so in the interest of time i'm going to dispense with reading the calendar this morning the first case is safra securities speak and solace and we are ready to proceed circuit that in the absence of an agreement to submit the matter of arbiter billet to the arbitrators the question of whether or not a dispute is arbiter ball is one for  arbitrate perhaps even an agreement to have be arbitrary to decide whatever it is but at the very least a direct agreement to arbitrary thank you judge even though the district court did not address the issue of whether there was an agreement we believe there was no such agreement here and certainly not in agreement that reflected that there was a clear and unmistakable intent on the part of s securities to submit the issue of arbiter bill de to the arbitrator stream and dozens of supply that plane i agree with you there but here's a broad agreement to arbitrate and it was entered into by your client and then your client moved in the arbitration to have the case dismissed once your client made that choice to actually affirmatively as arbitrator to rule on this question why isn't your position waived so two separate questions there judge walker first of all with respect to the agreement that you referenced that the complaint that was filed you know lays out this is now page eighty nine of the of the appendix and makes clear that there was not intent on the part of safir securities to submit the issue of arbiter ability the complaint details how safir securities in the first version version no doubt that you would have preferred something else but then you signed this one understood your honor but what focus on this one this this agreement to arbitrate after in that's what you say but you could do so go into court and gotten an injunction rever been signing but you chose to sign and and you know that this isn't question of arbiter ability but that's almost all that it doesn't happen in the entire present matter submitted your honor i don't disagree that on the face of the contract itself we have a real uphill battle here but what w is that what the district court had before it was our complaint and the complaint laid out a story right as to how that agreement came about and we believe that that story if the court had explored it would find that there was not clear intent in fact although even accepting all of that after the agreement was signed the second agreement was signed the issue of arbitrarily arbiter ability was litigated before the arbitrator you made a motion before the arbitrator so if there was any ambiguity or doubt about the intent to have the arbitrator when you went ahead and brought a motion before the arbitrator it seems to be that  that that answers that question and in any event it's a waiver so your honor there are actually two separate motions that are referenced in the record the first one was made not to the arbitrators but to the finra dispute resolution ministry of body and that was made even before the before the submission agreement was was signed and so and they are i mean there was not again so your point is that that the motion the motion to the administrator was filed before any submission agreement was signed and rejected by the administrator then then the submission agreement episode occurred then the action was brought before judge stanton judge stanton dismissed the action directed us to finra and then there was a motion filed before finra at that point we had no choice but to file a motion before finra or otherwise depending on how this would come out you had a choice you could have asked judge stan to stay his or her pending appeal and then you could have appealed his his decision that was a choice agreed the agreement was made it was compelled we were only evidence of compulsion was what you state here and you could have brought an action to keep from being made to sign now you're saying that despite that that fact is enough to raise a plausible argument that's your argument so the evidence for that which was never that again we're talking about what is a plausible argument on a complaint and you're say there is an agreement but on its face would say we agree to arbitrate we say that it was compelled but in circumstances where you admit that you could have brought some action in court rather of inside me but you say over things might indicate that it's enough to compel this particular litigation but if there was just a standard agreement arbitrary that that the question of the arbiter billon the of the question would not be would still be one for the court rather than one for the arbitrator yeah i think i think the case law from this circuit is pretty clear on that yet so this is this is kind of an exception to that to that rule where you better if if there is an exception i'm not coming to that  but the other side argue that this would be an exception to that rule not sure you called an exception but we're just saying that there was not in agreement to arbitrate because it was these are unusual circumstances  agree ok thank you thank you stated that anything in the claim the answer any counter claim would be submitted to the arbitrary to decide response position that there needs a second level test after that to the term and whether or not the fenton is also a customer there are no cases that i don't believe has been cited by either party to suggest this multistep process where first you get to an agreement which a to members over for eleven stated the purpose that agreement was to preclude collateral attack that's why they make the party sign this but that would be just the first step in a larger analyses of that if there had been in suit the particular action was within that clause which was was within those terms would have been a question for the court it is your question if the agreement was not signed then there was an agreement i'm not talking about this agreement forget this case this is a hypothetical where the parties have an agreement to arbitrate a general agreement to arbitrate and it it purports to cover all of the merits of any dispute they have and then the question his is with is is the particular action one of those disc speeds that's covered that particular question it's arbitrary realty would be a question for the court under our under our normal pres the twelve two hundred ground he didn't really address the arbitration agreement but going back my point was that any person whether whatever the contract is can always say i don't have a contract or it's not within the scope it's always the right whether or not that  plausible argument right because if you have a signed document you're probably not going to win the existence argument and then you have the scope of argument which has the supreme court analysis of you know it can it be said without positive assurance that doesn't fall within  the scope language you have that argument so every person always has those arguments so it just turns on this battle is if he had gone to court and said instead of signing a submission agreement and say that he's not there's no customer broker relationship here in this is it shouldn't be sent to the arbitration and there would be a determination by the court as to whether it fell within the scope rule twelve two hundred is that how it would work that's that's correct that and that's the that their statement that it was couper's is enough to raise a question that gets just by the dismissal stage and that we should have allowed for inquiry into whether view agreement was coerced now if the district court was correct finding that there was a customer relationship then it doesn't matter but that's one hell of a mess  that whole question it's just you know it's not an easy question the easy question is whether there was an agreement to arbitrate or not so what do you say to their argument about whether person open up a credit card account and it contains a class action waiver in the arbitration agreement and that will be upheld but here we have a sophisticated broker dealer on the advice of counsel signing a document and if that's i i don't see it in the in the case law that i've reviewed i don't believe either party has submitted that you're saying that if we said this then any time anybody signs a document and says it was coerced that very statement is enough to get us beyond the six right court like me to address the twelve two hundred grand or here so you know i think respondents principle case that they rely on is the what cobia case and there's also a companion case with that it's appears the same name party the e c g which was a hedge fund and respondent cites those cases for the proposition that any time a bank is involved then the case is not our bit of bull but what those cases held was that in that context they were maybe a dozen persons working with this hedge fund and those persons if they worked at the brokerage firm the brokerage firm was hired by the bank the bank was the principal the brokerage firm was acting as an agent for the bank to help and assist in the structuring of that deal they were the brokerage firm was not in a sort of principal agency customer relationship with the hedge fund itself the hedge fund talk to the brokerage firm but the brokerage firm was always serving the interest of another master and that's just not what happened in this case there's only one person mistry hour and she was always the fenton's broker advisor that that is correct and general has rules that state that when you engage in securities related conduct that conduct if you're registered and licensed has to be supervised by the brokerage firm it doesn't matter that you could legally conduct this activity through another act entity it's it's the fact that you are registered so supper securities could have avoided this right by structuring its business differently it could have acquired all of its that suffer securities in all its bankers to open up securities accounts at the bank and then there would be no overlap but here they had people with both hats and that provides the sort of overlapping supervision that we see here and you have spoke in the context here much of it involved maybe all of that involved access to and use of the bank account correct as opposed to the trading and securities  knowing there it was a securities trading account at a bank there were hundreds of thousands of dollars in apple stock and options that were traded it was a securities account so that is a it's not of the positive count that would just you bank rules there's a securities component here that is the core business of a broker dealer to correct that that's her position is a fairly strong argument on the other hand same as twelve two hundred it's twelve five zero four which has a sort of jurisdictional limitation component to it which respondent did allude to in the underlining case but it is  this were agreement agreement that it write it it's a contract and so that pronk should be satisfied the second prong is that is the scope of argument and clearly better agreement itself says you're going to submit the answer the complaint and the issues raised there in two arbitration so that's the scope that is a wonderfully complicated case which may be easy thank you thank you recognize that the coercion argument that we're making here is messy that that said you know the unexplored record on it which is set forth in the complaint is actually fairly clear in that there was a modified agreement submitted by safir securities protesting against jurisdiction and then the next day  deferred on that issue to the arbitrators and that's reflected in both the transcript and the order if this court were to reach the issue of arbiter ability we think actually it's fairly clear in  r court this court provided a bright line definition for the term customer under finra rules and it is either one who purchases a good or service from