case is who will different posture this certainly in a different portion of the sing case was which is our circuits most recent precedent fall building on dottie because in saying  the motion to compel arbitration was granted and the complaint was dismissed but here this case is still alive the motion to dismiss compel was denied you had the right to appeal under the f a a that you're in this court but you're also in the district court what else is discovery going to do here the district court had all the information as to what you were allegedly agency on the stop will and it concluded that  that we never signed any arbitration agreement and wasn't that your burden when you made that motion to compel to bring enough evidence forward in the district court find that you didn't know you're coming to the court of appeals and say we want you to send us back to the cannot find it as a matter of law that the motion to compel arbitration should be granted and if there could be discovery that could help clarify the issues then discovery is warranted and so the type of discovery what discovery what else are you going to tell the district court so there's various things that could occur in discovery support example the agency relationship to the court felt that the membership contracts were not enough in the complaint was not enough to establish the agency relationship so there could potentially be further discovery on agency that o organization and hearing with it in within it is that it is acting on behalf of its membership but to the extent that there could be further discovery they could help shore up the notion that an agency police should be existed here and those are the kind of things that we could explore in discover but i guess what point is it was decided two thousand and thirteen you should've known all that when you major motion to compel arbitration that we get out of the twelve piece extended we had no notice that the court was going to convert the twelve the six notion to a little six motion that's what you got he teaches this and our opinion is that you are allowed to move under twelve b sex and then if the court cannot find as a matter of law that you have sustained your burden in order to compel arbitration  discovery the next step is not to deny the motion and that's what we saw after the motion was denied in the district court we saw at discovery on two occasions very shortly thereafter the district court did not rule on those requests there where we took this appeal so that we didn't lose our to whether or not the district court properly denied requests for discovery or granted requests for discovery viewed by us under abuse of discretion standard to the extent that the court made a clear errors in going about making that determination and we would say that you if if we send this case back this is going to be like the rd request a judge joyner has to give discovery no your honor we didn't request as you have the other two sitting there already but he did not act on them we couldn't appeal we couldn't run out of time i mean we made the request for discovery at the end of the motion process he did not act on them we needed to be able to file the appeal in order not to waive it so and then i said the plaintiff moved to district court did not give notice pursuant to a wall fifty six dollars it was going to do a conversion it does a conversion and it was only at that moment did you realize that the district court was not satisfied with the evidentiary record quite correct and then it was after that that there were letters written to the district would say ok now that you've converted and you want to consider facts we want to do discovery and the district court didn't grant or deny discovery just didn't allow the opening of discovery it didn't act in time it came time for us to file an appeal we got our appeal and then at that point the plaintiffs asked to open that in our briefings under both the agency like an argument and the aquila stoppel argument this is the alternative argument though that to the extent that the court doesn't think as a matter of law that the agency arguments and the equitable the stoppel arguments can sustained on this record then yes we would say that we would need in order to go back down to the district court and to conduct discovery on these issues and this is would you not he tells us then we were allowed to make a renewed motion to compel before the district court to allow the district court to consider that record decide the st there's nothing if we decide the st against you it doesn't seem to me to is any reason why we should consider the nd argument that you are entitled to more discovery but the big question would be whether or not we have believe that discovery is necessary to resolve its motion to compel arbitration and we know this because merck told the court that the various contracts submitted were sufficient to decide the issues and we know that because they argue that the pla declarations and plaintiff knowledge is irrelevant to the issues of agency and equitable stoppel and must never discuss never requested any discovery on knowledge or the contract or anything else until after it lost in the district court and that distinguishes this case from dottie where there the defendant made an initial showing of arbiter billy but there were there remained a clear narrow factual dispute about the defendant would have won based on their showing and then in the plaintiff introduced some evidence to call into a specific narrow factual dispute that had to be resolved before the issue of arbitron realty could be resolved well here mark has made no initial showing barbara gravity unlike the defendant gadhafi and in fact mark concedes that there is no narrow factual dispute to resolve there their motion and their appeal here is premised on this idea that the court has everything in front of it it needs to resolve the issue and does the point let's talk about what's in front of us and you have to bear with me because i wanted to slap a couple of bits that come from the various agreements that agreement it's in accordance with its terms which include an arbitration clause and just give me a nd to just run through these facts the next one is in the mainstream contract with the p g a it says the clinic's must meet the terms of the merck contract you just talked about with them or contract is which includes an arbitration clause so we have that bit of information then the next set of agreements i want to talk to you about is schedule left to them or contract which says here are a bunch of obligations that are imposed on the eligible clinics which i understand to be the practice groups maintain confidentiality make available data use the drugs as administered pursuant to medical judgment well i would say there are there are a number of answers to that question to the extent where we're talking about agency and whether the p v g s were agents we say in the st instance appears they have the authority to make purchases when they enter these agreements with the vendor on behalf of the practices i'm sorry to say then my question is if you say they had no right to control i don't know how you can say that based on this record forty one it does it says it's an agreement between the doctor's office and being treated vaccines to participate as a member practice in a vaccine purchasing contract with merck the terms and conditions of which are in that it gives some terms and conditions doesn't mention every term condition in the physician buying group agreement with merck doesn't mention arbitration doesn't it doesn't mention a lot of terms in the p b t contract with merck that clearly don't apply but the agreements oist backwards on to p p g s to the event to the clinics so there's two g i think you have to read this collection of agreements together i agree with that and i think that reading them together it shows both that there was no agency relationship in the st place right the it so and to be extent there was made in c relationship and i would like to get back to that point there was no authority for the position buying groups to conditions that are disclosed in this contract there are a couple of bend to this bind group agreement that mention prices and and loyalty and that sort of thing but there's no evidence that the plaintiffs ever delegated any authority to mainstreet back scenes to go out and negotiate a contract with dozens of that would bind them that they had never known that point wouldn't additional discovery perhaps shed some light on the question of control did isn't otherwise already and her record well i would say so so this gives back to the question of the existence of the agency relationship right and and judge joyner made the holding that the position buying groups were not agents because under pennsylvania law there has to be a deliberate and specific grant of agency authority and in the physician buying groups contract with with the the doctors there there is no such authority i would say even in pennsylvania even more important than control is the fiduciary status you look at the seal case we cited where h and r block was found not to be an agent of its customers even though it was going out in conceivably doing things on behalf of their customers they went out in arranged financing short term loans with a financial institution and operated as a sort of a check box something that the customer could could agree to and they said we'll go out and arrange the deal with the banks on your behalf but let us know if you want to and the court said that is not an agency relationship that is not establishing a fiduciary relationship in fact it's the opposite that sort of take it or leave it here's a deal we arranged for you shows there was no delegation of authority to that entity to go out and bind them to with a rd party i would say the c agreement it with the plaintiff the c c p a member agreement it is written in the same way it says there's no obligation to participate in any of these vendor agreements we'll come back to you with the terms and conditions and you can decide whether to participate but it forty five it says purchases are made in accordance with the vendor contract right but it says g p o will notify provider of the vendor arrangements available for time to time and the applicable terms and conditions  supreme court said an agency relationship is a fiduciary one and the agent is subject to a duty to act only for the principle of benefit and then the pennsylvania supreme court said it isn't that what happened here based on the contract language absolutely not the pv g s were acting for their own benefit they have not they definitely got a benefit but so did the practice groups with the discount i recognize i mean that if you had it if i get that right embassy or mentions when there is this given take like that  choose to do for them and i would say no for two reasons one is that merck doesn't hasn't addressed in any of this briefing the fiduciary element which under pennsylvania law is the core element of agency if you look at merck briefs in th never even used the word could be here as far as i can tell they put forth no evidence number two with god he is about whether the defendants made an initial showing of arbitron belletti and whether the put the non movements introduced some evidence that called into question a narrow factual dispute that have to be resolved with an order or issue barbecue to be resolved that was the same to write that was the essence behind the saying decision and and there it had to be resolved through narrow focus discovery cleared let's put aside agency for a moment and let's turn to equitable stop and turn to graham i think there's no disagreement on council that the district court apply  investment that sort of the spectrum cases in order to understand why direct benefit to stop will doesn't apply here if the scituate that line of cases in the facts in the context and all of those cases involve a contract for services that was entered into for the benefit of and at the behest of the non signatory and critically the underlying lawsuit there was over the failure to perform services for the non signatories benefit so the bringing in these practice groups to market to buy the product but also the practice groups got from mark's point of view this discounted and access to certain types of products so we had to beneficiaries directly benefited by the  g agreement in which the arbitration clause exists so doesn't that frame apply here now it doesn't apply and unimpressive i want to put aside the question of whether those were real benefits which was brief but that the key to these direct benefits cases was that the underlying lawsuit where the part the non signatory was trying to avoid arbitration was over the failure to provide benefits for that non signatory here plaintiffs are in saying that merck in the pv jeeves failed to provide any ok no benefit at all as a result of the work that the piccies are doing i'm making two points one is i would say the positions were not benefited by the p b he tracks because those contracts increased the prices you know mark i would say this maybe antitrust claim is merck has monopolized the vaccine market by introducing these contracts which cause both the p g members and the nonmembers to pay higher prices in the absence of these contract everyone would pay lower prices so the contract didn't benefit the plaintiffs here but i want to make another point that it is even more critical about these direct benefits a stop ok says which is that the key to those cases be a lawsuit was about a failure to perform under those contracts with that have the arbitration clauses that were for the benefit of the plaintiffs who also was over the failure to perform and i want to draw the court's attention dupont and footnote seven the court said in discussing this line of cases we cannot help but note that many of these cases resemble the rd party beneficiary cases and they referenced ten car and then in hellenic investments which the court there says the very nature of the claim brought requires that the signatories performance under the contract be for the non signatory benefit and the court then went on to find that the non signatory their stated a claim that expressly requires that the signatories performance be for the non signatories benefit having stated back claim the non signatory cannot avoid be a stop the implications of its position that whole line of cases is about if you are suing as  beneficiary but non signatory under that contract over the failure to perform on that contract then you you cannot then come and say well that contract doesn't apply to me at all that that's the direct benefits cases and that's not what we're doing here and i should say the plaintiff non signatory they're also claiming to be a rd party beneficiary and sanford said you can't both come in and say you're not bound by this contract but you're benefiting and sue on this contract that again is not what we're we did not receive benefits but that our lawsuit here is not about the failure to provide any benefits on the contract which is the key focus of those direct benefits of stoffel i see a lot of time see your honour's in terms of the equitable a scalpel argument the contract here between the p b g s and mark is the contract that controls the crisis the plaintiffs pay those prices or reduce they are less than what the plaintiffs would have paid if they had as a result of the country that is right your honor not only is he incorrect that they receive no benefit as a result of the contract their claims here are based directly on that contract that's the plaintiff here except satisfy both prongs of the equitable astop will test in the rd circuit so the way that the payments could work is that the members would purchase pediatric maxine's and now quarterly basis of be some determination about how many vaccines their members have purchased and then based off of the amounts that are in the contract and the p t s could receive i directly from merck if i directly from merck at the price sent poor in the contract and that's what they are now challenging they're saying that those prices for too hot so the contract is when they go to trial in this case this is the contract that will be their crew it will be the contract