reasons first plaintiffs lack standing to pursue the claims because those claims belong to the process that actually sold the life insurance policy to coventry and the trust the trust didn't exist any more did it at that is cracked the trust terminated in of the proceedings but in our view that in no way alters the appropriate standing analysis here be because because we believe that the principle that a trust act only through its trustee remains governing and the question then becomes whether there is any applicable exception to that principle that would allow the beneficiary to sue under these circumstances plaintiffs have identified no such exception they wait for the exceptions that apply in circumstances in which for instance there is present interference with trust property that is in the hands of the beneficiary they point to the restatement provision that applies where the office of trustees is vacant and  to cases involving the situation in which the trustee transfers some property to a third party in breach of trust that it but if the trust from a beneficiary of the trust in the trust no longer exists i mean i can't i can't sort the rights that or the harm that happened to the trust when it did exist no one would expect that if there were such a principle of trust law that it would be reflected either in the provisions our brief even if the trustee has the ability to bring suit after the terminations of the trust and i would know that that issue is a little bit uncertain as a matter of georgia why don't we have not identified any cases going in either direction that even assuming that the  had that ability for some period of time after the terminations of the trust the claims now would be higher only time part and as we know it the beneficiary does have if attentional remedy the beneficiary has the ability to pursue claims against the trustee pertains to the issue of prudential standing and again on that issue our submission is quite simple i think it's quite clear and really undisputed in this litigation that it is appropriate to look to georgia trusts law for purposes of determining who has the right to sue which is after all at the core at yet another further step of remove but we would respectfully submit that on this question of who can sue the analysis is effectively the same as to point us and with regard to the partnership we have the further argument about article three standing which depends on the simple proposition that the partnership is no longer in existence or at least to be more precise that the partnership as it existed at the relevant time is no longer in existence and for that reason the partnership lacks article three standing as well just to get all of our arguments on the table of course we also argue in the alternative that even if this court holds that the plaintiffs here have standing that the claims in this case should never the last be remitted to arbitration and that's for the simple reason that before you move on to that can you can you go back to an issue that's troubling me is why we even have jurisdiction over the order denying your motion to dismiss sure well why shouldn't that be reviewed in due course first of all this court on that issue we would respect lisa that that this court's decision the majestic stark as you know case which we cited in our briefs stands for the proposition that the court has the authority and indeed in our view also the obligation to consider standing i would respect submit that the only issue that is perhaps a little bit uncertain in the way we manage this would be it's mandatory that we exercised and that jurisdiction it would be that this court has an obligation to consider standing because in the words of question of standing but a question of prudential standing a question of third party stand i think the open question judge hardiman is whether this court would be obligated to consider standing first if the court agreed with us  t these claims should be submitted to arbitration i would note that in a majestic circus you know the court seemed to be operating on the assumption that it had the obligation to consider standing first but here unlike there one could make the argument that the question of whether or not these claims should be submitted to arbitration is a threshold question who accept that it is also a threshold question this court might have the authority to choose which of those two questions to answer i  party standing remember it was a question of whether or not the subsidiary had the ability to challenge the revocation of s corporation status i think the it was applying the principle of third party standing and that i think flows from the worth versus this revengeful some back that we required to examine potential standing here we think that you would be required to consider it at a minimum before affirming what the district or debt in other words what we think would be plainly improper would be for this court to say we're going to affirm what the district court said on arbiter ability and just assume the existence of jurisdiction at this stage we don't think that this court can do that really under the sort of foundation principle of cases such as steel company we think that what this court could do is if this court thinks that this dispute should be remitted to arbitration i think it is a least arguable under the principle of the sign it can case with wish i know that you're familiar didn't turn out to be an adult yeah you're in the end no good deed goes unpunished i suppose but the holding of the supreme court inside of him if you will be aware is that even with regard to certain non injury fictional threshold issues a court has the ability to consider those issues before jurisdictional questions in the words of the supreme court where you have a determination that the merits should be adjudicated elsewhere the court has the ability to make that determination before a jur dictional question and i think if we star ghibli the question of whether a claim should be decided in court or before an arbitrator with fall into that category i see that my time is relatively short and we're going to continue on here but  know is that a court simply has an obligation to do that regardless of the degree of relationship between the jurisdictional issue and the issues that gave rise to the iraqi tory appeal and that really is under the reasoning of cases  company that a court has no authority to act unless it is properly asserting jurisdiction if this court were to disagree with that principle i think it would first of all i think it would have to essentially overrule majestic star because you know which of course the panel has a very different role than what you have here so absent the proces stuffed into the shoes i think it well but the question in majestic star casino was whether there was a substantive question of whether or not the debtors q sub status was property of the bankruptcy estate that was the question that went up in a section one fifty eight appeal and the court despite the fact that the parties had not what a gated jurisdiction either before the lower courts were even before this court said we have an obligation to consider questions of standing there is a question of third party standing here and that question while wrapped up in the merits of this underlying very complicated question of whether it  bankruptcy estate is one that we have to consider at the threshold and so what the court it is that's once there's your stiction are you putting the cart before horse there is no question judge though that there is jurisdiction over the district court's order here the question then becomes whether this court has the ability to go beyond considering the question of arbitrary ability here and that's it really is a final order i'm i'm just still questioning whether the denial of the motion to dismiss that that's fine or i mean court has appellate jurisdiction to review that order and the question in our view is what does this court have the authority to consider and again i think if you take a look at the relevant reasoning of the majestic circus you know case and this is at pages seven forty seven to seven forty nine the court turns to the issue of standing first because it involves quote judicially self imposed limits on the exercise of federal jurisdiction and i think that's entirely consistent with the broader principle embodied in cases such a steel company which of course is the supreme court case that stands for the proposition that district courts can't simply assume the existence of jurisdiction when a district court notices a jurisdictional defect it has an obligation to consider and resolve that defect even when the parties don't do so themselves now of course this case doesn't implicate any of the complexities about whether or not for instance prudential sanding is not on is wave a ball or non wave a ball because the prudential standing objection has been preserved all along this case simply presents the question of whether or not this court has not only the authority but really the obligation to consider jurisdictional the fact and we've never spent a lot but let's go on to the the arbitration provision isn't it true that the what what is the status of the new york investigation that's going on i believe that the new york investigation is concluded and what did  investigatory body i don't recall whether there were specific findings that were made what i do recall is that coventry vigorously disputed the allegations that were made in the new york attorney general's plate and those are the allegations that are reflected in the complaint based on the complaint that's currently before us the arbitration i mean the complaint seems the claim that there were harms that were happen to the plaintiffs as a result of what happened your point agreement correct yes deletes all the references to the purchase agreement but our fundamental submission on the question of our better ability is that the purchase agreement is really essential to all of the claims because every single claim in this case is a claim that depends on the purchase agreement and the terms of the purchase agreement for the claim injury why were some of the claims preceding to that agreement in the portman agreement precede the purchase from the appointment agreement did precede the purchase agreement in this case that is to say mid atlantic is appointed as the agent for the trust mid atlantic subsequently enters and a commission was set in the appointment agreement the commission was certainly not set in the appointment agreement think it's important to realize that the appointment agreement is the appointment of mid atlantic as the agent of the trust to attempt to effectuate sale of the policy and mcgarry the broker who allegedly received the secret commission doesn't come onto the scene until much later in the proceedings and indeed the agreement fixing his commission actually post ates the purchase agreement in this case and what is that agreement that is the agreement that provides for his receiving are that the commission that the broker received was too high and that as a result of that fact the amount that the trust received here in the sale would say well the claim is that he got paid too much so they got too little yes that is correct and i think that the best evidence of the central idea of the purchase agreement judge embryo comes from the initial version of the complaint in this case which incorporated the purchase in cream and contained numerous allegations pertaining to the purchaser even now when we raise the objection that these claims were subject to the arbitration provision of the purchase agreement it was at that point perhaps not completely coincidentally that all the references to the purchase agreement were deleted from the amended complaint but that coventry was improperly colluding with brokers such as macquarie and rigging the bidding process on those claims entirely independent of the purchase agreement no i don't think that they are because again the claimed injury with regard to both the plaintiff here and with regard to the class members here and i'll turn to the issue of of the role of the class members presently is that the individuals who were allegedly harmed received too little as a result of this alleged misconduct and i would respectfully submit that that comfortably falls within the scope of what is even by the standards of arbitration provisions an exceptionally broad provision particularly when you take into account the presumption in favor of arbitration that is embodied in the so called touch matter standard namely the standard that disputes are arbitrated as long as they touch matters covered by the relevant arbitration provision and i would just note the language of the arbitration provision which requires arbitration of all disputes and controversies of every kind in nature between the parties arising out marti's that doesn't help you well between the parties doesn't hurt us judge him her and that's for the simple reason the mere fact that that language is included doesn't somehow abrogate the background principles of law and they determine the circumstances under which non signatories can be found so and i mean just as a general you and i have an agreement and we have an arbitration is between ufs how does that necessarily as a general matter mind heart of many greenaway as a general matter the easiest way to reach the conclusion that it i understood as part of an and greener way is that if tried to start admitting greenaway or seeking to stand in your shoes for purposes of asserting claims principle of law that is no different from the principle of law that where an individual is attempting to assert claims that are the claims of a trust that individual is seeking to stand in the shoes of the process you don't have to take my word for it there are allegations in the complaint where the plaintiffs say in so many words that that is precisely what they are attempting to do here but even if they had not said that i think if you take a look at each of the eight planes in this complaint and we walk through them at page forty of our brief in some detail you'll see that each of those claims claims an injury that is an injury to the trust in its capacity as the seller of the life insurance policy and that is all that is required we would respectfully submit to bind the plaintiffs in this case was great was the secret mcgarry agreement available at the time of the trust dissolution well the claim here is that there was a secret thought that was a yes or no well let me sort of you know i we can we can go forward was this was and i know they that's pejorative they call it the secret group was that agreement available at the time of the trust dissolution well to the extent that they claim that there was a producer agreement between coventry for and mr mcgarry they have not produced such an agreement and we are not aware of such an agreement all they have come forward with is the feast schedule between coventry first and gary and that is a document that would have been available to the trust if the trust had asked for it as the may declaration makes clear for the i was coming for the answer is yes it existed before well but the free skate on it existed before the schedule plainly existed before the claim in this case or at least the trust should have known it was on some kind of inquiry notice but why in the world would the trust be tried with such inquiry notice with the trust to presume that there were some sort of sub rosa double dealing here between coventry and me gary that seems rather implausible is simply that the trust could very well have had an obligation to confirm the amount of the commission and if it had asked it would have obtained this fee schedule and again our submission with regard to the producer agreement is simply that this record does not contain a copy of a producer agreement between commentary first and the broker here all that is reproduced in the record is a copy of an allegedly representative producer agreement involving coventry but again our principal submission here with regard to our bitter ability is simply first that the disputes your comfortably fall within the scope of the very broad language of the arbitration provision and second that under the principle that a non signatory who seeks to stand in the shoes of  trust well i think it is precisely because what the beneficiaries attempting to do in this relates back to the first part of the argument this morning is to assert the claims of the trust of what the beneficiary is attempting to do based on its amended complaint is deal with what it alleges to be a fraud pursuant to the appointment agreement and the also the also the agreement between coventry and gary that preexisted the purchaser i just want to be very clear about what this appointment agreement is because i think it's understandably a little bit confusing the appointment agreement was the hook that the district court used to conclude erroneous lee in our view that mr griswold had standing in his individual  and that is the agreement they did nothing more a judge ambrose then appoint mid atlantic as the agent of the trust to shop the policy around that was an agreement that was entered into well before the actual sale was completed now the point that if you just come is there any extension that you know of of the principal of merrill lynch was that with bankruptcy to binding a beneficiary of a trust i mean you're saying he has or alter ego but what supports that what cases support that i don't think that this court has had a case and i'm not aware of a case standing here that specifically involves a trust beneficiary but what i would  somehow if it does how does a non signatory who doesn't claim to benefit from the purchase agreement now have to arbitra claims that you claim somehow are arising under the purchase agreement well the even if sue ming that you thought that there were some way around the stand in the shoes principle of finding a non signatory here we would still be left with our arguments about equitable stop all and i would respectfully submit that this is a context in which at a minimum the plaintiffs reaped the benefits of the agreement in question because after all they were indirectly by virtue of their status as the beneficiary and a partner in the beneficiary recipients of the revenues from the sale of the policy and so under the principle articulated by this case by this court in the investor case and again it's a principle that i think is widely accepted the plaintiffs in this case having benefited from the agreements take the bitter with the sweet in here should be bound by the arbitration provision or you could say they read the documents of the secret of your dream well but that is just another way of saying judge hardman i think that their injury flows from the transaction that was governed by the purchaser and i thought in vista had priest skeptical of months ago authorities compelling other non signatories to participate in arbitration we cite court in that case went on to say well there's something a little bit unusual about this case in the it is a non signatory non signatory case but the court proceeded of course not to consider whether that would be appropriate because the court went on to say that the appeal was moot now we side a number of cases in our brief no cases from this court in that involve precisely that situation and we're non signatory on non signatory now i would note with regard to the defendant's side of this because i think that that is important to keep in mind that we have one defendant here who plainly was a signatory coventry first and so at a minimum if the court felt uncomfortable about reinventing the entirety of this dispute to arbitration for that reason it could order the dispute against having prefers to be sent arbitration and the district court in its discretion could say the claims against the other defendants but with regard to the defendant's side i think our submission is actually equally straightforward here the plaintiffs allege that the defendants were acting as alter egos of coventry first and the relevant allegations in the complaint with regard to the other defendants are relatively spare but they are contained in paragraphs forty four to forty seven of the united complaint and under those circumstances i think it's quite clear and plain just really don't dispute second even is suing that this court work to permit plaintiffs to engage in precisely the sort of our pool cleaning the courts have consistently held is impermissible when you're talking about the application of an arbitration provision what we're left with here are claims that nevertheless depend on the purchase agreement both for their existence and for the claimed damages and so even if there are not references to the purchase agreement in the relevant claims here i quite clear that each of those claims asserts an injury that is based on the sale of the policy by the trust for an improperly low price and for that reason we think that that principle is triggered here i want to say just one word on the issue of colleague certainly didn't misstate but i think since i could say a little more clearly the producer agreement which predates the agreement which predates the purchase contract so that the commission it was paid for the sample but it didn't set  the what we would call the kickback which of course could be said until after the sale so there's according to allegations the complaint there's a commission that was paid under the standard agreement there's another point was made under the secret agreement allegations about how to practice the industry but the plaintiffs you know you have a copy of the green because we've had no discovery and because it's a secret agreement of course proving secret is we have never seen it and so the record doesn't have any reason to suggest the trustee has seen it either the allegations are that it was secret and we have not yet seen it today so turning to the right i don't know if it's secret or not i mean you haven't seen it but let me work backwards if i m controversies of every kind in nature between the parties we talked about that earlier arising out of or in connection with this purchase agreement is including without limitation a host of things must be arbitrat why isn't what was alleged here maybe it doesn't arise out of the purchase agreement but boy isn't in connection with the purchase i guess i guess what i would say in that generally is  states that in effect that because of this secret agreement close quote you got too little from what you otherwise should have gotten and that relates or is in connection with attempting to stand in the shoes of the us ok i think i can respond to that in three ways the first one is you're stating the complete more the way that he would like to say than the way it's actually a the second complaint is different but you've now got but the second could go i would say you know what that really relates back to the purchase agreement but what would be his argument the argument would be it relates back and we know because the first complaint rescinded what we suggest is that the they corrupted mcgarry indic the core of the allegations are that their corruption of mcgary and their corruption of the market for people like macquarie is actionable under federal law the complaint that we presented you'll see something different to what he artfully described as a as a complaint that would have been easier to dismiss your is actually your specially making broad claims are you know yes we think that they have and they would be proved through for what through testimony that the purchase agreement and other disk related disclosures did not disclose what should have been disclosed well i think the thief i think that the conspiracy is to corrupt the would prove that they have a pattern of setting up these relationships the brokers setting up these agreements a purpose that they arranged not to have disclosed to people or selling policies so that the people who sell policies w a marketplace in which they believe that approach is working for them when in fact the brokers from her side right you know that that is a harvey i just want deals the purchase agreements don't disclose and anything else that requires to disclose those disclosures were read this this is not a class action anymore my it might have been at one time but this is not any longer this is a dispute between these plaintiffs and these and i guess what i would say is that remains to be seen as you know it's very hard not one of the classes issue where the target complaint can be dismissed no but what is it issue is whether that issue was for opposing counsel has argued that you didn't meet that challenge in the district court and i i don't see anything to undermine that great so how could they possibly have standing to act on behalf of a class of such transfer or well if their claim is that the harm was to the market and to the people that were trying to transfer policies we should address for you the where i would start with on the jurisdictional question is the premise is like many of the questions that the courts have said something along the lines of it's not impossible to ever have the pleasure of stiction but it should be consider whether the matters are virtual congress thinks that should be appealed quickly for obvious reasons so there's a statute about arbitration the statute says nothing about standing so if you look at the next question is you have to consider the standing doctrine that process you just described is rather inefficient why is it what is it about the record as it stands now that should give us pause in taking up that issue rather than doing it the inefficient way well think really frequently you would take jurisdiction over pills on personal jurisdiction questions because those are frequently going to be dispositive in tar case and you just don't do that because those can be viewed at the end in this particular case i think it's important to see that the standing what's important i suppose to us is the proceeds of policy so that the country has nothing to do with this if there's anybody who has a right to complain it would be the beneficiary the trustee can't possibly complain because trustees gong's the church but that actually leads to one of the key points that i made at the outset of your aunt's brief opening brief you claim your that your clients have the benefit of standing to bring these claims because they're beneficiaries and yet they do not have the duty to arbitrate because they weren't signatories to the actual purchase agreement how can you have it both ways that's in effect as i understand the gist of what they're saying what i think that's a brilliant way our case is not our case it is not that the beneficiary and the individual have a right to sue because they stand in the shoes of the part of the country or claim is if i am a beneficed an insurance policy which matters a lot to me or find the owner of the beneficial insurance policy some affectively beneficial policy myself and oracle three monitory term i am harmed i am harmed if there's people out there in the world who are  market for insurance policies that's bad for me and i'm heartened by it and it's a real world one that i can sue for and that's the basis of our complaint but there's it used to concede don't you at least some relationship with the contract because you're trying to figure is this a cause of action for breach of the contract you agreed to arbitrate and if you just plead it is a tort that's not the same but we have we have we have done a better job of writing our complaint we're not saying that the group was breached in fact in this case that would be that the panel was really hostile that idea because they had this this real idea for trying to figure out who agreed to or betray to dispute it really hard to force somebody to arbitrate something that inside the the last thing i want to say because it give you the chance to do that while we're on that point distinct types of entities limited partnerships and limited liability partnerships and this is a limited liability partnership but where you get a limited liability partnership if you have a general partnership and when you elect a change and later on they turned it off and it's as plain as day if you read mr griswold the affidavit from the entire time that they can't literally billions until the times complaint is filed he was still trying to pay taxes and actively working on the financial affairs the partnership there was no point time in which he paid all the taxes and what everybody was asking for money before this complaint was filed so there's no chance that the partnership was dissolved if you look at the difference between the well the agreement about the trust so i yeah please the court of the court has been very generous with its time and so quickly if i have just three very quick points on rebuttal and of course i'm happy to answer any questions that the court might have first of all to take these points in reverse order and to start with the issue of class arbitration i would this is not simply a circumstance in which there is nothing in the arbitration provision that suggests a willingness to arbitrate on a class wide basis as we don't in our brief both sides of the purchase agreement both the trustee you wells fargo who has not attempted to comm determination and so we would respectfully submit that even if this court or minded to reach the merits of that issue this is an easy case in which the arbitration provision at most permits individual arbitration it isn't really the biggest thing you're concerned about who are certainly very concerned about that because of the perils of classified arbitration and so at a minimum if this court resolves this case in our favor on the arbitration issue we think that this court should make clear that the district court should compel arbitration on an individual basis and again and what he just sees in the court and if the case stays in the court then presumably plaintiffs would see class certification and of course we would oppose that and we would know at the outset that precisely because the trust is not before the court this is a case in which you don't even have a class member as the plaintiff and so we certainly would think that classification would be an appropriate second on the issue of arbitration here the one thing that i didn't hear my friend mr mann state was the relevant standard which is the standard that this court articulated in braman among other cases and that is that because of the presumption in favor of arbitration dispute should be arbitrated as long as the claims touch matters covered by the arbitration provision what case do you have to say that the presumption obtains when no one's the tories will we recognize that that presumption does not apply to the signatory non signatory issue but of course judge hardiman it applies with full force with regard to the scope of the arbitration provision and the issue of whether the claims in this case fall within the scope of that provision it goes to the what but it doesn't help you with the who well there are two separate issues on which i was for values but doesn't help with who we have to win on both of back to the issue that you had asked me about namely where does a sort of stand in the shoes principle come from and do we have any cases apply it in the trust context well i don't have a specific case for you but what i can tell you is that i think this court has articulated the in the shoes of a signatory should be bound really emanates from the basic principle that you apply ordinary principles of contract law to determine the circumstances under which non signatory should be bound and again we said their brief plaintiffs really by the allegations of the complaint which state in height berta that that is what the plaintiffs here are doing and also by the substantive counts of the comply and finally let me just say one word on the standing issue mr mann said at one point that this court could just leave that standing issue on the table for now and that the court could decide standing at the end i think the supreme court would be quite surprised to learn that that's the appropriate way to approach issues of standing the court that after all decided the steel company case the standing not without force because i think that there is a little bit of attention in this i mean it is a decision they conceded that was tension yeah well and i think that that really goes to the question of whether this court has to consider standing first and our submission is simply that this court if it is minded to affirm that this record does have to consider standing because otherwise it would be doing precisely what the supreme court said that the court can't do which is to assume jurisdiction to resolve a substantive question that is plainly inappropriate and that is why this court has not only the authority but the obligation to consider standing at the outset thank you very much thank you to both counsel for extremely well presented arguments and also very very well done briefs we would ask that a transcript be prepared of this or argument with the sides the split the costs and you can get together with the eclipse office and have that done again thank you very much for appearing here today