the district court found that the defendants had met their burden of showing proper removal based on diversity jurisdiction however the district court held first that the defendants were bound by an agreement that they had never signed into which they were not part of the two thousand and six subscription agreement by which moon mouth purchased shares in carlyle capital corp the district court further found that all right why don't we we'll we'll take a brief recess until the technology that's all thank you will restart the the district court nevertheless remanded on the grounds first that plaza and writing by the two defendants were bound by an agreement they had never signed the two thousand and six subscription agreement which moon mouth purchased shares in carlyle capital corp the district court also found that the that the count one claim in the complaint which claims that the defendants had breached releases that were can date contained in seven two thousand and nine transfer grievance was also covered by the foreign covenant in the subscription agree let's assume for a minute we agree with you that the district court took a misstep in respect to the subscription agreement how is that a veiling to you in light of the fact that two of the seven transfer agreements have the form selection clause well your honor of the two agreement well first of all the english transfer agreements only one of those has a delaware form covered and the other one does not so of the seven agreements one has a form of delaware form covenant however that that agreement is governed by english law and the the first of all the plaintiffs did not move for remained on the basis of that single transfer and we can affirm for any reason th is and whether a nonparty can be back by an agreement under english law and that agreement is governed not by delaware law and not by the standards of the delaware cases they have the cases and part cases this court it's position what happened to the well the defendants are not parties to in the not bound by that agreements and in order for them to be bound by it plaintiffs have to show special circumstances under delaware law heller  clear that you cannot by non parties to an agreement absent those special circumstances and the only one they cited in the only cases they cited relate to equitable stop now they're trying to distance themselves from that because they realize there is no equitable stoppel here but they cited equitable stoppel cases and the district court relied on equitable stoppel cases unfortunately it relied on a new york a supply new york equitable stoppel law not delaware equitable cases and even the carlisle cases that they cite but those cases dealt only with the question of when a non signatory that is closely related to a signatory can invoke not is whether it's bound by it but when it can invoke a form covenant defensively after it's been sued by a signatory to the form covenant so they have that close relationship test established in actual homes in those other cases has no application to the the have lee vs schafer cases and the dupont cases which deal with the question of when is a non signatory found by a form covenant that it didn't sign and for it to be back around it has to have acted in equitable it has to have done something that prevents it from saying i'm not bound by that agreement and delaware law is very clear the the hat the four have the eastman way gantz have lee capital group and the four arbitration clause agreements which we really only focused on as of monday when in all these cases they say the courts say that there are only three circumstances in delaware under which a nonparty is bound by a form covenant if the defendant has consistently maintained the right to enforce other provisions of the contract but is disavowing the form in that event it's bound by that's in a stoppel you can't take part of an agreement and not part secondly if it is received a direct benefit direct benefit under that contract then it is bound by that contract if it's received the benefit through a signatory then that is not a direct benefit it has to receive it directly that's what have lee eastman all these other cases whole the third circumstance is when and this is outlined in way gams then chancellor strine decision when the defendant is controlled by a signatory if the defendant is an instrument of a signatory to the agreement then that non signatory control party is bound by a foreign company those are the only three circumstances under the dupont line of cases and  the have the versa schafer one of cases under delaware law where a non signatory is said to be closely related to the contracts in quotes or or for to be forseeable that they would be back on by the contract the district court did not find any of those circumstances in this case and the hospital or case makes clear that under delaware law although it's an indiana in illinois decision it clear based on supreme court precedent there is no presumption that a non signatory is bound by a form covenant that's a question of state law state caught the state contract  is no presumption that you can bind in one part now the question as i said there are two issues one is where the defendant's bound by the subscription agreement and plan just fail to establish that the district court didn't find the right grounds for that it relied on case the lacrosse case which plaintiffs have now disavowed you'll notice it's not even cited the main precedent that the district court relied on is not cited in their brief but what about what about the other transfer agreements farm selection well they're they're all permissive other than that one english transfer agreement which doesn't bind the defendants they're not parties to that and there's no english law that explains that was cited to the court that explains why they would be bound under english law but if that's true you can argue that to the chance record but we can't get the case back into federal court and so we've lost our the right of removal based on diversity jurisdiction that's been stripped of us there's no remedy that's why this is a final order that the people of but it's you didn't lose it you gave it away in the green when it's provided as i recall the agreement it says you could litigate in either delaware state court or the southern district of new york or the u k so how can you argue that delaware state court is inappropriate for one dora gave it away there's no question that bun dora the signatory agreed and who signed on behalf of one door i don't recall specifically but presumably it's directors that's who would always sign a contract on behalf of nancy and the directors of  did it's either plaza or louis right and bought but they signed as directors they did not sign as parties to that agreement there's nothing they're not reciting to be parties and they didn't sign as pardons and delaware it's clear that if you don't sign as a party you're not bound by the agreement absent some other special circumstance and there there will be no if you have a problem even if we agree with you that there was no direct benefit in respect to the subscription agreement there was clearly a direct the plaza in respect to the transfer there that is that was not argued before the district court and i'm not sure exactly what that direct benefit would be it's not certainly not a direct benefit that they embraced that they sought that they bargain for that they negotiated for there's no record of one direct benefit and it's not clear what was the purpose of the transfer agreements that was so that bun dora could sell its partnership interest in carlyle partnerships right because right by our head of credit he had a cash flow issue right that's what's alleged however when we have money that we have to accept what's alleged at this site i set that you're i'm not saying it's fact  legalize it plaza go to direct benefit that's why plaza presumably signed the transfer agreement and needed the approval to do so there were there was no need for plaza plaza was the officer or the director signed it but there was no need for plaza to consent to it or to and they did and plaza didn't get the money when dora got the money for selling the agreement furthermore that's the delaware world we don't know what the english and in fact m b i says there is no way to find a nonstick story under any so there's no basis in this record to say that the this indirect benefit that maybe plaza got which is is a basis for binding plaza and writing under english law to this contract so that they were dead that i come back to what i said a minute ago which is that strikes me as a substantive issue of war that you may be absolutely correct on to make prevail upon and you can make that argument in the lower stick or your own why why when i find very difficult particularly there's a lot it's difficult about this case that was particularly difficult to me is is the sort of potential chicken and egg problem between the operation of english law which you've argued does not allow the delaware form selection claus why we shouldn't hold that the where to litigate question is answered by the language of the transfer agreement that says delaware and that leaves you free to argue that the what of english law substan law and and what law is applied to determine who spent your honesty first there were seven transfer agreements and they only one of them contains the clause you need one second would you add one they joined all of them together they didn't distinguish between any of them they didn't attach the transfer agreements this came up after the fact had they moved originally based on the transfer on the english transfer agreement and said that that decides this issue we would have briefed english law and they would have lost that because english law doesn't permit them to enforce that agreement so should we remained it to the district court to address in the district court to give a full hearing to that whole issue that wasn't properly litigated below your art at a minimum i think we would be entitled to that i think the record is devoid of any basis for there in forcing the remit but if you're going to rule against the defendants on that ground they certainly should have the right to reach that issue and litigated in the district court the second problem is this court has repeatedly held starting with the foster case that orders are final appeal orders and the reason they're final is because they throw the case out of the federal court system to the state court system so we really have no recourse if this case is back in state court yes we can on we should spend a minute on the jurisdictional issue that yes we should we under fourteen forty seven or we are and there this this case was not under fourteen forty seven it was not the call for this court's attention on monday the we got focused on the argument they're making which is did the district court have jurisdiction or lose jurisdiction which is i we think the hudson united bank and the says it retains jurisdiction to reconsider they're trying to argue that there's a little bit of space between those two cases in that hudson only applies to discretionary re man's under thirteen sixty seven but we missed the fact that twice this court in powers versus southland and car versus america versus american red cross addressed this issue and this court held that the fact that the district court has lost it jurisdiction because it mailed the remain an order does not affect this court's appellate jurisdiction under twelve ninety one with respect to the final appealable order that this cour maintains its jurisdiction until it disposes of the appeal or it's withdrawn that those are the controlling decisions on this issue and after the powers case and the carcase this court has issued three decisions deciding appeals of remains based on form covenants where it didn't address the issue because the issue of been decided by powers and car but where it by the parties but the court saw no need to address it in its of its opinion so plaintiffs argument depends on the assumption that this court three times reviewed non non review an order had no effect whatsoever on this court's appellate jurisdiction and frankly it had no effect on the district court's jurisdiction either had it wanted to reconsider so that's that's what we have to say on of the district court first it was cited below ross partners new york law case and it relied on that is as its principal forty now plaintiffs have walked away from that case instead though they cite the sinner case which is the third circuit district court case but it's pennsylvania law it's not delaware law it should not be considered by this court on the close relationship of the parties issue which is the actual  it did not find the basis for an a stoppel it didn't find the defendant did anything that gave rise to a style but let's assume let's assume that that we were bound by the form covenant for some purpose in the two thousand and six agree s then the question is does it apply to the two thousand and nine releases and it doesn't apply by its terms which require that it be with recess the dispute with respect to this it's written agreement and it doesn't apply under the the cases which require that a rot that the dispute under cow one arise under the the subscription agreement that all the district court said with it was related to that's not enough of a finding to support it and place us actually admit in footnote twenty at page thirty nine of their brief that the a rise under the subscription agreement standard is the correct standard but they don't they finance it they don't they don't answer wasn't really it wasn't the district court essentially saying signed by other parties cannot possibly arise from the moon mount subscription agreement has no relationship to it now there's another problem with the district court's decision which is it didn't want to get agreements and they released all present and future claims in any way based on any past matter which includes the two thousand and six an agreement so clearly they the  leave the subscription agreement uneffected out there for them to base a claim on and base jurisdiction and venue on it didn't it didn't exist any longer and the district court ignored the governing new applied energetics case faily there's another case and then there are some cases from other jurisdictions and one of them puts it very well when you release an agreement that agreement is history now the question i'm not arguing now that had we sued them under the with respect to the subscription agreement had moon mouth brought a suit that that would not be governed by that agreement but that's i'm not arguing i'm not saying that we would or wouldn't i'm saying that they could not enforce that released agreement when they're claiming that the agreement that releases them was breached and that's exactly what prime xscape the prime x ray says in prime x there were three agreements and the last agreements had a merger clause which was not a release but it has the effect of releasing the prior agreements as to that last agreement and the district court excuse me the new york court of appeals held that if you if there was a suit under the first agreements that was still governed by the the covenant in the first agreement but how can you let me ask you a question how can you say this is fiction agreement is no longer in effect is nonexistent when you are bringing claims or threatening to bring claims against the plaintiffs who are the way they managed the security superboy under that agreement the defendants here did not threaten to bring any claims the plane to the moon sound had its lawyers in the netherlands send a letter that told the statute of limitations as to any claims that moon mouth might have and then if in the last page of that letter it says this that's exactly what it was it was both legal boilerplate that had no legal effect well i remember the test under this court's to pop decision is that if it if in says it was amazing she said was intended to toll the statute of limitations the i mean the draft or most of most correct but it wasn't it wasn't invoking this the subscription agreement it was invoking dutch law it was not an attempt to consistently maintain the right to enforce other provisions of the contract there was no there's no evidence that the defendants consistently maintained that they had rights under the subscription agreement that they were going to enforce it doesn't pass in bar balland by the subscription agreement as well as the transfer agreements first as as judge hardiman noted whether they are bound by the subscription agreement or not is essentially irrelevant because they are certainly bound by the transfer agreement which has a mandatory delaware form selection clause which clearly governs count one of the complaints but let me stop you right there why why shouldn't we have the district court in ally's this it was raised in our opposition to their motion to dismiss and that in the lower court there remained a motion and the motion to dismiss work were brief simultaneously in overlapping fashion so mr cole wad said that they had no opportunity to reply that's untrue they did have a reply to the motion to dismiss and they addressed the transfer agreement argument in their reply brief to the motion to dismiss so it was briefed by both sides before the district court and the district court had the transfer agreements before it this record didn't reach the transfer agreement because it concluded rightly that the subscription agreements broad form selection clause encompassed both claims and applied to all parties and that's that certainly is true but even to the extent the court has questions about the non signatory issue or the complexities of the hadley doctrine or any any of the other cases the court has before it here and it was fully briefed below the transfer agreement which clearly has a mandatory delaware form selection clause that applies not only to the signatory dora but also to been doris affiliates and he look at the language of the mandatory delaware form selection clause in the transfer agreement it says that the parties irrevocably agree that any suit action proceeding or dispute by or against any party or any affiliate of any party which clearly encompasses clause a and mr right involved mr colada said that he didn't quite recall who had signed the transfer agreement it was mr wright and bought himself from mr wright who is the the whole owner or the complete direct beneficiary of all of these entities he is the signature ory of the been or a transfer agreement he is certainly within the definition of an affiliate and or without agreement also says apply english subset of law as i understand english substantive law can't be enforced encompass plaza and writing they had to to prove english law before the lower court or even before this court they have not until their reply brief here cited what is a single u s case saying what the court believes english  be there is no affidavit of foreign law there is no citing of english law cases there is no evidence here that english law precludes the binding of non signatory as this court has to apply delaware law because there is no evidence as to what english law is before it applying delaware law as you would also to the subscription agreement it's clear that even as non signatories they're bound but this provision says by its own terms that it is binding affiliate so this is not this clause is not the same as a subscription agreement or a selection whether english law blinds non signatory or not mr right and bob found himself when he signed and said both and or and its affiliates including him would agree with us to litigate exclusively in delaware is there any question that these are affiliates now hartmann pointed out the context in which the transfer agreement was executed was that mr wright personally as well as plaza needed to generate some liquid capital needed to sell some assets in order to pay off other debts in that context clearly the purpose of the agreement was to provide capital to provide the results of these sales to to mr right in bond to plaza so they need the definition under the terms of the agreement and they certainly also receive direct benefits they were contemplated third party beneficiaries and matter what test you were to apply under the transfer under the transfer rightly you really seem to have a problem that is under the subscription agreement do you not because of the absence of those facts i mean it strikes me that the subscription agreement argument that you made below and the district court accepted does great violence to the whole court reform it really requires the complete disregard of the court reform to the your honor that it's a fair concern but i think in this case it's not justified and that concern could have been raised as well and weigh gant and capano which are both cases decided by the by the delaware chancery court if this case this court were to look at those two cases and of course the delaware state court give great deference to the corporate form and consider that to be of great importance in those cases the court found that because this was a a small group of entities all controlled by an individual person or a couple of people they are sensually  they didn't use the alter ego language that's my problem i mean if the trial court made a finding of you know peers in the corporate veil that this is all one big shell game that white boss playing it cetera et cetera you know you wouldn't have the problem  you have to respect those who agree there were no findings along those laws were there were not but under delaware law findings of piercing the corporate veil are not necessary that the hadley test which was a repeatedly points to an claims that the district court improperly applied or failed to apply which is certainly not true the district court explicitly found that plaza was closely related to the agreement which is one of the ways under hadlee that a non signatory can be bound but there's a prism here you have to be  defendant you have to be sued there is no case saying that the closely related test requires that the non signatory have been sued it's true that the test is applied in two sets of circumstances it is applied both where a  signatory is in forcing against a non signatory and in the reverse where a non signatory is enforcing against a signatory in both cases delaware courts talk about a close relationship to the agreement or to the parties but there is no case saying that a non signatory must have first been sued plaza says that the but that's not a holding articulated anywhere in the cases and it doesn't make sense and frankly there are cases in which non signatories have often civilly enforced namely the end i g cases cited by the delaware supreme court in which the same group of plaintiffs similarly sued often civilly to enforce a form selection clause and the delaware supreme court versus lockwood case are both cases in which the close relationship of the parties was found to be the basis on which it was foreseeable that a nonparty would be found and that's where we get back to this question of whether you need to for example pierce the corporate veil if the parties have such a relationship but the facts are as alleged or as presented to the court clear that these parties are so intertwined with one another that at the time of signing the agreement they would foresee that each of them or that that others besides a signatory would be bound that is sufficient and that's what delaware law has held there's no to the contrary that i'm aware of you don't need to pierce the corporate veil you don't need to formally plead alter ego you need to demonstrate that it's foreseeable that the non signatory would be bound by the nature of their relationship to a signatory and here we're talking about mr right and several entities all of which are wholly under his control all of which are different elements of how he carries out his personal investments his business operations these are all just elements of the same whole piece which is him and his financial business it is entirely foreseeable under way again under campanile under the hugh gold seventh circuit case by the way at court that that mr right and by personally and that plaza which of course was the sole director of move the plaza which executed this is corruption agreement on behalf of men with plaza which had authority to control executing the subscription agreement on the half moon if unilaterally decided to to transfer approximately a third of moons holdings to another one of his holy control companies think underscores the fact that this is all within a small network of closely related companies it's all part of his domain of control so this is not an instance where we're talking about a major company like g e in some subsidiary that's you know three tiers down and apparent on the subsidiary are not you know directly involved on a day to day operational basis i don't recall that the district court went into this level the district court did not go into the level of detail it isn't that important here i'm not sure that it is the district court concluded that that it was clear that there was a sufficiently close relationship between plaza and the contract and that is the test under delaware log she concluded that that test have been satisfied the fact that she didn't make you know factual findings in sort of each step along the way i think is is not relevant in any event this court certainly can affirm that that finding based on its understanding of the things that actually were in the record before were that yes they were your honor yes  if i could just move along to the second of the issues related to the subscription agreement and its application here mr cola argued here today that the subscription agreement had been released by the two thousand and nine releases i'd like to draw your to your honor's attention to their brief in fact their two briefs in which they make quite clear that that's not actually the argument they're making the argument they're making is a judicial a stoppel argument they are not arguing that in fact as a matter of contract interpretation or anything else that these subscription agreement has been released although oddly he said that today their argument is that our allegations are inconsistent and therefore give rise to an a stoppel that prevents us from asserting claims or or enforcing this provision agreement that is wholly untrue now the reason why plaza has taken that very carefully crafted approach is because plaza continues to have aza and mr involved continue to have other investments with carlyle today if they were to take the position that the two thousand and nine subscription agreement that you has in mind transfer agreement eliminated all of those contracts and render them nonexistent and on and forcible mr right and i would lose tens of millions of dollars of his his assets that are currently invested with carlyle he certainly doesn't want to do that so they are not you make clear he wasn't making that or yes so if you're full lawyer and i visit an issue of will the court need look no further than our complaint paragraph twenty two twenty six twenty eight ninety five in which we allege very explicitly that both a subscription agreement and the form selection clause were and remain valid and binding contracts so clearly the effect of the two thousand and nine releases is an issue that may be litigated on the merits in the proper court and the court is selected by the contractual form selection clause it is not the district court on not the district court's job on the remaining motion nor this court's job to delve into that merits issue of what the interrelationship between the contracts is that's an issue that is wholly bound up with the merits as the d c circuit said in the marketplace that would be putting the heart the cart before the horse it would be absurd for a district court or trial court hearing a preliminary threshold jurisdictional question to make conclusive determinations about whether a particular contract was valid had been terminated had been released was you know void as against public policy any of those types of arguments are precluded so that the argument about the effect of the two thousand and nine releases is is a legally few tile and it is also defeated by the fact that it's presented only as a point of a stop well where our obligations are plainly not inconsistent but rather are quite consistent if i could just turn to the jurisdictional question question very briefly before my time expires is your goal of ten more minutes to ten more minutes  of the collateral order doctrine and whether remained that's unreviewable can become reviewable all of that is beside the point but the issue that car could be but is not in fact illuminating on is whether this court could maintain a jurisdiction if the mailing rule were applied in the district court had ceded jurisdiction entirely to the state court upon nailing the notice of bream and that argument was made in the hudson case and this court and hudson said no if the mailing rule applies and the district court has lost jurisdiction by sending case in its entirety back to state court then of course we cannot have appellate jurisdiction we cannot take jurisdiction from the district court that itself does not than the fourteen forty seven he's no your honor the our case is more like the fourteen forty seven cases because as we explained in our brief and in this instance once a once a district court concludes that a form clause is valid and applies to the claims and to the parties it's a mandatory remain and you you must enforce that name must send the case back and give effect to the parties waiver of the right to seek a federal form and agreement to live a gate and in state court and so the mandatory nature of this remained and the fact that this is a remain and that involves a threshold straightforward legal question of whether the claims of the parties are covered or not whether the clause meets the presumptive validity test or not makes it much more like a fourteen forty seven case in which the court makes a threshold determination of whether diversity jurisdiction is present or whether there was a defect in removal and having made that decision that decision is final in the case goes back to use to state court and that this case should be treated in the same way but isn't there substantive difference in the cases involving the lack of subject matter jurisdiction in the first instance there the trial courts have no power to hear the case is wasn't that an important distinction you are certainly correct but in a form selection cause case the district court has subject matter jurisdiction it's not a case that the court cannot hear but as of this court has previously said and i i think this was in the foster case a form selection was remanded a case that never should have been in federal court is one where the parties agreed to be in state court and they agreed to stay there so unfortunately we've said a few things that are not entirely consistent well it happens to all of us so although although it's not a subject matter jurisdiction issue in the same way that that you would have in a lack of diversity case that fact that this is an instance where the case never should have been in federal court and should not stay there makes it more like a four hundred forty seven ring and whereas an a thirteen sixty seven c case of course the case could be in either place and it's an entirely a discretionary decision by the district court whether it wants to exercise supplemental jurisdiction that is inherently a different kind of decision and one where it makes sense to have appellate review unlike the sort of black or white yes we  not if we accepted your position are we running the risk of the stablish in a dangerous precedent by rendering a lot of cases unreviewable in this court that really should be review your honor it  could have the effect of of rendering many cases unreviewable i would suggest that the court to look to what i did only a few months ago and added steenie case and that case the last sort of paragraph of this discussion in the court's opinion said district courts would be well advised to pay attention to the mailing rule and instruct the clerk of the court to hold off on nailing the re man no it is if there was some reason why it was a close call the court might want to reconsider a court thought there might be and need for for you know giving some time for any further actions by the parties the same could easily be done here such that in an instance where the forum clause raised particularly nuanced or complicated questions a district court could instruct the clerk to hold off on mailing and and therefore make the case sceptical to review on appeal or by the district court itself if there are no further questions i respectfully suggest that the board off you have any other questions for this no i do all right thank you thank you mr rebottle mr cole thank just quickly with respect to the jurisdiction argument i think the point they're making is that had the the district court reconsidered the order and had it not had jurisdiction to reconsider it then our peal of the reconsideration order might not have been with this within this there was no reconsideration here we did not appeal reconsideration or we appeal the original order which foster makes clear is that a final appeal will appealable collateral or so now with respect to the weather we had a chance in front of the district court to address the effect of english law on the transfer agreements as the stylish made clear that was briefed in the motion to dismiss the district court was not briefed in the remain and motion the district court did not address the motion to dismiss there is no evidence in the remain order that it considered any of those arguments i think human nature will tell us that the district court probably did not plow through the motion to dismiss papers and then say i'm not going to get to this i think the court decided the reno and motion period and there's no reason to to taurus with what was in papers that the district court never evidence any consideration to the issue was joined though before the district court it just wasn't really the focal point it was an address or what it exactly it wasn't address but it could have been but but it wasn't and therefore there was no there's no record that supports any basis for the assad are but let's let's parse that a little bit because i think whether that issue ought to be remitted or decided by our court largely depends upon what might happen if we're reminded what what fact development or what we need to be said in the district court upon remained that we don't already know the english law would reference in the transfer agreement to affiliates as a matter of law included clause well again that depends on whether there's no question the affiliates did not sign the agreement so if english law does not make a non signatory libel on a contract it doesn't matter what the contract says it what matters is whether they're bound by the contract so the the question wait a minute wait what if the contract as  the contract is between when dora and carlyle partners partners and that agreement says this agreement also applies to our parent corporations which we recognize  none signatories is it your argument that english law somehow vitiate that plain language of the country if you wish law does not permit enforcement against a non signatory which is my understanding of english law then it would but there's a bit that's presupposes though there's not some contractual provision dealing with the liability of non signatories right well the you have to look at section sixteen which of the provision they deal with but  it is not it is not a consensus by the affiliates to jurisdiction in delaware that's not what that provision is so now i want why not it doesn't it doesn't read that  way now with respect to the author ego issue i think your honor hit upon something zack the right they are making alter ego noises but that was not the basis for their motion and there is no record to support and closely related to a signatory which is the actual homes case and they are two very different tasks that are applied in different contexts and the distinction makes perfect sense and the reason it makes sense is because both tests are based on a stop all and a stop all prevent somebody from taking a position and then taking a contrary or contradictory position so if you think about why someone might  bound by an agreement they didn't sign well if they receive direct benefits or if they seek to enforce that agreement then they're stuck with the agreement and they're bound by on the other hand if you look at why a  non party might be able to enforce the agreement well if a party to the agreement the signatory sues them and they're closely related to another signatory then the the party who violated the covenant by suing them is a stop from denying that they have standing so the distinction between these two tests makes perfect sense given to new your thought on that last point if the party contract isn't that the same as your flipside your honor i would agree that had plaza sued plaintiffs to recover move mou investments actual homes might well have applied to that situation but that's not what happened plaza and it doesn't even if it were true it doesn't go far enough it doesn't bring in the transfer agreements it doesn't was because of the agreement and that is the flip side of what he said but your honor i'm on this argument i did i focused on the count one claim i did i didn't deal with the count to play i dealt with the count one claim  is you threaten to sue us and we can enjoy that and if that does remand the ball so be it because there's no intention of suing them and we don't care what happens to that client it's the count one claim which is not because it deals with this entirely different set of agreements that have really nothing to do with the subscription agreement other than there are there plaza parties on one side and there are loud parties on the other side and that makes a what's happened thus far the liquidator can help the son and the court is extremely grateful to counsel for both sides in this case was expertly brief and your oral arguments were remarkably helpful in trying to help us untangle what's was a very difficult case will take the matter under