Legal Case Summary

Court House. The case we have on the calendar for today is check Chesapeake, Appalachia, versus Scout Petroleum, appellate number 15-1275. Mr. Pratt, we'll hear you. Thank you, Your Honours. I'm Robert Pratt, and I represent the Scout Appalachian in this case. I would like to you observe five minutes for a bottle time, if I may. It's granted. The issue in this case, Your Honours, is a narrow one, and that is does the arbitration clause in the form gas lease that Chesapeake prepared clearly provide that the arbitrators have jurisdiction to make the initial determination if the agreement provides for class arbitration. Please, currently and unmistakably. That is correct, Your Honour. Those are the exact words from Opalinsky. So what's the difference between this and Opalinsky? The difference between this and Opalinsky is that Opalinsky decided the issue that was left open by the Supreme Court and has not yet been decided, and that is his class arbitration, a question of arbitrability. That, and is it a question of arbitrability that the court or the arbitrators decide depending upon the language of the contract. So the whole thing of Opalinsky, at least in the third circuit, is that class arbitration is a question of arbitrability. We're not contesting that. But the issue is, is whether the arbitrators under the contract decide that question initially, or does the court? And what Opalinsky says is that if you are like we are contending that the arbitrators decide that issue, we have to show that it's clear and unmistakable under the contract. Let's assume we have a hypothetical party A and B, and they want to have disputes, bilateral disputes under their agreement, left to the arbitrator to decide the questions of arbitrability of bilateral disputes, but they do not contemplate class arbitrability being delegated to the arbitrator in the first instance. Why wouldn't it be reasonable for them to draft their contract to provide that in the event of a dispute between party A and party B, concerning this contract or a breach of this contract that such dispute shall be sent to arbitration, pursuing to the rules of the American Arbitration Association. Those rules do provide certain procedures where parties who want bilateral arbitration might invoke them. So why for those hypothetical parties who want their bilateral dispute, sent to the arbitrator but are not contemplating class arbitrability being delegated as a question for the arbitrator in the first instance. Why wouldn't it be reasonable for them to draft a contract with those terms? Well, I think I agree with your honor

. The whole question is what does the contract say? Well, how about that contract in those terms as I set them out? Well, I think again, if it said any bilateral disagreement, that's not what this contract says. This contract says that all disputes and disagreements will be resolved in accordance with the rules of the American Arbitration Association, which what the district court did not do is construe the meaning of that clause. The meaning of the AAA rules under Pennsylvania State Law. So is your position then that the clear and unrestakeable agreement between the parties to send this decision to an arbitrator is by virtue of the fact that the clause itself references the AAA rules and the AAA rules themselves say the arbitrator decides questions of arbitrability, including class arbitrability. That's correct. How could I be correct possibly because your burden and it is a burden is that the parties agreed to class arbitration. We don't look at the triple A rules to see whether you have agreed to trust everyone's agreed to class arbitration. We look at the lease agreement to see whether or not the lease agreement contemplated class action arbitration. The lease agreement referred to the triple A rules, but in order to see whether the parties agreed anything, you see what they agreed to by the lease agreement. The lease agreement is silent on class action arbitration. You are there for in a situation where you must show and your burden is ominous. It must be clearly shown that both parties agreed that there could be class action arbitration. How have you done that in this case? We have done that, Your Honor, because the issue here is simply who decides it is not the question of did they agree the class arbitration? That is the issue to be decided by either the arbitrator or the court. The issue before Judge Bram was count one of the complaint and emotion for partial summary judgment on who decides. Chesapeake framed their complaint that way and the only issue before Judge Bram was who decides not whether the parties had agreed to class arbitration. But is it your position that the mere reference to arbitration under the triple A rules reflects the parties' intention to delegate the question of class arbitrability to the arbitrator unless the contract specifies that it is by a bilateral agreement to be delegated or it carves out class arbitrability? Well, there could have been an express waiver that is true. What we are saying is that the rules are not just referred to. They are part of the contract. The rules of the triple A both by State Law and Rule One of the commercial rules, which there is no dispute or part of this contract. So from your point of view, if the language of the rule were typed in the lease as opposed to being incorporated, there should be no difference. There is no difference

. I mean, it is part of the lease because under stalled the question is, and this also goes back to Judge Cowan's question, under the stalled case and under the Sutter decision of the third circuit. What the court is looking for is a contractual basis for the understanding. The words class arbitration do not have to appear in the contract. Here they do, in fact, appear through the incorporation of the triple A rules for the purposes of who decides. But if you can also contemplate a contract where the parties are only contemplating bilateral arbitration being delegated for the question of arbitrability to the arbitrator in the first instance, and they want that bilateral arbitration to be subject to the triple A rules, then don't we have at a minimum ambiguity? That is, let's accept that your interpretation and corporation of the triple A rules is a reasonable one. Isn't there also a reasonable reading of this contract that all that is referencing and all that is being delegated as a question of arbitrability for an arbitrator is the bilateral arbitration? I don't agree with that. I don't agree with the hyper or that conclusion. The reason being that again, the question is the mechanism by which something is going to be decided. Whether you call it a dispute, we have a dispute. We have a dispute with Chesapeake over both the royalty provision and we have a dispute whether we can have a class action. The rules that they incorporate, the rules that they selected, the question will be initially decided by the arbitrators and then may be reviewed by the court. The court is not being dealt out of this. It's not an unfair situation. That's the triple A adopted these rules after Basel in order to provide a mechanism. I will also say, as I think our brief makes clear, that commercial rule seven and commercial rule eight, which clearly are what your honor I think is referring to as bilateral rules. That says questions of arbitrability will be decided by the arbitrators. That's what the rules they incorporated the least say. What nine-circuit courts have appelled that? What language would you say needs to be set forth in an arbitration clause for parties who are contemplating only the bilateral dispute being delegated to the arbitrator for the question of arbitrability? I think they would have to say under the current rules of the triple A and the rules that were in effect at the time of this lease, which is after the supplementary rules were adopted. That the only rules that apply are the commercial rules without the supplementary rules and that, and I would also say, would have to exclude rule seven and rule eight of the commercial rules. That's not what they intended to do. Clearly they intended to incorporate all the rules and the issue here as to who decides is governed by those rules

. Well, that was just on an obelisk, given the language of commercial rule one A and your own theory of the case of corporation, how could we conclude that the parties in obelisk did not agree to the rules that exist at the time of the arbitration demand was filed? In other words, the rules that apply apply at the time of the agreement to arbitrate, and those rules were also in effect at the time obelisk was decided. Yes, sir. Was the supplementary rules were in 2003, right? That's when they were adopted. Okay. Was the obelisk clause was in effect before 2003? The obelisk agreements predated supplementary rules, and the other point I would make your honor that distinguishes our case completely from obelisk. The third circuit did not consider these arguments. That's clear. They did not consider the argument. But the implication is to the effect that the rules had effect at the time of the arbitration and supplemental rules were in effect at the time of the arbitration in obelisk. That's correct, but the third circuit didn't look at that. That was not an issue that they decided, or was it presented? The holding of the case, the holding of the case, was that the rules had effect at the time of the agreement to arbitration prevail. At the time of the arbitration prevail. That's a supplementary rules were in effect at that time, even though they weren't presented to the court. That's not, as far as I'm aware, your honor, that's not in the open skin opinion at all. They don't discuss that issue at all. It's not in the opinion. And I'll also point out that the litigation posture, the party's nobleness, he was totally different than here. The obelinsky case started before Judge Hopper as a federal case in which the parties, the plaintiffs were saying that class arbitration was pro-hypidated. That was their position before Judge Hopper. She decided to know it's silent and send it back to the arbitrator. But the parties that accepted her finding of silence, that was never appealed

. The obelinsky decision itself said there how to be expressed contractual language unambiguously delegating the question of arbitrarity to the arbitrator. And you don't have that expressed contractual language here. Well, I would beg to differ in two respects. Under the presidential decision of this circuit in Sutter, which talks about what is silence, in order to avoid silence, you do not have to have the words class action or class arbitration in the agreement. Was that a bilateral, was that a bilateral or what was that a bilateral or...? Yes, that was an dispute between a doctor and a hospital. Yeah, your brief, yeah, six pages full of citations and arguments, the case is dealing with bilateral litigation and arbitration had nothing to do with this case. Well, the reason I would say they do have something to do with the case is that all of those citations go to the question of who decides questions of arbitrarity. This is a question of arbitrarity, there's no doubt about it, but this is not some super question of arbitrarity. In other words, if class arbitration is a question of arbitrarity, then all right, it's a question of arbitrarity. But nine circuit courts have held that the adoption of commercial rules is an expressed intention to have the question of arbitrarity decided by the arbitrarity. That is, you're dealing with bilateral arbitration in almost every single case, and that's what your brief was full of, bilateral arbitration. The six circuit is the only court of appeals that has dealt with the question which is before us right now, head on, and they decide the case against you saying they'll lease agreement, the agreement to arbitrate, not the referral to the triple A rules, which last time I look at 50 some odd pages, I think I was thought, it was a book, it was bigger than the federal rules of civil procedure, not the triple A rules. The six circuit held that it has to be part of the arbitration agreement, not the agreement to which they refer. And quite frankly, what you have here, a gateway question, is a class arbitration is another species from bilateral arbitration, there are two different things. And for someone who agreed a class action arbitration, it has to be something that they agreed to in advance. Is it following up on that question and related to it? Can you distinguish, read Elsevy or, or are you asking us to create a circuit split? No, I'm not asking for a circuit split, I can distinguish it. I can point out where it's wrong. Where else is it different from this case? It's different from this case

. The factual, the issue posed for this resolution by this panel. The issue is the same as it was decided incorrectly because the six circuit based its decision on its reading of supplementary rule three, which it misstates, misquotes. And it basically said that the contract is silent because there was no reference to the arbitrators deciding class arbitration, class arbitrability. And then they quote the last sentence of supplementary rule three incorrectly, leaving out the words that the arbitrator shall decide. And then they use the word one. The point of supplementary rule three is to say clearly it says it four times in the rule that the arbitrators shall decide initially the question of class arbitrability when they call, what they call clause construction. And then there's a rest period for someone to go to court if they're not happy with that. The last sentence which the six circuit hung its head on, they misread, they misquoted it. And all of that says in making the class the clause determination, clause construction determination, the arbitrator is not to consider in favor or against the existence of the rule. That has nothing to do with this case. So your point is that read is distinguishable because read relied on language that deals with the construction of the clause and did not take into account the language of talks about the who decides question. Is that correct? That's great. And it misstaged with the rule clearly misstaged with the rule says it's flat out wrong. All right. We'll get you back on the bottle. Thank you. Thank you. Good morning. Good morning. I want to get to the questions. And first, I Daniel Donovan for the Chesapeake parties

. There is no clear and unmistakable evidence here that the parties agreed to submit class arbitrability to an arbitrator. Well, you draft your client drafted a contract. That contract expressly says that all arbitrations will be subject to the AAA rules. It actually doesn't say that, Your Honor. And I'd like to get to because Mr. Pratt or Miss Spoke when he said the six circuit and the district court they're only relied on. Let's focus on your. Okay. Sure. So ours says a couple things that are very important. First is, if you have the clause at a PENIX-1962, it says in the event of a disagreement between two defined terms, less or and less. That's defined in the lease, less or being scout as successor, less is Chesapeake. So that's who is agreeing to arbitrate and who the disagreements are between. It then says, what are we going to arbitrate? This lease, that's a defined term, performance there under of this lease, and damages caused thereby. So therefore, if there's a dispute between the less or scout and Chesapeake concerning this lease, we agree to arbitrate such disputes they've been defined in accordance with the rules. So this is done in light of a setter in the point that's been raised by your colleague. We rejected a reading of Stolt-Neilson that class arbitration is allowed only if the arbitration agreement incants class arbitration or otherwise expressly provides for some aggregate procedure. Are you arguing that it needs to expressly refer to class arbitration or some aggregate procedure in order to delegate? Yeah, let me take a step back. I think silence is used different times in different cases differently. In Sutter, the parties agreed as a contractual matter that there was never an agreement. That's the way silence was used in that case

. The way the third circuit, this Court used it in Apolinsky, was saying the standard there needs to be express contractual intent. In Apolinsky, which Mr. Pratt or I frankly just disagreed with, they decided two things. If you read it, they said this is the standard, and they applied that standard to a clause that referenced the AAA rules. They could have sent it back to the district court. They didn't. Yeah, but Apolinsky, the Sutter rules in fact at the time of the clause didn't have supplemental rules. They didn't exist. They didn't, but that's interesting, Your Honor, because what actually then happened was in the briefing, Mr. Pratt said this never came up. They came up on rehearing, right? No, this is actually the Pellies brief, page 40, to the third circuit. They talk about this temporal issue because they actually tried to flip it the other way on half saying the half defendants actually knew when they initiated litigation that the supplemental rules would apply. This is at page 40, and they refer to the AAA rules and the supplemental rules. The supplemental rules weren't in effect at that time, and the court did not at least explicitly address either 7a or the supplemental rules. I agree with that. That was on rehearing, but Read All Selvia did, and actually the district court did as well in that case, and the district court there adopted the argument that I'm making to you, which is you have to read the clauses written. Mr. Pratt would like to change the clause. The clause has written limits, which the Supreme Court said were allowed to do, to who we are going to arbitrate with less than one. Does this not tell us how this answers the who decides question? I'm sorry, Your Honor. I don't use the side that who decides that issue of whether it's limited to the two that you say or for a class

. Doesn't the incorporation, and it says, by arbitration, in accordance with the rules of the AAA, why doesn't that answer the who decides question? Sure. So let's start with the plain language of the lease I come back to, which is it doesn't say incorporate all the rules. It defines if we have such a dispute between a less or an unlessy regarding this lease, we will then use the AAA rules, and I come back to Judge Krause's hypo, because this came up under Judge Keely's decision, considering Chesapeake's lease, Northern District of West Virginia this year, she actually said that would flip the presumption. Mr. Pratt actually said, and I wrote this down, he said it would have to say bilateral, but that's flipping the presumption. The Supreme Court says he needs to show express contractual intent that we did agree, and no one here believes that Chesapeake, first of all, I believe the plain language, but that Chesapeake put this arbitration clause in, with the intent that the early class wide arbitration and some arbitrators would decide that, that's not what this clause provides. So, are you asking us to disregard traditional rules of incorporation, you know, by reference? I mean, if the language here incorporating the AAA rules is not clear and unmistakable, then what is? Sure, so there's two parts, there, first of all, I think we have to be careful with saying incorporating. What we did here, which is different than some commercial contracts where we might say we're going to incorporate our terms and conditions. Okay, this very specifically defines, and it makes sense, we have a lot of oil and gas leaks, we say if we have a dispute between us, we are going to arbitrate regarding this lease, and we're going to use the AAA rules. It goes back years, what Mr. Pratter and Scott would have is that we would then need to exclude, and this is the standard, okay? The AAA says what you should do is have a very simple clause in refer to the AAA. So therefore, if you think about the result would then be, as you would need to have a prohibition on the supplementary rules, which is flipping the presumption. Why wouldn't you just be making the assumption that party is particularly sophisticated parties by incorporating the AAA rules by reference are clearly and unmistakably incorporating their terms, including the delegation of class arbitrability? Sure, well first I don't agree they were incorporated as Mr. Pratter used that term, but number two, if we go and look at the rules, the AAA rules themselves, the bilateral rules, don't refer to the supplementary rules, okay? What happens is this is a daisy chain argument, and that's not clear and unmistakable. Even the six circuits said on that the AAA rules argument, let's assume it's an argument, it's at best ambiguous, and it certainly is not clear and unmistakable that the parties intended that arbitrators would decide other less or worse in the class wide arbitration issue. It doesn't go that far, if you look at the rules, the AAA rules don't actually refer to the supplementary rules. But the supplementary rules were further to the... Exactly, it's this daisy chain which is not clear and unmistakable. Why is that any different, I'd like to answer if you could to discuss this question about why should this be treated any differently than any other commercial arrangement where there's a clause in a contract that incorporates by reference some other document? Sure, a couple of things

. First is I go back to the plain language and what they want to do is add other rules and other situations. We limited, which the spring courts have allowed to do. This is Justice Alito. It's a question of consent. What we would arbitrate in with whom? Number two, if you look at the cases that have construed this, they have said simple reference to the AAA rules to do the AAA is not clear and unmistakable. What case do you have that says that? Because I believe we've already heard many, many courts have already decided, that the incorporation of the AAA rules include a clear and unmistakable agreement by the parties of who decides whether the questions are eligible, whether it's the bilateral context or not. Well, that's quite different though, and I have a lot of cases. We actually have the case here, the district court. But we have other district courts that thoughtfully go through. This is Judge Keely, Northern District. And just last month, Judge Stamp of the Northern District, West Virginia, and this court, excuse me, these are District Depends on Vanya. Judge Keely just last month ruled on this issue, saying a mere reference to the AAA rules not a Chesapeake, but a different clause is not enough. So you're saying you're making representation of those district courts have not adopted the standard contractual principle of if you incorporate it's enough, because they're treating the AAA rules differently? No, I'm not arguing that they're different. The point is, is they're construing the actual contractual language. I think the leap that Scout is making is arguing that this is fully incorporated, and clearly and unmistakably, this issue that who decides is incorporated in this contract, and when you read this language... In this language is not enough. I want to go back, because I don't think I'm going to answer that. Oh, I'm sorry. I didn't answer that

. What language is enough? If we have suitors saying you don't need to, you know, incant class arbitration or aggregate proceedings. Correct. But if you read that, Karen, doesn't say what you need is an express contractual intent in the area, so you could say, including the supplementary rules. Because remember, the burden is on Scout to include it. You could say class. There's one court, this is, I think, one of these ninth circuit courts, where the clause actually said we will consolidate other claims. You would need a magic word, you just need an intent expressed. It's contractual interpretation. There's no magic, kind of, you know, capping crunch decodering, we've got to have these words. But you've got to have contractual express intent in the contract. Well, how? Go ahead. How about the language in Cedar itself that talked about no civil action concerning any dispute under this lease? Shelby Institute before any court. How is that language, which we in the Supreme Court, you know, have interpreted be different than the language that we have here? Well, I don't think they have. Let's remember what Sutter was. Sutter with Justice Alito's concurrence said that the parties there afterwards agreed the arbitrator could rule on it. Okay. So therefore you had the low FAA standard. They, and actually, if I go ahead, Martha's Justice Alito disagreed that the arbitrator got it right. Now the courts have, we're not deciding that issue because the low standard. But the language of the agreement there, which seemed to preclude disputes from being decided by a district court, when you look at the language as a whole, it expressly provided that the dispute did not be decided by a district court. In other words, that those disputes, even between those individual parties, would have to be decided by an arbitrator. Right? So while the language here is slightly different, aren't we in the same place by having, you know, any such dispute between the two parties here, you know, although it's under this lease, any perspective class member with such a lease is in the same position, okay? But no, because I think it's important on Sutter. Let's remember all the third certain in the Supreme Court was saying was, is they had to look at did the arbitrators construe the contract? Once that happens, we're done because therefore there's not bias. That's the real risk. What we step back, why is it the Supreme Court sets this high standard? It's because not only Chesapeake, but absent class members are worried that contractual arbitrators are ruling on these issues that no one would have thought they would have. And frankly, I think fundamental due process doesn't permit it. So I think your honor, I don't think that was the holding of Sutter in the way it's being presented here. It basically said that the contractors, arbitrators, which like the arbitrator found that there was a contractual basis, that's all the third certain in the Supreme Court did. I come back here when we're construing this language under your hype on I gave the examples that you would need because I want to come back to Claren on Mistake will standard is quite high admittedly and I embrace that. And because of that, I don't think Scout has shown you in the contract. Well, getting back to the Sixth Circuit, though, which you're relying upon. Yes, but you have to agree that the sick really didn't offer any reasoning for its decision as such an analysis. In fact, it didn't even mention incorporation or supplement a role three. I don't think it was even mentioned in the opinion. Well, your honor. So how do you and you want us to rely on six circuit law and of course if that's their holding there, if we go the other way, it could be a circuit split year. It would be so why how do you how do you rely on the six circuit, whether it was no reasoning, no supplement a role three in that case. Sure. I think as your honors were no probably better than anyone, when you write an opinion, they were simply expressing their there was an affirmance of the district court and they gave one reason, but their lead reason was the lead reason not to determine that there was Claren on Mistake will evidence is that the contract was silent as the class arbitration. They then do side role three, but the district court, if you read below, and I'm at this is the West Law side at start 10, they talk about what we were just talking about, which is there the court said that the there was this order. Instead of this lease and they said that limited what it was and because of that the triple a supplementary rules can't apply because the plain language as they drafted the parties are allowed to draft what they want to arbitrate because of that those rules never applied. And your honors I did read and I would submit that the the briefing before that court addressed all the reasons I'm arguing I agree that the six circuit opinion picks up one, but they also say other reasons and that's why because they say look nobody there's nothing in this agreement contractual

. Right? So while the language here is slightly different, aren't we in the same place by having, you know, any such dispute between the two parties here, you know, although it's under this lease, any perspective class member with such a lease is in the same position, okay? But no, because I think it's important on Sutter. Let's remember all the third certain in the Supreme Court was saying was, is they had to look at did the arbitrators construe the contract? Once that happens, we're done because therefore there's not bias. That's the real risk. What we step back, why is it the Supreme Court sets this high standard? It's because not only Chesapeake, but absent class members are worried that contractual arbitrators are ruling on these issues that no one would have thought they would have. And frankly, I think fundamental due process doesn't permit it. So I think your honor, I don't think that was the holding of Sutter in the way it's being presented here. It basically said that the contractors, arbitrators, which like the arbitrator found that there was a contractual basis, that's all the third certain in the Supreme Court did. I come back here when we're construing this language under your hype on I gave the examples that you would need because I want to come back to Claren on Mistake will standard is quite high admittedly and I embrace that. And because of that, I don't think Scout has shown you in the contract. Well, getting back to the Sixth Circuit, though, which you're relying upon. Yes, but you have to agree that the sick really didn't offer any reasoning for its decision as such an analysis. In fact, it didn't even mention incorporation or supplement a role three. I don't think it was even mentioned in the opinion. Well, your honor. So how do you and you want us to rely on six circuit law and of course if that's their holding there, if we go the other way, it could be a circuit split year. It would be so why how do you how do you rely on the six circuit, whether it was no reasoning, no supplement a role three in that case. Sure. I think as your honors were no probably better than anyone, when you write an opinion, they were simply expressing their there was an affirmance of the district court and they gave one reason, but their lead reason was the lead reason not to determine that there was Claren on Mistake will evidence is that the contract was silent as the class arbitration. They then do side role three, but the district court, if you read below, and I'm at this is the West Law side at start 10, they talk about what we were just talking about, which is there the court said that the there was this order. Instead of this lease and they said that limited what it was and because of that the triple a supplementary rules can't apply because the plain language as they drafted the parties are allowed to draft what they want to arbitrate because of that those rules never applied. And your honors I did read and I would submit that the the briefing before that court addressed all the reasons I'm arguing I agree that the six circuit opinion picks up one, but they also say other reasons and that's why because they say look nobody there's nothing in this agreement contractual. Expression 10 to show. But that was the whole. Yes. The second part of its opinion dealing with the construction of the arbitration clause and the question of class arbitrability itself discusses there the incorporation of the tribal a rules, but you agree in the in the earlier part of decision as to the delegation question, there's not in that discussion on explicit reference to incorporation. There is a but that was argued below I mean it's not in their opinion, but if you read the briefs, I mean it's like anything there's lots of arguments being made, but their point was they kind of canvas the Supreme Court law and said look it's pretty clear where the Supreme Court is heading and we think that's the right decision and they explain why I agree they didn't do it. They didn't do an analysis, but I want to take one step back to scouts argument is that somehow the opulence key panel of this court wasn't aware of this triple a rules argument. The opulence key panel of you know written by Jo Jambro relied heavily on read-out cell be for the standard, but they fully read it. I think it is beyond the straight face test that that panel read the read-out cell via decision, but stopped once they set the standard, didn't read the rest of it and wasn't aware of this triple a rules argument. They were fully aware of it. They're just like good lawyers do on both sides. They made other arguments that they were focused on. Opulence key argued it was because of the breadth of the language any controversy that was their lead argument. In your I'd like to talk about your contract. Okay, please. All right. In your contract focuses on the first clause I heard John that. Okay. But now I want to talk about the resolution of such disputes. I'll be determined. This is the part by arbitration in accordance with the rules of the American Reputation Association. Yes, sir

. Expression 10 to show. But that was the whole. Yes. The second part of its opinion dealing with the construction of the arbitration clause and the question of class arbitrability itself discusses there the incorporation of the tribal a rules, but you agree in the in the earlier part of decision as to the delegation question, there's not in that discussion on explicit reference to incorporation. There is a but that was argued below I mean it's not in their opinion, but if you read the briefs, I mean it's like anything there's lots of arguments being made, but their point was they kind of canvas the Supreme Court law and said look it's pretty clear where the Supreme Court is heading and we think that's the right decision and they explain why I agree they didn't do it. They didn't do an analysis, but I want to take one step back to scouts argument is that somehow the opulence key panel of this court wasn't aware of this triple a rules argument. The opulence key panel of you know written by Jo Jambro relied heavily on read-out cell be for the standard, but they fully read it. I think it is beyond the straight face test that that panel read the read-out cell via decision, but stopped once they set the standard, didn't read the rest of it and wasn't aware of this triple a rules argument. They were fully aware of it. They're just like good lawyers do on both sides. They made other arguments that they were focused on. Opulence key argued it was because of the breadth of the language any controversy that was their lead argument. In your I'd like to talk about your contract. Okay, please. All right. In your contract focuses on the first clause I heard John that. Okay. But now I want to talk about the resolution of such disputes. I'll be determined. This is the part by arbitration in accordance with the rules of the American Reputation Association. Yes, sir. That's your that's the language your client drafted and included this. Is it your position that this does not incorporate the triple a rules and if that is your position then I would take it. You are not incorporating either for bilateral arbitration correct. What? Because you can't have a both wage can incorporate for some and not others. Well, it's not incorporated. Okay, so you're saying in accordance with the rules of the triple a is not incorporation line. It is not incorporation the way it's used in the cases. I agree. No, I'm not on that. No, no, no, no. That's my position. Yes, right? And can I explain why briefly is is the correct answer to class to class arbitration or are you suggesting contrary to every case that's addressed the issue now that the question of arbitrability itself in bilateral contracts is not provided by the express reference to the triple a rule as the class as the class. I consider so and you're saying that because of the language that precedes it. Right, because the parties are allowed to limit. So we have agreed that we would use the triple a rules for disputes between the less or in the less. See, okay, you have to use the plain language here. So you're using that modified the in accordance with and that is why you're saying this is not an incorporation case in my correct. That is correct. And it's all such disputes. Thank you. Okay, thank you

. That's your that's the language your client drafted and included this. Is it your position that this does not incorporate the triple a rules and if that is your position then I would take it. You are not incorporating either for bilateral arbitration correct. What? Because you can't have a both wage can incorporate for some and not others. Well, it's not incorporated. Okay, so you're saying in accordance with the rules of the triple a is not incorporation line. It is not incorporation the way it's used in the cases. I agree. No, I'm not on that. No, no, no, no. That's my position. Yes, right? And can I explain why briefly is is the correct answer to class to class arbitration or are you suggesting contrary to every case that's addressed the issue now that the question of arbitrability itself in bilateral contracts is not provided by the express reference to the triple a rule as the class as the class. I consider so and you're saying that because of the language that precedes it. Right, because the parties are allowed to limit. So we have agreed that we would use the triple a rules for disputes between the less or in the less. See, okay, you have to use the plain language here. So you're using that modified the in accordance with and that is why you're saying this is not an incorporation case in my correct. That is correct. And it's all such disputes. Thank you. Okay, thank you. All right, we'll hear on rebuttal. Thank you. First, I'll start with if I may with the actual least word language and it's in corporate it says will be determined in accordance with the rules there of the American arbitration association. There's no word of limitation under Pennsylvania law, which is what applies here. The plain meaning is that means all of the rules further commercial rule one says and it's clear that Mr. Donovan is trying to say that these rules in this reference to they're not really part of the contract. They are absolutely part of the contract. Commercial rule one says the party shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the triple a. It couldn't be any clear in the rules. It also Pennsylvania law clearly says that if you refer to a document such as this that's an existence at the time of the agreement is part of the agreement. We're the language that comes before that reference talks about this less or and less and specifies a type of controversy that is disputes concerning this lease and such disputes. How does a reference to resolving such disputes in accordance with the triple a rules convert a consent to let the arbitrator decide the arbitrability of claims between these parties concerning this particular lease into consent for the arbitrator to decide claims between other parties concerning other leases. Well, it's a two-part answer and forgive me if I've already said this but there's a clear distinction in the issue before the court as to whether there's an agreement on class arbitrability and who decides that. The question here is who decides many of his arguments can be presented to the arbitration panel that we didn't agree on class arbitration but that's not the question. The question is who decides they chose the triple a rules they said the rules we say that means all the rules and supplementary rule one that was adopted in 2003 says that these rules amend and supplement all other rules of the American arbitration association. They as a draft of the agreement are charged with knowledge of that's what it said. So I think if you look at rule one of the supplementary rules it makes it very clear that the supplementary rules are also part of this lease. Do you agree under the remarkably high opalinsky standard as Judge County was pointing out the talks about clear and unmistakable language a strong presumption of burden that's onerous express contractual language unambiguously delegating the question to the arbitrator that you need to persuade us that there is no reasonable reading of this contract that limits out the law. So I agree that we have to show it's clear and unmistakable and I'm relying upon what the the breath of the arbitration clause itself I'm relying on the corporation of all the triple a rules which clearly are part of this lease as if they had been stapled to the two page form contract. The fact that they wrote it at a time when they knew what the supplementary rules said and fairness it's not fair to pick and choose which rules you want to abide by here there's an agreement to abide by a procedure jurisdiction was given to the arbitrators under the rules to decide this question of class arbitability subject to court review. Is it your position that there is no reasonable reading of the language in this lease that it is only bilateral disputes that were intended to be delegated to the arbitrator under the triple a rules that is that this lease was contemplating a bilateral dispute subject to the procedure

. All right, we'll hear on rebuttal. Thank you. First, I'll start with if I may with the actual least word language and it's in corporate it says will be determined in accordance with the rules there of the American arbitration association. There's no word of limitation under Pennsylvania law, which is what applies here. The plain meaning is that means all of the rules further commercial rule one says and it's clear that Mr. Donovan is trying to say that these rules in this reference to they're not really part of the contract. They are absolutely part of the contract. Commercial rule one says the party shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the triple a. It couldn't be any clear in the rules. It also Pennsylvania law clearly says that if you refer to a document such as this that's an existence at the time of the agreement is part of the agreement. We're the language that comes before that reference talks about this less or and less and specifies a type of controversy that is disputes concerning this lease and such disputes. How does a reference to resolving such disputes in accordance with the triple a rules convert a consent to let the arbitrator decide the arbitrability of claims between these parties concerning this particular lease into consent for the arbitrator to decide claims between other parties concerning other leases. Well, it's a two-part answer and forgive me if I've already said this but there's a clear distinction in the issue before the court as to whether there's an agreement on class arbitrability and who decides that. The question here is who decides many of his arguments can be presented to the arbitration panel that we didn't agree on class arbitration but that's not the question. The question is who decides they chose the triple a rules they said the rules we say that means all the rules and supplementary rule one that was adopted in 2003 says that these rules amend and supplement all other rules of the American arbitration association. They as a draft of the agreement are charged with knowledge of that's what it said. So I think if you look at rule one of the supplementary rules it makes it very clear that the supplementary rules are also part of this lease. Do you agree under the remarkably high opalinsky standard as Judge County was pointing out the talks about clear and unmistakable language a strong presumption of burden that's onerous express contractual language unambiguously delegating the question to the arbitrator that you need to persuade us that there is no reasonable reading of this contract that limits out the law. So I agree that we have to show it's clear and unmistakable and I'm relying upon what the the breath of the arbitration clause itself I'm relying on the corporation of all the triple a rules which clearly are part of this lease as if they had been stapled to the two page form contract. The fact that they wrote it at a time when they knew what the supplementary rules said and fairness it's not fair to pick and choose which rules you want to abide by here there's an agreement to abide by a procedure jurisdiction was given to the arbitrators under the rules to decide this question of class arbitability subject to court review. Is it your position that there is no reasonable reading of the language in this lease that it is only bilateral disputes that were intended to be delegated to the arbitrator under the triple a rules that is that this lease was contemplating a bilateral dispute subject to the procedure. So I think it's clear and unmistakable. That's an unreasonable reading of this. It's absolutely unreasonable on the question of who decides. Just picking up on Judge Krauss' question to you don't you agree that the commercial rules generally address procedural matters like filing requirements that we've all been in arbitration myself to everyone else and overwhelmingly you're dealing with procedural matters. I was dealing with the handling of the arbitration. The time limits of discovery everything all the 50 60 pages going to all that stuff at the parties typically expect an arbitrator to resolve unquestionably. How does that question of class arbitrarily which obelisky held constitutes a gateway question presumably for courts rather than. How does that reference sweep in agreement to arbitrate class action as well when when when you're dealing now with a gateway question you're dealing with something completely different than bilateral arbitration well there are gateway questions some are quite some are exclusively for the court to decide and some are for the arbitrators. So the fact that's a gateway question is the beginning of the analysis well to get my question which you have to prove by an unbelievably high standard of proof and you're referring to the triple a rules and I think you would not argue that 99% of those rules that we've all lived with deal with procedural matters which are every day questions that a trial judge or an arbitration. So what is the arbitration that a perpetrator deals with well I would agree that many of those rules do that but their commercial rules seven says that the arbitrator shall the power to rule on his own jurisdiction including arbitrability of any claim that's what it says this is if this is a question of arbitrability which the third circuit has said. So it's one of very few that said that Supreme Court has not said that but I accepted for purposes of this case. Then there is no rule that says that this question of arbitrability is subject to some different standard of proof in any other. So from your point of view we wouldn't have to consider the supplemental rules you could just look at commercial rules. So what is the third effect at the time of opalinsky are you suggesting that that was not something that Judge Amber when the panel took into account in drafting opalinsky and and referring approvingly to read El Salvador? I think your honor that the vast bulk of the opinion of opalinsky in fact the entire bulk of the opalinsky opinion is resolving the question of is class arbitration a question of arbitrability. And then it says that it goes on and says that in the absence of the type of proof we've been talking about that's an issue to be cited by court but it was not presented with the rules. It didn't consider the rules it didn't rule on the rules. It just stopped short and it left it for a case like this. It didn't rule it didn't rule on the clause because the parties had agreed that it was silent silent in the sense that it didn't have any provision for it. And again I point to the fact of how the case came up. The plaintiffs in opalinsky were stuck with the fact that they had argued at the beginning that class arbitration was prohibited. They couldn't change horses

. So I think it's clear and unmistakable. That's an unreasonable reading of this. It's absolutely unreasonable on the question of who decides. Just picking up on Judge Krauss' question to you don't you agree that the commercial rules generally address procedural matters like filing requirements that we've all been in arbitration myself to everyone else and overwhelmingly you're dealing with procedural matters. I was dealing with the handling of the arbitration. The time limits of discovery everything all the 50 60 pages going to all that stuff at the parties typically expect an arbitrator to resolve unquestionably. How does that question of class arbitrarily which obelisky held constitutes a gateway question presumably for courts rather than. How does that reference sweep in agreement to arbitrate class action as well when when when you're dealing now with a gateway question you're dealing with something completely different than bilateral arbitration well there are gateway questions some are quite some are exclusively for the court to decide and some are for the arbitrators. So the fact that's a gateway question is the beginning of the analysis well to get my question which you have to prove by an unbelievably high standard of proof and you're referring to the triple a rules and I think you would not argue that 99% of those rules that we've all lived with deal with procedural matters which are every day questions that a trial judge or an arbitration. So what is the arbitration that a perpetrator deals with well I would agree that many of those rules do that but their commercial rules seven says that the arbitrator shall the power to rule on his own jurisdiction including arbitrability of any claim that's what it says this is if this is a question of arbitrability which the third circuit has said. So it's one of very few that said that Supreme Court has not said that but I accepted for purposes of this case. Then there is no rule that says that this question of arbitrability is subject to some different standard of proof in any other. So from your point of view we wouldn't have to consider the supplemental rules you could just look at commercial rules. So what is the third effect at the time of opalinsky are you suggesting that that was not something that Judge Amber when the panel took into account in drafting opalinsky and and referring approvingly to read El Salvador? I think your honor that the vast bulk of the opinion of opalinsky in fact the entire bulk of the opalinsky opinion is resolving the question of is class arbitration a question of arbitrability. And then it says that it goes on and says that in the absence of the type of proof we've been talking about that's an issue to be cited by court but it was not presented with the rules. It didn't consider the rules it didn't rule on the rules. It just stopped short and it left it for a case like this. It didn't rule it didn't rule on the clause because the parties had agreed that it was silent silent in the sense that it didn't have any provision for it. And again I point to the fact of how the case came up. The plaintiffs in opalinsky were stuck with the fact that they had argued at the beginning that class arbitration was prohibited. They couldn't change horses. They put all of their marbles on one spot. And that was on the question of arbitrability. They lost. And then on a petition for rehearing they brought up the argument that were bringing up which the court didn't rule on. So I'm saying that opalinsky doesn't answer the question. It sets the standard of proof but it didn't answer the question that's now before the court. Isn't it the case that the question of who decides is subject to an even higher threshold in the standard that's articulated in opalinsky than the question of arbitrability of class on a class wide basis? I don't believe the court. I don't think that is a higher standard just basically saying who has the burden of proof. I think we've carried the burden of proof. Stoltenielson and Sutter provide that once there has been a delegation to the arbitrator to decide vacating that is quite a feat. The standard is a very, very high one to vacate the arbitrator's decision once the parties have delegated the decision making to the arbitrator. That's correct. So in light of that, don't we need to be especially cautious as reflected in the standard in opalinsky for whether we have explicit and unambiguous delegation in the contract language? Well, I think that the fact of the Section 10 standard is a fact. But I'm saying that that's what they chose. That's what the clause says. That's what the rules said. They chose to say these things. They chose those standards and now they don't for some reason want to abide by them. I don't think you can pick and choose. When you say they chose, that's the answer to the question. The question is, did they choose? Not saying that they chose the question to the court is, did they choose? And did you choose? And it's sort of an interesting exercise for me as a practical matter to think that everything you buy, everything you sell now, all the Fortune 500 companies, every owned appraising the sign of arbitration agreement that these large corporations would open themselves up to classic arbitration to be cited by an arbitrator

. They put all of their marbles on one spot. And that was on the question of arbitrability. They lost. And then on a petition for rehearing they brought up the argument that were bringing up which the court didn't rule on. So I'm saying that opalinsky doesn't answer the question. It sets the standard of proof but it didn't answer the question that's now before the court. Isn't it the case that the question of who decides is subject to an even higher threshold in the standard that's articulated in opalinsky than the question of arbitrability of class on a class wide basis? I don't believe the court. I don't think that is a higher standard just basically saying who has the burden of proof. I think we've carried the burden of proof. Stoltenielson and Sutter provide that once there has been a delegation to the arbitrator to decide vacating that is quite a feat. The standard is a very, very high one to vacate the arbitrator's decision once the parties have delegated the decision making to the arbitrator. That's correct. So in light of that, don't we need to be especially cautious as reflected in the standard in opalinsky for whether we have explicit and unambiguous delegation in the contract language? Well, I think that the fact of the Section 10 standard is a fact. But I'm saying that that's what they chose. That's what the clause says. That's what the rules said. They chose to say these things. They chose those standards and now they don't for some reason want to abide by them. I don't think you can pick and choose. When you say they chose, that's the answer to the question. The question is, did they choose? Not saying that they chose the question to the court is, did they choose? And did you choose? And it's sort of an interesting exercise for me as a practical matter to think that everything you buy, everything you sell now, all the Fortune 500 companies, every owned appraising the sign of arbitration agreement that these large corporations would open themselves up to classic arbitration to be cited by an arbitrator. Well, sort of strains the imagination of beyond what could possibly be thought of. Well, from a practical standpoint, what contracts like your honors referring to do is have expressed waver. They express the waive class arbitration, the waive jury trial. And that's the way you would drafted contract. I've drafted contracts and she honors drafted many, many more than I have. And you certainly can strew many, many more than I have. But as a draft of contracts, if you want to exclude the arbitrators from deciding, then you put that in the contract. You don't use general language like this words without any limitation. And you're pretty, whatever rules. It's excluded automatically unless you could show that there's a tremendous presumption that's been overcome by the very language of the leasing agreement. Why do you have to exclude it? You're asking someone to do something that's already a fatal complete. Well, I would not agree as a fatal complete. The question is someone has to decide what I say. You're flipping it all its head now. You're saying that they didn't want to class arbitration. They should have excluded from the arbitration agreement. But that's not the law. The law in the third circuit, at least at the sixth circuit, is that you don't have class arbitration unless you have met an owner's presumption against you. And how the whole question for the panel, of course, is whether or not you've overcome that presumption? Well, I would only politely disagree in this one respect. And that is that, again, I know I may sign like a broken record. But the question is who decides not to clause construction and judge brand for some reason

. Well, sort of strains the imagination of beyond what could possibly be thought of. Well, from a practical standpoint, what contracts like your honors referring to do is have expressed waver. They express the waive class arbitration, the waive jury trial. And that's the way you would drafted contract. I've drafted contracts and she honors drafted many, many more than I have. And you certainly can strew many, many more than I have. But as a draft of contracts, if you want to exclude the arbitrators from deciding, then you put that in the contract. You don't use general language like this words without any limitation. And you're pretty, whatever rules. It's excluded automatically unless you could show that there's a tremendous presumption that's been overcome by the very language of the leasing agreement. Why do you have to exclude it? You're asking someone to do something that's already a fatal complete. Well, I would not agree as a fatal complete. The question is someone has to decide what I say. You're flipping it all its head now. You're saying that they didn't want to class arbitration. They should have excluded from the arbitration agreement. But that's not the law. The law in the third circuit, at least at the sixth circuit, is that you don't have class arbitration unless you have met an owner's presumption against you. And how the whole question for the panel, of course, is whether or not you've overcome that presumption? Well, I would only politely disagree in this one respect. And that is that, again, I know I may sign like a broken record. But the question is who decides not to clause construction and judge brand for some reason. And I think this motivated in part his decision. He makes a factual statement at the beginning of the opinion that the panel of three arbitrators had decided clause construction. They hadn't. They only decided who decides. You know, it's interesting to be a scientist. It's something very similar to what you're speaking of. And a lot of the evidence that deals with clause construction also deals with the very question of who decides. I mean, the evidence is to different issues, but it's the same evidence used on both issues. How do you grade? Well, the only evidence that was the only evidence that Judge Brand considered was, in essence, the sixth circuit, he didn't deal with the evidence. He didn't construe the contract. He didn't say one word about the AAA rules, not one word. And I think in that respect, he had a loan justifies reversal because he didn't look at the issue that was before him and decided under the clear, unmistakable premise of all arbitration litigation. And that is that the contract is king. You have to look at the contract and construe it. He didn't do it. And your position is that there only needs to be an exclusion, an expressed carve out of the arbitrator from deciding where the parties have excessly referenced and incorporated the AAA rules. Right? Well, there are many ways to draft a contract. What Judge Olito said in Renta Center was, parties can agree to arbitrate questions of arbitrability if that's what the contract says. That's what this contract says. Now, if you wanted to write something different as a draft, you would say, you wouldn't refer to the AAA rules at all. Or you'd say we're only consenting to the following rules as Judge Collins points out the administrative portions of the rules

. And I think this motivated in part his decision. He makes a factual statement at the beginning of the opinion that the panel of three arbitrators had decided clause construction. They hadn't. They only decided who decides. You know, it's interesting to be a scientist. It's something very similar to what you're speaking of. And a lot of the evidence that deals with clause construction also deals with the very question of who decides. I mean, the evidence is to different issues, but it's the same evidence used on both issues. How do you grade? Well, the only evidence that was the only evidence that Judge Brand considered was, in essence, the sixth circuit, he didn't deal with the evidence. He didn't construe the contract. He didn't say one word about the AAA rules, not one word. And I think in that respect, he had a loan justifies reversal because he didn't look at the issue that was before him and decided under the clear, unmistakable premise of all arbitration litigation. And that is that the contract is king. You have to look at the contract and construe it. He didn't do it. And your position is that there only needs to be an exclusion, an expressed carve out of the arbitrator from deciding where the parties have excessly referenced and incorporated the AAA rules. Right? Well, there are many ways to draft a contract. What Judge Olito said in Renta Center was, parties can agree to arbitrate questions of arbitrability if that's what the contract says. That's what this contract says. Now, if you wanted to write something different as a draft, you would say, you wouldn't refer to the AAA rules at all. Or you'd say we're only consenting to the following rules as Judge Collins points out the administrative portions of the rules. There's all sorts of ways to write things. So what I'm saying is, each contract has to be looked at as to what it says. Judge Brand basically overread Opalinsky. Forgot about construeing the contract under state law. Didn't look at the AAA rules and relied on the six circuit, which misconstrued one supplementary rule, one sentence, which in fact proves the opposite of what Judge Brand said it did. Okay. Well, thank you very much, Counsel. Thank you both for your fine argument. Thank you very much. Thank you for your time. We'll take this under advising.

Court House. The case we have on the calendar for today is check Chesapeake, Appalachia, versus Scout Petroleum, appellate number 15-1275. Mr. Pratt, we'll hear you. Thank you, Your Honours. I'm Robert Pratt, and I represent the Scout Appalachian in this case. I would like to you observe five minutes for a bottle time, if I may. It's granted. The issue in this case, Your Honours, is a narrow one, and that is does the arbitration clause in the form gas lease that Chesapeake prepared clearly provide that the arbitrators have jurisdiction to make the initial determination if the agreement provides for class arbitration. Please, currently and unmistakably. That is correct, Your Honour. Those are the exact words from Opalinsky. So what's the difference between this and Opalinsky? The difference between this and Opalinsky is that Opalinsky decided the issue that was left open by the Supreme Court and has not yet been decided, and that is his class arbitration, a question of arbitrability. That, and is it a question of arbitrability that the court or the arbitrators decide depending upon the language of the contract. So the whole thing of Opalinsky, at least in the third circuit, is that class arbitration is a question of arbitrability. We're not contesting that. But the issue is, is whether the arbitrators under the contract decide that question initially, or does the court? And what Opalinsky says is that if you are like we are contending that the arbitrators decide that issue, we have to show that it's clear and unmistakable under the contract. Let's assume we have a hypothetical party A and B, and they want to have disputes, bilateral disputes under their agreement, left to the arbitrator to decide the questions of arbitrability of bilateral disputes, but they do not contemplate class arbitrability being delegated to the arbitrator in the first instance. Why wouldn't it be reasonable for them to draft their contract to provide that in the event of a dispute between party A and party B, concerning this contract or a breach of this contract that such dispute shall be sent to arbitration, pursuing to the rules of the American Arbitration Association. Those rules do provide certain procedures where parties who want bilateral arbitration might invoke them. So why for those hypothetical parties who want their bilateral dispute, sent to the arbitrator but are not contemplating class arbitrability being delegated as a question for the arbitrator in the first instance. Why wouldn't it be reasonable for them to draft a contract with those terms? Well, I think I agree with your honor. The whole question is what does the contract say? Well, how about that contract in those terms as I set them out? Well, I think again, if it said any bilateral disagreement, that's not what this contract says. This contract says that all disputes and disagreements will be resolved in accordance with the rules of the American Arbitration Association, which what the district court did not do is construe the meaning of that clause. The meaning of the AAA rules under Pennsylvania State Law. So is your position then that the clear and unrestakeable agreement between the parties to send this decision to an arbitrator is by virtue of the fact that the clause itself references the AAA rules and the AAA rules themselves say the arbitrator decides questions of arbitrability, including class arbitrability. That's correct. How could I be correct possibly because your burden and it is a burden is that the parties agreed to class arbitration. We don't look at the triple A rules to see whether you have agreed to trust everyone's agreed to class arbitration. We look at the lease agreement to see whether or not the lease agreement contemplated class action arbitration. The lease agreement referred to the triple A rules, but in order to see whether the parties agreed anything, you see what they agreed to by the lease agreement. The lease agreement is silent on class action arbitration. You are there for in a situation where you must show and your burden is ominous. It must be clearly shown that both parties agreed that there could be class action arbitration. How have you done that in this case? We have done that, Your Honor, because the issue here is simply who decides it is not the question of did they agree the class arbitration? That is the issue to be decided by either the arbitrator or the court. The issue before Judge Bram was count one of the complaint and emotion for partial summary judgment on who decides. Chesapeake framed their complaint that way and the only issue before Judge Bram was who decides not whether the parties had agreed to class arbitration. But is it your position that the mere reference to arbitration under the triple A rules reflects the parties' intention to delegate the question of class arbitrability to the arbitrator unless the contract specifies that it is by a bilateral agreement to be delegated or it carves out class arbitrability? Well, there could have been an express waiver that is true. What we are saying is that the rules are not just referred to. They are part of the contract. The rules of the triple A both by State Law and Rule One of the commercial rules, which there is no dispute or part of this contract. So from your point of view, if the language of the rule were typed in the lease as opposed to being incorporated, there should be no difference. There is no difference. I mean, it is part of the lease because under stalled the question is, and this also goes back to Judge Cowan's question, under the stalled case and under the Sutter decision of the third circuit. What the court is looking for is a contractual basis for the understanding. The words class arbitration do not have to appear in the contract. Here they do, in fact, appear through the incorporation of the triple A rules for the purposes of who decides. But if you can also contemplate a contract where the parties are only contemplating bilateral arbitration being delegated for the question of arbitrability to the arbitrator in the first instance, and they want that bilateral arbitration to be subject to the triple A rules, then don't we have at a minimum ambiguity? That is, let's accept that your interpretation and corporation of the triple A rules is a reasonable one. Isn't there also a reasonable reading of this contract that all that is referencing and all that is being delegated as a question of arbitrability for an arbitrator is the bilateral arbitration? I don't agree with that. I don't agree with the hyper or that conclusion. The reason being that again, the question is the mechanism by which something is going to be decided. Whether you call it a dispute, we have a dispute. We have a dispute with Chesapeake over both the royalty provision and we have a dispute whether we can have a class action. The rules that they incorporate, the rules that they selected, the question will be initially decided by the arbitrators and then may be reviewed by the court. The court is not being dealt out of this. It's not an unfair situation. That's the triple A adopted these rules after Basel in order to provide a mechanism. I will also say, as I think our brief makes clear, that commercial rule seven and commercial rule eight, which clearly are what your honor I think is referring to as bilateral rules. That says questions of arbitrability will be decided by the arbitrators. That's what the rules they incorporated the least say. What nine-circuit courts have appelled that? What language would you say needs to be set forth in an arbitration clause for parties who are contemplating only the bilateral dispute being delegated to the arbitrator for the question of arbitrability? I think they would have to say under the current rules of the triple A and the rules that were in effect at the time of this lease, which is after the supplementary rules were adopted. That the only rules that apply are the commercial rules without the supplementary rules and that, and I would also say, would have to exclude rule seven and rule eight of the commercial rules. That's not what they intended to do. Clearly they intended to incorporate all the rules and the issue here as to who decides is governed by those rules. Well, that was just on an obelisk, given the language of commercial rule one A and your own theory of the case of corporation, how could we conclude that the parties in obelisk did not agree to the rules that exist at the time of the arbitration demand was filed? In other words, the rules that apply apply at the time of the agreement to arbitrate, and those rules were also in effect at the time obelisk was decided. Yes, sir. Was the supplementary rules were in 2003, right? That's when they were adopted. Okay. Was the obelisk clause was in effect before 2003? The obelisk agreements predated supplementary rules, and the other point I would make your honor that distinguishes our case completely from obelisk. The third circuit did not consider these arguments. That's clear. They did not consider the argument. But the implication is to the effect that the rules had effect at the time of the arbitration and supplemental rules were in effect at the time of the arbitration in obelisk. That's correct, but the third circuit didn't look at that. That was not an issue that they decided, or was it presented? The holding of the case, the holding of the case, was that the rules had effect at the time of the agreement to arbitration prevail. At the time of the arbitration prevail. That's a supplementary rules were in effect at that time, even though they weren't presented to the court. That's not, as far as I'm aware, your honor, that's not in the open skin opinion at all. They don't discuss that issue at all. It's not in the opinion. And I'll also point out that the litigation posture, the party's nobleness, he was totally different than here. The obelinsky case started before Judge Hopper as a federal case in which the parties, the plaintiffs were saying that class arbitration was pro-hypidated. That was their position before Judge Hopper. She decided to know it's silent and send it back to the arbitrator. But the parties that accepted her finding of silence, that was never appealed. The obelinsky decision itself said there how to be expressed contractual language unambiguously delegating the question of arbitrarity to the arbitrator. And you don't have that expressed contractual language here. Well, I would beg to differ in two respects. Under the presidential decision of this circuit in Sutter, which talks about what is silence, in order to avoid silence, you do not have to have the words class action or class arbitration in the agreement. Was that a bilateral, was that a bilateral or what was that a bilateral or...? Yes, that was an dispute between a doctor and a hospital. Yeah, your brief, yeah, six pages full of citations and arguments, the case is dealing with bilateral litigation and arbitration had nothing to do with this case. Well, the reason I would say they do have something to do with the case is that all of those citations go to the question of who decides questions of arbitrarity. This is a question of arbitrarity, there's no doubt about it, but this is not some super question of arbitrarity. In other words, if class arbitration is a question of arbitrarity, then all right, it's a question of arbitrarity. But nine circuit courts have held that the adoption of commercial rules is an expressed intention to have the question of arbitrarity decided by the arbitrarity. That is, you're dealing with bilateral arbitration in almost every single case, and that's what your brief was full of, bilateral arbitration. The six circuit is the only court of appeals that has dealt with the question which is before us right now, head on, and they decide the case against you saying they'll lease agreement, the agreement to arbitrate, not the referral to the triple A rules, which last time I look at 50 some odd pages, I think I was thought, it was a book, it was bigger than the federal rules of civil procedure, not the triple A rules. The six circuit held that it has to be part of the arbitration agreement, not the agreement to which they refer. And quite frankly, what you have here, a gateway question, is a class arbitration is another species from bilateral arbitration, there are two different things. And for someone who agreed a class action arbitration, it has to be something that they agreed to in advance. Is it following up on that question and related to it? Can you distinguish, read Elsevy or, or are you asking us to create a circuit split? No, I'm not asking for a circuit split, I can distinguish it. I can point out where it's wrong. Where else is it different from this case? It's different from this case. The factual, the issue posed for this resolution by this panel. The issue is the same as it was decided incorrectly because the six circuit based its decision on its reading of supplementary rule three, which it misstates, misquotes. And it basically said that the contract is silent because there was no reference to the arbitrators deciding class arbitration, class arbitrability. And then they quote the last sentence of supplementary rule three incorrectly, leaving out the words that the arbitrator shall decide. And then they use the word one. The point of supplementary rule three is to say clearly it says it four times in the rule that the arbitrators shall decide initially the question of class arbitrability when they call, what they call clause construction. And then there's a rest period for someone to go to court if they're not happy with that. The last sentence which the six circuit hung its head on, they misread, they misquoted it. And all of that says in making the class the clause determination, clause construction determination, the arbitrator is not to consider in favor or against the existence of the rule. That has nothing to do with this case. So your point is that read is distinguishable because read relied on language that deals with the construction of the clause and did not take into account the language of talks about the who decides question. Is that correct? That's great. And it misstaged with the rule clearly misstaged with the rule says it's flat out wrong. All right. We'll get you back on the bottle. Thank you. Thank you. Good morning. Good morning. I want to get to the questions. And first, I Daniel Donovan for the Chesapeake parties. There is no clear and unmistakable evidence here that the parties agreed to submit class arbitrability to an arbitrator. Well, you draft your client drafted a contract. That contract expressly says that all arbitrations will be subject to the AAA rules. It actually doesn't say that, Your Honor. And I'd like to get to because Mr. Pratt or Miss Spoke when he said the six circuit and the district court they're only relied on. Let's focus on your. Okay. Sure. So ours says a couple things that are very important. First is, if you have the clause at a PENIX-1962, it says in the event of a disagreement between two defined terms, less or and less. That's defined in the lease, less or being scout as successor, less is Chesapeake. So that's who is agreeing to arbitrate and who the disagreements are between. It then says, what are we going to arbitrate? This lease, that's a defined term, performance there under of this lease, and damages caused thereby. So therefore, if there's a dispute between the less or scout and Chesapeake concerning this lease, we agree to arbitrate such disputes they've been defined in accordance with the rules. So this is done in light of a setter in the point that's been raised by your colleague. We rejected a reading of Stolt-Neilson that class arbitration is allowed only if the arbitration agreement incants class arbitration or otherwise expressly provides for some aggregate procedure. Are you arguing that it needs to expressly refer to class arbitration or some aggregate procedure in order to delegate? Yeah, let me take a step back. I think silence is used different times in different cases differently. In Sutter, the parties agreed as a contractual matter that there was never an agreement. That's the way silence was used in that case. The way the third circuit, this Court used it in Apolinsky, was saying the standard there needs to be express contractual intent. In Apolinsky, which Mr. Pratt or I frankly just disagreed with, they decided two things. If you read it, they said this is the standard, and they applied that standard to a clause that referenced the AAA rules. They could have sent it back to the district court. They didn't. Yeah, but Apolinsky, the Sutter rules in fact at the time of the clause didn't have supplemental rules. They didn't exist. They didn't, but that's interesting, Your Honor, because what actually then happened was in the briefing, Mr. Pratt said this never came up. They came up on rehearing, right? No, this is actually the Pellies brief, page 40, to the third circuit. They talk about this temporal issue because they actually tried to flip it the other way on half saying the half defendants actually knew when they initiated litigation that the supplemental rules would apply. This is at page 40, and they refer to the AAA rules and the supplemental rules. The supplemental rules weren't in effect at that time, and the court did not at least explicitly address either 7a or the supplemental rules. I agree with that. That was on rehearing, but Read All Selvia did, and actually the district court did as well in that case, and the district court there adopted the argument that I'm making to you, which is you have to read the clauses written. Mr. Pratt would like to change the clause. The clause has written limits, which the Supreme Court said were allowed to do, to who we are going to arbitrate with less than one. Does this not tell us how this answers the who decides question? I'm sorry, Your Honor. I don't use the side that who decides that issue of whether it's limited to the two that you say or for a class. Doesn't the incorporation, and it says, by arbitration, in accordance with the rules of the AAA, why doesn't that answer the who decides question? Sure. So let's start with the plain language of the lease I come back to, which is it doesn't say incorporate all the rules. It defines if we have such a dispute between a less or an unlessy regarding this lease, we will then use the AAA rules, and I come back to Judge Krause's hypo, because this came up under Judge Keely's decision, considering Chesapeake's lease, Northern District of West Virginia this year, she actually said that would flip the presumption. Mr. Pratt actually said, and I wrote this down, he said it would have to say bilateral, but that's flipping the presumption. The Supreme Court says he needs to show express contractual intent that we did agree, and no one here believes that Chesapeake, first of all, I believe the plain language, but that Chesapeake put this arbitration clause in, with the intent that the early class wide arbitration and some arbitrators would decide that, that's not what this clause provides. So, are you asking us to disregard traditional rules of incorporation, you know, by reference? I mean, if the language here incorporating the AAA rules is not clear and unmistakable, then what is? Sure, so there's two parts, there, first of all, I think we have to be careful with saying incorporating. What we did here, which is different than some commercial contracts where we might say we're going to incorporate our terms and conditions. Okay, this very specifically defines, and it makes sense, we have a lot of oil and gas leaks, we say if we have a dispute between us, we are going to arbitrate regarding this lease, and we're going to use the AAA rules. It goes back years, what Mr. Pratter and Scott would have is that we would then need to exclude, and this is the standard, okay? The AAA says what you should do is have a very simple clause in refer to the AAA. So therefore, if you think about the result would then be, as you would need to have a prohibition on the supplementary rules, which is flipping the presumption. Why wouldn't you just be making the assumption that party is particularly sophisticated parties by incorporating the AAA rules by reference are clearly and unmistakably incorporating their terms, including the delegation of class arbitrability? Sure, well first I don't agree they were incorporated as Mr. Pratter used that term, but number two, if we go and look at the rules, the AAA rules themselves, the bilateral rules, don't refer to the supplementary rules, okay? What happens is this is a daisy chain argument, and that's not clear and unmistakable. Even the six circuits said on that the AAA rules argument, let's assume it's an argument, it's at best ambiguous, and it certainly is not clear and unmistakable that the parties intended that arbitrators would decide other less or worse in the class wide arbitration issue. It doesn't go that far, if you look at the rules, the AAA rules don't actually refer to the supplementary rules. But the supplementary rules were further to the... Exactly, it's this daisy chain which is not clear and unmistakable. Why is that any different, I'd like to answer if you could to discuss this question about why should this be treated any differently than any other commercial arrangement where there's a clause in a contract that incorporates by reference some other document? Sure, a couple of things. First is I go back to the plain language and what they want to do is add other rules and other situations. We limited, which the spring courts have allowed to do. This is Justice Alito. It's a question of consent. What we would arbitrate in with whom? Number two, if you look at the cases that have construed this, they have said simple reference to the AAA rules to do the AAA is not clear and unmistakable. What case do you have that says that? Because I believe we've already heard many, many courts have already decided, that the incorporation of the AAA rules include a clear and unmistakable agreement by the parties of who decides whether the questions are eligible, whether it's the bilateral context or not. Well, that's quite different though, and I have a lot of cases. We actually have the case here, the district court. But we have other district courts that thoughtfully go through. This is Judge Keely, Northern District. And just last month, Judge Stamp of the Northern District, West Virginia, and this court, excuse me, these are District Depends on Vanya. Judge Keely just last month ruled on this issue, saying a mere reference to the AAA rules not a Chesapeake, but a different clause is not enough. So you're saying you're making representation of those district courts have not adopted the standard contractual principle of if you incorporate it's enough, because they're treating the AAA rules differently? No, I'm not arguing that they're different. The point is, is they're construing the actual contractual language. I think the leap that Scout is making is arguing that this is fully incorporated, and clearly and unmistakably, this issue that who decides is incorporated in this contract, and when you read this language... In this language is not enough. I want to go back, because I don't think I'm going to answer that. Oh, I'm sorry. I didn't answer that. What language is enough? If we have suitors saying you don't need to, you know, incant class arbitration or aggregate proceedings. Correct. But if you read that, Karen, doesn't say what you need is an express contractual intent in the area, so you could say, including the supplementary rules. Because remember, the burden is on Scout to include it. You could say class. There's one court, this is, I think, one of these ninth circuit courts, where the clause actually said we will consolidate other claims. You would need a magic word, you just need an intent expressed. It's contractual interpretation. There's no magic, kind of, you know, capping crunch decodering, we've got to have these words. But you've got to have contractual express intent in the contract. Well, how? Go ahead. How about the language in Cedar itself that talked about no civil action concerning any dispute under this lease? Shelby Institute before any court. How is that language, which we in the Supreme Court, you know, have interpreted be different than the language that we have here? Well, I don't think they have. Let's remember what Sutter was. Sutter with Justice Alito's concurrence said that the parties there afterwards agreed the arbitrator could rule on it. Okay. So therefore you had the low FAA standard. They, and actually, if I go ahead, Martha's Justice Alito disagreed that the arbitrator got it right. Now the courts have, we're not deciding that issue because the low standard. But the language of the agreement there, which seemed to preclude disputes from being decided by a district court, when you look at the language as a whole, it expressly provided that the dispute did not be decided by a district court. In other words, that those disputes, even between those individual parties, would have to be decided by an arbitrator. Right? So while the language here is slightly different, aren't we in the same place by having, you know, any such dispute between the two parties here, you know, although it's under this lease, any perspective class member with such a lease is in the same position, okay? But no, because I think it's important on Sutter. Let's remember all the third certain in the Supreme Court was saying was, is they had to look at did the arbitrators construe the contract? Once that happens, we're done because therefore there's not bias. That's the real risk. What we step back, why is it the Supreme Court sets this high standard? It's because not only Chesapeake, but absent class members are worried that contractual arbitrators are ruling on these issues that no one would have thought they would have. And frankly, I think fundamental due process doesn't permit it. So I think your honor, I don't think that was the holding of Sutter in the way it's being presented here. It basically said that the contractors, arbitrators, which like the arbitrator found that there was a contractual basis, that's all the third certain in the Supreme Court did. I come back here when we're construing this language under your hype on I gave the examples that you would need because I want to come back to Claren on Mistake will standard is quite high admittedly and I embrace that. And because of that, I don't think Scout has shown you in the contract. Well, getting back to the Sixth Circuit, though, which you're relying upon. Yes, but you have to agree that the sick really didn't offer any reasoning for its decision as such an analysis. In fact, it didn't even mention incorporation or supplement a role three. I don't think it was even mentioned in the opinion. Well, your honor. So how do you and you want us to rely on six circuit law and of course if that's their holding there, if we go the other way, it could be a circuit split year. It would be so why how do you how do you rely on the six circuit, whether it was no reasoning, no supplement a role three in that case. Sure. I think as your honors were no probably better than anyone, when you write an opinion, they were simply expressing their there was an affirmance of the district court and they gave one reason, but their lead reason was the lead reason not to determine that there was Claren on Mistake will evidence is that the contract was silent as the class arbitration. They then do side role three, but the district court, if you read below, and I'm at this is the West Law side at start 10, they talk about what we were just talking about, which is there the court said that the there was this order. Instead of this lease and they said that limited what it was and because of that the triple a supplementary rules can't apply because the plain language as they drafted the parties are allowed to draft what they want to arbitrate because of that those rules never applied. And your honors I did read and I would submit that the the briefing before that court addressed all the reasons I'm arguing I agree that the six circuit opinion picks up one, but they also say other reasons and that's why because they say look nobody there's nothing in this agreement contractual. Expression 10 to show. But that was the whole. Yes. The second part of its opinion dealing with the construction of the arbitration clause and the question of class arbitrability itself discusses there the incorporation of the tribal a rules, but you agree in the in the earlier part of decision as to the delegation question, there's not in that discussion on explicit reference to incorporation. There is a but that was argued below I mean it's not in their opinion, but if you read the briefs, I mean it's like anything there's lots of arguments being made, but their point was they kind of canvas the Supreme Court law and said look it's pretty clear where the Supreme Court is heading and we think that's the right decision and they explain why I agree they didn't do it. They didn't do an analysis, but I want to take one step back to scouts argument is that somehow the opulence key panel of this court wasn't aware of this triple a rules argument. The opulence key panel of you know written by Jo Jambro relied heavily on read-out cell be for the standard, but they fully read it. I think it is beyond the straight face test that that panel read the read-out cell via decision, but stopped once they set the standard, didn't read the rest of it and wasn't aware of this triple a rules argument. They were fully aware of it. They're just like good lawyers do on both sides. They made other arguments that they were focused on. Opulence key argued it was because of the breadth of the language any controversy that was their lead argument. In your I'd like to talk about your contract. Okay, please. All right. In your contract focuses on the first clause I heard John that. Okay. But now I want to talk about the resolution of such disputes. I'll be determined. This is the part by arbitration in accordance with the rules of the American Reputation Association. Yes, sir. That's your that's the language your client drafted and included this. Is it your position that this does not incorporate the triple a rules and if that is your position then I would take it. You are not incorporating either for bilateral arbitration correct. What? Because you can't have a both wage can incorporate for some and not others. Well, it's not incorporated. Okay, so you're saying in accordance with the rules of the triple a is not incorporation line. It is not incorporation the way it's used in the cases. I agree. No, I'm not on that. No, no, no, no. That's my position. Yes, right? And can I explain why briefly is is the correct answer to class to class arbitration or are you suggesting contrary to every case that's addressed the issue now that the question of arbitrability itself in bilateral contracts is not provided by the express reference to the triple a rule as the class as the class. I consider so and you're saying that because of the language that precedes it. Right, because the parties are allowed to limit. So we have agreed that we would use the triple a rules for disputes between the less or in the less. See, okay, you have to use the plain language here. So you're using that modified the in accordance with and that is why you're saying this is not an incorporation case in my correct. That is correct. And it's all such disputes. Thank you. Okay, thank you. All right, we'll hear on rebuttal. Thank you. First, I'll start with if I may with the actual least word language and it's in corporate it says will be determined in accordance with the rules there of the American arbitration association. There's no word of limitation under Pennsylvania law, which is what applies here. The plain meaning is that means all of the rules further commercial rule one says and it's clear that Mr. Donovan is trying to say that these rules in this reference to they're not really part of the contract. They are absolutely part of the contract. Commercial rule one says the party shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the triple a. It couldn't be any clear in the rules. It also Pennsylvania law clearly says that if you refer to a document such as this that's an existence at the time of the agreement is part of the agreement. We're the language that comes before that reference talks about this less or and less and specifies a type of controversy that is disputes concerning this lease and such disputes. How does a reference to resolving such disputes in accordance with the triple a rules convert a consent to let the arbitrator decide the arbitrability of claims between these parties concerning this particular lease into consent for the arbitrator to decide claims between other parties concerning other leases. Well, it's a two-part answer and forgive me if I've already said this but there's a clear distinction in the issue before the court as to whether there's an agreement on class arbitrability and who decides that. The question here is who decides many of his arguments can be presented to the arbitration panel that we didn't agree on class arbitration but that's not the question. The question is who decides they chose the triple a rules they said the rules we say that means all the rules and supplementary rule one that was adopted in 2003 says that these rules amend and supplement all other rules of the American arbitration association. They as a draft of the agreement are charged with knowledge of that's what it said. So I think if you look at rule one of the supplementary rules it makes it very clear that the supplementary rules are also part of this lease. Do you agree under the remarkably high opalinsky standard as Judge County was pointing out the talks about clear and unmistakable language a strong presumption of burden that's onerous express contractual language unambiguously delegating the question to the arbitrator that you need to persuade us that there is no reasonable reading of this contract that limits out the law. So I agree that we have to show it's clear and unmistakable and I'm relying upon what the the breath of the arbitration clause itself I'm relying on the corporation of all the triple a rules which clearly are part of this lease as if they had been stapled to the two page form contract. The fact that they wrote it at a time when they knew what the supplementary rules said and fairness it's not fair to pick and choose which rules you want to abide by here there's an agreement to abide by a procedure jurisdiction was given to the arbitrators under the rules to decide this question of class arbitability subject to court review. Is it your position that there is no reasonable reading of the language in this lease that it is only bilateral disputes that were intended to be delegated to the arbitrator under the triple a rules that is that this lease was contemplating a bilateral dispute subject to the procedure. So I think it's clear and unmistakable. That's an unreasonable reading of this. It's absolutely unreasonable on the question of who decides. Just picking up on Judge Krauss' question to you don't you agree that the commercial rules generally address procedural matters like filing requirements that we've all been in arbitration myself to everyone else and overwhelmingly you're dealing with procedural matters. I was dealing with the handling of the arbitration. The time limits of discovery everything all the 50 60 pages going to all that stuff at the parties typically expect an arbitrator to resolve unquestionably. How does that question of class arbitrarily which obelisky held constitutes a gateway question presumably for courts rather than. How does that reference sweep in agreement to arbitrate class action as well when when when you're dealing now with a gateway question you're dealing with something completely different than bilateral arbitration well there are gateway questions some are quite some are exclusively for the court to decide and some are for the arbitrators. So the fact that's a gateway question is the beginning of the analysis well to get my question which you have to prove by an unbelievably high standard of proof and you're referring to the triple a rules and I think you would not argue that 99% of those rules that we've all lived with deal with procedural matters which are every day questions that a trial judge or an arbitration. So what is the arbitration that a perpetrator deals with well I would agree that many of those rules do that but their commercial rules seven says that the arbitrator shall the power to rule on his own jurisdiction including arbitrability of any claim that's what it says this is if this is a question of arbitrability which the third circuit has said. So it's one of very few that said that Supreme Court has not said that but I accepted for purposes of this case. Then there is no rule that says that this question of arbitrability is subject to some different standard of proof in any other. So from your point of view we wouldn't have to consider the supplemental rules you could just look at commercial rules. So what is the third effect at the time of opalinsky are you suggesting that that was not something that Judge Amber when the panel took into account in drafting opalinsky and and referring approvingly to read El Salvador? I think your honor that the vast bulk of the opinion of opalinsky in fact the entire bulk of the opalinsky opinion is resolving the question of is class arbitration a question of arbitrability. And then it says that it goes on and says that in the absence of the type of proof we've been talking about that's an issue to be cited by court but it was not presented with the rules. It didn't consider the rules it didn't rule on the rules. It just stopped short and it left it for a case like this. It didn't rule it didn't rule on the clause because the parties had agreed that it was silent silent in the sense that it didn't have any provision for it. And again I point to the fact of how the case came up. The plaintiffs in opalinsky were stuck with the fact that they had argued at the beginning that class arbitration was prohibited. They couldn't change horses. They put all of their marbles on one spot. And that was on the question of arbitrability. They lost. And then on a petition for rehearing they brought up the argument that were bringing up which the court didn't rule on. So I'm saying that opalinsky doesn't answer the question. It sets the standard of proof but it didn't answer the question that's now before the court. Isn't it the case that the question of who decides is subject to an even higher threshold in the standard that's articulated in opalinsky than the question of arbitrability of class on a class wide basis? I don't believe the court. I don't think that is a higher standard just basically saying who has the burden of proof. I think we've carried the burden of proof. Stoltenielson and Sutter provide that once there has been a delegation to the arbitrator to decide vacating that is quite a feat. The standard is a very, very high one to vacate the arbitrator's decision once the parties have delegated the decision making to the arbitrator. That's correct. So in light of that, don't we need to be especially cautious as reflected in the standard in opalinsky for whether we have explicit and unambiguous delegation in the contract language? Well, I think that the fact of the Section 10 standard is a fact. But I'm saying that that's what they chose. That's what the clause says. That's what the rules said. They chose to say these things. They chose those standards and now they don't for some reason want to abide by them. I don't think you can pick and choose. When you say they chose, that's the answer to the question. The question is, did they choose? Not saying that they chose the question to the court is, did they choose? And did you choose? And it's sort of an interesting exercise for me as a practical matter to think that everything you buy, everything you sell now, all the Fortune 500 companies, every owned appraising the sign of arbitration agreement that these large corporations would open themselves up to classic arbitration to be cited by an arbitrator. Well, sort of strains the imagination of beyond what could possibly be thought of. Well, from a practical standpoint, what contracts like your honors referring to do is have expressed waver. They express the waive class arbitration, the waive jury trial. And that's the way you would drafted contract. I've drafted contracts and she honors drafted many, many more than I have. And you certainly can strew many, many more than I have. But as a draft of contracts, if you want to exclude the arbitrators from deciding, then you put that in the contract. You don't use general language like this words without any limitation. And you're pretty, whatever rules. It's excluded automatically unless you could show that there's a tremendous presumption that's been overcome by the very language of the leasing agreement. Why do you have to exclude it? You're asking someone to do something that's already a fatal complete. Well, I would not agree as a fatal complete. The question is someone has to decide what I say. You're flipping it all its head now. You're saying that they didn't want to class arbitration. They should have excluded from the arbitration agreement. But that's not the law. The law in the third circuit, at least at the sixth circuit, is that you don't have class arbitration unless you have met an owner's presumption against you. And how the whole question for the panel, of course, is whether or not you've overcome that presumption? Well, I would only politely disagree in this one respect. And that is that, again, I know I may sign like a broken record. But the question is who decides not to clause construction and judge brand for some reason. And I think this motivated in part his decision. He makes a factual statement at the beginning of the opinion that the panel of three arbitrators had decided clause construction. They hadn't. They only decided who decides. You know, it's interesting to be a scientist. It's something very similar to what you're speaking of. And a lot of the evidence that deals with clause construction also deals with the very question of who decides. I mean, the evidence is to different issues, but it's the same evidence used on both issues. How do you grade? Well, the only evidence that was the only evidence that Judge Brand considered was, in essence, the sixth circuit, he didn't deal with the evidence. He didn't construe the contract. He didn't say one word about the AAA rules, not one word. And I think in that respect, he had a loan justifies reversal because he didn't look at the issue that was before him and decided under the clear, unmistakable premise of all arbitration litigation. And that is that the contract is king. You have to look at the contract and construe it. He didn't do it. And your position is that there only needs to be an exclusion, an expressed carve out of the arbitrator from deciding where the parties have excessly referenced and incorporated the AAA rules. Right? Well, there are many ways to draft a contract. What Judge Olito said in Renta Center was, parties can agree to arbitrate questions of arbitrability if that's what the contract says. That's what this contract says. Now, if you wanted to write something different as a draft, you would say, you wouldn't refer to the AAA rules at all. Or you'd say we're only consenting to the following rules as Judge Collins points out the administrative portions of the rules. There's all sorts of ways to write things. So what I'm saying is, each contract has to be looked at as to what it says. Judge Brand basically overread Opalinsky. Forgot about construeing the contract under state law. Didn't look at the AAA rules and relied on the six circuit, which misconstrued one supplementary rule, one sentence, which in fact proves the opposite of what Judge Brand said it did. Okay. Well, thank you very much, Counsel. Thank you both for your fine argument. Thank you very much. Thank you for your time. We'll take this under advising