the representatives the issue before this court on appeal is whether the representatives have a claim against national or their law and they absolutely do representatives were indispensable parties to the sales of ohio nationals a lawsuit out there than will other broker dealers against ohio national but there is no dispute that the broker dealers do not have the money nor do they represent the money is being written right now by ohio national but wh i assume that the national is complying with its obligation the triad it's right it's not soon your honor you don't need to because it's based on what is it contained we know that if the broker dealer if triad had received the commissions they have an obligation to pay the representatives and that obligation is clear in section nine of the sony agreement so we know that the broker dealer does  for the southern district of all i'll get maybe another maybe another way to put the question is what part of the contract between ohio national untried has ohio national breached as to try so i realize you have a rd party claim but i'm just trying to understand what's going on between the parties is there part of the contract where you could say ohio national prominence x to triad and it is not annuities that were sold and the language that is included on the commission schedule is that the payment of these reoccurring trip emissions will continue in tool be a new it has been surrendered or a new it size this lawsuit is dealing strictly with active annuities which these trail commissions should continue to be paid now that language in the commission schedules coupled with section not mine which says that if that this of an agreement is terminated the terms of the seem to separated out completely there are any responsibility on the part of the correct but the product selling agreement obligates and backs creates a contractual obligation on the part of the prophecy the broker dealers to pay those commissions to the representatives and the language that you just point out judge merit is where where party to benefit then that already has standing to sue for breach of contract so that's what we have here we have they are just just a follow up and that's merits question i mean that's a bit of a magic trick because we'll call the promise see the one that's supposed to eventually deliver on the application in the same section and makes it clear that whoever delivers on it it's not a national which doesn't that seems like alchemy that you suddenly convert somebody says i'm not responsible the being responsible your honor i don't i don't think that that's the case is that the money a originates from the selling agreement and there's no dispute that all have a national basis with a broker dealer and then the broker dealer pays for the benefit of the represented and very clearly here section nine indicates this is the embodiment of the rub the broker dealers and or representatives to get commissions and that's why they have they agree the broker dealer agrees to enter into a separate contract and says the payment will be its responsibility now how about this way of thinking about it would you lose it try had came in and said ohio national owes us nothing  honor i think that that is true because as you know a rd party beneficiary only gets the same rights as the broker dealer as the party to the contract now if broker dealer came in and says we don't want the money will no that's not the case if there but that that does not foreclose a rd party beneficiary claim and that's a wrap right here on the cd it's very clear what the sony agreement intent in fact what has actually happened here is that the representatives had been the commissions on your behalf because we have a direct claim because the selling of the language of the selling agreement in bottom shows in intent for representatives to receive it and it's that fact you now says really is that simple and straight for section section nine i think section i support i think the sound agreement as a whole shows that it's generally for the benefit of represent benefit of representatives because it shows here's what you need to do to i don't see how you can read provisions in the spelling of dream meal it would be meaningless for there to be an express assignment of the could of the representatives commissions in order for that express excitement to be valid there has to be a president and valid vested existing right at the time that it is written and so if you say that the representatives are not entitled to commissions by virtue of the agreement you would have to render that provision boy would also have to render meaningless at the representatives get to select the type of commissions they want to receive under the commission schedules but i don't i don't believe that's the case here is the language of the contract is clear that representatives receive compensation back section i specifically to compensation to the broker dealer representatives and it's that intent that is all all the procedural requirements and hoops that you have to go through for a direct payments absolutely not your honor the finra rule is an industry standard and it deals with a limited scenario if the parties want to agree to it it does not have the effect of law it was not a congressional enactment it's a it's a non governmental private corporation that sets course these rules it does not deal with this scenario here where the representatives have been denied a legal entitlement and it also does not do with a scenario where ohio national  violated industry standards when i see my time's getting low i want to turn to the un just enrichment claim because even if this court determines that represents or not rd party beneficiaries there absolutely is an unjust enrichment claim here i think ris court's decision it wasn't the control the unjust enrichment analysis it's exactly a scenario where you're dealing with a party that didn't have the commissions it was able to get summary judgment against party that it didn't have a contract with but that party didn't have the commissions and with the th circuit said was right the delta must be able to go after the party that is withholding the commissions and that is exactly what needs to occur here i mean it's unjust enrichment give you the full cost enrichment i understand why your clients any more than try at employees have an unjust enrichment claim your i see my time is up man to man yep do there are not just employees here this is not clients your your are i in this case we have a party that it's indisputable of been harmed by this and they're the ones that actually did the work and they're the ones that did the work based on the promise of the commissions so in this scenario it's just like rice and felt if there  that the broker dealers are not being asked to do anything nor nor should they be here because the party that has been harmed absolutely should be able to go after those who is cause the horror which is ohio nationals not broker  contract the iowa national parties on the one side the broker dealer on the other side how national did terminate the selling agreement it's our view that the trail commission obligation terminated did not survive the terminations the agreement that is a dispute is be litigated relating to those commissions between the broker dealer and likely not involving these individuals and in fact that language has been made clear by the lang language of the contract which of course is the starting point we know that in section nine a contract tells us who is the be paid contract says the broker the contract also says in section nine who is not to be paid the investment representatives that is a separate business arrangement between the broker dealer and the investment representatives we don't know what his terms are they are not before the court but as made clear in the contract itself it is not our business what deal based right is unrelated to our relationship with the broker dealer now if the broker dealer has a dispute they can bring that claim we had several broker dealers in a similar situation some of them have some of them not all suits and there is one class action that would include if it was ever certified the triad broker dealer so if there is a remedy to the extent where there representatives like mr cook potentially benefit from any victory by the broker dealers well theoretically again we don't know what the contract is between the broker dealers and the investment representatives exact opposite is the read we know that you don't you don't rewrite the contract just because there is an unjust situation the question is who are the primary beneficiaries of the contract in section nine spells  out i would suggest as clear as the day is longer there's other things that you consider because council also suggested well this contract is really for the benefit of the investment represented absolutely not this contract is for the benefit of my clients were selling variable annuities and needed a distribution system to make them available to the up the provisions to work in this contract are all designed to protect my clients they're designed to ensure that the member under the been rules the rules are absolutely binding in fact if you violate these rules there are consequences to an investment representative any broker dealer you notice that one of the ohio national parties  risky unjust enrichment claim and one could imagine in the abstract how could there be a different a different answer for the unjust enrichment claim from the rd party beneficiary claim you can imagine one falling from the other but there is this crisis ok some are circuit which does have a lot of similarities to our case and in that case the claim and mr cutts position managed to win in our court so what do you say made clear about the cycle doctrine under ohio law which is controlling here is that st if you have been expressed contract and there's no dispute about its existence you cannot bring a claim or an alternative claim  because the bridge the contract we've been unjustly enrich that's their entire theory that theory does not survive a twelve c analysis once the court includes there's no rd party beneficiary standing under the selling folks are independent contractors or that these people performing the services that's the same situation you have with any entities such as a corporation or a corporation leo x x there it's offices directors and boys and it independent contractors that doesn't somehow change the analysis that a contract between the corporation and another party asked to be in force between those two parties and not by the agents that perform the service look and consider the activities the district court did not this court absolutely should judge sutton you asked how national about the rise of folk decision rises so does directly on point the notion that somehow it was distinguishable because it with balls fraud is simply not the case that was background noise in that case it had nothing to do with the court's holding their what the court recognized as it should here is that equity an unjust enrichment claim is  malleable doctrine it's specifically designed for when a party does not have a remedy at all or where the remedy is inadequate that is why we have equity that's what equity tame for all and so so  unable to recover was unable to recover in that case because the party in which you did have a commission contract with it engaged in fraud and didn't have any money so in that case the claimant got summary judgment against that the courts have been interested in this other litigation to see whether there's a way for the representatives to get their money from try it another broker dealers your honor it is interesting but it is it's a smoke and mirrors this idea that somehow some other party may be willing to exercise its right and if they do so and they're successful you may be able to recover that the court should not be looking at that because what's what's best for the court is try has no yes there is another lawsuit out there that involved broker dealers may not be certified there's no guarantee that all the broker dealers are going into it in fact certain broker dealers they've decided not to school on national because they have valid business reasons for join s and so that should not be a consideration here and your your ability to remedy a wrong should never be contingent on what some other party may be doing with their rights that they have the fact of the matter is all have a national has never challenged that the facts here show an unjust enrichment and they absolutely do you know all these representatives performed all these benefits that are required under the stone agreements become license and register to sell these products they actually did sell these products and they were actually receiving the benefit they were receiving the commissions up until eleven thing changed and that's why our national terminated his stone agreement there's no explanation other than that we think they wanted to get out of the business but all this work that the realize usual circumstances but you got a great job so thanks very much and we appreciate the kids will be submitted and