mercedes benz usa c and dime or eighty i will refer to them collectively as the mercedes appellants and i would like to reserve three minutes were great about we are here to enforce the then after they obtained a favorable arbitration willing after this appeal was filed they dismissed their claims without prejudice in an apparent effort to move the appeal and to retain the benefit of the arbitration ruling this appeal could jump right well it seems clear that if your client is a successor or a sign then you'd have the right to invoke arbitration i know their argument is that it says you were we signs have that right to step into the shoes but there's no mention of rd party beneficiary how do we know that the rd party beneficiary can stand in the shoes and invoke the arbitration mechanism the same way that a successor or sign would  we look to the relevant state law and civils and here are the relevant state law is california law and virginia law and the cases show that a court will can screw the contract as a whole and make a determination about whether there is a desire on the part of the parties to confer rd party beneficiary styles on a rd party and the law does not require that that intent in in this language while the reference to the expressed reference to rd parties is a very clear that that that that reference starts with any resulting transaction for relationship i assume you agree that the that the modifier resulting applies to both transaction and relationship  situation ship with rd parties who do not sign this contract but that would have to be a resulting transaction or resulting relationship and that strikes me as a resulting has a causal component to it and it means as a result of this agreement when the dealer and so that could be agreement for free oil changes or you know five years or whatever mercedes throws in or for a financing term but that's a very different thing than something that's already exchanged for by the dealer that's that that's not downstream after in time result well with respect your honor there is no there's no linguistic reason why the resulting relationship must mean subsequent relationship and that's what the plaintiffs are arguing is they rely on this so decision from the northern district of california but that's a rewriting of the contract resulting means rising as a consequence of it can be contemporaneous a relationship with an intended rd party beneficiary would be at the wi l rise at the time of contract so is this a resulting transaction or is this resulting relationship it is a resultant relationship of the planes themselves it's important remember the plaintiffs themselves all led in the st amended complaint that how we view jurisdiction but or maybe it's immaterial for the rest of the case but at one level there is a difference though between causal chain and then contract or relationship cause will change is in disputes between you and us arising out of these rd party relationships so if this was a rd party relationship the dispute isn't between the dealer and the plaintiffs the dispute isn't confined limitations on the nature of the dispute and i don't see how a rd party reference in a relationship is an optical limitation can but then be a modifier is well of the nature of the dispute by that but the reference to rd parties must mean something other than successors and assigns and if a day does it it means it means free will changes for five years with the with with our preferred oil change vendor that's what it means what a dispute and arbitration provision that governs disputes a exxon's those are the rd parties your reference to rd party beneficiaries is a topical limitation on the nature of the dispute not not a limitation of entity well right before the the words you are just so what if what if mercedes has a contract with a tire vendor or airbag van der windshield wiper vendor who is the supplier for all mercedes i v ical said issue in this case would with any claims that plaintiffs have against any of those entities be subject to arbitration act the option of the other vendor well there may be a question about whether that is the circuit isn't that something that the the district court should be required to do in the st instance well but the district court decided the question of equitable stoppel i j fifty eight and the why shouldn't we remain and it d instructed to evaluate whether under california and virginia law you have rd party beneficiary status under this contract sufficient to invoke the arbitration clause the parties did argue california and virginia law to just record from the district court decided on the basis of i'm not suggesting it was forfeited or waived what i'm asking is why shouldn't we get the benefit of that evaluation from a district court leet this district court so we can review it i think rather than creating that go back to the court to reevaluated that's the st point the nd point is there is still a problem with the delegation clause because the plaintiffs broadly agreed to delegate any dispute over the scope or interpretation of your petition arbitration provision to an arbitrator should the district text of the arbitration clause maybe rd party beneficiary is but equitable stoppel strikes me as something that the just the court could decide based on state law right but well a court could decide it certainly un clarity it's needed for there to be a question of arbitrary ability if if two parties disagree and one says no i think it means x another says i think it means y maybe x is a very bogus argument delegated to an arbitrator so but this gateway determination issue would you present that record yeah i think you've got a forfeiture problem there and unless you can show us where that was presented we can find i didn't see the equitable stoppel presented there either well the district court decided equitable stop i think that's the fundamental point for preserving the argument with respect to delegation it is it is fairly accomplished within the arguments that were presented because it has the same legal standard it has a and other delegation provision is merely an additional antecedent agreement to arbitrate that's governed by the the same as any other provision that the supreme court said that in henry shine and involve the same facts the same arbitration agreement the same allegations in the complaint so we think it's fairly encompassed within the arguments if the court does believe that there is a forfeiture problem however we would ask the court to decide to pass the question anyhow because it is a pure question of law it will come arbitration this to these two planes and i read that district court order i've read her sentence greta memorandum each three pages many times over equitable stoppel was not argued gateway was not a  rd party beneficiary was not and that's in special appendix pages six during those arguments simply were not making and the district court addressed rd party beneficiary and that is the only reason it wasn't forfeited and that it's been on the why but the district court correct me if i'm wrong but as i read the opinion it relied on its own opinion in the votes wagon case largely right that's part of it ye s and there's little to no evaluation that i can see in the record on the part of the district court of what virginia and california law says about whether this a  rd party beneficiary what rights if any does it pose in this with respect to this contract specifically related to the arbitration clause isn't that all a judicial evaluat process that should have occurred in should occur in the district court before this court starts pronouncing what california in virginia law requires on on those difficult issues i think that's absolutely right and it's didn't make any of those arguments aside no state law and it's memorandum it's very short discussion of arbitration in the district court they didn't argue this was all under virginia and california law the district court was addressing the arguments presented to now and if if if we want to reach these issues then then i guess we should do it but you really are going waiver that it should never be addressed by anyone cuz it wasn't raised before not forfeiture which is in the interest of developing jurisprudence for the circuit we might take up an issue even if it wasn't developed below so you really are going way for right what i think of it in the context of waiver is coming from comparing products of intentional consider those issues on appeal now it is very rd circuit brought up here that it would effectively bypass the district court throwing dressing these questions in the arguments that are presented to it it's a little surprising to me th mercedes would cite only federal authority and then on appeal what we really have is a different arbitration motion we've got this debate we argue is it is part of the problem that i'm trying to remember which brief it was their member the a brief that it was only the last two pages of the briefs even dealt with this arbitration issue in my remembering that correctly it just seemed like this arbitration issue that is so important here in this court now seemed to be the ultimate  recognize the state california virginia law apply or that state law climb right there was a reference to that knowledge by the district court other men been acknowledgement to it but i think the district court is entitle to opportunity to file what amounts to a new motion to compel arbitration that's your position right correct and if you compare the memorandum that mercedes with their brief and the most glaring example is this gateway argument because a mercedes currently presented this to the district yeah i mean it really looks like they didn't get the result they wanted so now they want to make a differen big they teated up to the judge and they didn't like what the judge said now they say it should go to the or victory right that's your position i'm very comfortable with your saying that you're on the news i have a feeling mr towns is not so comfortable who will have something to say so so i think i've heard you one for for sure you don't want remain you say it's kind of one in don you don't want to remain to the district court for the district court to review these issues you say the time has come and gone for that is what i'm hearing you say well i'm not familiar with have had a right to appeal here in the f a a you don't get to appeal quite on the same question so so i think you're in agreement with my statement yes ok but but let's say that we take up in a discretionary capacity if assuming we have it the notion of equitable stop what's your position on the state law and the in extra complete intertwined nature of their relationship as a basis to allow mercedes to invo or various state consumer protection laws is not dependent upon who knows well well eleven of the questions that i had related to that term resulting as resulting meaning later in time but there could also be a notion of substance over substance based resulting new relationships are formed as part of the transaction itself does it net is it and i mean why isn't it as your opposing counsel says that it's not just these is i'm imagining i'm free oil changes for five years or something like that but it's actually the purchase itself wasn't that why isn't that a resulting relationship i don't see how it's resulting as a matter be viewed as the stream of commerce or causation because resulting in meaning it stands prom and i mean this this involves mercedes manufacture of the car as agreement so isn't this a resulting relationship that now links your clients and mercedes in a way that wasn't a linkage before this transaction took place i  think it's is the broadest possible construction is not a tenable one which amounts to a but for relationship ok i bought a car therefore your savings can invoke this arbitration clause again as non signatory is a rd party beneficiary of some sort and would you concede that mercedes is a rd party beneficiary no no i've not i said that that's their argument ok that's i mean that's what they're saying but that would be the broadest possible interpretation i think much more reasonably just in revealing the cases i think the mercedes raises the cramer decision from the th circuit which i think is close to sadistic and  not raise any of the three theories urged her personal here did not argue any state law and i think it would be respectfully unfair to the district court to send this back for some kind of do over for arguments gives an immediate appeal usually forfeiture gives a party a long long long time during the duration of a lawsuit to to to raise certain arguments section one hundred and sixty nine dollars u s c sixteen lets you go is on a much more prompt basis but that also suggest that you have to make those arguments in a much more compact fashion and so it seems to me that if if we're going to say you get an interlocutory appeal a consequence of having an immediate appeal of  specificity is required to preserve arguments and i mean those decisions were out there when this was briefed and i understand that the court has no inclination to reach issues on the merits but this is one of the stronger cases in the work that i've done for forfeiture that these arguments simply were not made to the district court and only rd party beneficiary is and that's the only argument that was made and preserved and i think resulting under cut that i mean just straight out once you've agreed i think as you have to that they raise the rd party beneficiary argument and the district court says state law applies then that issue is joined in the district court that issue was joined in the district court what i'm what i'm wondering is having joined that issue having recognized that issue did the district court actually proceed to evaluate it in the way that it was supposed to or i think apart from it was somewhat  bbled by a brief that didn't argue those issues to them under virginia or california law but right and i've been putting putting my district judge hat on i think maybe it would have been within the district judges purview to say well look if you think state law applies yes yes well ok we all agree state law applies i don't see much in your brief here and state law you need to find another brief and tell me because you need to educate me i'm not going to do this research on my own here is the long trial judge but when they happen and i think the short of it on rd party beneficiary is as i read the california and virginia cases there has to be in clear intent to create a rd party beneficiary that's under point that's the starting point of both of both state laws beyond that we don't know what tone it hasn't been presented to us as we don't we don't know too much other than there has to be a clear in to but but but it takes up a lot of the it takes a lot of bandwidth at this appeal and it seems that you come with arguments you that are merits based arguments and then they voluntarily dismissed parties and they want to be class members still and then there's a th amendment complaint where they aren't i know that's that's not necessarily in our lane but but can you give some explanation that's not a client conference for why that's in play well as we've stated it  a motion for certification under twenty eight dollars u s c twelve men to be a rico issue and part of their argument was that because there's an appeal as of right on the f a a the arbitration this is the nd time also that the court that the party base or was it raising your initial brief was raised in your reply brief we didn't cite those cases in the initial report this was this is what caused you did did the response brief district court knew what the scope lives of the parties dispute over arbitration and so we in the nd amended complaint there were many many more claims this argument did get smaller in the nd in the complaint but we did we knew the arguments under the state law cases that's the to say that if you raise an issue in response to one completely that it's not forfeited once there's a new complaint new complaints to police start a new clock for jurisdiction for a bunch of other things and then that briefing is usually self contained is what hartmann asked you about the state law questions and you said yes we have those in e c f on thirty one dollars and then we have a prior motion to dismiss complaint what about the other issues are in play what about the gateway issue was it was it is there some is the same facts and if the court does it it really depends on state level right and it is it is determined by state law if you will come up again as i say there are fifty some named plaintiffs here all of whom have or many of  if not all of them have arbitration clauses so these issues will come up again it would benefit the parties and judicial economy for the court that is like this it should go benchley get resolved is what you're telling us that just in this instance because they were presented in a timely fashion they won't get resolved in this case and these case may be potentially an aberration if those other instances would be outcome determinative what you would benefit the parties though and the issue is fully briefed you're it's important though that the issue is fully briefed on the delegation because we have