about this case and there are a lot of ways of looking at it but if the if we look at the question whether the dispute arose in connection with the business activities of the partner and the district court said that meant that it had to be the business activities of the partner for this kind of business right and that seems right to me  end and if if that is right you know it seems to be kind of has to be right then i don't know that you really have a response to that and if that's right then it resolves all the issues so we don't even get into the other issues so i actually think that it's correct to let's just get past the definition of customer let's get past the definition of associated person the court was wrong the court added language to those two definitions that that shouldn't have in both king and bornstein the courts said that that definition of customer is an ambiguous and the court in king said where something is an ambiguous you cannot consider parole evidence as to the intent it is you are in fact the court said in footnote three you are prohibited so i agree let's get past customer court was wrong let's get past the associated person and let's go to the connection with and i would use the same and i would use the same business activities of an associated person though as an associated person isn't it but you've just added language you've done exactly like the district but let me say this that clause does not use the word securities business activities and say securities business activity just simply says business activities which is your point and so yeah the answer is the f c c it's not the business activity of an associated person if the business activity has nothing to do with being an associated person i i couldn't disagree more and let me explain why the f c c and finra are charged with protection of the public that's their charge and they have said and we cited in our brief how this arbitration system is part of that regulation of people that are gauged in the securities business and so let's say that let's say for instance that an associate person to fraud somebody in connection with an insurance policy that it's not securities business but as an insurance policy finra and the f c c want to know that in a in the f c c want that dispute to be settled in arbitration even though it's not a securities dispute and i'm going to go one step further the to show you how in correct your premises there are many these cases all student to an immobile accident that automobile accident would not be in connection with the business but they might very well have a business where the where where it is you know if all driving i would say that automobile accident would not be in connection with a but if it's  business vehicle it might it might be but but look these are plain words these are not hard on what do you say if it is if the automobile accident involved a business  it's got you got to look at the the words the words are that's their business activity is rice activity ok it's a business vehicle it's got to be in connect with the business act the dispute has to be with the associated person in connection with his business activities it doesn't the court added the phrase in connection with the business activities of the member firm it doesn't say that you're to be in a business activities of the associated person however we don't understand that but if it has nothing to do with being an associated person but it i say this to you ok it's plain ordinary language in king in both bornstein although they were talking about customer they said use the plane in ordinary meaning of these firm and he and since with shilling and he goes to africa and he commits a completely unrelated completely unrelated to the brokerage firm securities fraud in africa yes you answered that arbitration would be required yes ok go through how you get there ok i go there by i'm going to repeat a little bit of what i said earlier finra is charged by congress with regulating the securities industry and they create various rules of conduct this is this this by the way has nothing to with the code of arbitration procedure there are separate rules of conduct and behavior they have rules that require member firms to supervise the activities of their associated persons were ever they are in the world and so my point here is that yes if they committed some sort of act in africa and it's in connection with the business activities of that person the finra says member firms have to supervise the activities so and the supervising of activities is a business so in that mr smith is is the business not the broker no no no no no no of the brokerage firm has to supervise mr smith and the brokerage firm in switzerland if you bring in mr smith a really good job mr smith goes to africa changes his name to mr jones ok and and and goes to a brokerage firm that's completely unrelated not federal and not and and he i don't follow your question and i apologize it he has a brokerage firm in switzerland mr smith does and and let's just say it it is governed by friends family and which i think is would be your best argument then he goes he changes his name to mr jones he goes in in africa and he has an eye on unrelated on completely unrelated business commits a security fraud and he would be with a company that has nothing to do with him fenriz not even i but because he is doing and yes then federal covers yes you both the firm and he would have to arbitra both of them would and and so you know brokerage firms a very sophisticated supervision systems they they monitor all the e mails they monitor travel you know you've got to you don't just get to go to mexico or go to africa you've got to put in for it you've got to you've got to tell the brokerage firm who you're going to be visiting with in those countries so the brokerage firms supervise the employees there so see a person's very very carefully and in that instance you could argue i mean you know that they failed to exercise reasonable care when they were supervising this person and therefore he was he went off on this thing and did it and and but but the point here the one that i want to make is that all of these cases you know i say all these cases most of these cases where they're saying well we should have to arbitrate because they weren't our customer most those cases involve what's called selling away where the where the broker is doing something outside of the firm the firm doesn't know about it the money's not coming from the firm it's not a product of the firm they're selling something away from the firm that's the standard typical case in fact that was king and that was  agreements and king they were selling some some investment in a company called evergreen securities so always they're doing something else outside the firm the firm doesn't know about it but it's and it is the sale of securities so here we don't have to worry about whether we're in africa or not because here the partners we're having we have securities accounts the trust had a securities account because the secure money was stolen from the securities account all statements were issued by the partners this is all in connection with their activities as securities people so that's that's why this should have been arbitrated aren't mistaking arson you know you say five minutes for  to the question that is troubling judge pryor the bornstein case talks specifically about what that business activity needs to be and i quote from the report a decision at page thirteen forty  four discussing king the dispute arose in connection with i have business is very clear the court goes on a half a page later and says the dispute arises in connection with the members business and a third time on thirteen forty five this court said the events arose in connection with monet's business being the member once again the very court the very court and decisions that the trustee relying upon actually spoke directly to the issues that your honour's this morning and answered that conclusively i would also commend to your honor's attention the decision of a court of appeals in california valentine capital that we cited and actually quoted from extensively in our briefing at thirty to thirty one of our opposition brief and in valentine capital the very argument that's being pushed forward by the trusts in this case was considered discussed and rejected and there were a number of reasons for rejecting one is of course the plain language and the meaning of what set forth in fin rule twelve two hundred but more importantly they talked about a policy concern and i'm quoting from the decision at page six zero six you are your o with this interpretation finra and the registered representatives under its jurisdiction are assured that arbitration will pertain to matters with some nexus to the activity actually regulated by finra well that makes perfect sense finner is concerned about its business its not concerned about car sales in africa which was the example that the district court presented this and i continue to quote this is nothing more than the commonsense meaning of the plain language contained in rule thirteen two hundred slightly different provision but it's the same substantively and any other interpretation would wrongly strip individuals of their civil jury trials concerning subject matter in which finra maintains no regulatory interest in this case your honour's i just want to remind you that the dispute in fact is between the trusts and a swiss bank and the contract that they signed when they opened the account stated that all disputes had to be resolved in the courts of geneva switzerland and they're trying to escape that contract so it's kind of ironic that here we are where they are insisting upon the sanctity of the finra rule which they characterize as a contract at the same time the very contract they signed which clearly governs they're trying to ignore your arse i'm happy to address many other issues so i was prepared to talk about lots of things but i think will rest on our papers unless you have questions thank you mr carlson counsel raised a very interesting point that really backfires on him he said that the arising connection with business concept where there he was talking about the king case and the  with those courts said was supervising your associated persons is part of your business activities and the court went on to say that because the being there for it arises in connection with the business activities of the member the disputed that hurts their position and that's then and so i go back to this in king and bornstein the court said look you follow in the court said in fact in king the court said the court must interpret the code as it would a contract under applicable state law and it cited perry supreme court case effect as it does when interpret in any contract to the parties intent expressed by the ordinary meeting ordinary meaning of the words they used and here the court said because talking about the definition of customer the court said it's plain it's an ambiguous and when it's plain and unambiguous you can't add language and so when you look at the third prong the in connection with prong it simply says in connection with the business associated person have nothing to do with being an associate of person you're adding language you're having language then looking at all the language and looking at the business activities of the house and associated person i would understand let's get let's stop back for a second why are you wanting to change the meaning i mean the fan mail and then when the f c c no what they're saying oh they don't they don't do something to be said for what they're what their point of stripping someone of their right to a civil trial and instead forcing them and darva triton particularly where someone has signed an agreement that to resolve their disputes arising from this contractual relationship in a particular legal forum well but there's also this other agreement that is you have to arbitrate your dispute so there's two agreements so that's something that the arbitrator's will consider i mean in the supreme court has said over and over again that these are issues for the arbitrator what we had here is a gateway issue ok and the gateway issue is you just look at the plain language and you don't add or delete words one thing's for sure mr carlson i guess you think we look at the plain language i