i'd like to reserve three minutes for rebuttal if i meet you may think you are going to just three points that were not fully developed in our briefing as they might have been the st is about the language in the barclay cardholder agreement the nd is an equitable of stoppel and the last is on delegation on the language the court question in this case is whether the non signatory defendants and c m in schreiber law barclays for every purpose under the sun which we deny defendants would only be entitled to invoke arbitration if they were included in litigation with middling funding but as the court knows live in funding isn't a defendant in this case if the and wasn't or which you have a different construction  words in this agreement but i think the intent is clear the intent is that barclays is attempting to protect itself and those who are in direct relationship with it from having to be in court barclays nots to be able to use arbitration and it wants to protect those who are in a direct relationship with it whether that is its employees i stood in the shoes of barclays that would not entitle its service providers to invoke arbitration unless we had also sued middling funding against the other who appear to be barclay or the assigns of the other who would appear no and tribal law were intended rd party beneficiaries under gellar where law there has to be a material purpose to protect the rd party under the contract and clearly this contract did not intend to collect to protect rd party debt collectors for an ass and he could easily have said that it could easily have been had more broad language like the language in the month the bondo case what appeal so correct not it not exactly your honor we believe that the two issues merged together in that the only way that m  signatory must rely on the terms of the written agreement in order for the non signatory to be able to invoke arbitration we do not rely on the terms of the written agreement we have a completely separate theory under which m c m and shriver law are violated the f t c ph because of massachusetts  that applies regardless of any term in the contract it applies because barclays was incorporated and maintained its principal place of business in delaware and that's it rests i'm sorry to selected at the time the claim is filed that makes it seem like there are a number of possible rules that will be selected and not necessarily the aaa rules and under this court's decision in m vs allied home mortgage where there is a reference to a set of rules that follows a discussion of the types of the claims that are subject to arbitration the placement signals that the rules will apply to questions about which claims are subject to arbitration not the question of who will to some night whether there will be arbitration i hope that answers the court's question thank you coun the court corey eichorn on behalf of middling credit management inc i'm just to jump in the judge k out is a question mr dell by relative to the gateway issue just thompson recently authored an opinion that was decided after the briefing in this matter bill or versus s h opto nine hundred and sixty one fed rd five o two that describes the framework for gateway issues that arbitrator which also provide that the arbitrator can determine the enforceability and the validity of an arbitration agreement does that that go on to say that midland isn't volved in this litigation a difference your honor i think that's that's disingenuous when you look at the complaint in the case you know this entire case arises out of the filing of lawsuits by middle and funding  and throughout is that the complaint is replete with references to middling funding and middling credit management relationship with ms funding as a service or as an agent and  even makes an allegation that middle and credit management directs the filing of the lawsuit by midland funding so based on the allegations of the complying midland funding in middling credit management are almost one in the same so i didn't understate way i'm sorry go ahead honor given the record in this case and again the fact that they've it mitigated and or conceded that midland funding as an aside he could compel arbitration that phrase a flick ability of the arbitration provision we start with the tech we're supposed to start with the text of the agreement and ask whether it's clear and i see you have put the guillotine in it seems to me a big us as to whether it means what agreements it applies to or who has been in then i find it comes in a long list of types of claims that it applies to doesn't that create at least a lack of sufficient clarity under house on and greentree that you've got a problem not of my reading of has i'm an angry for your honor i think a player ability has been construed in other other cases to mean the parties to the agreement i think if you look at apollo brief in the mckenzie versus flag star case this court has recognized that in assignee steps into the shoes of a sign or an acquires all the rights of the assign are middling funding is not necessary to be a party here i know there was some discussion regarding the service provider language but in my mind it really doesn't come into play here because if you look at the sentence before that it talks about the arbitration provision applying to any assigns or agency of barclays in of middlings funding is stepping into the shoes of barclays then the arbitration provision would apply to middling credit management which the plaintiff has asserted is an agent and affiliate because we fall under the st provision of that sentence which talks about for purposes of this provision you includes any authorize used or on the account in any of your agents beneficiaries or assigns and we are us includes our party my reading is that it could apply to its service providers and marketing partners that are not assigned agents and beneficiaries but if barclays is not named as a party which in this case would be middling funding then it could apply to a scions agent's beneficiaries except for that's what i read and that's how other curt courts i believe have interpreted that provision or take our questions posing counsel and that is it seems to me this arbitration clause if we go to the very st sentence it only applies to claims by you were us against the other or against the signs of the other the arbitration agreement doesn't seem to apply to claims against a signs of various signs of the other and it seems to me that your client here and c m is not in the sign of the other but isn't the sign of one of the others assigns in other words barclays is the other there is no definition for other like there is for we or us other simply means barclays here so what tell me what's wrong with that thinking well you're right i think the sentences below that provision modify the language in that st sentence but even if you take  you know the reasoning that your honor is taking with respect to that other language there is evidence in the record a portfolio level affidavit of sale from  one that fits that language perfectly so middle and funding would be in the sign of the other other it's on the side of the others a sign your honor i don't believe that's correct as i just indicated the portfolio level affidavit of sale from barclays indicates the account is assigned not only to middle and funding but the middle and fundings asides and middling credit management isn't assigned for collection i see a middling funding so there is a direct relationship between barclays in the credit management is it could you be that close again and give us the supped appendix oh yes i can and it's the portfolio level affidavit of sale from barclays and it's in the underlying docket at twenty the nd part of the arbitration provision which has the language that attorney has focused on today in his argument which is and to the extent included in a proceeding in which barclays is is a party its service providers and marketing partners i think my position is your honor that that is a limited extension of the arbitration provision because the immediate sentence defines who us would be in this instance there's no dispute millon funding is the asadi of barclays so it takes the place in the us of barclays so it would be middling funding including its employees parent subsidiaries  official agents and assigns and then what's not included in there is this limited extension service providers marketing partners would not be agents or assigns of midland funding and therefore the language and to the extent included in a proceeding in which the funding is a party there is the extension to its service providers and marketing partners that sentence does not apply to my client schreiber cohen because schreiber cohen is not a service provider schreiber cohen as the as the plaintiff your alleged in its complaint is was is sued because it was the attorneys that brought the action against for a busan be half of  funding so it is the agents under standard principals of agency law it is the agent of its principal which is millin funding and therefore the st part of the arbitration applies to schreiber cohen where it should be read this provision applies to us meaning middle and funding and it isn't an assigns which is here trevor calling something different i don't understand that well i what i'm unsure what's unclear to me about that those those people service providers are marketing partners is that the genesis of their relationship with  barclays i don't i don't know there's such general that's such a general language to me marketing partners or service providers i think what barclays intended to do here is to do just what i said extend without a clear understanding of who the service providers and marketing partners are extending our protection provision to to apply to these folks in a proceeding where midland funding therefore it's an admission that midland that schreiber cohen are the attorneys for him and then funding and i'd like to focus on what i think is a key issue that's been addressed in the defense remarks and that's on this question of the language judge also quoted at the very beginning of the agreement agreement in the model by no case said said any purchaser and there's a signs in agents this one doesn't say that it says forcibly so they they they just point it to the sale scotch act th argument that i heard from you know a lot on that point and i apologize if i just interrupt you i didn't mean to go on that point we addressed in our briefing the difference between an assignment for collection and an assignment with an ownership interest him c m did not get an assignment with the no wonder she interest and therefore they do not have the same rights that an ass an e with an ownership interest would have barclays could well have benefited additional assets east but it didn't choose to do that and we believe the language is restrictive and the same is true for schreiber cone the agreement doesn't say the sorry if we didn't make it clear enough it's there though that it does not stand in the shoes with respect to the question of assignment of arbitration rights because of the specific language regarding we and us and the definition and we cited in our preventing the delaware case of d c the holdings which says that the specific provisions in a contract will override the provisions or general rules and here we have a specific provision that limits who has a right to enforce the arbitration agreement thank you thank you very much