violation of his due process rights those rights were violated when mr lightener was prohibited from bringing his claim in a selected forum finra as well as when the district court's merrily entered a permanent injunction that into an arbitration that right so there's a there's a caveat to that they those two parties do not have a formal written agreement with each other however u b s securities is a thin remember and therefore bound by the and l p l a debt security of u b s on a united states exchange and there were fees collected in exchange with that now the allegations before the district court were that mr lightene paid a series of fees these fees are claimed by u b s to be so called embedded fees and without any justification they say that they should avoid consideration avoid discovery of void litigation if i buy a mutual fund from them gardner one of those companies that markets mutual funds i'm their customer it depends on the facts in this instance by it and on the on the openings on an open exchange from somebody trying to sell the shares when i become a customer of the issuer of that mutual fund the proprietor of that fund yes depending on the offering documents depending on whether you depending on whether always these built in these products or not always many of them have these built into the product i can't speak as to all of the products i'm certain that some products do have fees but with respect to this specific case mr lightness allegations are yes these were paid by him to u b s well he didn't write a check to u b s for that that's not the allegation right the allegation is that the the price of the security when you sell the security there's some the duction or commission that goes there were various fees there were calculation fees there were management fees there was a fee at the very end when the security was deemed whether or not mr l wrote a check i don't think is an appropriate part of the calculus i think the fact that he alleges and can prove that these fees were in fact paid whether through the purchase price of the security or through dividends or whatnot they were paid  underwrote and marketed those securities here in the united states for the purchase use that was made what did he do with grown ups with delonte i don't know how he executed the trade whether it was a phone call or over the internet you said that hundred fun so we all and he he essentially purchased it not directly from u b s but he purchased it on an exchange in other words it wasn't even a direct there's no way to characterize women in the ordinary use of the word as a customer and that in that circumstance i would disagree mr lightener had what's called a self directed account at fidelity is a sophisticated attorney and this debt security l p l was issued and according to the offering documents and other documents produced by u b s sold directly to investors now yes like almost all publicly traded securities it was to buy this mutual fund and then what is the broker do he then puts and somebody is selling it or does he buy directly from u b s i gather it depends on whether th not in the only sense where a customer relationship can be found for instance there are other products automobiles and whatnot or if you purchase an automobile through a dealer that doesn't divest you of customer status if you want to arbitrate against the auto manufacturer in this instance and the product is a u b s product it was purchased yes through an exchange but that does not eliminate mr lightness ability after discovery to purchase an order  what works but that's it solely dependent on the agreement here well one two two zero zero zero defines customer only in the negative as not a broker and not a dealer in this instance we or in a series of cases so that's what you have to deal with right yes and i if i'd rather refer to the briefing of the art turnberry in roscoe's cases two of those cases were after trial and the other one saying no one can purchase directly from us and therefore not if you if you sell something and have an initial public offering in effect and now it's out there and anybody has bought it and sell it to somebody else how do you become a customer of the offer the original offer of security i view it as a direct transaction with specific respect to securities you can only purchase them through an exchange that's exactly what mr lightener did at them from u or hearing correct what's the evidence that that's and that might be in this beaut well at bare minimum the record contains a lot of u b s public disclosure documents as well as finra documents specifically relating to role one two two and all of you would need a hearing for that or we would need discovery not considering that i think that we would need to see what those documents mean someone from u b s to explain what these they were not they were not available to the judge the documents themselves they were but we identified specific persons at u b s who dealt with the security who made these public statements we also identified finra guidance regarding rule one two two zero zero zero and customer status specifically you reserve r and what the circuit held was someone who holds an account or who purchases a good or service qualifies as a customer is entitled to arbitrate as opposed to being relegated you just remy's what a bar further said is that customer status should reflect the reasonable expectations of the finn remember so that they can handle their risk accordingly and it should and in the ordinary course that can be readily applied to undisputed facts that's what we have here are the facts are mr blasting said he's a sophisticated investor a corporate attorney and he made a large purchase is remedies are judicial if at all let me ask you about that very question why isn't the question of robert  matter that should be decided as of at the threshold by finra system when the parties clearly and unmistakably delegate the issue of arbitrary to an arbitrator your honor is correct would be handled by an arbitrator here there is no arbitration agreement and this court has held that the parties have not clearly and unmistakably given that issue to the arbitrator you just don't reach that kind of question direct that's a gateway question that arbitration the brokerage industry embraces arbitration as a cost effective means to resolve disputes with its customers and that's a a deal that we made a with our our customer no no i was curious well i think it goes to judge lynch is question which is that the construction of customer mr blasting has urged has no limiting principle every mutual fund holder trade several reasons your honor and in all candor miss we say that mr lightener has relegated your just so remedies were he to pursue a lawsuit in the wake of an affirmative judge wayne's decision we believe any such lawsuit would be subject to dismissal on the grounds of statue limitations he has a section eleven claiming in his arbitration even though the the i p o in this case the initial issuance was in two thousand and ten so the statue oppose would clearly bar that in the court we believe and that's probably a reason that the corporate attorney at the at the heart of this suit chose arbitration instead of a judicial now we could argue i suppose in an arbitration that that the a panel of three finer arbitrator should give effect to se evidence and the chips are all laid out on the table and those are some of the strategic reasons i would suggest that mr lightener saw fit to try and bring in arbitration here we believe his remedies are judicial in this case is the he conceded that he bought his and l p s from fidelity and it attaches to it a brokerage statement which says this is the redemption price at twelve point nine dollars some of that twelve point nine dollars goes from  with respect to the right line rule we do not argue that this is in and section based question for the court to decide whether in agreement was made this is a special circumstance where the finra rules impose mandatory arbitration when requested by a customer you be a securities alosi is a party to that arbitration agreement it is a written agreement for purposes of the federal arbitration a bar case did not deal with anything close to this this was a foreign investment made by a family overseas involving a u k entity that in turn had some work done by an office here in new york the member they are had no affiliation of any kind nor are there any similar type allegations what is the good service that mr lightener purchased from u b s securities mr lightener as we allege bought m l p l because it was advertised by u b s publicly that it was a proper indian buy it from them he bought it on the exchange it's a u b s securities product we allege that that makes him a customer under the zero that's a legal question that's not a that's not something you need a hearing about we all agree what happened the question is does that as a matter of law make him a cause we say that it does and we also say that it was for finra to make that initial determine your do you get that because as i understand the rule it's pretty much as your abs goldberg stated that ordinarily the threshold question of whether triviality is or the court unless the arbitration determines whether it's arbitrary but customer is a finra definition and the finra panel has the sole authority to determine those definitional question as their authority for that is that we ever held or any other whatever that whether you're a customer in a bar we decided  we included all of the briefing in the bar in turn very cases to the district court and so whether that determines that we may have done it wrongly or we may have done it because it wasn't raised i'm asking you is there a case that says that exactly the same fact pattern but we've advanced the most close cases that we can find thanks very much thank you very much your honour's reserve