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APPEARANCES OF COUNSEL:
FOR THE PLAINTIFF:
FREEDMAN and TAITELMAN, LLP
BY: BRYAN J. FREEDMAN
Attorney at Law
1901 Avenue of the Stars, Suite 500
Los Angeles, California 90067
KINSSELLA WEITZMAN ISER KUMP and ALDISERT LLP
BY: JONATHAN P. STEINSAPIR
HOWARD WEITZMAN
Attorneys at Law
808 Wilshire Boulevard, 3rd Floor
Santa Monica, California 90401
FOR THE DEFENDANT:
GIBSON DUNN and CRUTCHER LLP
BY: THEODORE J. BOUTROUS, JR.
Attorney at Law
333 South Grand Avenue
Los Angeles, California 90071
O'MELVENY and MYERS
BY: DANIEL M. PETROCELLI
Attorney at Law
1999 Avenue of the Stars, 8th Floor
Los Angeles, California 90067
remand –
Your Honor is not bound by any of the cases, but I don't think
it's noteworthy but at least the overwhelming majority of other
district judges across the nation and the Second Circuit in an
unpublished decision, have gone my way on this issue.
One of the things they have said is a sophisticated party
HBO, you know what Rule 1 says, and you can opt out of it.
You can say we don't want that.
And let me just finish my thought, because I see where
Your Honor is going, but they have clearly and unmistakably
delegated the issue of what the rules of the arbitration are to
the arbitrator -- to the arbitration service, AAA.
They are clearly on notice that AAA changes its rules
because they change its rules all of the time.
AAA wasn't some new organization in 1992. We have cases
here talking about arbitration clauses from the AAA from the
'70s, in fact AAA goes back to the '30s. They have also always
changed their rules.
So HBO was certainly on notice as were we that it could
change this rule, and they certainly clearly and unmistakably
delegated the rules of the arbitration to the AAA.
THE COURT: Before you go any further, are all of the other
judicial officers just idiots?
Is that what you are saying?
MR. PETROCELLI: Your Honor, to be frank, I can't
fathom the logic of those cases. I can't imagine that anybody
could be bound by something that did not exist except if it was
a mere procedural addition or improvement or change.
THE COURT: The first point was you were arguing the
reference to other Courts in the confidentiality provisions,
and he's making an argument that was not necessarily a
demonstration that the parties were taking it outside of an
arbitration -- arbitration situation.
It was simply to recognize if injunctive relief was called
for as a remedy or whatever, that that would have to be sought
by the Courts because an arbitrator cannot issue injunctive
relief.
MR. PETROCELLI: We disagree with that, Your Honor,
you have to understand this is a document that -- this is their
document attached to our document. These were two documents.
They were not created in --