transaction that said issue mr deatherage received standard terms and conditions from logan a can all that contained an arbitration clause and on every one of those occasions that arbitration clause was identical to the arbitration clauses that issue here then in march of two thousand and ten the parties entered another transaction but you know you make it more peeling if you say that in every case logan issued a purchase order which on its face referred to terms and conditions and sometimes they were included and sometimes they were not but on it on each occasion it was that region received the purchase order and engaged in business under that range and that what your argument is that is absolutely true your honor and while deatherage may have been from mine to mine may have been operating on under different companies he was still local still issuing the standard purchase order that referred terms and conditions and the terms and conditions and bars operations concern is always the same that is your argument that is power given your honor and you know the implications of this decisions are very important for the coal mining industry in west  for other industries where the common practice is to transact business through purchase orders similar to this that incorporate other terms and conditions if the panel were to find against logan to come on this issue it would leave coal mining companies in a position where despite the fact that they've transacted business on a number of occasions and all the parties understand that terms and conditions like the arbitration clause are incorporated into the agreement it would give parties a gotcha defense where on a single occasion where those terms and conditions aren't included despite the principle the company having knowledge that logan can all arbitrate disputes or other companies arbitrate i'm not sure that necessarily follows i'm not sure that the results would be quite as apocalyptic as you suggest the problem here is that you said the terms and conditions on the far following pages in there were no  this situation could be addressed simply by providing the following pages that you refer to if i take your point but i did i don't know that the consequences of the contrary view are quite as dire if you paint profound might have been too strong of a term and that the consequences wouldn't be apocalyptic but that this simple matter the fact is in the coal industry there are repeat players that engage in transactions with each other on a regular basis faxing back and forth forms as occurred on this in this instance on a regular i completely take take your argument in that regard i did have a question in your phrasing in your brief that act i think the good one of the district board implicitly made that finding by comparing the two sets of of terms and conditions or that the two versions of the terms and conditions might be a better way to phrase that so that was that was implicitly found and because judge did when the the manner in which he made his finding it wasn't necessary to make the finding regarding the pattern and practice or at least he deemed it wasn't necessary but i don't think it's disputed in any way longstanding history with each other now there are two two key reasons why you should find in logan and can all those favor with respect to this appeal the first one is that the death  either knew or should have known at the time it entered the march two thousand and ten transaction that that that but that arbitration clause was in thorpe rated by reference there was a clear reference to the  any doubt about what document was being incorporated that that was resolved in may and they did continue to conduct business transaction there is absolutely your honor and that letter actually confirms two things number tell you i know how they do deals i actually operated as a purchase in the age of well while i tell you nobody reads anything you get on the phone you make your transaction you follow up the purchase order and you throw in the file and usually the terms and conditions are on the back but the idea that people are he probably knows that disputes are resolved in that industry by arbitration but to be over arguing i think to say he was aware the arbitration clause actually i have a question is whether are are clearly distinguishable but it is i'm sure you recall in that case an individual received an arbitration clause on a number of occasions and just filed it away didn't bother to read it he said the common practice is in the end history and commonly the case but an important aspect of the whole instead or enterprise is it didn't just look at the final final deal document that as it was at issue instead it looked at the course of dealings between the parties and accord observe that because the parties number of transactions requiring arbitration that was the course of dealing with the parties and of course dealing argument is really intertwined with the incorporation byron argument and even the two to zero seven into not argument i think that under basic agency law i don't think that that's the case that they case the death toll relied on for that case phoenix savings and loan actually has some language that's pretty favorable for logan in can all language that wasn't brought to inside or outside of the scope of his employment then that knowledge is imputed onto that company and in this case we don't even have to do the analysis of whether mr that george had control of the company because he negotiated all the deals and so there's no question that he had the knowledge he negotiated the deals that issue that contained the arbitration clause and he also negotiated and executed the deal that's at issue before the court today so i don't think there's any question that that information under basic agency law and west virginia case law that that knowledge would be imputed on the corporation and so that's one reason why that that i think that the district court erred another reason why i think that the district court erred is the district court entirely set aside the hiden merchant standard in this case and the district court  and technology which is a western district of virginia case but then failed to employ the reasoning or use the reasoning that was that was used in that case and that case dates explicit reference to governing terms and conditions as here put reasonable people on notice they should read know these terms and there's there's one key statement in deference cole's brief that i think this whole case boils down to and this is  this is it's there's no citation to this but they state it was understood by deatherage kohl that the terms in statements was just warrior played on the form which had no effect on the transaction at all that is not the case under the margin standard in all the cases that we've cited a merchant has a duty to inquire and if they made that assumption that those terms and i think that's an overstatement he can be bound without at me and there's no doubt you can incorporate by reference a document that's not attached or shown or brought the transactions long as the parties know of it and are aware of what's being or break absolutely your honor and if they don't do so and if you go into real estate closing bought a house you've been there a long time if you read the paper and even all the terms you up when you sign you take the risk of not reading and  i gather that's almost with any contract i see question in this case is not whether terms and conditions can be what weight is matter even if not included but i see question is was it clear which terms and conditions would be incorporated but aren't you i guess you're arguing also that if there was any doubt about words set of terms and conditions were incorporated at that point perhaps there was a duty to require yes or if you don't do so and if you make the assumption that cold did then you do so at your own peril and you're stuck with the terms and conditions that do apply you know in closing if you're curious if you're curious if you're curious exactly what were the prior relationship between the parties not between the parties but between companies controlled by mr devereux or i i was had my questions i'm not speaking for my colleagues here the purchase order which is the common way that this is done said this is such standard terms and conditions whatever it is that pretty clearly on the front if somebody were curious about it it they it was there the question always in the same roughly same form from logan and he knows what's in there if that were important and i can tell you where these people dealing and day to day commerce i know it's not important but if they thought was important he could make an inquiry he's a merchant and so the question is what was being incorporated if there's any doubt you can look want to places you can look for surveilling or you look to them a letter and vows of the two arguments i personally think you have to address but i think it's pretty clear you can incorporate terms and conditions without actually attaching your order it is what i would say that is that the two factual premises on the on the basis of which the the argument logan cannot receive are incorrect the bit purchase order that gets sun did not incorporate standard terms and conditions from logan cannot was purchased or the again with no no pages attached that was the offer it doesn't have to have pages attached it has to specifically reference the document to be incorporated in it does not when arguably it might have been one of two documents but both of them contained an arbitration provision though that i think we're making the assumption that there was a pattern of business between the parties you acknowledged that there was a pattern were proposed contracts but only one previous contract between the parties that was one thousand whose that was done in two thousand and six four years before this transaction that purchase order contain no reference whatsoever to standard terms and conditions there was no  incorporation language in that purchase order at all now there were a couple of additional purchase orders proposed between the parties mr deatherage never signed them there was never a transaction based on those purchase  this purchase or again this proposed purchase or witnesses it's it's my belief that our standard procedure was attached every time we see in a new order you can't be a hundred percent certain no i can't i cannot verify  ok and if we would have had discovery responses from jefferies call on the subject then you would have had it one hundred percent so it would have been one hundred percent certain as to whether they received the terms and conditions or not right i would think so they would have showed us their participate in this government that in fact if he participated in discovery that this particular purchase or would have been shown to have that standard terms and conditions attached and in fact the two arbitrators of that that participate in the proceeding said after been the focus of the logan i would brief consisted of one transaction for years before which had no incorporation by reference terms whatsoever what's up page one ninety two of the  yes your honor they were but that was after the contract was already far out except that contract was formed incorporating by reference terms and conditions the command they just weren't attacked but when they confirmed it they default the difference is that a contract was already formed the contract was formed on the purchase form but the contract when formed referred to step terms and conditions on the face of purchase order referred terms and conditions and they weren't attached now if there are any doubt what those terms and conditions were it was filled in in may now if deatherage got that may thing and said oh those aren't the terms and conditions i never got that i would have never agreed instead we ship coal here are the two to zero seven deals with confirmations of the contract that form of that are part of the formation of the contract between the parties i understand it's not about what this would mean to you that  contract with purchase order can refer to documents and incorporate them by reference without actually attaching absolutely or all right now if that's so then the only question is what was being incorporated and you're suggesting there's a lot of doubt about what was being incorporated i'm just testing that there's two reasons why there isn't a lot of doubt one is they had attached them actually in prior transactions which were in the record or maybe they weren't completed transactions but at least he got t purchase order and he got the terms and conditions and number two when they sought assurances under this contract they attached what had been referred to and there was no protest about it you know you are he but he had already had a d could be a life as to what they were i don't think it was a lot but if there was a question that maybe later answered it may have answered the question but it didn't change the terms of the contract that an artist invented condition and that's the can't read on the reference to another document out of existence i think that that has to be your position and that's a bit back to bit of a stretch i but i had a trip at some point i have a question about relief that i would like you to address when you have you in to the market what i've i've expressed where i think the difficulties are and your suggestion have any doubt what was being incorporated i don't know there's nothing in the record at all to guess what or the other person would clearly know in his position you dealt with the company over five years or something he'd seen other documents and then he received the very same ones the same arbitration cost at least and may if you're in those your terms and conditions want day they were terms and conditions in contracts that didn't get s thought about the may contract now it those terms and conditions were attached if you didn't think that those terms and conditions or made a part of the original contract but you think he had at least had an obligation to say something bad and would it be said something then how would that have changed the contract well at least the parties would have been a on notice as to the fact that there was a dispute regarding the terms and conditions and nothing was said were they and the suggestion i make is that if there were any doubt that may letter said these are the ones we agreed to in march may march now that ridge gets that letter and he then said oh no we didn't reach those eyes weren't the terms and conditions terms and conditions i referred to was a little single page three paragraph document now we would have had a dispute but instead you just want  that agree with with what you said in there in the council's opening argument in this business and in many business people don't read the contracts it's like they got that i mean they're not there they're not bound by by what they signed and what they signed here refer to documents that weren't attached we wouldn't be talking about incorporation by reference if they had been attached and the doctrine of incorporation by reference by its terms relies on things that that are not a part of the original document and that's that but i do have a question about really we are here we are here  on the question before us is whether or not to confirm an arbitration or award correct the question to you from the judge's decision that they could last ten years was that if you presented to the district court in the in the lower court vacated in the context of a confirmation on the back end district court to get to look at arbitration awards in two contexts a challenge to whether or not the dispute is arbitron on the front end and then whether it should be confirmed on the backend and whether it should be confirmed this is subject to a significantly more stringent analysis and my question is if we don't agree with you why do you think you should get a second arbitration because because i understand that to be your position is your yes wrong because in the first instance the whole question of whether there's an r was to be an arbitration at all whether there was an arbitration agreement between or was an arbitration and we are here looking at whether or not that arbitration agreement should be confirmed the question of whether it seems to me that the train has left whether there's an arbitration agreement is for the court that is absolutely correct but we were beyond that there has been an arbitration in what we have before us is whether or not the question is whether or not the arbitration agreement should be confirmed there has been an arbitration by the arbitrator found that the dispute was arbitrary but now we have an arbitration agreement and the question is whether or not it should be confirmed so why should you get the benefit of a second arbitration because we didn't participate in the first that was your choice you chose not to participate in the first arbitration week why do you get a second bite at that apple didn't choose to go that we just need show with we did not your honor our hope was that the arbitration wouldn't go forward while it did it did and now you're sort of stuck with that so the question yes now that there has been an arbitration and been an arbitration you have to get beyond the question of whether it was arbor trouble in the first instance because usually way to rest what you're raising is to enjoin the arbitration o but if i understand your your questions your honor and it boils down to this does the advocate of arbitration have a duty to no impale arbitration or not that's not the issue at all the issue before  know your honor ok and in fact there was a letter written by mr cave which said and i'm trying i'm trying to find you that said i understand you're demanding arbitration i don't know that contract i don't want to be defaulted can you please send me the proof that you have an arbitration clause in it in your contract with my client in the meantime we'll will preserve our rights but to challenge the contract and if that would wipe it all out you'd be all right but if you lost all you want to head with the process up to a point reserving the right challenge in the end but then you didn't show there was a there was lots of give and take between the parties up to the time of the arbitration the only thing that we did positively was appoint an arbitrator because we would we did the first our r and you made it you made a statement that you were concerned about the faulting your rights it seems that having been concerned about that you would show up at the very hearing where your rights were being adjudicated but wouldn't that be tantamount to agreeing that that the arbitrator said had the authority to do it make the decision while he was either that or as as my colleagues have indicated take some a permit of action to stop the arbitration and its tracks but not showing up  referred to that was looking for a letter you referred to said we want to reserve our right challenge it which doesn't say we don't want to go ahead and it seemed to me as a matter of law you do reserve the right as its contract matter for the war and you can raise that later in addition to any other actions there you may have found that this selection of arbitrators was inappropriate or there was a bias or whatever you couldn't challenge  they compelled arbitration you designated an arbitrator and that's the only thing that we did and that because well you want we did knows not to show up at the arbitration agreement which  it's certainly an ambivalent m arbitration would not go forward and understanding that what we said would you have to hope that what we think it arbitration might not go forward because the there was no agreement or betray let me sit let me say this in this and i'm doing the argument back to the question of whether there was an agreement to arbitrate your honor that the contract said in the contract was first signed on mr deatherage so he was the the offer or if you will contract said all terms and conditions on the following pages are into and made a part of this contract that was the purchase sort of that mr deatherage sent the he got a fact saying we've got a deep question is and then that there is no general understanding in the in the you know for hershel code that parties have a have the the duty to be smart about what they do they don't just i mean we have a deal and the deal you agree to the following pages right and so that was part of the deal i have terms and conditions on the law is that is that unless the incorporation refers to a specific document ok that's got to be your argument it's not that they didn't agree to terms the question is what terms and conditions and your argument is it's not specific in bold capital letters this is subject to terms and conditions it's it's subject to the following pages which were and there were no following pages that the loading k'naan person signed that put it in send it back it he have a duty to what make make certain that we didn't refer to the the form purchase order came from logan with me and they want to have you got to do and there was a performance problem and so then logan says you're not performing and they were sent a copy of the very same agreement again and say perform and so after so you want us to read out the purchase order that line that refers terms and conditions and with this court to say that unless the in terms of incorporation are clear and refer to a commers and the idea is the main things you want written down is want to price in general but the terms and conditions if they've been dealing i mean we can just get to more extreme case if they're dealing daily daily or three years on purchase or they're buying their buying supplies day and half of the purchase orders had the terms and conditions attached and half that there would purchase orders which did not happen of course of dealing i suppose ok you suppose yes your honor this i think you've got to ask yourself the question in each of those contracts that did not have the purchase orders did not have the terms and conditions attached and can you say that that there was but there was an incorporation specifically to those provisions i'm saying there are three hundred sixty five purchase orders  which was not present  he's asking for the documentation on page eighty five there is a january twelfth letter that is to melanie cabrera who was a case manager for the triple way and this isn't it and if that there is there any other follow up is there any suggestion that we're not going to go ahead with the arbitration that there is i don't recall any letter to that effect my recollection that they never said they were to go forward with the arbitration there or was a communication that said that they weren't going to actually appear and enter evidence turn the arbitration what i think is important is what they to the arbitration itself matter days before that they weren't going to attend the arbitration but they didn't put us on notice that we'd have to compel the arbitration or that their selected arbitrator what our president backed or the email the you think it matters if it's not clear to me that it makes a huge difference because it gets back to the differing stand there district court or the federal court to get involved in arbitration which is supposed to simplify in expedite matters at one of two points either at the front end when there's a challenge  proceeding to arbitration or at the back end when you have the award presented to the court for confirmation it wasn't challenged at the front end before the arbitration commit and that would have to be done by the party who was objecting to the arbitration it seems to me otherwise it frustrates the purpose of arbitration it gives the party who object to opportunities to make the saying objection well i'll take the risk i'll just stay home see what happens and when i get to the back and get a second bite at arbitration which can't have been what the federal arbitration act contemplate i would imagine you agree with me i absolutely agree with you and this case is a more dream example of that than most cases in that they were involved in every aspect of the arbitration submitted the issue of arbitron realty to the arbitrator engaged in the arbitration briefing post arbitration brief in the only aspect they didn't avail themselves of but the only right they didn't avail themselves of was but they i mean the bottom line is that think that you're absolutely right is where you just submit eighty nine so had they instead in response to your demand made you aware right from the get go that they were not consenting to arbitration with that have been enough to stop the arbitration and it's absolutely not they to communications or that's an seems to me an easier case but that's not what we have here it is certainly not what we have here and even in that case i think it is it would be a more difficult question but even in that case deatherage cole would have had the right to