s the finest did not assume ac ends obligations under the provider agreement with dr minders and they cannot step into the shoes of a c m to enforce an arbitration clause that doesn't name them as a party from this court's opinion in two thousand and fifteen where we were allowed to take discovery we discovered a preexisting agreement called the master services agreement m s a between a assumption did you make that argument for the district court i did i believe we got it yeah i believe we did it's an in our reply brief we have a section devoted to that argument the defendant argued that we hadn't sufficiently have to do with your client you know the reason i say that seems to me that you're arguing that the m s a defines the scope and the terms of any assumption between m between a c n n but i don't know why there can't be both an m s a which says here's what we're going to do for a c n and then an assumption a separate assumption of ends responsibilities to your client in other words from what i can tell the m s a has nothing to do with your client well the m s a doc mr whipple and the thirty six witnesses testif they're going to do and it mentions providers and provider contracts and says that they are sub contractors of a c n and it specifically disclaims any obligation of them the providers have no right and then there's no evidence of some separate assumption through conduct or something because the only conduct was pursuant to the m s a and then the provider agreement itself expressly talks about pay orders and plans and mr testified that handling claims and paying claims is what a yours do and the other the only thing that the district court ignored but which was briefed by the parties was this a summer providers summaries one second i forgot the name exactly provider summary there is a two thousand and four provider summary that he's testified was provided to dr minders before he signed the wider agreement that talks about claims that are going to be handled for members of the defendants and it says specifically that the claims will be sent directly to defendants not through the e c and middleman and that the payment the claims will be paid by the defendants directly and yet the provider agreement does allow a c n in that soltis crash and to assign that's right students are applications onto the agreement to any party it does say that and there's no indication that they did and there's no the agreement it says it allows a c m group in that sold discretion to assign that's right duties or obligations under this agreement to any party at any time without approval of provider does say that and then the next sentence says that they will notify the provider in writing if that happens or if that will happen and they didn't there wasn't an assignment there was just a hiring  for money money would be exchanged between defendants in a c n n defendants one and all their own claims and their own payment there they are the ones who care about claims being rightful claims being honored and being paid so they just took e c n out of the middle east c n still had other obligations and a c n has the only contract with dr minders dr minders didn't have a direct contract with defendants and their master services agreements specifically disclaims any such thing that the defendants could have assumed the contract the m s a could have said they were assuming the rights and obligations under the provider agreements but specifically talks about provider agreements and then says that it's not and says that nobody else is going to have any rights it says that they working together with e c m they'll do commercially reasonable things when they deal with providers it doesn't talk about providers having a direct right against the defendants and if the defendants wanted to be part of this arbitration clause they could have required that they be added to it their m s a which again is preexisting says that they have the right to require changes to the provider agreements a c s going to be sponsoring there's no evidence that there was an assumption except if you ignore the m s a if you ignore the provider summary then you say well that's weird why are the defendants doing things here they must have assumed a contract or something but that's not what happened there's no there's no evidence that they assumed direct obligations to dr minders mr pyne there's not your argument that any assumption that have to be in writing that conduct alone wouldn't be sufficient for an assumption no no that's that's not the argument but the argument is that when the writings all show that that's not what happened it's error to find that it did but despite what the contracts say the conduct here means that there was an assumption of obligations the doctor minder so that he could demand arbitration so providers can demand arbitration from defendants or whatever pay orders under this contract under the provider remit when that's not what it says and there's you know there's nothing in the provider greenman that lends itself to being interpreted as giving arbitration rights against pay yours dr mr witt one dollar testified that the role of zero on here it's been a lot of service being rendered people are getting paid that's right in the provider agreement i think it's paragraph one point one eight says that the pay yours are the ones responsible responsible for direct payment so a c n doesn't pay the claims of somebody else a c n is the middleman between in this case the fend ants paging dr min they would be the middleman but they're a c m isn't guaranteeing payment well he's saying they have a major demand if they're not involved in the payments payment went directly from united to your client i didn't see any evidence that a c n was in the middle of that exactly they're not they're not and the provider agreement says they won't be but the pay or they define pay or to include themselves sometimes so a player can be the government to pay or can be a health plan to pay or can be an employer sponsored plan to pay or could be them and they say the pay or whoever it is is directly responsible responsible for direct payment so the provider and then a c n says they're not responsible for timely payment by the by that pay or they don't guarantee that their pay or will pay and here again this provider summary said specifically that united defendants would be the ones who received the claims and paid the claims and they're not mentioned in the provider agreement as a party who can compel arbitration mr back here into your rebuttal time do you want to save the rest of your time i would your honor thank you thank you did united assume e c s duties under is c s provider agreement with minors and the answer is yes and let me address some of the questions that the panel raised my friend on the other side st judge saini of minders did forfeit his argument about the  party beneficiary he submitted two briefs below on remand from this court there are docket number eighty eight and docket number ninety one docket number eighty eight does not even mention the master service agreement and the argument section and as my friend said when he claimed preservation it was in the reply brief docket number ninety one at page seventy eight that brief argues that the master service agreement is a relevant because the provider agreement post dates the master service agreement and therefore he argues that the provider agreement should control who the parties are page ten meanwhile were st united's performance of the so called pay or services that my friend was just talking about but nowhere in that brief did min argue that there's a rd party beneficiary clause that somehow negates or makes it impossible for united to have assumed a c and so for minors to argue in this court that the district court ignored that that provision is really san ging the district court and the whole reason that we have forfeit your doctrines the master service agreement is thirty pages of you know narrow text in denver and things so it makes sense that the district court doesn't have to root through that document find  that my friend now relies on peel and figure out its import to this case and he can't do so on the st time in this court so i think the whole thing about the rd party beneficiary clause drops out the nd is the pay or services argument that  mr bach has been making and i think the key misunderstanding is misunderstanding what unite it's corporate representative meant when he was discussing pay or services pay or services are not the services that a pay or performs under the n provider agreement rather the services that united provides for pay your dues and this is that page fifteen and sixteen and page eighteen of the wicklow in deposition and what he says is essentially broadly speaking united has two lines of business in some forms united is a health insurance company it insures people's health it pays claims and it does things that insurance another line of business what united does is that if you were a major city or a large employer and you have decided to self insure your health insurance plan after say a recession you might not have an in house insurance company to administer that plan so you might hire united to administer the plan for you to do things like adjudicate claims and so forth that's what pay or services are but under the a c n provider agreement there is no classification of pay or services it's not a defined term in the agreement agreement doesn't say anything about what payers do it's just taking this explanation of what united does and it's business and trying to grafted onto the provider agreement which does nothing to do with that mr murat and with regard let me issue a question here would you would you agree that the plaintiff would be able to force united into arbitration pursuant to the provider agreement over a payment dispute absolutely and it's a me it's a mutual obligation suggests in the reply brief that we have not said there is and we accept that within the scope of the provider agreements arbitration clause so anything arising out of or relating to the provider agreement mr minders could take united to arbitration absolutely let's assume for a nd that the argument regarding the master service agreement was not forfeited below does the master service agreement have anything to do with the doctrine of assumption here and if it does what i don't think so your hon for two reasons st of all that the master service agreement contractually speaking might be the way that united promised to assume a c and students people don't generally go around and assume duties just for the heck of it oftentimes you do so because you promise to someone else to assume their duties and the master service agreement and section three dollars is how united did that but even if the master service agreement wasn't in the picture you have the sekret of sumption through conduct so to the extent you think there's a  big unity or anything about master service agreement just look at what the parties did united representative testified that from the st day minder signed this provider agreement they carried out a c s duties under the agreement minders agree he testified that united provided pre certified cations that provided case management it provided eligibility information and in fact when we asked minders did you have any relationship with a c n at all he said no it's all been united and that shows that what happened was is that united assume those duties and i actually do agree with my friend on the other side that previously a c n was acting as a middleman the way the a c n provider agreement worked was ac and went out to chiropractors and said be part of our network we then will connect you to health insurance plans that need chiropractors for their members and will facilitate the relationship between the two of you you know they'll give us the money we'll send the money to you will you know will help with case management and ensuring that you are complying with case utilization and prior authorizations and everything but what united and then a c n did was they said you know what we're going to cut out the middleman we're going to assume those duties from you and perform them ourselves and what the case law holds from time immemorial is that when there is the assumption of judy's like that united steps into the shoes of a c n and becomes where the united nations manual the bulletin and everything else that said don't send your stuff to a c n n send it to us which i think is effectively written notification that the judi's have been delegated and have been a suit but nd of all that gets to the portion of our brief about the inability to accept performance from united and then turn around and reject that performance when it becomes inconvenient so even if you thought that at some point in the far past minders united who's this i don't know who that is my contract with a c n n says that you're going to tell me in writing before somebody else takes on your duties maybe he could have done that back in two thousand and fourteen i don't know i don't think so but maybe but having accepted performance for all those years he can't then say united has nothing to do with me i just accepted there are hundreds of checks for all and that's what our case law makes clear and that's why he can't reject it on those grounds i'm sorry your honor dr minders so dr miners was paid by the plans the health insurers the united states self employed you know that the self insured entities that united provided  pay or services for but what a c n did was is it facilitated those payments or what it did before united stepped in and took on those duties for itself so the way it worked under the original provider agreement is that the plan would send the money  so the money is coming from at the checks are united quote unquote checks but united as mr with clint explained does a couple different things sometimes for its insured products the money is literally coming out of united's bank account or would that of one of its if for other for other employers like u s airways which might have been large inch self insurance plan you know the money is going from the large employer to united and united's giving it to the provider so the plan in that case might be the inch self insured employer but united is being responsible for giving the money  and so when my friend on the other side points out that a c n did not guarantee the ability of pay or just pay all it was saying was is were not insurer of the ability health insurance plan to have money in the bank account when it's time to get  but what it did take on the responsibility of four was coordinating that payment so if the coordination broke down then miners could sue a c n or miners could sue united and i think that's also another point which is that assumption is not does not always mean no vacation which is the relief from obligations of the original promise or so no vision requires minors to agree to let a c n n in the picture at assumption doesn't assumption just means now that minors can sue to people he can or can which is what it comes down to is that if you step into the shoes of another party in a contract in that case subrogation in this case by assumption and you take on their substantive duties you also take on the remedial aspects of that relationship which is to say that if the way you enforce those obligations on either side is through the arbitral process then you have the right to compel arbitration and have the right to have compelled arbitration imposed against miners has argued that there is some there was no separate assumption of the arbitration obligation but that argument doesn't work for two reasons st star points out that whether you think of arbitration as a duty or an obligation or a right it's all kind of semantic because really just the question is who has the right to compel arbitration and nd in the trip manufacturing case from rd circuit by then judge alito he points out an arbitration clause isn't a separate obligation that has to be assumed it goes part and parcel with the substance obligation that tells you how the subset of obligations you have assumed are enforced in this case it's through arbitration and so at the end of the day both the written documents and the conduct of the parties demonstrate that united  validly assumed a c n c obligations to minders under the provider provider agreement then says that the provisions of this agreement in the section fifteen shall extend to and be binding upon the parties here too and their respective successors in the signing if that includes the dispute resolution clause in section twenty one dollars and for all those reasons we suggest the district court was absolutely correct to dismiss this case for lack of venue and to allow arbitration case is about a junk fax offering some new service that's available through defendants to collect money from participants in their plans which was not an obligation of about the boundaries the meets and bounds they used the term but i didn't see anywhere in your papers that the junks that the junk fax was not related to the portion of the provider agreement assumed by united it in other words if if we find that it was assumed i don't see any argument that it's you know the arbitration clause would then perhaps at this from going to arbitration because it wasn't related to the portion of the prior agreement it was assumed by united which had to do with broadly paint well the way i'm i'm coming i understand what you're saying your honor i think the way i'm looking at it is that they're arguing that they assumed and therefore they have rights under the arbitration clause the obligations that they assumed should be defining their rights under the contract and sending a jump facts about a way to collect money from insurance plan participants isn't an obligation they assume and neither is sending illegal advertising about it right but they have but i look for that too in your brief because i thought well even if they assumed here even even if we even if they proved did they  assume could it not signatory to an arbitration agreement in force the agreement and in meanders one the court said both parties acknowledge that the contractual theory of assumption is one through which a non signatory to an arbitration agreement can enforce the agreement and there is no argument that we got it wrong in the ender's one it's true that we didn't argue this court got anything wrong but it remained in yet for discovery we're arguing that what the discovery showed is that there wasn't an assumption but even ignoring the m s a if you just look at the provider agreement it's not only about a c n it's also about a ors and it's about plans and defendants role was known at the time and didn't change they didn't assume the contract and and or claims payment review made by e c m group or pay your so a c n group is already taken out of the equation the defendants didn't come in and replace them they were already just standing there even in there even in what they do they say they may perform e c n this is two dollars e c m group may perform case management paul of management claims processing and septra doesn't say they're the only party that can and there's not really any reason to think anybody would have cared that the defendants would process their own claims in fact the provider summary said they were going to do that if they wanted to replace e c m they could of replace the case yet in the provider agreement entirely at the case will be taken under a