[00:00:00] Speaker 04:
And welcome to this Zoom session of the court.

[00:00:04] Speaker 04:
This panel will be hearing three cases this morning.

[00:00:08] Speaker 04:
We're starting with WAKED v. Kerr, number 242064.

[00:00:16] Speaker 04:
Council, if you can hear us and we can hear you, then I think we're ready to go.

[00:00:23] Speaker 04:
So you may proceed, Mr. Pratt.

[00:00:28] Speaker 02:
Thank you.

[00:00:29] Speaker 02:
May it please the court.

[00:00:30] Speaker 02:
This is an appeal from a district court's refusal to confirm an arbitration award.

[00:00:36] Speaker 02:
In our briefs, we've given you a number of reasons that that decision should be reversed.

[00:00:42] Speaker 02:
But you can decide this entire case by looking at two documents.

[00:00:46] Speaker 02:
The Federal Arbitration Act and the submission agreement that Kate Kerr signed when she first showed up in this arbitration with the first filings that she made

[00:00:58] Speaker 02:
in the underlying arbitration proceeding.

[00:01:03] Speaker 01:
Did she make it clear that she protested that?

[00:01:07] Speaker 02:
She did not make clear.

[00:01:10] Speaker 02:
She never protested, arbitrating any claim asserted by Teresa Stone and Sean Waked, the only two people who actually got an award in this case.

[00:01:21] Speaker 02:
The submission agreement is at page A137.

[00:01:26] Speaker 02:
All it says is excluded from this agreement is commitment to arbitrate the claim of claimant maestro global.

[00:01:33] Speaker 02:
No consent of respondents to arbitrate with maestro global is made or provided here.

[00:01:40] Speaker 02:
Otherwise, she said she sub agrees to submit the present matter and controversy.

[00:01:45] Speaker 02:
Include as put in the statement of claim to the arbitration panel under the federal rules.

[00:01:51] Speaker 02:
She said she agreed to abide by and perform their work.

[00:01:54] Speaker 01:
Was the claim being made on behalf of Maestro?

[00:01:59] Speaker 01:
I mean, I'm a little bit confused whether it was an individual claim or whether, in fact, even though Maestro did not agree that that was the claim that was being litigated, arbitrated here.

[00:02:14] Speaker 02:
It was not.

[00:02:15] Speaker 02:
Teresa Stone and Sean Lakin asserted individual claims against Kate Kerr.

[00:02:21] Speaker 02:
Now one of those claims was as a third-party beneficiary of the Maestro contract, but even that claim did not belong to Maestro.

[00:02:29] Speaker 02:
It could not be a third-party beneficiary of its own contract.

[00:02:32] Speaker 02:
The claim that Teresa Stone and Sean Lickett asserted was their own claim, and that is what she never at once objected to arbitrating.

[00:02:42] Speaker 02:
She couldn't because the federal rules required her to arbitrate that.

[00:02:47] Speaker 04:
Before we leave the submission agreement, could you explain the role of a submission agreement in this arbitration?

[00:03:01] Speaker 04:
In other words, why is the submission agreement a separate agreement to arbitrate and not just part of the arbitration process?

[00:03:15] Speaker 02:
to forestall this exact situation here.

[00:03:19] Speaker 02:
So that you don't have somebody coming up after the arbitration is over and saying, oh, wait a minute, I didn't actually agree in that original submission agreement to arbitrate these claims.

[00:03:30] Speaker 02:
By having a post submission, post controversy, post dispute arbitration agreement, you're plainly saying, okay, whatever was the scope of our original arbitration agreement, or maybe we didn't even have an original arbitration agreement.

[00:03:44] Speaker 02:
We are agreeing now that we are going to submit this agreement to arbitration.

[00:03:50] Speaker 02:
And the Federal Arbitration Act, in its plain language, says, an agreement in writing to submit to arbitration an existing controversy shall be valid, irrevocable, and enforceable.

[00:04:02] Speaker 02:
That's separately from a pre-dispute arbitration agreement.

[00:04:06] Speaker 02:
And that's what we have here.

[00:04:07] Speaker 02:
That's exactly what this is.

[00:04:09] Speaker 02:
It's an agreement in writing to submit to arbitration an existing controversy.

[00:04:14] Speaker 02:
it is independently enforceable.

[00:04:18] Speaker 02:
And in fact, the district court did not cite a single case in the history of jurisprudence of this country for support of its conclusion that no, you have to determine the scope of that in light of the original agreement.

[00:04:33] Speaker 02:
If there's an supposed to speed agreement to arbitrate, it has to be enforced.

[00:04:36] Speaker 02:
And there was nothing in this agreement that suggested to anybody that Kerr was not really agreeing to arbitrate

[00:04:43] Speaker 02:
the claims that brought by Kerr, excuse me, by Wicked and Stone individually, because if she was, that would mean that her entire submission agreement was completely meaningless.

[00:04:55] Speaker 02:
She wasn't agreeing to arbitrate anything, because the only things in the claim were claims of Stone, Wicked and Maestro.

[00:05:02] Speaker 04:
Well, Ms.

[00:05:03] Speaker 04:
Kerr seems to be arguing on appeal that all of

[00:05:08] Speaker 02:
uh... the way kid in stone claims derived from the employment contract with maestro do you agree with that i do not agree with that they finally did not they had a separate employment agreement that were she directly acknowledged in writing this is the documented page eight three one eight was current group uh... acknowledge in writing this is being retained by shawna wicked and associate

[00:05:38] Speaker 02:
of Raymond James and the fact is the slander claims.

[00:05:44] Speaker 04:
Well, no, that was an agreement with, uh, with wicked, right?

[00:05:51] Speaker 02:
Um, it was between Sean wicked and Kathleen Kurt.

[00:05:53] Speaker 02:
Yes.

[00:05:54] Speaker 04:
But not with stone.

[00:05:56] Speaker 02:
Right.

[00:05:58] Speaker 02:
Okay.

[00:05:58] Speaker 02:
But even stones claims, she asserted them individually.

[00:06:02] Speaker 02:
They did not have to derive from the Maestro global contract.

[00:06:05] Speaker 04:
Does that include the third party beneficiary claims though?

[00:06:09] Speaker 04:
Wouldn't they be bound by the terms of the Maestro employment contract on that relative to the arbitration provision?

[00:06:19] Speaker 02:
If they were suing the third party beneficiary claims and they wanted to compel arbitration against Stone and Waco based on that, I think that would be correct.

[00:06:28] Speaker 02:
But that is not an objection that was ever made in this arbitration.

[00:06:32] Speaker 02:
There was no set aside saying, oh, well, if any of their claims happen to be through the Maestro agreement, they were also objecting to that.

[00:06:41] Speaker 02:
It was very clear they were agreeing to arbitrate the claims asserted by Stone and Wicked.

[00:06:47] Speaker 02:
Moreover, it doesn't matter whether one of the claims would have been through the Maestro.

[00:06:51] Speaker 02:
All it has to be is any claim that the arbitrators conceivably could have found in favor of Stone and Wicked.

[00:06:58] Speaker 02:
this court has to confirm because it was all submitted to arbitration and the arbitrators decided that they had individual claims that fell within the scope of the submission agreement that they agreed to arbitrate, which I would add that's another point.

[00:07:15] Speaker 02:
The submission agreement also agreed to submit the question of arbitrability to the arbitrator.

[00:07:23] Speaker 02:
It necessarily did.

[00:07:24] Speaker 02:
It said,

[00:07:24] Speaker 02:
It's they said they're submitting everything that was raised in the statement of claim and the counterclaim and answers and jurisdiction was raised in all of those things.

[00:07:33] Speaker 01:
You're saying they agreed to submit whether it was going to be submitted to the arbitrator, but now you've referred to some general language simply saying all claims.

[00:07:44] Speaker 01:
Is there anything in the agreement that specifically says we agreed to submit the jurisdiction of the arbitrator to the arbitrator?

[00:07:53] Speaker 01:
No.

[00:07:54] Speaker 01:
It says that in height language.

[00:07:57] Speaker 01:
No.

[00:07:57] Speaker 02:
In that language now.

[00:07:59] Speaker 02:
The board, they just have to use that language then.

[00:08:02] Speaker 02:
What it says is she agreed to submit the entire controversy as set forth in the pleadings.

[00:08:08] Speaker 01:
All right.

[00:08:09] Speaker 01:
So the entire controversy in your opinion, I'm not saying it's not accurate, but includes whether it's submittable or not.

[00:08:20] Speaker 01:
Yes.

[00:08:20] Speaker 01:
Okay.

[00:08:21] Speaker 01:
Thank you.

[00:08:24] Speaker 04:
And weren't there two submission agreements?

[00:08:27] Speaker 04:
Wasn't there something called an unqualified submission agreement?

[00:08:31] Speaker 04:
What's the difference between those two and what role did those play?

[00:08:36] Speaker 02:
The unqualified submission agreement is page A95 of the appendix.

[00:08:41] Speaker 02:
And it is the agreement that Kevin Kerr signed with no exceptions whatsoever agreeing to submit the entire controversy to this arbitration.

[00:08:54] Speaker 02:
The district court correctly found that that was not entered under duress.

[00:08:58] Speaker 02:
She didn't have to sign it.

[00:09:00] Speaker 02:
She did.

[00:09:00] Speaker 02:
Everybody relied on it for 10 months, spending hundreds of thousands of dollars.

[00:09:07] Speaker 02:
And it should be enforced.

[00:09:08] Speaker 02:
The Federal Arbitration Act requires it be enforced.

[00:09:10] Speaker 01:
Let me get clear to me again, what exactly she did object to, because I know she had a proceeding under protest

[00:09:18] Speaker 01:
to the arbitration for something.

[00:09:20] Speaker 01:
So I'm confused how her objection fits into your statements of unqualified acceptance of arbitration and jurisdiction to arbitrate.

[00:09:30] Speaker 02:
The unqualified agreement was later on.

[00:09:33] Speaker 02:
Her original agreement, she objected to arbitrating with Maestro Global.

[00:09:41] Speaker 02:
That was in March of 2021.

[00:09:42] Speaker 02:
In June of 2021,

[00:09:47] Speaker 02:
After the arbitrator said, no, we don't agree with that.

[00:09:50] Speaker 02:
You need to submit an unqualified submission agreement.

[00:09:54] Speaker 02:
She did.

[00:09:55] Speaker 02:
And she didn't submit it with anything alongside saying, well, I'm still protesting this.

[00:09:59] Speaker 02:
I still don't agree with it.

[00:10:00] Speaker 02:
I'm keeping my fingers crossed behind my back as I submit this June submission agreement.

[00:10:05] Speaker 02:
None of that.

[00:10:06] Speaker 02:
She just signed it and submitted it, proceeded with the arbitration.

[00:10:10] Speaker 02:
We did not hear another objection to arbitration until 20 days before the hearing started, months later.

[00:10:17] Speaker 01:
the statement that there is no agreement to submit to arbitration, is the Maestro agreement in suits against Maestro?

[00:10:27] Speaker 02:
That was limited to the claims by Maestro.

[00:10:29] Speaker 02:
She objected to arbitrating with Maestro Global.

[00:10:36] Speaker 04:
She never really backed off from that, did she?

[00:10:40] Speaker 02:
Yes, she did.

[00:10:40] Speaker 04:
When she signed the June agreement and submitted it without any qualifications or... Well, okay, but when she filed it, but when Wake and Stone filed, or excuse me, when she filed the counterclaims, didn't she leave Maestro off of that?

[00:11:06] Speaker 04:
She did.

[00:11:07] Speaker 04:
Yeah, but isn't that an indication that she still doesn't think that the maestro claims should be part of the arbitration?

[00:11:15] Speaker 02:
No, her counterclaims were against Sean Wicked personally.

[00:11:18] Speaker 04:
No, I understand that but she said in the counterclaim that the reason she wasn't naming Maestro is she didn't agree that there was jurisdiction over Maestro and that was long after the unqualified submission agreement.

[00:11:31] Speaker 04:
So, it seems to me she said the claims by Maestro shouldn't be here.

[00:11:44] Speaker 04:
Does that really matter though to your argument?

[00:11:48] Speaker 02:
It doesn't really.

[00:11:49] Speaker 02:
I mean, this whole waiver is one grounds you could address this on.

[00:11:56] Speaker 02:
The fact is, she signed an unqualified agreement to arbitrate the claims asserted by Waverly.

[00:12:02] Speaker 01:
Your position is that she did make objections verbally, but in the final analysis, she agreed to submit unqualifiedly the claims that are now on appeal.

[00:12:12] Speaker 01:
And so whatever her earlier hesitations is overridden by her written submission.

[00:12:19] Speaker 01:
Is that your position?

[00:12:21] Speaker 02:
It's not that she said it verbally, no, that she never objected to arbitrating any claim asserted by Wakeitt and Stone individually.

[00:12:29] Speaker 00:
Yeah, so can I jump in here and get back to the counterclaims?

[00:12:33] Speaker 00:
I'm wondering, I guess your argument is through the counterclaims, she waived any objection, right?

[00:12:41] Speaker 00:
And I guess I'm wondering, doesn't that dispose of the case?

[00:12:46] Speaker 00:
You seem to want to go to your first argument, which you've been going on,

[00:12:51] Speaker 00:
But I guess I'm wondering, doesn't the counterclaims, in your view, doesn't the counterclaims argument take care of it?

[00:13:00] Speaker 02:
I think so.

[00:13:01] Speaker 02:
The Hicks case, you can't pursue a counterclaim, pursue sanctions, get a sanctions award, take the money, and then later on claim, oh, King's X, heads I win, tails you lose.

[00:13:12] Speaker 02:
We didn't agree to arbitrate this claim.

[00:13:15] Speaker 01:
I mean, that's certainly what the judge

[00:13:19] Speaker 01:
is talking about certainly has been my understanding that if you ask for affirmative relief in an arbitration, you bought the whole turkey.

[00:13:31] Speaker 02:
That was my argument as well.

[00:13:34] Speaker 00:
Well, I guess I don't understand then why you haven't been pressing that during argument.

[00:13:39] Speaker 02:
Because you all have been asking me about the other.

[00:13:41] Speaker 02:
I had it down later on there.

[00:13:43] Speaker 02:
But no, I think if you want to go to the waiver argument,

[00:13:47] Speaker 02:
I think waiver is clearly established.

[00:13:48] Speaker 02:
In other words, if you participate in an arbitration, you're bound to it unless you are waived any objection, unless you maintain your objection consistently and vigorously.

[00:13:59] Speaker 02:
And there could not be anything more or less consistent than signing two submission agreements, filing a counterclaim, filing a motion for sanctions, getting award, taking the money.

[00:14:10] Speaker 02:
That is about as inconsistent as objecting to arbitrating with Sean Wicked and Teresa Stone, as you can possibly imagine.

[00:14:18] Speaker 00:
Thank you.

[00:14:19] Speaker 04:
And I take it you made all these arguments in district court?

[00:14:23] Speaker 02:
Yes.

[00:14:28] Speaker 02:
To the extent they were raised in some of these arguments, I mean the judge came up with some of these for the first time in his opinion.

[00:14:33] Speaker 02:
I mean this whole thing about you had to introduce that the submission agreement was part and parcel of the original agreement.

[00:14:41] Speaker 02:
That was all, I don't think that was ever raised before, but I don't think they've

[00:14:47] Speaker 02:
This waiver and agreement argument has been before the district court from the beginning.

[00:14:52] Speaker 02:
Although I will say, it was not in their original objection.

[00:14:55] Speaker 02:
Their original motion to vacate just argued manifest disregard of the law.

[00:14:59] Speaker 02:
It was only not until their reply brief that they first said, oh, wait a minute, no, actually we're going to say we never agreed to arbitrate it.

[00:15:08] Speaker 02:
Because they didn't even believe that.

[00:15:12] Speaker 02:
I was going to reserve some time, but it looks like if you don't have any further questions,

[00:15:16] Speaker 02:
I'm just about out of time, but if you don't, I would ask you to follow the Federal Arbitration Act and confirm the Arbitration Award that Sean Wake and Teresa Stone put a lot of effort into obtaining.

[00:15:32] Speaker 04:
Thank you, counsel.

[00:15:37] Speaker 04:
Counsel, you may proceed.

[00:15:41] Speaker 03:
Thank you, Your Honor.

[00:15:41] Speaker 03:
May it please the court, Christopher Salcedo for Kate Kirk.

[00:15:47] Speaker 03:
I'm going to address some of the questions that this court has, excuse me, has asked this morning.

[00:15:53] Speaker 03:
And I'll start with this.

[00:15:55] Speaker 03:
What Judge Browning found was that Mr. Wakehead and Mrs. Stone's claims of liability against Kate Kerr arise from her employment relationship with Maestro Global.

[00:16:10] Speaker 03:
And it is not disputed that Mr. Wakehead and Mrs. Stone assert that they are third-party beneficiaries.

[00:16:17] Speaker 03:
of that employment contract.

[00:16:19] Speaker 03:
In fact, they pursued damages against Kay Kerr pursuant to that contract.

[00:16:28] Speaker 03:
What we did not hear from Judge Browning's opinion or today is a claim that was brought by Mr. Waked and or Mrs. Stone independently that did not relate to Kay Kerr's employment

[00:16:46] Speaker 03:
with Maestro Global.

[00:16:48] Speaker 03:
And that is important for this reason.

[00:16:50] Speaker 03:
The arbitration provision within the employment agreement with Maestro Global states that all actions that arise from or relate to the employment agreement.

[00:17:02] Speaker 03:
Well, of course, that is now very broad.

[00:17:06] Speaker 03:
It is not simply just a contract issue.

[00:17:08] Speaker 03:
It is anything relating to the employment of Kate Kerr and Maestro Global.

[00:17:16] Speaker 03:
So that's what the court found.

[00:17:18] Speaker 04:
Well, counsel, in the arbitration proceedings, did Ms.

[00:17:23] Speaker 04:
Kerr object to arbitrating all of Wakehead and Stone's claims?

[00:17:31] Speaker 03:
To be specific, Your Honor, she objected to the claims.

[00:17:35] Speaker 03:
of Maestro Global, because to her, Maestro Global is the only party to which she had a relationship.

[00:17:42] Speaker 03:
And that was an employment relationship and a contractual relationship.

[00:17:46] Speaker 04:
Well, but, Council, Wakin and Stone brought tort claims.

[00:17:52] Speaker 04:
They brought contract claims.

[00:17:56] Speaker 04:
Ms.

[00:17:57] Speaker 04:
Kerr only talks about Maestro.

[00:18:04] Speaker 04:
Why didn't she single out the claims by Wakehead and Stone and object to those?

[00:18:12] Speaker 03:
Because all claims relate to her employment with my struggle.

[00:18:15] Speaker 04:
I understand your argument, but all she had to say is, I object to the claims by Wakehead and Stone.

[00:18:23] Speaker 04:
Did she ever say that?

[00:18:26] Speaker 03:
My understanding, Your Honor, is that she was clear that it was Maestro Global and the claims... Well, if that was so clear, let's get back to the counterclaim.

[00:18:38] Speaker 04:
How could she objected when she asserted counterclaims against Wakehead and Stone?

[00:18:44] Speaker 03:
Because it was part of the process.

[00:18:46] Speaker 03:
She objected to participating in the FINRA arbitration process.

[00:18:52] Speaker 03:
And once she was compelled,

[00:18:54] Speaker 03:
with the threat of sanctions to not only sign the submission agreement, but also to go through with the arbitration.

[00:19:01] Speaker 03:
That was part of the process.

[00:19:03] Speaker 03:
Said another way, it could easily be argued that she would have waived any arguments that she may have had if she had not pursued.

[00:19:12] Speaker 03:
So it was part of the process.

[00:19:15] Speaker 03:
and she filed under objection.

[00:19:19] Speaker 03:
And your honor asked a question earlier about the objections and Judge Browning found that they were made consistently and vigorously beginning not only with the answer to the statement of the claim, but throughout the process, all the way to closing arguments.

[00:19:34] Speaker 03:
So at the beginning of the hearing, the end of the hearing.

[00:19:36] Speaker 04:
Weren't the objections to arbitrating the maestro claims

[00:19:43] Speaker 04:
It wasn't that what Judge Browning was talking about.

[00:19:46] Speaker 04:
Isn't that what Ms.

[00:19:47] Speaker 04:
Kerr was talking about during the arbitration?

[00:19:51] Speaker 03:
Yes, because all claims relate to the maestro employment.

[00:19:57] Speaker 03:
Kay Kerr was not, of course, a party to the underlying sale of a financial institution.

[00:20:03] Speaker 03:
Her duty, if you will, her relationship with Mr. Wakehead and Mrs. Stone is solely based on that

[00:20:12] Speaker 03:
employment agreement on her employment with Maestro Global.

[00:20:16] Speaker 03:
That's it.

[00:20:18] Speaker 03:
That's her relationship with them.

[00:20:20] Speaker 03:
That is her involvement.

[00:20:23] Speaker 03:
in this case.

[00:20:24] Speaker 03:
So by objecting to Maestro Global and the claims brought by Maestro Global, so not just the party, but the claims, she, we submit and compass the third party beneficiaries who Mr. Wakin and Mrs. Stone clearly argue that they are.

[00:20:42] Speaker 04:
Okay, so let me just make sure I understand what you just said.

[00:20:46] Speaker 04:
So when Ms.

[00:20:47] Speaker 04:
Kerr objected to the arbitration of the maestro claims, I think what I'm hearing you say is that she was also objecting to the wicked and stone claims because they related to the maestro employment contract.

[00:21:04] Speaker 04:
Is that your argument?

[00:21:07] Speaker 03:
Correct.

[00:21:08] Speaker 04:
And because they are admitted to you is why didn't she say that to the FINRA, the FINLA panel?

[00:21:18] Speaker 04:
So I said, I object to the maestro claims, okay.

[00:21:24] Speaker 04:
The next part of it, if we accept your argument is, why didn't you say, oh, and we also object to the wicked and stone claims because they all relate to the contract.

[00:21:38] Speaker 04:
Was that ever stated to the arbitrator?

[00:21:42] Speaker 03:
I believe her understanding when she was making these objections was that she was making that.

[00:21:48] Speaker 03:
If Your Honor, which Your Honor is asking for a specific document or language, and I cannot point the court to that specific language, but that was clearly her intent in arguing that all claims relate to her employment with Maestro Global because it's the, again, it's her only relationship to this matter is through Maestro Global.

[00:22:15] Speaker 03:
With that, the other question that was raised has to do with the submission agreement, and it was discussed as Ms.

[00:22:25] Speaker 03:
Kerf filing an unqualified submission agreement.

[00:22:29] Speaker 03:
Well, that, of course, came after she, again, was threatened with sanctions from the panel.

[00:22:36] Speaker 03:
and she was instructed to sign or essentially face default.

[00:22:39] Speaker 03:
So what Judge Browning found that in this situation, by signing this submission agreement, it again was part of the FINRA process that she had already objected to.

[00:22:49] Speaker 03:
And that is supported by the FINRA rules themselves.

[00:22:55] Speaker 03:
If you look at FINRA rule 13303A, it states that upon a party being served with the statement of claims,

[00:23:03] Speaker 03:
that they are to then not only answer, but also sign and date a submission agreement, which to the court's question earlier is quite an odd request if it's a separate contract.

[00:23:17] Speaker 03:
Said another way, if rule 13200 already establishes the requirement for arbitrability, excuse me, of the arbitration, what's the point?

[00:23:29] Speaker 03:
of a submission agreement.

[00:23:31] Speaker 03:
Judge Browning found in this situation that he was simply part of the process.

[00:23:36] Speaker 03:
It was a requirement, somewhat of an entry of appearance for the parties.

[00:23:42] Speaker 03:
It was nothing more than that.

[00:23:44] Speaker 03:
So alone, it certainly does not show an intent of Kate Kerr to submit to the federal arbitration.

[00:23:53] Speaker 03:
Similarly,

[00:23:55] Speaker 03:
the counterclaims that were brought and the question from your honor.

[00:24:00] Speaker 03:
Same thing.

[00:24:01] Speaker 03:
It's a process.

[00:24:02] Speaker 03:
It is part of the arbitration process and take her objected to the entire process.

[00:24:09] Speaker 01:
I'm intrigued about that.

[00:24:13] Speaker 01:
The impression I got was you were saying that her agreement was under duress and therefore we shouldn't give it full impact.

[00:24:23] Speaker 01:
And yet I've always been taught that merely because you feel duress because you don't like the situation you're in, you don't like the contracts or agreements you're in, and you are being forced to make decisions that you don't like economically because you don't feel like you have a choice, that that doesn't qualify as duress.

[00:24:47] Speaker 01:
We have to evaluate, I mean, yeah, people all the time get boxed in by things they have agreed to and that simply is not duress.

[00:24:58] Speaker 01:
So I don't know how much weight we should give to all this stuff about she's under such stress and duress and doesn't agree.

[00:25:08] Speaker 01:
How can you not agree and then go forward and ask for affirmative claims?

[00:25:17] Speaker 03:
And I appreciate that question, Your Honor, because I think that is answered by the Supreme Court in first options and by Your Honor in your decision in Lewis, Lewis of course versus Circuit City.

[00:25:31] Speaker 03:
Because what was understood is that as long as Kate Kerr was making continuous and vigorous objections to the federal process, that her objections were preserved.

[00:25:43] Speaker 03:
In other words, as in this situation, even though the Fennera panel continued with the arbitration process, she made her objections consistently, vigorously, therefore maintaining her ability to challenge the jurisdiction of the court.

[00:26:02] Speaker 03:
Of course, it would have been certainly more elegant if the Fennera panel at that time would have simply stayed and allowed that issue to be resolved.

[00:26:12] Speaker 03:
But she did not have that option her option was essentially either participate under objection or.

[00:26:20] Speaker 03:
allow the arbitration process to continue without her involvement, as is a possible sanction from FINRA for failing to sign a submission agreement.

[00:26:31] Speaker 03:
She could have been prevented from providing any evidence, providing defenses such as affirmative defenses, and left out of the process.

[00:26:41] Speaker 03:
At that point, she would be risking essentially a default judgment, which I think is

[00:26:47] Speaker 03:
certainly agreed upon usually results in an excessive judgment.

[00:26:52] Speaker 03:
So the option was participate under objection and protest or do not participate and hope that the argument later is successful after an excessive judgment has been entered.

[00:27:07] Speaker 03:
uh, by, by the arbitration panel.

[00:27:09] Speaker 03:
And I think that's really what she was looking at.

[00:27:11] Speaker 03:
Um, we, we do not argue duress, to be clear.

[00:27:14] Speaker 03:
I, I do not think that is the argument.

[00:27:16] Speaker 03:
It was, it, it again, it's a part of the process.

[00:27:19] Speaker 03:
And take her abjected to that process.

[00:27:21] Speaker 01:
Um, and- If you don't label it, if you don't label it duress, what legal title do you hook to it?

[00:27:29] Speaker 01:
Her statement that I don't like what I'm being required to do, but I'm doing it anyhow.

[00:27:35] Speaker 01:
And now I want to,

[00:27:37] Speaker 01:
I want to later disavow it.

[00:27:40] Speaker 01:
If that doesn't fall under duress, which you're disavowing, give me the legal title that you think it does fall within.

[00:27:47] Speaker 03:
Well, we rely on part of the Federal Arbitration Act, Section 10A4, which is they exceeded their power.

[00:27:58] Speaker 03:
And they exceeded the power in governing an arbitration over a judgment

[00:28:05] Speaker 03:
to not only a party, but the claims brought by that party.

[00:28:08] Speaker 03:
So that is what we argue.

[00:28:11] Speaker 03:
The rest, admittedly again, is a little different.

[00:28:15] Speaker 03:
And to Your Honor's point though, what Your Honor described was much more situations such as Lewis, which is Lewis tried to take two bites at the apple.

[00:28:23] Speaker 03:
That is not what Kate Kerr did.

[00:28:25] Speaker 03:
Kate Kerr from the beginning objected saying maestro, I did not agree to arbitration in federal with maestro and therefore all claims related to my employment with maestro I object to.

[00:28:38] Speaker 03:
That's what she said.

[00:28:39] Speaker 03:
She did not wait to see what the outcome was before making her objections unlike in Lewis, which is clearly what the claimant did in that situation.

[00:28:50] Speaker 03:
This was quite different.

[00:28:53] Speaker 04:
Well, counsel, could I just on the submission agreements, we've got the initial submission agreement, then we have the unqualified submission agreement.

[00:29:03] Speaker 04:
I want to go back to the first one.

[00:29:05] Speaker 04:
I'm looking at it right now and it lists as claimants, Maestro, Stone and Waked.

[00:29:15] Speaker 04:
And then in the first paragraph, it says the undersigned, meaning the respondents and Ms.

[00:29:21] Speaker 04:
Kerr,

[00:29:22] Speaker 04:
submit the present matter in controversy.

[00:29:26] Speaker 04:
And then they say, however, excluded from this agreement is commitment to arbitrate the claimant maestro global.

[00:29:37] Speaker 04:
And that's it.

[00:29:39] Speaker 04:
And there's three claimants.

[00:29:41] Speaker 04:
So it says, we want to accept out, we don't agree to arbitrate with maestro.

[00:29:49] Speaker 04:
And then the very same page, you've got stone and wicked as claimants as well.

[00:29:59] Speaker 04:
So I guess I'm having a hard time understanding how that exception or the exclusion extends to wicked and stone when they aren't even mentioned.

[00:30:14] Speaker 04:
And they don't say all the claims against them derived from the claims against Maestro.

[00:30:23] Speaker 03:
This Statement of the Claims talks about the acts and omissions that set forth herein constitute breaches of the applicable agreements and curse duty 02 of Wakin and Stone as intended third-party beneficiaries.

[00:30:39] Speaker 04:
Where are you right now?

[00:30:41] Speaker 03:
That is Appendix Page 84, Volume 1.

[00:30:45] Speaker 04:
Well, I'm looking at Appendix 137.

[00:30:47] Speaker 04:
It's the Submission Agreement.

[00:30:52] Speaker 04:
And that's what I asked you about.

[00:30:54] Speaker 03:
Well, and I appreciate it.

[00:30:55] Speaker 03:
And again, because Wakehead and Stone's claims flow through their status, their position as third party beneficiaries of the employment agreement with Maestro by objecting to not just the party, Maestro Global, but also to the claims brought by Maestro Global.

[00:31:18] Speaker 03:
She is in essence, objecting to any issues that arise of or relate to that agreement.

[00:31:28] Speaker 04:
This belabors the point, but it says the exclusion is to the claim of Maestro, not the claims.

[00:31:35] Speaker 04:
It's not claims plural.

[00:31:37] Speaker 04:
It's the claim of Maestro.

[00:31:40] Speaker 04:
That's all that they're excluding from their submission agreement.

[00:31:46] Speaker 03:
Maestro did not bring simply a breach of contract.

[00:31:51] Speaker 03:
They admitted, I believe admittedly brought multiple claims themselves.

[00:31:56] Speaker 03:
They simply did not get an award for those claims.

[00:32:00] Speaker 03:
So to say, I guess claim as opposed to the plural claims,

[00:32:07] Speaker 03:
I do not believe encompasses what was intended by either the claimants of Maestro Waked in Stone or the respondents, and that is in this situation, Kay Kerr.

[00:32:21] Speaker 03:
So I do recognize that I'm out of time, but I am happy to answer additional questions.

[00:32:28] Speaker 04:
Further questions?

[00:32:30] Speaker 04:
No.

[00:32:31] Speaker 04:
All right.

[00:32:32] Speaker 04:
I think we've exhausted the allocated time.

[00:32:35] Speaker 04:
So we will thank you for your arguments.

[00:32:39] Speaker 02:
Your honor, can I have 30 seconds to address just one quickly, one fact, um, pleading this issue?

[00:32:44] Speaker 04:
Well, we did let, uh, we did let, uh, say to go over.

[00:32:48] Speaker 04:
So I'll give you the 30 seconds.

[00:32:49] Speaker 04:
Go ahead.

[00:32:50] Speaker 02:
Okay.

[00:32:51] Speaker 02:
Just to correct earlier.

[00:32:52] Speaker 02:
And I believe you said that you thought the counterclaim was filed after the, uh,

[00:32:57] Speaker 02:
unqualified submission agreement.

[00:32:59] Speaker 02:
And I don't believe that's accurate.

[00:33:00] Speaker 02:
I'm looking back at my pleadings file and she filed a counterclaim in March of 21.

[00:33:05] Speaker 02:
And all she said there was she denied that Maestro Global is a proper party to this action.

[00:33:11] Speaker 02:
But then she filed a completely unqualified submission agreement two months later and three months later in June.

[00:33:15] Speaker 04:
Okay.

[00:33:16] Speaker 04:
Thank you for that clarification.

[00:33:18] Speaker 04:
We'll check the record.

[00:33:22] Speaker 04:
Anything further?

[00:33:23] Speaker 04:
All right, we'll consider the case submitted.

[00:33:27] Speaker 04:
Appreciate your cooperation with a remote argument.

[00:33:33] Speaker 04:
I thought it went well, at least we didn't have technical difficulties.

[00:33:37] Speaker 04:
And Council