order entered by judge mcnamee to district of arizona dismissed our case without prejudice and ordered us to arbitration on an individual basis not just with the adelies artex and try with a number of the non signatory defendants and that the issue of whether the arbitration may proceed as a class action should have been left up to the arbitration panel and  we did not your honor that i think you make an affirmative statement that you intended to rely on the dismissed complaint i'm not sure i understand well as i understand the case law in the th circuit if you file a complaint of the district judge dismisses with leave to have him and you don't see to a man or file  the availability of class procedures is primarily a procedural question and shouldn't be considered a gateway question but this court does not need to reach that is you to decide this appeal if your honour's join the prevailing  to the arbitrators and every circuit except one that all had preexisting president brennan as gone on to take that position and in fact the courts delegate are sorry when you incorporate aaa rules that also brings forward to supplementary rules and so the issue of class are richer ability those goes to the arbitrators now several searches of disagree but there's this there's a plurality at this point of the circuits and given this court's precedent in brennan at least according to the th circuit that's sort of precedent  covers class arbitration right right but i think there's any doubt the aaa rules generally say here there were no specific rules sided so you look to the commercial arbitration rules say they apply to in in most of those other cases i was talking about as well and again we say that's the logical import of brennan as applied to this situation but you know there is no specific language on class are rich or ability in the contra feasibility study forming all the necessary entities managing every thing arranging for insurance at a substantial cost forty thousand dollars upfront and thirty thousand dollars per year all of which was to be taken directly out of bank non signatory to invoke arbitration in the arbitration agreement the the recognized or the plaintiffs must rely on the agreement terms to prosecute ways the district court's order and the appellate arguments here are studying contrasts in that the district court ordered in foresman of the arbitrary ation agreement as written and the to retreat from it we started with opposing counsel addressing the issue of class versus individual arbitration your honour's there is no doubt that the question of whether an arbitration agreement provides for class arbitration there is no doubt that is eight gauge weight issues that has been the unanimous ruling of all of the circuits that have though it is a gateway issue it must still go to the arbitrator to decide whether class arbitration is appropriate now the law and that is very clear if something is a gate weight issue i for the court to decide and that's because in the case of class arbitrations the differences between class arbitration and binary arbitration are so significant as supreme court has now said repeatedly so significant that is really an issue for the court unless there is a clear and unmistakable expression of intent by the parties to delegate that gateway issue to the arbitrator's the courts refer to it as having to leave no doubt about the parties intention and here there is nothing nothing close to meeting the standard of a clear and unmistakable intent to delegate to rest the way that gateway's from a court as you as your honour's have noted that the agreement itself which is a very short and simple agreement the arbitration provision is stated in three sentences says nothing about class arbitration it uses singular terms that refer to binary arbitration and there is no indication of any intention to delegate b question of arbiter belittling to the it simply does not that makes it unlike all of the cases that counsel was referring to including unlike this court's decision in grant in which expressly adopted the aaa rules reading also did potential nd round of dispute resolution the way this arbitration provision works and i should call it a dispute resolution provision because it says in the st instance disputes will be resolved by media if that fails it will be resolved by arbitration using an arbitrator selected by the parties and only if that fails if the parties are not able to select an arbitrator then triple a becomes involved but there is no incorporation of the aaa rules there's not even an intention measured at the time of making the contract that aaa will become involved at all here there is not incorporation the rules and here aaa arbitration is not even the default so that issue is left for the court and here the district court judge mcnamee correctly decided that there was no intent demonstrated to permit class arbitration the supreme court's dress issue several times and it has said that we may not infer consent to lamps plus case and here we have silence and so there is absolutely nothing indicating an intent to permit class arbitration and under the supreme court the district judge correctly decided that means a default binary arbitration aquatics now let me move to another issue and that is the question of a fiduciary duty now  defendants is slightly better than the duane yes case because in the duany assed case that involves nursing home services where the court says even if we accept that there is a heightened duty with respect to the provision of nursing home services that doesn't automatically carry over into all of the commercial aspects of the relationship including the formation of an agreement to arbitrate the provision of confidential information or the disproportionate familiarity with issues relating to captive insurance that has nothing to do with whether there is a fiduciary duty with respect to the agreement to arbitrate it's a simple agreement it's three sentences contained in a contract which is eight pages long we're dealing with sophisticated business entities and parties on both sides there is no reason and nothing suggest in the record  is himself a business owner or our clients who ran a captive management business are any more sophisticated in the other with respect to arbitration agreement which appear in so many different kinds of contracts and so there is no basis to say i contractor or otherwise that a fiduciary duty was created here in this commercial transaction and the law tells us that in order to find a fiduciary duty in the context of  transaction there must be some assumption of that duty in the contracts and here there's nothing like that in fact we have quite the opposite in this short agreement contracts  essentially disavow the creation of that kind of a heightened duty so for example referring to a record it easy to sixty three dollars this is part of the contract it's sad as that you acknowledge that we have encouraged you to consult with your own attorneys accountants and buys years prior to entering into this agreement is says that you have had ample opportunity to do so you  recommend that you consult with other professionals and buys or regarding the appropriateness terms and conditions of this contract so in the strongest and clearest possible terms mr ship co court did review those declarations and what those declarations show is nothing at all relevant with respect to entering into the arbitration agreement in fact the declaration of mr shift cause which is highlighted in the palin's brief shows that he was in possession of a partially executed form of the engagement letter for three aspects the declaration is speculative at best it speculates that he assumed the agreement was not negotiable it doesn't matter even if it were true in a commercial agreement like this and it says that he possibly awesomely would not have signed it it had been explained to him or he had been seeking counsel out there is nothing there to raise a sufficient reliable basis table and he said that even if that were true it did not apply to the commercial aspects of the arrangement the relationship between the parties with respect through the arbitration clause and that goes  counsel was arguing about even if some work relating to the formation of the captives was done before the engagement agreement was signed mr ship got had it in his possession for three weeks even if some w e insurance issues was done there is absolutely nothing that occurred during that time that was suggesting that any the judiciary duty was created with respect to the agreement true arbitrate which raises no special issues which raises no item duties and is really just a red herring your honor this is a commercial agreement and there is nothing to suggest anything on toward giving rise to a special duty a special relationship any questions that you may have for me i'm going to yield the balance of my time a little more than two minutes to mr tilman to address the issue of equitable stop thank you but there's not even an alter ego out that being the case there is no equitable way for the court to look at either of the sun valley factors and say that they apply to the other eight first of all with respect t military there wasn't silence in the contract because the contract specifically refers to the american arbitrations association and we sided the belknap case out of this in circuit deals with almost identical rules because at the time the parties contract it they all understood that in the absence of agreements on the contrary those were the rules they were arbitrating under if the same is true here in the aaa ok you either of my