compel arbitration in new york convention cases involving non parties the district court's hands were tied to a certain extent in that regard but the supreme court reverse out energy is now in so the question is what does this court do now one answer could be to simply vacate and re man to the district court to allow it to apply equitable doctrines to the facts something the district court has not yet had an opportunity to do and look i remained of that sort would be ok from my client's perspective we won't complain if that's the result of today's argument but i'd like to use the time i have with the panel to try to convince the court if i can to in this case now rather than simply remanding this court should go ahead and find it equitable doctrines require the mccullough's to arbitrate this coverage dispute this is the right outcome and nothing that could happen on remand would change that outcome cannot mr nunn and this is judge newsom can i ask you just a quick question if we're going to sort of proceed to the merits of the equitable thoughtful issue it seems like there's still some lingering  in the about what the applicable law is is that you know the florida law is a federal law is that hong kong flat english law does that counsel just busting it sending it back and letting the district court take a whack at that if you burst i'm going to give you two answers judge newsome the st of which is going to sound you base of so bear with me and let me explain why it's not a face of i think it looks if the court  feels that bad is an issue that needs to be resolved on remand i understand i don't actually think that it counsels in favor of re manned and there are really two reasons why one is that choice of law doesn't particularly matter here because although there is a choice of law question perhaps there's no conflict of law asserted the parties don't disagree about what the equitable stoppel principle here is the only disagreement is over exactly how to provide it so you know whether we're dealing with federal common law or florida state law or hong kong slash english law the principle remains the same which is that a plaintiff can't have things both ways a plaintiff can't rely on and seek to enforce the terms of a contract yet avoid a clause in a contract requires disputes about  that is correct judge anderson so you know that that point is important in terms of why the court doesn't need to re man to order arbitration here the other critical reason why i think there isn't a need for re man here is that the  facts aren't going to change on remand either the mccullough's are making a claim premised on the rights and duties set out in a i g hong kong's policy with rain forest their claim is that the language of this policy specifically the notion that bodily injury claims are excluded by the policies covered the policy clearly says that all disputes over its language in a force ability have to be mediat these the facts or the procedural circumstances of this case as anything other than the mccoll was trying to have things both ways they want the coverage for  bond or goals that they say the policy provides but if that's the case if they want to go into some tribunal and seek a declaration that boggles gets coverage under this policy equitable stoppel under any source of law means they have to accept the policies conditions about where disputes over these covers issues have to be decided this is a pretty easy equitable stoppel case this is unlike some of the the precedents this court has dealt with where you've got a pretty complex commercial transaction claims by some part of that have only a tangential relationship to some arbitration contract it's deep in the background of the case of the mccullough's reliance on this contract direct open and obvious the arbitration issue here is not a close call this is not the sort of equitable stoffel case that makes lawyers heads hurt well this is this is judge wilson is there any particular reason why g waited so long to invoke the arbitration clause there was a demand letter for tender five million dollars which was the policy arbitration clause judge wilson i disagree with the characterization that a i g did not timely invoke the arbitration clause the record shows that  he informed vonder goltz and rain forest who are not the plaintiff here hong kong believe that it could that the policy required it to cover their defense costs with respect to there there there was that as an initial matter there was a demand for for both for coverage and for representation from a i g a i g provided representation but stated to clause long before vonder goltz had filed any any lawsuit in fact vanderbilt's had not filed any lawsuit seeking a declaration that i g had an obligation to to cover this particular compel arbitration in hong kong this isn't a case where an insurer or where a party to an arbitration agreement has has sought a ruling on the merits from the the court and seen which way the wind blows of twenty eight teams and that was the complaint where the mcauliffe named ai g is a defendant for the st time a i g's motion to compel was filed in november of two thousand and eighteen and that was the do think it's the case that the parties have not briefed any definitive statements about which which jurisdiction's law applies here and the reason why that's not a problem is that there's as i think  as you put it more artfully than i would now there although there may be a question about which jurisdictions law applies that's really sort of any debate over it's sort of academic because the principles  same or the same across all jurisdictions if you look at the very thing below as well as the briefing on appeal although the focus on appeal was on the privity question the briefing below cited florida law federal law and limited hong kong law and the briefing on appeal did as well so even though you're undoubtedly right judge anderson that that was not the focus of the appeal given that we were constrained by the th circu decision out of computer at that time there's enough there and it's a sufficiently unambiguous point about the way that equitable stoppel doctrine requires this case to be decided at this point that i think there's enough there for the court to go ahead and bring this matter to a close and let the parties focus bring the arbitration related matter to a close and let the parties focus on the merits in the hong kong arbitration if there are no further questions good morning this is steve marino on behalf of the colors judge anderson your question at the end is very well taken there is a parallel appeal before this court right now case number now i don't i'm not trying to be cute i know that judges also rule that the bad faith claim is premature so it hasn't even decided he won't decide if pending a decision on whether to provide coverage or not and he has not made that there is a pending motion before judge gayle's to allow an amendment to have gail's as the only judge that has jurisdiction over all of the parties to make such a determination consider the amendment because there is a fundamental misunderstanding of florida law on that face and the preview that goes with it he has admitted and this is in the judge's order on appeal that who were negotiating that on behalf of bond results in the rain forest defendants but in terms of the pretty argument that continues to be made there is not a pretty as as would bind the mcculle circuits ranger decision saying that you cannot have a decision solely as against the insured that would by the rd party claim they're not in pretty when an action against execute on the judgment against them while they pursue their claim against a g i'm not sure i understand the court's question just how you factored in that was part of the tort lawyers negotiating to give and take for limiting exposure i mean obviously the facts show that this could have been a ninety million dollars for sure and i understand that at some point the numbers become prohibitive either way but the tort lawyers  a balancing liabilities and risks an effort to protect vanderbilt's and the rain forest dependence and that consideration that you just referred to was part and parcel of the agreement  it's it's common in florida for the the judgment creditor in a case like this to withhold adjudication and say we're not going to beat you up over this judgement so long as you cooperate with us and don't become an impediment to us ultimately and rights to the claimant and that put them directly in the shoes of the insured for purposes of moving forward here the court is clear there is no such a fine so the consideration is just simply as long as you don't become an impediment we won't enforce this but if five years go by and we have not been able to somehow is all but as against your insurance company and there's nothing sinister in that either any insurance company who settles a case like this is going to want to formalise of their insured and so that's heavily for three years the whole time and i g was aware of it the whole time and i just got reports from torch council as to this situation the meetings and the agreements that were  entertained and executed by the tort lawyers were referenced and by and i do was advised of them and i think the record shows that age is real concern was how much money was being spent and how much they're being charged by those lawyers not the nature and content of what they were doing but in terms of how long a i g knew before finally and i think may th team there was a final judgment and then august eiji finally got added those orders go back four years it was on notice of this well after the contract expired and for the entire life of the underlying litigation so if you're i was inclined to make inquiry about the waiver argument i think your original from the tort lawyers to a i g represented by the same counsel that represented it in when it made the parents and i understand that the court is hearing something slightly different now but the record is clear that there was a series of communications and we attached in the record showing that notice of the the various permutations of the agreement and the effects of it and the arbitration itself were provided it was not collusive agreement was agreement between tort lawyers to limit exposure and to exchange eleven dollars equity for another and as it turns out it was a very wise agreement because the ultimate arbitration award which was me this went before the trial court and they said can we do this will you approve this process and judge gayle's did was open it was obvious it was right there in front of everybody was happening and then it went to arbitration before a neutral who came up with a number that was significantly more than the high low  accounted for so it was a definite benefit bestowed upon the under goals and the rainforest defendants and that has been somewhat overlooked or downplayed but there was no settlement they just agreed to the parameters of a binding arbitration rather than a trial and once it was obvious that the rain forest was not going to get our bibles not going out on summary judgment and they're going to face a jury the injuries here are so catastrophic that that the decisions often to find some way to limit the exposure i hear the court saying that the the indication is to send it back and have judge gale sort this out i heard opposing counsel say he would not be opposed to that concept that would not be the worst thing for his client i agree that that in light of the g e power decision with regard to what you're going through that there need to be perhaps further to further issues develop and i would agree with the court that the matter should be resolved the one thing i will bring up to the court's attention which which i believe is in the briefing but was not discussed today is that while this was all happening and in the safe a district court of florida decision that a a bar to parallel proceedings in hong kong while the courts in florida which has subjected itself to its never asked to be removed from these proceedings other than parallel appeal on a related issue with regard to the rainforest defendants being dragged into hong kong courts and the judge  denying them colors right to intervene into that case so i don't know if the court wants to hold on this decision until the decision is made on that appeal between the same parties thank you judge wilson a few things st of all i certainly can understand why there might be some momentum in favor of simply vacating and remaining to allow the district court to sort out various things i no think that the most appropriate disposition here would simply be along the lines of a reversal and rendering of a judgment that arbitration needs to be had here really out there  which given the governing equitable stoppel principles that would apply here the mccullough's couldn't be subject to arbitration here regardless of whether there has been an assignment of it they are seeking much more than a direct benefit from the contract it's inconceivable in my mind that there will be any application of equitable stoffel under which they are not required to arbitrate here and given  to the litigation already has been given that this is a preliminary threshold procedural question of where this case will be resolved rather than what the merits determination is going to be it may sense to go ahead and require arbitration at this point in time nothing's going to change on remand in that respect and that leads me to my nd point judge anderson you had asked questions  about the parties dispute over whether a high g hong kong had knowledge of the confidential dispute resolution agreement and what we would view as effectively a settlement of this litigation without a i g question of coverage if i jiang kong is right about this point then then that the bond or gold and rain forest had no coverage under the policy because they failed to inform a i g hong kong about  nature of the dispute agreement and the the settlement here is that it does not address any questions of waiver by a i g hong kong i see i'm out of town time so unless the court has questions thank you