this is appeal from the district court's order that one compelled appellants to arbitrate the scope of a settlement agreement where no expressed agreement to arbitrate exists in that settlement agreement judge the merits of the declaratory judgment complaint and settlement and the a motion to compel arbitration and just mr declaratory judgment complaint based on a premature interpretation and erroneous conclusion that the settlement agreement did not release all claims against the appellants appellants dec action was filed after the defendant knew a desktop filed an arbitration demand against them seeking damages for work that was done for the new york state thruway authority these are called the nist obligations and the nist obligations are set out in  this appeal is resolved by injury two questions one can the district court compel arbitration of a dispute over the party settlement agreement absent an express agreement in the settlement agreement to arbitrate and two can district just record judge the merits of the dec action and interpret the settle mary settlement agreements go when deciding a motion to compel arbitration and the answer to both questions is no but that is what the court did anyways it dismissed the dec action found that the settlement agreement scope did not include the nist obligations and or the parties to arbitration under the purchase agreements arbitration clause this was clear air remember the set of seven agree was executed after litigation then there's a nd so release in this case right below that in this release releases any other claims arising out of or relating to an express or implied contract this nd release can and should be read as broad as possible at this stage at this stage of the litigation which is on a motion to compel arbitration and a motion to dismiss at this stage of the litigation the settlement is brought in the light most favorable to accounts and we have presented several reasons why the nd release appellants is a standalone release and can and should be interpreted much broader than the narrower lawsuit claims release above it for example the nd release says this  isn't this a marriage issue i mean he criticized the district court for addressing the merits but in the idea that you're making to us now essentially this is the same thing he just was to come out he wanted to just record to come up the other way or does it really hands on the fact that it was too early on a motion to dismiss that that the district court did this because it seems to me the court has to quote unquote get to the merits in order to decide whether or not to dismiss the action and compel arbitration or might misunderstand settlement agreement self especially when we've pointed out the fact that there are at least two interpretations if not named big ambiguity in the contract that would preclude investor it preclude making findings of fact or   releases all claims arising out of a related to any written contract ok the purchase agreement was a written contract our position i don't want to release is the claims arising out of the contract it doesn't say the contract and cease to exist when you have a settlement and so isn't this really a merits defense that actually they are turmel actually decided at this point in time your honor a release can release can invalidate that arbitration agreement in the purchase agreement if this release is interpreted in a favorable light to a palace which it must then the questioning the validity to the question becomes the validity of that arbitration agreement in the purchase agreement at this point in time we've raised efficient factual disputes that the scope of the settlement agreement would include the nist obligations this settlement agreement is a standalone release they could have it could have  negotiated an arbitration clause in the settlement agreement they didn't so the question is does this item agreement have an agreement to arbitrate it does not you can't judge the validity of the settlement agreement claim and then cite say well we're to we're going to arbitrate that into the purchase agreement the question is does the settlement agreement have an arbitration claim it does not it does not have an arbitration clause and a settlement agreement can abrogate a prior agreement to arbitrate if the just claims are part of the scope of the settlement agreement then the validity of that arbitration clause in the purchase agreement is invalidated so the question of arbiter billet remains with the district court we've raised efficient discrete disputes and factual  determinations they can it should be decided by the district court because of the fact that there's two different settlement agreements so the point is that they could have created an arbitration clause for the some agreement and when the settlement agreement scope was in dispute we'd be arbitrating that but they did what the judge does he went through the seven groups that it doesn't apply to the purchase agreement that is where the error was the judge cannot  make that determination that the sudden agreement has no merits to our claim and then send it to a arbitration under a wholly separate agreement under the perch under the purchase agreement the the arbiter ability question remains with the district court because we've called into question the validity of that arbitration agreement and i see that my time is almost up i'd like to reserve two minutes for rebuttal thank you thank you very much strained wom question the validity of the arbitration agreement their complaint in this case the dec action doesn't seek a declaration that the arbitration agreement is void or that the purchase agreement was alter their prayer for relief in their complaint seeks a declaration that they should prevail on the merits on an affirmative defense in the arbitration in other words they're asking this court to parse out an affirmative defen and have that rule for defense of those the merits of the arbitration have that ruled on in court is as difficult as that something that the arbitrator is going to decide in fact she has said she will take it up and judge battalion in his decision said it was for the arbitrator to decide he wasn't deciding the merits of that defense ultimately this appeal comes down to the answer the same two questions the parties put before the district court was there an express agreement to arbitrate there's no dispute here that there was in their complaint and paragraph six below they specifically alleged they agreed to the two thousand nine hundred dollars disagreement the record contains and authentic physically with regard to the guarantee obligation these plaintiffs had under the purchase agreement if they fail to pay then the best that was free to initiate an arbitration there's also no dispute over the guarantee allegations that should be arbitrated and their own complaint is met that the underlying arbitration here arbitrated dispute involves failure to perform certain and damned occasion guaranteed obligations avoided by this later dispute involving completely different parties or almost completely different parties sixteen different folks who were involved in the purchase agreement to resolve the employment dispute  so you have to answer those st two questions yes particularly given that the standard here under the supreme court and a circuit law is that arbitration is to be compelled unless it can be said with positive assurance that there is no art interpretation of the arbitration clause that would encompass the disputed this isn't a typical motion to dismiss we have to draw all inferences and be over the complaint and they continue to say in the express scripts decision the court actually specifically said that when you are dealing with a motion to compel arbitration that's not the standard standard is what supreme court has said under the federal arbitration act which is can it be said with positive insurance that there's no interpretation the argument for arbiter billeted was pulling groundless that the court still would have to leave that to the arbitrator to decide and that is particularly true in a case like this where the parties agreed in the purchase agreement that arbiter billet itself was to be decided by the arbitrator and the parties did that by incorporating the aaa commercial rules rule seven of which specifically places with the arbitrator decisions with regard to this case is a narrow one it was humble it said there was an arbitration agreement the underlying dispute in the arbitration clearly involved the subject matter of that clause and moreover the parties agreed to submit arbiter ability to the arbitrator and therefore it is for the arbitrator to make the decision with regard to this release defense and it's interesting that brief the page one of the replies with the very st heading is the issue of arbiter ability in the construction of this release are inextricably intertwined that's their own heading and maybe it is but the real point is that deciding that defense of release goes to the merits of the underlying merits of the arbitration it's an affirmative defense and just like this court held in the st paul case that we cited in the brigade's when a defense goes to the merits it's appropriate for the arbitrator to decide i want to i don't think the court needs to get into construing this release because that really is for the arbitrator to do but i want to respond to the notion that there's two releases here an argument that  in four paragraphs the st one is these various parties the two parties and the west parties none of whom are part of the purse agreement agree or get some of the individuals are but there's sixteen of them say that they will release essentially desta and other parties related to attest it were defined as the g four s parties from any claims arising out of or in connection with any of the claims in the of the in the of the claims or the subject matter of the lawsuits in other words it's a bulletin limited to the subject matter of the lawsuit the nd paragraph is a jew for us parties providing that exact parallel release  so that is the mutual release those two paragraphs there are then two following paragraphs both of which begin this mutual release using the singular pronoun this this mutual release  the st one of those paragraphs is the one referred to my colleague and it says this mutual release covers just covers and discharges with out limitation of the foregoing general terms in other words it is his decision because really what he has is a three or four page discussion and then at the last two pages he said turning now to the motion to compel here's my ruling so so was it that was that your i don't think so because they spent most of their briefing to him asking that he do that just as they did frankly to this court and so what he was doing is he was responding to their argument but it most it's dicta and it's not going to be binding on the arbitrator so it can't really be a material error because the holding was very is very clear he says to the extent there's a release to feds here it's for the arbitrator to decide it would have an error if he had purported to say the arbitrator can't decide  or but they'll argue the other side you know there were two transactions here there was a very large sixty six million dollars purchase and sale of an agreement on one set of parties and then years later there was a resolution of restrictive covenant trade secret litigation a moment different set of only somewhat overlapping parties parties have multiple agreements all the time integrated agreements for themselves and they don't voi prior agreement unless they explicitly say sell in every case that they've cited with regard to the potential settlement agreement voiding a prior agreement it was explicit just as judge erickson pointed out in his questioning that the prior agreements were are yes i mean the whole premise of their argument is that the settlement agreement doesn't apply and what that our position your orders by the settlement agreements arbitration provisions in the purchase agreement is no longer the arbitrator not the court however followed did not address the threshold question we confront now whether the arbitration agreement itself is valid also it is without question that an arbitrator derives his or her powers from the parties agreement to forgo the legal process and submit their disputes to privatise resolution it follows that where a party mischler consents to arbitrate certain types of claims but later enters into a settlement agreement that releases claims that had been subject to the initial consent to arbitrate the claims that have been released by such settlement are no longer subject to arbitration that is the question we are asking you to cite now we're talking about how to interpret this so it would remove it and what that could mean what we were arguing about in our briefs what we argued now is that when you look at that in a favorable light it means that there are questions of interpretation and fact that need to be decided by the fact finder what is the scope of that settlement agreement ok it goes to the arbiter ability question we were presenting to the court that there were questions to consider that you cannot presume that the settlement agreement did not release those obligations as counsel is arguing you just as it doesn't apply go to under the arbitration agreement  agreement that's not how it works the settlement agreement is a stand alone agreement the court has an obligation to look at that stand alone agreement the settlement payment and see is there agreement to arbitrate no there isn't they had every opportunity to put an arbitration provision into some agreement i see em all the time they didn't do it if they want to fight about the scope of that seven agreement like we do that it has to be at the district court because that is there is no agreement to arbitrate the scope of the settlement agreement i see my time is