issue today is whether and aris up plan participant who brings a claim on behalf of interests a plan is bound by the terms of an agreement which was executed by the trustees of the breast implant on the half of the original supplant the second undisputed fact is that the trustees executed the account agreements at issue with smith barney on behalf of the resupplying not as individuals the binding us frame court in one circuit precedent that in fact mr komer is obligated to bring it on behalf of the participants isn't that difficult and he cannot bring it on his own behalf that's clear from the massachusetts mutual versus russell united plan determine that it's in the plans interest to enter into a third party an agreement with a third party on behalf of the plan and that third party and govern disputes based on an based on arbitration now this being an investment question i take can sue them directly and i presume they have sued them directly and the trust the named sherry's can't yet arbitration as to the bad investment advice there that's what it is  in the court the supreme court's specifically stated that the f a a requires piecemeal resolution of litigation if two parties are bound by an arbitration agreement so the claim that exists as two parties who are not subject to the arbitration agreement would go for in court and could be stayed pending the resolution of the arbitration or could her go forward on a parallel track but the named fi do sherry's could cross complain if you will against solomon because of the bad advice they got because then to be sued and in that cross complaint you would at least be entitled arbitration between yourself and the name  record for the new jersey rather them finding something right here in among sort of i wish we had something in the ninth circuit and hopefully this will be exactly this is an issue of first impression this specific issue i mean there's plenty of ni where the forum where what form should this be heard on based on the parties that green now i guess our case and say that even if you go to arbitration that may not be the end of the well in this particular this is binding arbitration between us as to be smith barney and mike or a risk the trust is binding arbitration with the limited grounds for vacation or set forth in the federal arbitration act you know that interesting case we have that says between beneficiaries and the trust in and it's being started by mr comer no doubt as he is allowed to do under the statutes but it is a claim on behalf of the trusts and i'd like to reserve my remaining time for re distinction between the owner of the claim and who gets the benefit and land were first used to create that started in our brief and i would say that mr komer owns the claim here because he is a participant he's the one who's standing we all agree that any monetary relief would flow to the planet but there's a distinction between who gets the remedy and who owns quite a smith barney he really wanted this contract to go as far as they are saying here today what they found in contract law and agency law and smith barney has not pointed to a single recognized exception that applies to mr combs claim here today and i would say that if they had made it clear somewhere in the contract that mr kromer was an intended third party beneficiary if they had made it clear in the contract that they wanted to have a very broad scope for this arbitration provision we would have a difficult case today well then it seems to me to be arguing that waffle house and that you can't do it anyway point and if they sued now they cross claimed they would be bound by the arbitration agreement but you're saying that anybody that the name trust me is not bound by an attack right secretary of labor is not bound by provision specifically covers a wide range of parties related to smith barney it's just quote unquote it covers present or former officers directors or employees of smith barney now why doesn't the contract have a similar similarly expansive provision saying who's covered who's related to the client there are no parties related to the client set forth in this agreement who are covered by any provision if you look at other parts of this agreement you would say it's absurd to say it applies to mr komer the agreement requires the client to pay fees to smith barney now let's assume that the plans didn't pay the fees that they were required to under the contract with smith barney then have a claim against  fees i don't think so the contract also says that either party can terminate the agreement upon written notice to the other party well at mr commerce into written notice to smith barney saying i want to numerous provisions in this plan and excuse me in this contract they have nothing to do with mr komer why is it that this nearly draft year arbitration provision applies to him there's nothing within the text of that zero agreement that would give a reasonable person trust the trustees can't get out from under it they're stuck with it is the beneficiary doesn't like was done the beneficiary says the trustees which just happened here here the contract runs to i guess plan i think i hear you saying well what the deal with the plan and all these three guys were just making a case three were individually getting a deal with smith barney yet you do say smith gone and he still became inflamed you share the plan and you're suing him in that capacity correcting the slight disconnect the statute maybe causes but there it goes well your honor i mean address that briefly we are saying that the trustees are trustees of the plan and they are they did enter into that contract in their capacity as trustees of the plan however the statute is different than the common law under common law mr komer couldn't be suing a third party like smith barney what do you have to do is complain to you point the claim isn't being taken away from mr palmer carney's simply seeking to enforce its contractual right to arbitration that agreed with the mike or arrest the plan second mutual life versus russell us supreme court case that the claim must be brought on behalf of the plan it's equally clear from several nights cases there in our brief i want to run through here that it must be brought on behalf of the plan mr komer cannot