good morning your owners may please the court my name is mark rifkin on behalf of the point of appellant a five capital this appeal asks the court to decide whether a nonparty to a settlement agreement may invoke a form selection cause in that settlement agreement to compel the plaintiff one of the settling parties to sue the nonparty in a foreign jurisdiction where the nonparty refuses to consent to the foreign court's jurisdiction personal jurisdiction over it ok can't you get  american corporation that's the defendant here a nonparty to the settlement agreement is a indirectly own subsidiary twice removed from r b s p l c and we do not believe that there are sufficient facts is the first is the intermediate owner entirely owned by the well back of us yes however we do not believe that there are sufficient facts certainly none that are known to us that would allow us to avoid the effect of the separate corporate entity the existence of the separate corporate entity r b s securities r b s as i ordinarily a parent is not liable for the actions of its subsidiary we respect the separate corporate entity unless there are facts suggesting that the subsidiary is is merely an instrumentality of the of the parent and there is no facts that we know of here to would that would suggest that  to the contrary we think that everything that happened wrong that that have five complained about in this case was done by r b s as i after the shares were delivered to it and if i can there are a few facts that i think had been obscured by the briefing that i'd like to briefly touch on because it does impact the foreseeability of r b s as i as a as a party in the settlement agreement number one a paper share certificate was delivered age related entity called t m t company and the royal bank of scotland that paper certificate could well have been held as security in a bank vault somewhere it could have been held by r b s in its own bank vault or it could have been transferred to the depository trust company one of the original defendants in this case and held in a safe deposit box by depository trust company r b s securities r b s as i was not named in the settlement agreement although another third party ashurst r b s p r c s london council was specifically named and was charged with taking the idea of a transfer to a third routine banks also routinely ascend these certificates to be held by the trust program i think in the ordinary sense when the shares are electronic to begin with yes this is somewhat unusual so whether they're electronic i mean thirty years c was equally important so but this didn't happen thirty years ago and this did involve electronic shares that involved a paper share certificate that r b s could have held i think that it is possible that s might have transferred the paper share certificate to d t c and yes i don't think that that would be outside the possible range of foreseeability i agree that that's certainly possible i categor and i think the two are related if if there was no need for the share certificate to be transferred to anybody much less and indirectly twice removed subsidiary to in turn be convert it into  and delivered to yet another party i think we get so far down the chain of of foreseeability because of the requirement the necessity it's it's simply not necessary for r b s as to have been involved in the exchange at all and that's why r b s as i wasn't named in the settlement agreement which was entered into in two thousand and twelve although another third party was and this i think is very important the settlement agreement refers to r b s important to understand about the settlement agreement that the provision the choice of form provision had two clauses in it one of which required the parties to the settlement agreement to litigate a dispute in the courts of england the second clause in that same section the second part of that same section provided that the parties stipulated to the jurisdiction of the london court for purposes of adjudicating a dispute between r b s as i wants to as a non party to the settlement agreement and respectfully your honour's as a as a completely unforeseeable player in this entire transaction are b once to invoke as a sword the first part of that choice of form provision that the parties agreed to litigate any dispute arising out of the sentiment agreement in the courts of england but ignores the second part when we asked r b s as side to consent to the jurisdiction of the london court they said no when we raised that issue in response to the motion to dismiss under for non convenient ground they did not say oh yes we submit to the jurisdiction of the court for purposes of this dispute that is the conciliation on that issue we believe it was denied when the court entered judgment your honor and what the court said in the judgment is as follows in in entering the judgment the court said having considered the full record of this case and at the time the judgment was entered in july of two thousand and sixteen the motion for reconsideration had been fully briefed for eight months or so the court says when it entered judgment having considered the full record of the case including applicable principles of law and having issued a memorandum granting the motion to dismiss senator's judgment i think the only conclusion that we could draw is that the court either denied the motion for reconsideration or was unwilling to consider it but it it remained points in which you raised  the question of whether dismissals should be conditioned on this consent to suit isn't this motion for reconsideration is that correct i'm just making sure i understand the record well we we raised in in response to the motion to dismiss itself  our response was premised on the fact that the courts of england would not have personal jurisdiction over this american twice removed subsidiary it's a dental work or peroration its principal place of business is in connecticut and to the extent we know the courts of england would have no jurisdiction over it and so for that reason we said it's not an adequate and available form for the plaintiff to litigate you seek a condition of dismissal you know before the motion for reconsideration we did not your honor we did not specifically ask for a condition until the motion for reconsideration and i should point out that even in this court on appeal this court may impose  nine this is a second circuit decision from two thousand and five and the court noted that under twenty eight u s c twenty one of six it may modify any judgment of a district court and in that case the court  said that the final judgment dismissing would prejudice or to be postponed for a period of eighteen to twenty four months so that the plaintive could decide could pursue a claim in india and the court would know whether the indian court with exercised jurisdiction over it which is of course the question that we raised here if you reserve some rebuttal yes i will i will sit down thank you  please the court jeffrey babin for r b s securities inc a few things to to address the points that were raised by counsel one is that there is no requirement that under the magic case for example which is the most recent decision by this court on this issue that a form selection causes list every possible company that might provide services to the parent company in order for there for  there to be foreseeability that a claim against that company would come within the form selection clause it could not come as an unforeseen surprise to f five you're saying this is a dispute  that rises out of a release in some way to the agreement that's exactly correct your honor and that is all magic i says with respect to what the foreseeability whether or not it's a contractual party it's very clear that a range of participants contractual or not contractual benefit from the clause when the conduct that's alleged here is related to the contractual relationship i'd agree with that but match i was a little different because the vatican state was mentioned in connection with both the negotiations and in some other related documents and this is not r b s aside as i understand it was never mentioned that i think that that's the point yes  and i don't believe that that was required feature well it was about done it on talk about that yes i would have to have beaten feature but i think it's very important also to look at the complaint in this case to understand the context in which they're suing r b s s i and that is throughout all of their claims repeatedly refer to our b s and the obligations of r b s with respect to the seven argument and that all we have here is a company that is many companies do use a variety of operating subsidiaries to to provide services and would have no need to lock itself in this to exactly how it's going to carry out its agreements by listing every operating subsea or that might possibly touch upon the transaction and simply not necessary because they cannot plead around r b s and they didn't plead around r b s in the summer agreement everything they say that they're trying to get from r b s into the category of unjust because of this this is the reason or under martinez and philips once you've established you have a mandatory contractual arbitration clause that within the meaning of magically the claims and parties relate then there's a heavy burden shifting on the other side to show that it's unfair or unjust and what the cases have said as opposed to a traditional form nine where you balance many interests the phillips case for example and the martinez case and this derives from the u s supreme court's decision in bremen say if you've agreed contractually to go there whatever difficulties come with going to that form you've agreed to martina says you've waived the right to challenge the pre selected form is inconvenient and in this case particularly why do we have the fourth problem martinez they want in a county they think that they've gotten rid off in some ways shape or form right or wrong and they wanted accounting they are now told that if you succeed you've got to go to england but then you say that the english boards have no personal jurisdiction over us they don't get the accounting well they have a heavy burden according to the case law they actually didn't brief the personal jurisdiction issue they simply said there wouldn't be we don't know they didn't provide any english case law they didn't provide any affidavits of english lawyers to give us any satisfy their burden as to what would happen if the you could obviate that i not contesting it on the other hand you're connecticut cooperation and you may not find it convenient yourselves to go to accounting and the other and the other forms of relief that are thought here as search certainly your honor because if that's true then i guess that's your argument about why it's not unjust and it is not unjust because and if we look at paragraph twenty of the new point that nobody yes yes and i think what's important is again is the way they plead the complaint is that they themselves can plead the complaint that they can get full relief from r b s they went to r b s for assurances regarding an accounting that's in their complaint they went to r b s not r b s aside to say reinvest the dividends on the clowder all that's being held they went to r b s and they said that r b s did not have the authority to convert a five stock certificates to electronic form and most important your owns what they're seeking r b s and they wouldn't with respect interest any diffidence it's r b s that owes those and they went to r b s to get assurances that that money would be turned over so this as the district court found there's no reason to have come to connecticut there's no reason not to have named r b s they are they have been burnt bringing numerous lawsuits of five in this in this court in the district and i can not just against us but everyone involved in these transactions the court  and there's a concern about it defend our subsidiaries which can be in many parts of the world then having to concede to jurisdiction and it i think it's very important there is no second circuit case under forum selection clause whether it's martinez madge i the new moon case or phillips that imposes the kind of conditions that we see in traditional form of cases where you are weighing private interests they raise in terms of imposing conditions which is something they only asked for the first time and reconsideration so wasn't even before properly before the district court this request our traditional form nine cases where it makes sense because it's discretionary not something they agreed to go they agreed to go and get this relief contractually from r b s and not to try and buy passes in order to bring a suit and i think one of the cases they cite is very instructive they cite in their reply brief in two thousand and fifteen southern district new york decision called b m r and associates there the district court dismissed under form selection didn't mention any conditions and then said if i'm wrong the district court said i'm wrong i'm also as an alternative holding going to dismiss traditional form not unbalancing of interests and for that i will impose conditions that they waive jurist waive statutes limitations and that is why it was a holding in that case we don't see that in the form selection clause cases they cite fifth and ninth circuit case in a footnote in their opening brief also about these conditions again those were traditional form nine cases they agreed to go to england they can get full relief they can get the accounting their own complaint says that they can go at r b s and get that allows us on appeal to in essence force you to give up whatever defense based on personal jurisdiction might have yes that well i haven't read the case that wasn't specifically cited i their brief but if that is a case that again is a traditional form one convenience case then it would fall within within the what i just said is the law of the circuit even if not the second circuit has never said as far as i'm concerned as far as i know and they haven't cited any case that imposing these kinds of conditions is always a requirement they say the fifty ninth circuit have said that again those weren't even form selection clause cases and so there could be flexibility in these cases so they can't simply form selection causes it's a much broader standard inform selection and therefore my of their brief is about alter ego and third party beneficiaries the magic case doesn't depend on any of those considerations is obvious because it's been discussed and addressed and everyone knows that the nonparty is going to play a role it's a different case but i would urge the court to look at the clause the form selection cause in the contract the settlement agreement and again i want to remind the court that it has two parts to it the first part says the parties using that word the parties agree that the courts of england shall have exclusive jurisdiction to hear and decide any action or proceeding and then  second it says and for these purposes each party irrevocably submit to the jurisdiction of the courts of england in response just to take off on what mr bevan said what is the source of the shares were returned to five in october of two thousand and and fifteen and there too we filed the complaint so that that issue is no longer part of the case and for that reason we dismissed d t c as a defendant because that's all they they were just simply the holder of the shares in electronic form and once we got the shares back that was no longer an issue nor was r b s p l c the bank player the source of the duty now r that's the accounting that we seek r b s p l c the bank had nothing to do with that nothing to do with that it didn't emanate from the from the security interest it didn't emanate from the settlement it had nothing to do with the return of the shares it was purely what r b s as i did with the shares here in the united states while they were in their possession after they converted them into  and all they had to say was we didn't do anything with oceans if that was the case there was a history back and forth between the parties before this complaint was filed it's how we found out some of these facts and just like they could have obviated the argument about jurisdiction with a simple agreement to submit to the jurisdiction of the courts of england as the parties did in the settlement agreement they wanted to have that argument both ways here they have not denied that they did something with th shares that r b s as i did something with those shares while those shares were in its possession not r b s p r c s possession the possession issue is now over it's what was done with those shares for the intervening three or four years that is now of concern to f i thank you your honors i appreciate your thank you thank you both we will reserve decision