supreme court has emphasized time and again that there's an emphatic federal policy in favor of arbitration the district court here frustrated that emphatic federal policy when it refused to give effect to agreements between the berkeley county school district and the insurance defendants that require of attrition of the district's claims the court refused to send the case arbitration on the theory that the birth service agreements containing the arbitration clauses were never actually formed as a matter of south carolina law overlap between you know when a corps is looking at it when it when a person can be bound when they're not when someone is acting within the scope of their agency is the question in both the tour context and say th it is a tort law test but it's also it's also an agency question for purposes of contract law as well if an agent doesn't have the authority to bind you as a result of for you know for whatever reason it is that that applies in the contract context as well now what we would argue is that there was a mistake in terms of how the court looked at this here and that's why you sort of have some of this tortured logic  at the question was as a dish of course framed it was was a contract ever for and under the federal arbitration act it was our burden to prove that and so we did we came forward we said your honor here  contracts here are six different private service agreements each one of them containing arbitration clause we show that they have you have been signed in accepted by representatives of the district or they have been accepted through performance by the district and we ha had the district itself in its original complaint representing to the court that it had quote entered into multiple contracts with the insurance defendants for consulting services that from their own original complaint they also sued us for breach their complaint doesn't mean they never said those words it doesn't mean they never represented that to a court subject to rule eleven and we've cited the right miller treatise and the answer is case as well from the nd circuit both of which confirmed that representations no superceded complaint is still if if you look at the docket the docket is the record on appeal on the docket very clearly contains the the representations that they made to the courts  district failed to carry its burden in opposing our motion for arbitration and therefore the cation be directed to arbitration as i was starting to say it was part of you want to order an arbitrator i want the district court so it's a it's a somewhat complicated issue as you can tell by the fact that the district court burned twenty six dollars pages trying to figure out the issue but at the end of the day the court the court got it wrong the court framing this as an issue of contract formation however federal law in cases that we cited the six hundred and four of columbus realty case says that when the allegation is one that if someone is trying to avoid liability for a contract because it was procured through a kickback which is the district's argument here that does not sound in contract formation that sounds in contract expects he's got sounds of fraudulent inducement and the supreme court expressly held in prima paint that a question of whether the entire agreement containing arbitration clause was procured due to fraud was fraudulent we induced is a question to be decided by the arbitrator now the district disputes that they said we don't we don't dispute that you have a federal case that says that that's fraudulent use mint but south carolina law is different they say and under south carolina law a claim that a contract is procured by kickbacks means it's illegal now either way you can accept our characterization or you can accept the district's characterization either way there's a supreme court case directly on point that holds they have to go to the arbitrator because the question in buckeye check cashing before the supreme court was whether an arbitrator or a court decides that question and argument that it a contract containing arbitration clause is void as illegal must who must decide that and the court held in by check cashing that the arbitrator must decide that so framing it as an illegal contract as the district is represented in their proof we believe it's more appropriately viewed as fraudulent do smith under federal law either way there's a supreme court case directly mark is that a question of contract formation or is that question the contract that it it would be if you were looking at what it in a normal course  that would go to contract formation but here we have the district alleging in its own complaint that the scope of thomas services as the c f o of the district included procuring insurance services and deciding who would broker them every right to make that argument but that argument is a fraudulent inducement argument it is not a question of contract formation and under prima came back issue has to be decided by the earth trader not the court and the court overstepped its authority if there are factual questions that come out dispute because the district had a burn as this is this court held in charlie enterprises the party that's trying to denied an arbitration igs agreement exists must come forward with facts it must conform with evidence it's no longer  pleading issue it's a standard cans a summary judgment the district never came forward with any not a shred of evidence cited in their brief in support of this formation issue so it didn't carry the burger and so when a party doesn't carry its burden in a summary like that we came forward with a story you place in the mind you claim there are no dispute of fact here what i'm saying you're going to get yourself when i go ahead what i'm saying is to create an issue of fact the party with the burden must come forward with the formation of a contract is the concept in this context is a judicial question and not one of our ability secondly the defendant just noted in their argument there is no factual dispute because there is not on this question the district court should vote you have to admit there is a factual dispute no you are not think the facts in this case on which judge norman rely are undisputed and that but the judge said things like counsel represented that x y z and then found that as a fact that is not how you find facts i think you can in this context and here's why you cannot that's a lawyer talk it's undisputed  declaration an affidavit filed by the director of contracting of the district what i meant what i said it is a fact but it's undisputed hope had every opportunity the defendants had every opportunity to fallon affidavit or offer evidence disputing  what i agree it is a lawyer talking in answering questions of the judge but the fact here is it's undisputed and based on the affidavit and the complaints allege counsel also repeatedly in his argument said the burden is on the district that is phatic lee not the law of this case of the circuit under the atkins decision the party moving to compel arbitration has the burden period not the district continuously said we fill in our duties on those facts and other issues and that simply not the case or the case will go on the question before this court to one of contract formation the district should be affirmed because the contract was not formed because there is zero evidence of mutual since the district was never aware of any of the agreements affected by the in the did complaint secondly does agreements were unsigned they were noted as proposed they were held in some records offices of the defendants and nowhere else based on the record before this c that sustain his honest services conviction criminal acts of kickbacks in the procurement of insurance contracts those very same acts take his conduct outside the scope of a warrant it cannot be under the case law all of this u on and that is the appropriate case law applies not the st circuit it cannot be under south carolina case law that criminal acts that actually default the employer are within its course and scope of employment from the citizens bank trolling the school district he's not furthering his master's of the he's acting contrary to what he's harming it and therefore it's not within this course and scope of his important and it's beyond or it's beyond his authority where do you get the not be charged with his knowledge of the agent acquired there and if the agent's acting contrary to this principle in his own self interests and sees the root case of nine hundred and eighty seven dollars when you are acting adversely to your principal your acts and your knowledge knowledge of the disc none whatsoever there is no evidence in this record only all argument council represented the misbelief ill who are the key to the agreement was an employee of the district she was not she's an employee the court was right below to say this yes mr thomas had knowledge and performance there of why goes back to the authority question exactly do authors agree on as a matter of fact it does go back to that to the authority issue and it says the mr thomas president was acting on his own self interest and not in the interests of the bank his acts cannot be imputed to the bank that's exactly what we're asking this court to find here is that the acts of mr thomas which are not  right on never case i would cite from a factual standpoint the st circuit case in guilt or mirrors where a high level school district official in houston was steering contracts to contractors in the houston district and that even though that official had the authority to to do contracts on behalf of the district when it's on a pay to play scheme and he's acting outside the course and scope of his employment bribery and influence peddling can never be within dyed my colleagues or our side the opportunity to offer any evidence they never denied one time the opportunity for us to argue that the district court had supplemental briefing and even if after all of that if there if the or contract claims and that's here's the reason the only way they can indicate that these unsigned agreements are forcible this addition is to performance in order to have performance it's the performance of the very are so how do we figure out what the facts are if he says or one of then you say there are no other than if you only look at the legal issue before this court one of contract formation the facts regarding formation on disputed the contracts are on signed the what i'm getting that i think this court could hold up as a matter of law not a factual dispute as a matter of long when one deprives the district criminally of that his last service since based on the kickback scheme that's outside the scope of extraordinary circumstances an issue cannot be raised for the st time on appeal my colleague says it's a secondary issue a fallback issue if you disagree with them on our ability but it's not it's an issue raised for the st time when the bill should not be so the courts relied on the allegations of a complaint to make its conclusion sad fact and law yes and that the motion to compel arbitration stage that is not unusual you can receive affidavits both sides f in this case you can receive affidavits and have other considerations for example that was the allegation of the amended complaint but this district court judge was also the criminal sentencing judge of mr thomas he took note of the foot on his opinion that he was aware of the precepts  king i would like to try to address your point i should say that at the highest level we absolutely disagree on what the facts of this case are with the district i grant you that there would be a fact issue the reason i'm denying there is a fact dispute is that for there to be a fact to dispute on summary judgment the pearl has to come forward with evidence now my colleague here counsel represented that they emphatically represented that they do shifts to the other party to prove otherwise so if you look at this matter south carolina law when they're saying this is what takes it out of normal course that's when the bird shifted section four of the f a a says the party or excuse me is this court and surely says if you're denying that it exists you have the burden to come forward with facts not a single thing that counsel said is supported by a record citation in their brief is not supported by record citation the evidence he mentioned several times the parties filed affidavits i invite you to of anything where i didn't for present purposes disputing that they were in the district file they had the burden to come forward and that is why i'm saying we don't dispute the facts because there was no fact issue to decide it was there per se you don't want to trough we believe is warranted yes and a bare minimum the court did not hear spirity as i'm trying to transition yes at a bare minimum the court if it was going to reach out and decide issues that the district had never raised all this talk about benefit also talk about harm no where in their brief nowhere in their briefs below and so if the court was going to reach out and decide issues that were not in the party's briefing and which not a shred of evidence had been cited it had the obligation to at least hold out and hold a trial so yes we do think that that is the bare minimum that should happen but the way it works in summary judgment isn't that if i come forward and say i'm fighting summary judgement on the x doctrine and i rely on the allegations in my complaint to prove that you know the out that i and i'm entitle to a trial what the court says is too bad this isn't this isn't that stage anymore it's the summary judgment stage you have to come for with evidence and so we had number to counter anything at that point they decided against them right then for failure to carry their burden now if there are any number of other statements i'm happy to address if the court has a preference i've got a promise and not much time  right well let's let's look at what those cases doing with my proposition well i agree with the proposition of the cases actually stand for and what those cases hold is that those are cases that the motion to dismiss stage and if i file a motion to dismiss directed at a face committed criminal assault or was hellbound is in the scope of this employment even though it was unexpected and also going to that going to the issue of what the standard is and if we look at the  hayward decision it doesn't say that an employer can never be bound by a criminal act that's flat wrong look at any number of decisions but what it says the question is is whether the act was done in the course of the agency and by virtue of authorities agent the question is not according to hayward which you cited in our brief it's not whether he had the authority to commit the fraudulent act the question is whether he had the quote authority to transact the business in the course of which the