national takes and in consistent position in several respects but with respect to our fusil to deal has to do where i simply interdependent contracts are important for this race what we are saying is that ohio national we've alleged every element of force in a variance and we say that ohi national had knowledge of the relationships between the both the contract relationships between the broker they will lose and our clients the seven agreement isn't there isn't there a category other then a stranger or a party i think the law is clear that you don't it's not just that you're either a stranger to contract or a party to the contract there can be there is some rd category that beneficially it says there seems to be no reason for restricting the rule to cases where the rd party is a creditor and they say as supportive of this kind of division it promise for each of the four claims he asserted before the trial court was the same that ohio national had breached a contract not a contract with the particular plaintiffs but with the broker dealer with whom they were associated the other nd point that stands out about the factual pattern is that the specific remedy that is sought the payment of commission is the same for each of these four  now let's consider then what is an overarching theme as to each of those factual predicates one is the course the selling agreement that has been the subject of two panel decisions from the six circuit court of appeals but the other point that is very substantial for the court's consideration is a rule two thousand three hundred and twenty g one and counsel suggested that that was not before this court because the district court elected not to rely upon but in fact induce in their firm a decision on appeal the court has the ability to consider any matter in the record and one of the items in the record is that rule that them or rule stablish interference they're consistent that they would like us to pay them commission dollars to do so violates the federal rule to do so causes them to be disbarred from the industry so they're trying to in this case circumvent both the selling agreement your client paying them directly in the ordinary course well i think it's two sides of the same coin whether they pay them the commission dollars directly or whether they receive a judgment for the commission dollars it's the same payment their only solution and this is the irony of their position their only solution before the trial court on how to avoid that rule was a say well don't pay us the money directly pay to the broker dealer and then they will in turn pay us well that proves the point they do not have a basis under this agreement for seeking any type of lead counsel suggest that somehow the six circuit in two panel decisions somehow failed to take advantage of ohio wall but ohio was clear here you have to be a primary beneficiary or you have no rd party beneficiary status under any type of contract and considering rd party beneficiary status you will look at the four terms of the contract the four terms of that the four corners of that contract specify the following that any payment of commission dollars will be by ohio national to the broker dealer that same contract specifies that paid to a particular representative but that particular arrangement is something that we're not privy to any information they share with us that doesn't matter so we're within the discussion and negotiation between the representative and the broker dealers so there is certainly nothing to our knowledge your honor that suggest in that separate contract that there is any recourse opportunities or rights against ohio national in the event the broker dealer fails to remember in terms of the context they had a file the complaint we filed a motion to dismiss comparable to the one the court openly considered and granted judgment on the then amended complaint with the benefit of all the authorities that we had shared with them and then when they had their opportunity to present what they thought was the best case for surviving this judicial scrutiny they laid it out and in fact when they did in fact in one of their briefs bury in a footnote that they wanted to leave to file an additional nd now nd amended complaint but they did not articulate or explain to the trial court in any fashion out if at all the could address or improve their position so they had that opportunity we can't fault the district court to the extent counsel and the plaintiffs to articulate how they would improve their factual basic proposition when you're looking at a nine just in richmond theory we know that there are facts certain circumstances in which it could be applied in all turn in the alternative but where the existence of the contract is disputed and here it's been judicially admitted by the plaintiffs that the contract exist and we certainly have not denied it when there is a undisputed that the contract is in existence then ohio law and i says smith alabama so i understand they want to assert that as an alternative but given their judicial admission they're really for close from advancing that argument they really are stuck and they reference there being three claims actually another plane which was promissory estoppel but  matter what claim the brain once we establish that they don't have rd party beneficiary status of the contract once we establish that it would be improper for them to receive any type of payment commissions and both of those are two independent basis for supporting the court's decision but under each of the so there is that if you can't prevail as a rd party beneficiary you can then try to develop an parties parties breach of contract point a and b does not give rise to tortious interference claim by c even though c has a contractual relationship with b you're entitled to it could be an efficiency breach under under  against certain broker dealers have your honor in fact there was a there is a class action pending in cincinnati by broker dealers seeking seeking relief directly under the contract itself and that class hasn't been certified but i believe the broker dealers here would be members of that class of the class was certified separate apart from that class action there i've been certain broker dealers across the country who have elected to bring the claims to the extent they believe they had them under the selling agreement none of those cases have ever gone to judgment at this point i appreciate the court continuing to make oral argument available to counsel exception to the rule you got one chance to imagine i don't bash the district court addressed fact and i do think it's fair to say that while the complaint does not quote all the of the aspects of the relationship in question matter is the relationship between the sales representatives of the broker the was you can't have an unjust enrichment quite well we point is there are interdependent the st people when you say are clearly independent under business second late fin rough is not a back seat to use a current term in any respect such as the of agreements between the ohio national and the broker those finra says nothing about the rights of the sales representatives under these common or causes of action and it