arising from or relating to rochester's contract with janssen is susceptible of interpretation that already sees in a trust claims or subject to arbitration how is it related it is related in that jansons published whack price what that means is that if janssen had tried to charge rochester more rochester could have pointed to the contract if rochester attempted to pay less chance honor that's true the claim in this case is that remicade janssen was a monopolist with over ninety percent market share and dominated the market their claim is for over which is the subject of the arbitration those drugs  should be arbitrated or not offer trade where they are so you're saying here that it should be i believe it should not be arbitrated i'm sorry that i believe it should be because i believe it still relates to the over charge claims that have been made here and it it is that course of conduct now how does it relate to explain pretend we were we were arguing in front of a jury and you were trying to explain to the jury how the charges are not read the key products relate to this agreement and you know just injury your adversary since he sustained sure  it relates to it in the sense that the allegation is that janssen was a monopolist all of their purchases of remicade were pursued with the disagreement there is a small percentage of claims that they say well even the biosimilars which they say have been disadvantaged by virtue of jansons conduct have some sort of overcharge in my experience that's not how these cases typically go but here  is still in the course of the ongoing relationship that you're basing that i thought on the business relationship i thought you were given was that because there's an emphasis on the price necessarily and that relates specifically to damages  that's a way that you can pull in cases like jail or x that it really comes down to damages and then the reference to price for that contract well i would agree that that is the most direct  relationship between be in our trust claims here and the contract however the contract does govern an overall lation ship that existed or that that would be true of every single contract wouldn't that devolve into a but for test not not really ironic because it still involves purchases these purchases were made pursuant to this contract we're not here arguing about an automobile accident that happened between an employee of rochester an employee of janssen these are all purchases that were made pursuant to this contra this contract now i would agree with you certainly that the question the price question is a fundamental question here so let's talk about the price question care has been in other circuits to the extent there has been reliance on on price or even up there it's it's been a specific price where you are this is a specific price it's the published whack price and as i said a moment ago that's in forcible contractual terms if we had kids and had tried to charge rochester more than the publish rochester would have said you can't do that we have an agreed upon price it's so let's talk about the pricing structure works and this agreement sure even has the language of the host acquisition cost and as i understand it that price will change during the course of the distribution relationship that you do use that sort of the shorting to say whatever the price is at the time of the distribution because even in the good will be you have a yes you're standing up when you have to adjust those prices right within just because black is a published price it's available  and frankly the whack price didn't goes down the record didn't change much during this period of time once the biosimilars came out but the question is there is a reference price the district court said was not a specific price i specific price it's a publish whack price it's contractual you forcible and they're over charge claim they're in i trust over charge a claim is that that price was inflated by virtue of the a and i competitive company and your damage price take into account the the other two drugs that we mentioned before inflict are in different places blow to the extent price was based on looking at competitive considerations and you'd be able believe biosimilars it would have taken it into into consideration your mom would have or did well it did to the extent that any any competitive entrant would look at one of my competitors pricing and it's not a form it's it's certainly not a formulae gives you it's the price and then the competitors price and your adversary would presumably try to explain why these prices are impacted by the rebates except for yes but by the by what they allege is is the and i competitive product and their theory  would say they still relate to the agreement it's a controversy that principally involves remicade and to the extent that these two that sales of the buy of similar i would say sufficiently relate to the dispute involving remicade that they would still fall within the scope of this agreement that because they are two types of products that would be competitive in the marketplace and therefore affect the price of renegade yes your honor too and those are the products that they allege are the direct competitors that have been adversely impacted by what my client allegedly has done with respect to remicade to the a scope is governed by federal law the party stipulated that scope could be decided should be decided under state law what about arthur andersen which tells us to incur to enter to deal with arbitration clauses in light of general principles of state law i don't century doesn't talk about on anderson even though it was decided after three i understand your honor and i would say that that is an issue when the when the court says the court mention in cardio net that you look to ordinary principles of of contract construction i would agree with that you look at the plain meaning and here the plain meaning of any any controversy or claim well leading to the underlying contract is a board phrase as multiple courts including this court have has recognized that's an issue that should be subject to as the supreme court has said any color ball reading any susceptible interpretation what new jersey has done because to think you're conceding that we interpret this arbitration agreement under state law not your honor i'm not i'm what century indemnity says and the two other case  circuit cases it's a it's a it's a matter of federal common law you can look to ordinary principles of contract construction but currency apply here new jersey has taken a guy burton path limited to i would imposed some additional requirement that would be for both if it were available only to have it i would say are are trying to invoke a clearly an unmistakeable standard would result in if there's any doubt then you would i don't think it sam big us i think it mandates arbitration here but to the extent there are any doubts about that under federal common law all those doubts should be resolved in favor of finding that state law which would govern the context for what we are reviewing what we had previously said and then what the supreme court has now told us as to state law governing in in st options the issue that you're dealing with is decided under federal common law but what is it about scope that includes in the trust that it relates to the underlying contract in the sense that their claim is that remicade was overcharged they paid more  price was higher than it should have been because of this alleged anti competitive conduct under this court's case law that is sufficient to satisfy a relation test which as this is it in any way connected is it is it does it touch upon it and i would say given the price issues here it certainly touches upon that consequence if we are to conclude that under  supreme new jersey supreme court has clearly has i would say clearly suggested that at a least garfinkel are all limited to the consumer employment context where i recognize the policy issues that come up here and those types of people i do think it's a slippery slope between scope and belittled me and i and frankly i would say i think the court sometimes have a problem drawing a clear line  the case of a sophisticated party that has conceded for purposes of this appeal that there was an agreement to arbitrate the only issue was scope and scope we looked under the substantive body of federal law developed distinguish in applying the i believe it is your honor but i would also note the distinction that in moon this court expressly noted that the parties had said that this is governed by state law and that took that took the court down the path of looking at the statutory claims here as a waiver issue where if you look at it under federal law supreme court has said it's not a waiver in our complaint that they breached any duty under the contract to charge what price we are not saying that they promise to charge whack which is not a price is not a contract with which i will return we are not saying you promised to charge whack and you didn't that is not the complaint we understand that but tell us how you would calculate your entire trust damages if you didn't draw upon the lack and we would draw upon electronic sales data which under the language just as for the purchase of this product we're going to use the wholesale acquisition cost and then there's language that says and when you get notice of the change of course you have an obligation in some period of time to to give notice of those to yourself so but how can you say this agreement doesn't give notice about the price of it it has no numbers in it that is separate it's not evidence of the actual price paid we're not going to prove impact or damages either individually or on a classified basis using this agreement w without this agreement we are not contesting that for purposes of this appeal that is a factual question the suggestion is that they would not sell without this kind of a contract that's not something we've contested and as a result if they would have sold to you you would have had injury therefore since you not because apart for has no particular connection to the complaint the complaint is not mentioned disagreement the complaint is not alleging a breach of this agreement they could they could have complied completely with the agreement and we still have our an interesting journey w the connection that they're positing is a bug for connection that this court in reading siding on ron said is not sufficient why because it has no stopping place and there's no logical nexus analysis connection to the complaint then they already they can give an example of a car accident right they say that if two contracting parties meet your room to sign a contract or an arbitration clause to leave the building and get into a car accident with each other they acknowledge in a contract or a specific list attached to the contract where the contract just makes reference to when they're buying incorporates a list gets published elsewhere isn't isn't that what we have here and what's really functionally the difference points are of which this agreement is not part of that or complaint is all about a wholly separate set of agreements and conduct the biosimilars reading his plan which they used to prevent competition this agreement merely is  he's favoring arbitration of a special a special force that does not apply here jael and also at least in terms of the opinion seem to stress that the contracts newer shipping contracts actually had numbers in prices in them that's not context matters will going to make that make a difference to put that aside let's assume we adopted your view it would refer to because commercial entities to be able to enter an agreement pursuant to the type you say is required by new jersey law rude they have to list every type of possible legal theory in order to protect themselves they have to list general subject matter areas yes employment for and i trust have to happen here is we have got to interpret and construe the contract to call for payment of defense costs cigna promise to pay one dollar rd of defense costs for product liability that addition at what was involved and they didn't pay wife sue cigna said that arises that's subject to or from selection as we go to england the district court sending it to england said yes we we are going to have to look at numerous issues central to the case that involve interpretation of degree me to take the this court affirmed on two grounds st it quoted the district court saying what i just said quoting the district court saying yes an order to figure this out we're going to have to go to the agreement containing the forms function cause i'm going to have to interpret it to figure out what's going on in this can open to the jury assuming this is there if you are going to a jury trial and describe who you are in room you know your client is relationship to the defendant are you going to have to look at the agreement no you're not going to that's a distributor we're going to desc as far as going to trial we've had dozens of these kinds of cases are going back twenty years i personally litigated many of them we cite many in our in our grief a motion to dismiss a motion for summary judgment not a single moment even mentions distributor are not part of these cases that it's not how them that's not how the plaintiff group impact it's not how they prove damages they're simply a part of this case and why if not only did this court cite the district court so i'm going to look at this agreement and figure out what true the logic isn't it true that you can only purchase because you were distributor yes it's not the only ones who are dangerous because the purchase price was higher than you thought it should be we were going your because of a separate set of conduct that is not part of this agreement but their conduct is what caused the pricing to were contracting that is the defendants were contracting with separate contracts with insurance providers to keep other products out that's how the buyers from a plan works you buy remicade from us but don't buy competing need to reach the prediction question right yes yes and but it's not preemptive and so it may be aware couple weeks ago that the new jersey supreme court granted cert and the decision from the new jersey supreme court on that point or do you think it's sufficiently clear currently in new jersey case law your honor i'm not up on that particular granting of cert my about lamp class lamp or says consent is key that underlying arbitration is making sure that the parties were being sent from attrition and being in this case being center over our objection i mean deprived of the go to go to court or consenting the clear no mistake of all standard is about ensuring consent that's what it's doing i do not see how you how a new jersey doctrine that is trying to ensure consent  law that even in the most recent supreme court case that they submitted says consent is essential i think those mesh together perfectly new jersey is actually furthering that goal so in that sense i don't think there's any any cringe in many conflicts if a guy just principles consent would not take us right back to why the clear and unmistakable will should not be applying to sophisticated parties who don't need specific statute  businesses with your business or not if you're being deprived of you're going to go to court and it's it's i don't it's not onerous to ask the people drafting these agreements to make it clear that you are forth a number of damages that are being given up by the parties including the types of damages one can get in antitrust cases like multipliers why isn't that enough notice to say look you can go to four point two one after that you've left scope behind and you moving on to procedural issues like deadlines and discovery and choice of law and other matters so scope is in one place and then when you get to the later part portions of one to one which you're alluding to it saying for claims that go to arbitration whatever subset of claims then you are triggers discretion to you otherwise might have a new jersey common law toward various types of damages is removed except required by statute so if you have a breach of contract plain and associated business towards which you might be able to get not parties but you don't get the benefit of jersey common law for this type again because you get statutory exceed and that's what it's telling you because you want wires in your client on new day except for as required by statute in new jersey statutes where like pre judgment interest it would be required that's all that's doing it's not opening up the scope the scope is limited very tightly to his claims relating to the agreement opposition is will here you are here so within the box of limited is a specific reference there there's a consistency to this agreement there's the requirement to comply with federal law there's nothing to suggest that statutory claims have anyway been read out of a boa every potential federal statute that could be a claim of controversy sophisticated parties understand any claim or controversy means any claim or controversy relating to or arising from  seems like a rather remarkable proposition that the contract could have an arbitration clause that sets forth the scope of arbitration and then later provisions that are addressing how those claims should be handled are going to be read back to expand the scope of arbitration you know i think the only thing you did if the only thing the phrase statutory damages makes clear is that within the context of arbitration statutory damages are permissible that it's statute and i would say your honor it would if it would apply in the op or tracing context because it provides that if there is a claim or controversy that arises or relates to the under the i don't think it defines what the scope is you just want us question about arthur andersen i would note that arthur andersen cites moses cohen would states the arbitration that as a matter of federal law any doubts concerning the scope of a tracing issues should be resolved in favor of pauper tracing again relating to federal what dictates scope and the issue of doubt is is what it is was problematic with applying a clear and unmistakable standard if you're saying it's clear unmistakable you're saying well doubts are then resolved against stalker tracing but that's contrary to federal law arbitrate the only issue here in scope and the supreme court has noted that to be in court should be watchful of efforts to try to use a validity of argument to really undermine what is truly a argument that the market and the purchases to mark in pfizer might take you outside of the scope of the offer tracy claims it can't under any circumstances take the remicade purchases out i would you do come to a question of what's the efficiency here and does it make sense out side too there's all those issues in two distinct forms so you're basically saying you can go ahead and take these matters out of arbitration of those you don't can you just can you can you can include renegade and i do think that given that all of this deals with conduct relating to remicade which they say have hurt the biosimilars you can make i think a very friend's ignorance i'm not i do think you don't need to reach that issue because i think you can take new jersey supreme court's admonition that these cases these line of cases garfinkel at least and even moon are dealing with a the employment context and you avoid what i think is a very strong preemption argument that trying to apply with her concepts involving clear and unmistakable waivers in the context of scope of arbitration provisions does run contrary to the f a a and federal law and is preempted but i don't think you need to go there because again in moon the party stipulated that it was state law which let the court to the entire discussion of garfunkel and adam lease dealing with waiver but here given the cases we've cited going back to moses cohen it's a scope it's a question of federal