherwise is there? That's a fair too. You'd have to say, you're honored. That's what I think it means, but thank God we got a constitution. But I enjoyed the exchange. If I make include, this statute is clear as can be. It accomplishes a valid purpose in a rational way. It doesn't tread on any vested rights because the contract wasn't vested. It was renewed every year. And the firing happened more than a year after the effective date of the act. Thank you, Eric. Thank you so much. I'm gonna break it. You're gonna break it. Okay, we're gonna keep going. All right, we're gonna come down and greet Council and proceed to our last case.

The statutory language in this case is clear. Unless an arbitration agreement carves out Dodd-Frank-Lisselblower claims, it is invalid and unenforceable. Compliance with the statute is easy. All the employers had to do was modify and revise their arbitration agreements to make them enforceable. Accenture chose not to do that even though its lawyers recommended it until after they fired Mr. Santoro. The Supreme Court in the Compu Credit Case cited the exact provisioned issue here as a model of clarity in restricting the reach of the Federal Arbitration Act and eliminating arbitration. The only remaining issue in this case is whether the plain language of the statute means what it says. It says that agreements that don't comply with the form prescribed by Dodd-Frank are invalid and unenforceable. I think you have to read a language of a statute in context of that statute. As a general proposition, yes, but not to defeat the plain language. If it's clear enough that the provision is clear on its own, you can't- Do you think you could take any one sentence from any statute and read that, what it says on its face, with no context, and that's what you have to do? No, generally, statutes are read in context. But this fits because- I'm asking. So then what is the context of this language? Do you think it's in the context of Dodd-Frank or just in the context of law generally? Well, it's a part of the Dodd-Frank, but Dodd-Frank- I'm asking that question. I know it's a part of Dodd-Frank. I said, you think this has to be read, this language has to be read in the context of Dodd-Frank or the fact that it's in Dodd-Frank has no bearing on it whatsoever. It's just a statement of general law. I'm asking you what you think. It's clearly part of Dodd-Frank. But that's not what I ask you. I know that. So I'm asking you is your view that to read this provision and to understand it, you have to read it in the context of Dodd-Frank or the fact that it's placed in Dodd-Frank doesn't matter. It could have been placed in Obamacare. It could have been placed anywhere. Is your view that the context of Dodd-Frank doesn't really in any way matter. Well, obviously, we agree that it has to be read in the context of Dodd-Frank. However, that doesn't change the result here. Dodd-Frank, well, it might, you have to allow it, might change it, because it could be read in the context of Dodd-Frank as it's limited to the cases covered by Dodd-Frank. No, Your Honor, that would be torturous reading of the language itself. Let's try with the language. No, then answer your question. I want to be sure. I think your position is that it, does your view of this language change depending on where that language is found in the law, or it doesn't matter? It's a statement of general law about arbitration agreements, no matter where this paragraph is found. That's your view, isn't it? It's neither extreme. Well, generally, the provisions are read in the context of the statutes where they're contained. This is a 2300-page statute. It also is read plainly, and here it's a rational way to get employers to change their agreements. That's because... But you have an answer in my question. Well, I'm trying to get there. Well, I'll have to use the answer. Your view of it is, I'm not trying to badge it, I'm trying to understand it. You believe this language, no matter where it appeared, anywhere in federal law, gives you the same result that it covers all arbitration agreements. Don't you think that? Well, yes, if that sentence applies anywhere, but that's part of the Dodd-Frank provisions. Dodd-Frank is replete with provisions that limit arbitration, and many of them are hoarded differently. In fact, we have one in our addendum, which specifically applies to claims, but includes any claim under any federal law, specifically including more than Dodd-Frank. And that's, of course, 15 USC, 1639C. It first says no residential loans can contain arbitration agreements in the future, but then on paragraph 3, as to existing agreements, it says no provision of residential mortgage loans, blah, blah, blah. Shall we apply it or interpret it as a barriconsumer from bringing in action in appropriate district or the United States under this law or any federal law, any other federal law? So Congress specifically, in other parts of Dodd-Frank, prospectively said it applies way beyond Dodd-Frank. There is a great mistrust of arbitration in Dodd-Frank. It is a cutback on FAA, and the Supreme Court's case of CompuPreddit cited the provision we're talking about today as a clear example of cutting back on the federal arbitration and extroist prudence. So the only issue is does it apply to agreements, and it's a rational way to accomplish the purpose of Dodd-Frank. On this provision, the employment provisions of Dodd-Frank, employers all they had to do was revise their agreements to comply, because many employees look at their agreements, and if the agreements themselves on the force corners say you have to arbitrate whistleblower claims, they wouldn't know any better, and they'd be forced into arbitration when Congress clearly wanted to eliminate that. So Congress said employers, you cannot force employees to arbitrate these claims. Now they could have said, and if you don't revise your agreements, you're subject to a fine, or we'll have an audit, or we'll have a regulatory scheme to enforce to make sure you change your arbitration agreements. All of that is much more complicated. This is so self-enforcing, it's brilliant. The government doesn't have to then involve it all. It says, if you want to keep arbitration as to come along on other statutes, fine, but you have to revise your agreement. You have to put notice in the hands of your employees, it's specifically carve out whistleblower claims. As an accenture, and most employers have now done as far as we can tell in our office. The thrust of Accenture's argument, though, is that the statute applies only to claims and not to agreements, but that's not the structure of the statute. What it says is, no predispute arbitration agreement shall be valid or enforced if the agreement requires arbitration of dispute arising under this section. It applies to agreements, not claims. Contrast that with the appendix, it's four pages from the back of the blue brief, where it says claims. Here, on the mortgage ones, they said, you can't arbitrate any claim under any federal law, but it leaves intact arbitration agreements under common law and state law. The same argument Accenture makes is they use different language regarding arbitration, the same statute, it has to be a different effect. When they want to eliminate just claims, they can't. So, it is a rational way to get employers to change the agreement. There is a penalty. If you don't carve out the claims, you lose the right to enforce it across the board, and we know employers love their arbitration agreements. This takes regulators out of it, it takes the SEC out of it, you don't have to have fines, you don't have to have anything else. The other argument Accenture, I don't think, work much talking. It's obviously not a retroactive application since the contract was renewed twice after the passage, and the conduct addition of the lawsuit is a firing that had more than a year after the official enactment date. There are no questions, I'll reserve the remainder of my time. Thank you, Mr. Turner. Mr. Cohn. Good morning, and may it please the court, Jonathan Cohn, for the appellate. Plaintiffs argument that Congress invalidated innumerable arbitration contracts in their entirety has been rejected by every single court that has addressed the issue. What about this specific language makes your argument? Did he have the better of the argument on the language of the exact words he's pointing to? With respect, Judge Shed, no, for a point. Why not? He, his argument is entirely based upon the implicit and erroneous assumption that the word agreement means the entire arbitration provision. But nowhere in the statute did Congress say agreement meant the entire arbitration provision. In the Supreme Court and Rent-a-Center, a case we cited, and he failed to cite, made clear that arbitration provisions are not single monolithic agreements. Instead, they have multiple subsidiary agreements. So the arbitration provision in this case, clause four, is not one agreement. It's one provision, but it contains multiple agreements as the Supreme Court made clear in the Rent-a-Center. We cited that case throughout our briefs and his reply, Mr. Santoro, had no response whatsoever. So that provision is multiple agreements. But also as Judge, as your honor noted earlier, you have to look at the provision in context. What he does is he pulls out one isolated parameter. I don't know if I know to that. I asked that about a way of question. And I'm asking you the same thing. Sure. Your honor. And so what he does is he looks at one provision within one subsection of that section. But that section of Dodd-Frank, 748 and 922 likewise, is all about whistleblowers. The beginning, middle, and end, is all about protecting whistleblowers. If prohibits retaliation against whistleblowers, it provides a cause of action to whistleblowers. Do you think his argument, I ask him out? Don't you think his argument is premised on that language could appear anywhere? And he would give the same meaning, no matter what statute it's saying, as long as those words are in the federal law, his argument would be exactly the same. Right. That is his argument, and that's no way to read statutes. Because as the Supreme Court and this Court have said time and time again, you have to read the statute as a whole. You have to look at the structure of the statute, and this statute was about protecting whistleblowers. By way of background, you originally had in sorbete. By the way, didn't Congress know how to limit the language? Didn't Congress have any shown us to know the statutes? They know how to limit, put a limitation on language like that. On language? Yeah. And this one's actually limited because you look at the provision. Let me say, limited in a way that makes it clear on its face. It only appears to dispute a rising under this act. Congress knows how to do that, don't they? It does, and sometimes it is more clear. But if there's any doubt whatsoever, and we're not saying the statutes abundantly clear in its face. We're saying the statutes ambiguous, which it is. Congress could be more clear, it could have been less clear. But it is ambiguous than how do we resolve it? Then you have to affirm the decision below for a few reasons. First and foremost is you have the backdrop of the Federal Arbitration Act, the FAA. And effectively- Anything in legislative history, a sponsor statement to talk about what this station means. Non-House reports, but here's the background. You had sorbeteens oxley which provided a cause of action to whistleblowers. But said nothing about these predispute arbitration provisions. So the second circuit in guidance said these sorbeteens oxley disputes can be arbitrated. And so the Dodd-Frank provision, 922, is a response to guidance. It makes clear that these whistleblower disputes can't be shoved off to arbitration in a predispute arbitration agreement. So that's the legislative history. It's a response to guidance. And the structure of the statutes consistent with that, because the beginning, middle and end of these provisions is all about- Let me ask you a question. Isn't all this premistone what the court has said, which may be a fallacy. And that is a Congress knows what they're doing when they pass a statute. They know the language of it. That is the legal fiction that court subscribed to. And the reality sort of runs a center problem sometimes, doesn't it? Sometimes and the reality is Dodd-Frank is an 848 page. You know my background? You know my background? Yes, Your Honor. You know I used to work for the Senate staff? Yes, Your Honor. You know I have drafted legislation that the Senate has passed. I'm aware of that, Your Honor. We just surprise you that not only did they know what it meant, but sometimes I didn't know what it meant. I would, it's law, that's the concern. I wouldn't think you never knew what it meant, Judge Shed. But I'm just saying, except that for my hypothetical, then. No, but yes. Let me say, take a minute and give you it. I worked on a conference bill one time, and as a conference bill is, you have the House and the Senate go together to try to resolve the differences. And what really happens is the members push their staffs in a room, maybe go background too, and you work through it. And we couldn't resolve one section. We told our sponsors, we've got everything done in this 500 page bill or whatever it was. But this one section, we just can't resolve it. They were anxious to get to compromise. So guess what that section said? Staff will resolve this later. That was passed in the law. If you look to that law, that section said staff will resolve this later. You just have some idea that goes, but it is, we find ourselves, I think, on this. You look at it. Is there anything about that language predispute arbitration agreements? No predispute arbitration agreement shall be valid or enforceable if the agreement requires arbitration of a dispute arising under this section. And reading that language, why doesn't that language, in its broadest reason, cover what the other side says? Because the word agreement does not mean the entire provision as the Supreme Court made clear and rent a center. But I said, what in that language says that? Oh, nothing, that's why it's ambiguous. And because it's ambiguous, you got to read that provision in the context of the status. What's ambiguous about agreement? What's ambiguous about agreement? Agreement could mean either the entire contract or it could mean the subsidiary agreement to arbitrate retaliation claims. Well, neither will we valid. No, no, no arbitration agreement shall be valid. There's not any ambiguity in that, is there? But it says if the agreement requires, and this agreement, this arbitration agreement, does not require arbitration of whistleblower claims. Because we're not looking at the contract as a whole, we're looking at the particular agreement to arbitrate ADA claims. But the very least, Your Honor, as the Court made clear and rent a center, there's a separate agreement of who's going to decide arbitrability. And here there's no dispute that this contract has a provision, a delegation provision, as the Supreme Court called in the Rent a Center, which says the arbitrator decides arbitrability. And we explained in our brief on page 43, at the very least, the arbitrator has to decide this arbitrability question. And Mr. Santor's reply says nothing about that. So there's any doubt whatsoever. We don't think there is, because we think it's clear what's going on here. But if there's any doubt, this entire dispute should be resolved by the arbitrator under Rent a Center, which makes clear that when there is a delegation provision, the arbitrator gets to decide arbitrability. And that will be the end of the case with one caveat, which is issue preclusion. And there's also retroactivity, but on issue preclusion, that issue the Court can address, even if it says the rest of the issue. Is there any indication in the record anywhere that any member of Congress at the time this language was approved, had any idea that it would affect every arbitration agreement in the world? Absolutely not. There's no suggestion anywhere, and you'd think that for such a monumental sea change in employment law, someone somewhere would have said something. And no one said any such thing. No one thought this is anything more than a response to guide. And no one thought this was going to wipe out millions of employment agreements across the country. No one thought that. And all five courts. Justice Scalia says often, he doesn't care what they thought and what their intent was. So what they wrote that he construed as on the Supreme Court. And really likewise, as we take our direction from the Supreme Court, we also stuck with what was written. My question I asked this, that was just a segue to the side. But the real question is, is there any way that a whistleblower could be fall under this arbitration, be required to? I know we get about the cover you have a narrowing revision. But a whistleblower be forced to arbitrate under this, because you say it's not related to whistleblower, but could a whistleblower claim be arbitrated under this agreement, total agreement? Under this agreement, which predates Dodd-Frank, yes, yes, because of the retroactivity question. Right. So that's good. And it could. And seven of the nine courts that address the arbitrability question have rejected plaintiffs position here. And this is actually the A4-Shiari case. Because in all of those cases on 748 and 922, the courts were assessing a whistleblower's claim. And the court said Dodd-Frank, 748 and 922, do not apply retroactively even to whistleblower claims. Well, this case is the A4-Shiari one, because this is not even a whistleblower. The expectations that were settled, that plaintiff is seeking to unravel, are monumental compared to the expectations in those cases. Because again, those cases were just whistleblowers. This is the millions of employment contracts that had the standard language, which say, hey, you can arbitrate. Every one of those contracts would be invalidated under Mr. Santoro's reading. So again, this is the A4-Shiari case. Seven of nine courts rejected that position on the much different case of just whistle blowing. This is the A4-Shiari case. There's no basis for traveling all those settled expectations. As this court recognized in Raymond James, among others, you have settled, you have justified expectations in arbitration contracts, which are valuable economic rights because of efficiency, speed, and economy. And those justified expectations are being destroyed completely in all these cases, in the millions of contracts, in light of the reading that plaintiff is giving. And that interpretation has been rejected. The retroactivity issue, seven of nine courts ruled against it. But on the bottom line issue of whether or not Dodd-Frank even applies to non whistleblowers, it's 0 for 5. Five courts have reached the issue. Five courts have rejected it. The fifth circuit, two district courts, the DC Superior Court. In this case, when he took the first bite at the apple and then EDVA, that argument is 0 for 5. The retroactivity argument is 2 for 9. And again, this is the A4-Shiari case. So Mr. Santoro's position has no merit on either of those two grounds. But again, if there's any doubt whatsoever, any doubt, that under rent a center, this court should allow the arbitrator to decide the arbitrability question. We don't think there's any doubt. Congress did not mean to obliterate millions of arbitration contracts. Congress did not intend to impliedly repeal the FAA, which is his position. The FAA has been, in effect, for decades and reflects a strong national interest in arbitration. The language is ambiguous, don't you? The language is ambiguous. And Justice Scalia, when he allows the language is ambiguous, he has to look somewhere, doesn't he? Absolutely, you're right. When it could on unusual punishment, he would look to the standards at the time that language was adopted or used, didn't that correct? Absolutely. I'm not suggesting we get to it. And I'm not suggesting Justice Scalia would agree with me on this. But I at least think if the language is ambiguous, and I'm not saying that it is, if you think it's ambiguous, where would you tell us to look? When you suggest you look to see if there's any legislative history or any comments that everybody would agree based on legislative debate, what Congress meant that word to be at the time they passed that word. I would look to foretold it. I'm saying, but you would have to do with that process. You would have to do with the process to see if there were any such language or debate or history or announcement, wouldn't you? I would. But you just say part of that process is it's not there. There's nothing there. All we have is you have guidance which interprets Sarbanes oxley. So what do you do? How do you resolve the ambiguity in your mind? Where do we look to see how we resolve that ambiguity? I do a couple of things. One, you look at Rent the Center, which makes clear that an arbitration contract has multiple agreements. Agreement does not mean the entirety of the contract. I look at that. If I think it's not ambiguous, if we think it's not ambiguous, do you lose? No, no, Your Honor, because... How do you win if it's clear on its face and the words themselves are unambiguous? How do you win? Three things, Your Honor. First of all, even the case that he cites Ron Pear, Supreme Court case, says if it would lead to results, they're demonstriply at odds with the intent of the drafters absurd. You don't uphold the plain language. How do you know? How do you know that? This one I'm never quite understood. How do you know that somethings absurd, absurd, in light of what the drafters meant? Can't they pass a stupid statute if they want to? Because Congress did not intend to obliterate millions of arbitration contracts. How do we know that? That I understand that absurd language sometimes strikes me. I know that's what we say. I'm quite puzzled. How do we know when it's absurd if you allow Congress can pass a stupid statute if they want to? Why can't they do that? I trust that judges like Your Honors can recognize when a result is demonstrably at odds with the intent of the drafters. This was a statute designed to be a response to guidance. Well, my point is this. My point is this. Isn't it not so much what the intent of the drafters is, other than what the statute where it's placed in says? Do you think it goes beyond that? This is just an interesting question I'm asking you. When you look to whether or not it's absurd, do you look to that really in the context of the statute where it appears? I'm asking. I think you do, but I think that looking at the statute in the structure and where it appears also goes to the first step analysis of construing the plain language. Because you don't read isolated snippets by themselves to understand the plain language you look at the structure of a whole. So that structure animates both questions and context and the context of the statute. Right. And here the context is Dodd Frank plus the FAA. And he's seeking an implied repeal of the FAA. And there has to be a clear manifestation as this court said in Ray Maharaj. And there's no manifestation that Congress intended to repeal the FAA. Nothing whatsoever. And it's no surprise that five courts have rejected the position of Mr. Santoro. Five courts have said these Dodd Frank provisions apply only to whistle blowers. So that's one ground to reject Mr. Santoro's position. Also, you have the severability clause in the contract, which he never grapples with. And that clause essentially says, if any part of this is invalid or unenforceable, then you simply excise that part and you retain as much as possible. So here, there might have to be a carve out. The statute says you can't apply this to whistle blower claims. But severability clause clause seven says the rest of the provision remains. That's another basis to reject Mr. Santoro's position. Then you have retroactivity. Seven of nine courts have ruled against his position on retroactivity. And this is the A4 Shiauri case. You have the Supreme Court of West Virginia among the seven courts rejecting that position. And again, this is the A4 Shiauri case. But if there's any doubt whatsoever, then again, under rent a center, these issues of arbitrability should be decided by the arbitrator. I have a rent a center. That analysis is almost like the Campbell's nose under the tin. Once you let the Campbell's nose under the tin, then arbitration, that's the whole idea. If it's invalid, then people ought to have access to the courts. So that's sort of a hybrid type remit, isn't it? If there is no arbitration requirements, then like anyone else, you go to courts. But you're saying, well, we're applying that. Let's let an arbitrator decide what those claims are. And here, it seems to be there are argument under the Dodd-Frank. No, we don't have to do that. If we apply them, as Lisa is saying, I don't think that seems to be a weaker argument in terms of addressing what you're trying to get it. Because I think the point is Dodd-Frank was trying to make sure that whistleblowers would not be interfered with. And we have free willing opportunity for people to disclose the wrong doings that may have gotten us into other things. And therefore, I guess, in the sense, your argument is that we ought not throw out everything if we can comply with the law by tweaking every agreement to make sure none of them will be enforced as whistleblowers. That's your basic argument. Well, our argument, you don't have to reach that rent to center issue. Right. Because we think looking at the FAA and the structure of the statute, this is something that, you know, it's clear that Congress did not intend to wipe out millions of arbitration agreements. And the court can stop right there. I was just saying that if there was still doubt at the end of that, you could, but the court can stop before you even get there. But there's a separate third ground for Rejection, Mr. Santor's position. And this is very simple. It's issue preclusion. Here, you presented these exact same issues in the DC Superior Court, the same exact ones. And he lost there, and he's simply trying to get two bites at the apple. This is standard black letter, textbook issue preclusion. And there's one point that is reply I want to respond to, because in his reply, he said he couldn't have raised these federal claims in his DC case. And that's just completely wrong on the law and the facts. Do you find any assistance in your argument in the word requires? I do, Your Honor. Tell me why. Because there are two things first, as we explained in our brief, in this case, nothing is required because there's no whistleblower claim. But also because of our contract, the severability provision? What are, because of that provision, we don't require that doctrine. No, no, I was wondering, do you, I'm not sure of this, carries much, I'm just asking. Do you think requires can be read in a way that's different than covers? I think it could. You see what I mean? Just the word requires being read with some connotation that the agreement itself would specifically require that, rather than it just looked like it could cover those types of. I think that's right, Your Honor. I think it requires some, the word requires can note some more specificity. And when you take that point in conjunction, no other words, you think that perhaps a way to read this on its face would be, if the agreement, if the agreement, wherever and whenever it is, if it had a requirement that whistleblower type things or invalid, I mean, it cannot, it had to be arbitrated, that that might then, that specific requirement in the agreement might lead to an application of this, if it stated in a positive way. Do you think that? I think, I think that very well might have been in Congress's intent, and when you take that point in conjunction with the severability provision, it's clear we're not requiring arbitration of Dodd-Franklames because what the severability provision essentially says is we want to have arbitration as far as law allows. And if law says you can't do something, that's fine. You can't arbitrate that, but the rest of the agreement stands. And then if I have, I know I'm over my time, but just to say one thing about issue preclusion, he says he couldn't have raised his federal claims because he had a way for the EEOC letter. That's incorrect as EEOC's own website makes clear with ADA claims. You don't have to wait for the right to sue letter. You can file your claim in court anytime after 60 days after filing your charge with the EEOC. He filed his charge with the EEOC December 9, 2011. He didn't file his complaint in DC until March 6, 2012, that's more than 60 days after he filed that charge. He give it put all these claims, all the federal claims in DC. He didn't do so, probably because he was trying to preclude us from removing, but in any event, he had one bite at the apple, he lost at DC, he shouldn't get a second bite at the apple, issue preclusion is an independent grounds for affirming the decision below. Unless this court has questions, so I'd be happy to rest in the briefs. Okay, thank you so much. Thank you, Your Honor. Mr. Chair, I'll... Thank you. The main problem that Accenture has is the language is extremely clear in both the arbitration agreement. The arbitration agreement covers everything, every claim under federal state law or common law, which violates a Dodd-Frank provision. And the language of Dodd-Frank is very clear. It prescribes the form of an arbitration agreement and all they had to do was revise it, which they've since done. Do you use the word requires interchangeably with covers? I think yes. That's how you read it, you say that's what you should be read. I can't see any difference there in this context. The... It's a ZIF Congress in a credit card bill said no credit card agreement can be enforceable unless the interest rate appeared in 18-point type both letters on the first page. And a credit card company comes in later and says, all right, our agreement doesn't comply with the form, but we have a savings clause or we have something else or please don't invalidate our agreement. When Congress prescribes the form... You've got to finish that hype, Paul. It's open ended. You've got to at least match it a little bit. When Congress passes a law, I'm sorry, I might... No, no, I like the one about the points. How does the... What provision gets the round not having the 14-point warning in your hype? Nothing. The credit card company has to revise it or they can enforce their interest rate. That would be... That's my hypothetical is that when Congress prescribes the form, you can't come in and say, well, we have a sentence buried in the miscellaneous saying, well, if we don't comply with some law, it should be deemed to comply with the law. But that provision would impact all of the people who hold the card. Right. And this... But that's why you lost the Apple in orange. Here, this has nothing to do with whistleblower. It prescribes this form that Dodd-Frank had. Right. prescribes the form in which employment arbitration agreements must be in order to pass mustard to be valid after Dodd-Frank. Whether they want to... They have any relationship to Dodd-Frank. Again? Whether or not the claim has any relationship to Dodd-Frank. We've got to buy that in order for you to win, don't we? Yes, although, of course, you have to be a covered entity. So, essentially... It's a public... The responsibility argument, the Mr. Cun just may, because the severability argument is predicated on the employment agreement that does not say if any agreement is invalid, it says if any provision in this agreement is invalid. So, why doesn't the severability argument kick in if we were to agree with you otherwise, why wouldn't the severability argument make a difference here? Primarily because of the way they've drafted their own arbitration agreement. Unlike rent essentially. Well, no, I want to talk about the severability provision that any agreement under miscellaneous in the employment contract where it says if any provision of this agreement is left in valid or unenforceable, the invalidities shall not affect any other provision of the agreement. So, it can be dissected in terms of individual provisions as opposed to a general agreement regarding arbitration. Correct? Well, probably not, because under federal, under Buck Ey, severability is in the state law issue in the arbitration context. But putting that aside, we don't have to get there. If there was a provision that could be excised, they would be in better shape on that argument, but there isn't. Their entire positive arbitration agreement is in a single sentence. It appears in Joint Appendix page 24A, and it basically says with a lot of parentheticals, any and all disputes under any law must be arbitrated. And then in a parenthetical, it says, including validity scope, enforceability, blah, blah, blah. There is nothing to be excised. If they could come in, like it's in Rentacenter, for example, which really did have, it had the arbitration of disputes on page 29 and the delegation agreement on page 32. They were really separate provisions there. Rentacenter on its facts doesn't say that every one line of arbitration agreement is really 10 or 20 or 1,000 separate arbitration agreements for every statute. Here, they have a single arbitration provision. Any and all disputes relating to this contract or employment have to be arbitrated. Here are you. If we excise that sentence, I'm fine with that, we win. If you don't excise that sentence, we're back where we are. We have to construe the statute to say, this form of agreement is invalid. So your point in your sentence is nothing to sever. Exactly. What about severing the word any and all and it wouldn't be any at all? It didn't, I guess it still says, disputes relating to employment have to be arbitrated. So it's so violates Dodd-Frank. They're really, they have not argued anything. We've been around this a while. That there's any particular provision that you can ex out and leave them forcing Mr. Santorad arbitration and not violate Dodd-Frank's form prohibitions. Just saying a law can violate all common sense but still be the law. Isn't that pretty much what your position comes down to? No, no, no, no. Accenture looks at this and it's interesting to me. They cite zero legislative history and therefore they say it supports us. If you come at it saying, well, Congress couldn't have invalidated public, this only applied by the way to publicly traded companies, this provision, that Congress couldn't have wanted publicly traded companies to have to revise our arbitration agreements. Well, then you're gonna see that in the language. But the language is clear and it's a very sensible, non-regulatory, no fines. It's an easy way to get employers to actually change their agreements and it's worked. Every arbitration agreement I've seen in our practice in the last couple of years, CarvesOut Dodd-Frank claims. You didn't need to set up a fine, you didn't need to set up audits, you didn't need to set anything, it worked. And it contrasted. It worked being that sense because it's almost like a lawyer relief bill. I mean, you had to hire lawyers to do that, but it essentially works by saying, from now going forward, no arbitration agreement or vision or whatever, or publicly traded companies are gonna apply to whistleblower disputes and claim. The period, you don't, that's the practical side of it, isn't it? That's what really, seeing that Congress was doing. Yes, Dodd-Frank wanted publicly traded companies to notify people. If you wanna blow the whistle, you would have to sort of have some words, Smither, pay $1,000 an hour to put that in and can it be categorically that way? It was almost like the 13th amendment was the past. Or the 13th amendment is the best one. Any contract that you have, I mean, it's just not gonna apply to force servitude, but you answer, well, no, no, it, I mean, but if you have others that you said you employed other people and you paid them money, others that you didn't, wouldn't it be the effect of anybody that you, and your employer, that's there by force servitude, it is from now on, null and void? What you're saying, somebody go around to every contract in the whole America and actually put in, and that what your argument is? No, your honor. A publicly traded companies revised these documents all the time. There's new compliance issues all the time. When Sarbanes actually came out, there was training and compliance, every publicly traded company did it. When Dodd-Frank, there was, there was millions of effects of Dodd-Frank on publicly traded companies the way they did business. Having to revise their arbitration agreements or send out an email saying, here's a new paragraph, was easy. We get it when credit cards and health insurance, you get letters in the mail all the time. But that doesn't mean anything because any good lawyer could look at a statute and go, my gosh, it can't possibly mean that, but I guarantee you, somebody's gonna say it means that. So my advice to you, client, is change your arbitration agreements. I don't think the statute requires it but I'm telling you, it's sort of to prevent litigation over that issue. Doesn't that make sense? Well, isn't that a justification for why you change it? Not because the statute requires it but just because somebody's gonna make an argument that it requires it. Which probably, that's certainly possible too. But getting back, we should be tied to the words of the statute. The statute is unambiguous and clear as can be. It applies to publicly traded companies. Mr. Santoro's firing was a year and a half and two new contracts after, let me ask you just if you had an arbitration agreement about a bank on a credit card or something like that, a federal statute. And let's just presume that the statute, arbitration statute, own bank arbitration and credit cards, says in any arbitration, it's just a freestanding section. In any arbitration, the customers or the claimants bank must first post a thousand dollar amount in case the arbitration benefits the person bringing the arbitration. Got me? Think so. Would that apply in every arbitration in America? No, if you wanted to bring an arbitration under a plea under an appointment agreement, some, your bank would have to first post a thousand dollars. Would that language apply? I guess I don't understand. It sends me how it's worded. I mean, here's how it's worded. In that bank bill, there's a section, a freestanding section and it says this. This is a bill to protect customers, own credit cards or some such thing. Some such thing. And one provision, freestanding provisions, and it goes through and it says these disputes will be arbitrated. And there's a freestanding provision that says in any arbitration, comma, the bank, the customer or the claimant, whichever other party is, bank shall post a thousand dollars at the beginning of arbitration. And all that language says, does that cover every arbitration agreement in America on every subject? If the hypothetical is what the bank have to post a thousand dollar bond, in a case where it's not a party to the arbitration, that seems like a stretch to me, Your Honor. But we're not asking, No, no, no, that's what the language says. Your Honor. No, no, no, the language says that. So it is your view of the law that sense that freestanding provision, that's all it says, in any arbitration, the customer's bank must post a thousand dollar surety bond before the proceedings begin. Would that apply? That's the case. I think it would be justified for the court to have to find some support for the notion that an non-party to an arbitration has supposed to bond with an arbitration. That's what the law says. It strikes me as a quite different than a line that Dodd-Frank would theory, your theory's not any different. No, it's not your honor. Because Dodd-Frank applies to the relationship between publicly traded companies and their employees, and it specifically talks about what form the arbitration agreement is. I know this much. So then you say, you first started your argument. I think your answer was either implicit or explicit, that this provision of law is, this language applies no matter where it's written. That's what you say. It's a general provision of law, and you don't look to the context of the statute. Well, you do for coverage. It wouldn't apply to a small shop that's not publicly traded. Well, but then why do you do that? Because it doesn't, it's set. Why do you do that? Because the section applies to publicly traded companies. It's the same reason that we haven't relied on this provision that clearly eliminate more arbitration. What is this saying? What does it say that that section applies to publicly traded corporations? In the beginning of the whistleblower section, I think I'm reading it right. This says, this says, predispede arbitration agreements, period. No predispede arbitration agreement shall be valid or enforceable if the agreement requires arbitration of a dispute arising under this section. I believe that in that same chapter, it talks about covered entities as being publicly traded company. But if that's a necessary decision, I can't find it on my feet in this moment. But let's compare what the point is, but the point is the argument then is, you do look to other places in the statute for application of this provision. That's what you think. I believe I answered yes, though. You have to do it in context. But what we get off the train here, is it eccentric with no support says, I just don't like this result. Therefore, it couldn't have been with Congress intended, but they cite nothing. I see the result is very logical. If you want employers, I know how you see it. To change, but my question is, do we look at the rest of the statute to find context, yes or no? You say we look at it for some purposes, but not for other purposes. I said, well, if I was unclear, obviously you read the statute in context. I think that's a general provision. But you can't use that provision, a general statement of statutory construction, to vision the clear language of the statute. And here, it's such a rational way to get there. How would Congress otherwise get employers to change the agreement? You've made that already. Okay. And that would compare to, if you have four pages back from the end and the end of the blue brief, in the mortgage context, Congress explicitly, prospectively, said that without invalidating the mortgage agreement, they said the arbitration provision stands, it just can't be enforced on any federal statutory claim. What if in my hypothetical, the statute said, this applies to any person who has a credit card in America? They can do that. I know they can. And then that language owned down there about any arbitration agreement you first have to post. And so if anybody in there has a credit card, then any arbitration agreement, the bank would have to post $1,000. You know, why is Judge once said, Congress can pass a stupid law? Congress can do that. The same wise judge asked you a question. Congress could do that. And your analysis would be, then anybody who went arbitration for any reason, any reason, an appointment contract otherwise, their bank would have to post $1,000. I think other provisions come into play. At some point, there's a due process concern. If a non-party has to be, no no no no wait, wait. As opposed to bond. You may be exactly right. I'm talking about statutory construction. I think you have to say that under my hypothetical, if the statute is aimed at, it supplies to all bank credit card holders. And that sentence in there says, in any arbitration, in the arbitration, the person, the credit card holders, bank must first post $1,000. Then you would have to say, you would say I think that that would apply to any arbitration agreement that the credit card holder has whether it's with the bank or not. I find it hard to believe I'd argue that a non-party would have to post the bond. I think that there are other provisions that would say that. What is the language that I gave you would say that's not so? My knowledge of due process law, that a non-party can't be... But that's not a constitutional question. That's not a statutory interpretation. But a constitutional question can invalidate another statute that otherwise is there? That's a fair too. You'd have to say, you're honored. That's what I think it means, but thank God we got a constitution. But I enjoyed the exchange. If I make include, this statute is clear as can be. It accomplishes a valid purpose in a rational way. It doesn't tread on any vested rights because the contract wasn't vested. It was renewed every year. And the firing happened more than a year after the effective date of the act. Thank you, Eric. Thank you so much. I'm gonna break it. You're gonna break it. Okay, we're gonna keep going. All right, we're gonna come down and greet Council and proceed to our last case