good morning your honor sir i please the court my name is john dillingham and i represent daniel ten i think and michael b l who are the appellant to this action a threshold question a political to any contractual dispute is the advantage of the contracting parties remedies and relief in a breach of contract action can only be afforded for and against the parties to a contract and that principle is no less compelling when the disputed issue is what arbitration of the dispute these people have no complaint is that correct not completely there are certain aspects of their damage claim that are totally independent of the lost profits claim that the corporation without one aspect isn't certain aspects of undisputed that the bill brothers were not individual signatories to the one nine hundred ninety seven master construction agreement with cox and therefore that they did not agree to arbitrate their claims of promissory estoppel fraud or negligent misrepresentation corporation was a crook a contract whereby bill brothers was acting as a subcontractor to various installations for cox to provide cable services eventually telephone services to residential customers and the of the cost would get work orders to class which as you work orders for the corporation that would require the corporation to install various services of various residential sites yes and so the the the representations that you're talking about are they not representations that they would give more work orders not precisely and i think that's a good question because i think that is a that is an important aspect for this court to consider the master construction agreement was entered into in august of one thousand nine hundred seven it was signed by dan deal as vice president of corporation the representations which form the basis of this particular claim of these individuals arose out of representation extra contractual position that they were extra contractual yes that's the issue yes and i think this this is very similar to the interject be green a case which was decided by the first circuit where there were there were extra contractual representation is made in or jan which was a non third no guarantee of any particular amount of work if so well how how can you get around that  think there's two aspects to that first is the timing of the master construction agreement and the provision that you're referring to was entered into in one thousand nine hundred seven as a matter of fact what happens is when when these construction agreements are entered into these sub contractors are given a certain designated geographical area within which they are going to do their scope of work and with in which they're going to get their workers what happened four years later was the because representatives went to the individual brothers and this is a closely held corporation and set if you guys invest your personal resources and and get this additional equipment we will give you all new territories and expand the area within which we will provide you work and they relied on those representations and those representations had nothing to do with the original contract those representations had to do with assurances by that if these brothers invested their own personal assets to expand things that they would then through their corporation be given an expansive territory and that's part of that's part of the issue that that that what it was before the equipment was leased by because it was leased by the corporation and guaranteed by the individual brothers based upon the representations that were made our economy is not used yes that concept is very common but the circumstances under which this occurred we're not suggesting this isn't a sort of a common scenario what we're simply suggesting is that as non signatory says the field brothers cannot be compelled to arbitrate their individual claims because there's no principle that would compel them to do so the first second third fifth and most recently this circuit in the comber decision have held there's a big difference between a circumstance where a signatory principles you have heard about a minute and a half left if you want to reserve some time i think i will reserve a time your honor just to answer any additional questions you may have after councils are you thank you very much  law claims of breach of contract promissory estoppel fraud etc that are all founded squarely founded on the terms of the master construction agreement between their corporation and cox and yet at the same time and made some the statements about paying us timely all those claims are squarely arise from the m c a the master construction agreement all the additional work and in the court properly used the term the square allegation in the complaint the amended complaint of this record is cox promised additional work orders if b b c obtained more equipment or manpower well that additional work the work orders is a defined term in the a all the work that cox has done has ever done and would do in the future is governed by that master construction agreement containing the arbitration clause so this promise and in the court they have claims that are under the contract but they necessarily must fail because the contract says there were no promises the other way to read the complaint is that a new and different agreement was made that that made for additional work but seems to me the critical issue is is that claim does that claim arise from the master construction agreement with that additional work was it related to the master construction agreement were these claims will they fall within the call of the arbitration agreement and whether asserted by the corporation or the individuals the question as you correctly point out is should the non signatories be bound as their corporation is bound to arbitrate those claims and applied to bind signatory to arbitrate its claims against a non signatory that is if the signatories sign an agreement that contains an arbitration clause and it is asserting claims against a non signatory that  direct benefits stoppel and there is a series of cases and out of all the circuit courts in this court recently so recognize this there in the application of that income or a decision that we submitted under twenty a color you had a participant in orissa plan who was doing the plan trustees and the brokerage smith barney and there were no claims that were founded on the agreement between the trustee and the brokerage that contained the arbitration clause and entirely unrelated to that agreement there was an investment remit had an arbitration clause that agreement was only between smith barney and the plan trustees comber was a participant suing under risk for essentially damages to the plan participants no claims found it on the contract here that you read this complaint the allegations are all tied to and founded upon the master construction agreement you failed to pay b c timely put it in financial straits causing us damages you promised to provide b b c with more work under the m c a you didn't do that by the non signatory plaintiffs here are founded on or based upon in one way or another that master construction agreement and on those facts direct benefits the stoppel squarely applies and the again i think the district court properly found one at a green tree prohibitive cost analysis applies only to federal claims federal statutory claims and that the and that the proper analysis of unconscionable is based on state law claims they may have i agree with the comments from the bench at the very outset these shareholders have no standing to assert those claims and when if this district court decision is upheld the next decision for the arbitrator again the corporation is shareholder plaintiffs claims are moved over to arbitration the next step and the next issue is do they have standing to bring them in our position is that they do not signatory to arbitrate under ackles topple grounds and that's the same scenario we have here the the comments that council made very briefly on the issue of for hit of expenses that arises from the u s supreme court in green tree where the u supreme court's concern is making sure that the forum the arbitration form is accessible and if it's not accessible then it will be the the agreement to arbitrate would be unconscionable such that it could not be enforced and that's what the record before the district court established in this case the record in the district court established that the bill brothers would have to pay eight thousand dollars an initial filing fees three thousand two hundred fifty dollars in initial case service fees and then be responsible to pay half of a three arbitrator panel for their time to arbitrate the dispute because this was a large commercial matter and those fees your honour's are prohibited and they deny access and as such it should be deemed to be unconscionable