convergence of an ambiguous statutory language congressional intent and judicial precedent i will only take a few minutes to discuss the merits of the controversy my understanding is that your client is not a member of this organization that is correct so and the so the authority of this organization to compel you to arbitrate is a statutory authority not you but anyone securities or room making board the authority to compel a party to arbitrate so just that as a background noise therefore it seems to me that the usual that the f a a doesn't apply because it's not contractual and that the usual presumptions in favor of arbitration i don't know if they apply but it's it's a new world from what we usually do in arbitration that's correct to compel a bank to arbitrate arrives under what not necessarily the bank could be a member a bank could be a member that is correct ok but if they're not a member then it comes from the statute and then we have to apply some rule interpreting the statute and i thought it was probably m s r be rule g one but you said thirty five why is it not g one well g one is is the definition definitional statute which itself comes under the securities exchange act of one thousand nine hundred thirty five and that is that is the definition that applies under section three a thirty of the fixed securities exchange act which says that if a bank engages in the business of buying and selling securities solely through a separate adana file department only that separately identifiable of a identifiable department will be deemed a bank dealer and then the m s r be rules that compel arbitration only apply against a bank dealer but so but then g one talks about what the activities are that that's correct you know where you're not those things are not doing those things it is alleged that our client did those things but whether or not the bank did those things unless they did them in the separately adana file bowl department that engages in buying and selling securities they are not subject to m s r be rule g one if you look at if you look at the rule it says that they separately identifiable department or division of the bank is that unit of the bank which conducts all of the activities of the bank relating to the conduct of business as i'm in a simple securities and then it then it describes what those activities might be but the rule that compels arbitration only separately identifiable department is conducting these act these activities just a minute you said she one was definite  those activities are certainly broader than what your suggestion so let me see if i can is your argument essentially this that you haven't really been talking about dealer which is a bank could be a bank or a separately identifiable department of a bank as defined in g one ok so we go we securities exchange act of one thousand nine hundred thirty four in section three a thirty but doesn't it say something about it unless there's a contact context that otherwise specifically require exchange that that's the general definition of all i mean that's the general rule applying to all definitions in the in the section three of the securities exchange act that section specifically provides provided however that no person other than a minister securities broker municipal security agents deal or minister bill advisor or associated person may be compelled buys and sells securities solely for you only say i don't agree with you say we think this part of the one that says in less context requires otherwise let's put up the side this buying and selling for your own accounting and tell me if you can win some other way than that it it's not tough simple under the scheme of the securities act to set aside the difference between one who buys and sells for his own account and one who buys and sells for the account of third parties so if we disagree whole scheme is based on that ok so we disagree with you or you you're not going to argue about these are customers or some other thing you just want to rest on that to today at this  addressing this issue of the fact that the bank had a separately identifiable department which was the only department of the bank that bought and sold securities for it's own account what their first of all it seems odd to abandon an argument that you made a sum once and you're brave but second of all i abandoning it or you're just not telling us about it today it's just because of the time limit on the size of your honor and so if we so if we disagree with you that are subject to the rules of arbitration and other words you have to be a bank dealer because you because you have to be a bank dealer you have to be in the national security dealer and in order to be subject to g mean you're supposed to curate his dealer when do you have to are actually correct and that's and that's exactly that's not a definition that's by definition and that's the error frankly that the district court made the district court jumped from the fact that there was an allegation that the bank in gauged in these activities to the conclusion that the whole bank was there for m and s about securities dealer and subject to arbitration i don't know if you look at that that doesn't seem to me to to be the champ at all i mean and other words the hard question here is is she one  to a definition of what is a mini supposed securities dealer or is it something else it is the definition of what those activities are the definition of the activity is of somebody who was first exactly that's exactly how it works so in order to be subject to g thirty five which is is the provision that compels arbitration you have to be has to be engaged in its act capacity as a minister will securities dealer and the reason that this language which i believe is unambiguous and clear is important is because it  affects the entire regulatory scheme that divides the supervision of the basic buying and selling of securities that's the thirty three act and the thirty four act from the banking business and as pointed out in the american bankers association versus s c c case which we have we we have cited to you it is clear that congress intended that there be such a difference between the regulation of banks and the ordinary regulation the question arises why if they mean a super securities dealers defined by buying or selling on their own account where they then have to arbitrate with regard to a bunch of other things that aren't buying or selling their bets and that's that that's the whole point they can only be compelled only can be but they permitted the securities and exchange commission regulatory scheme to invade the regulation of banks only in a very narrow circumstance that very narrow circumstance is when the bank excuse me in which case i think they can they can then regulate more than being in a civil war that they can that that's the point the disconnect that i don't understand that i'm not understanding the chain you're on you don't seem to understand any of my questions but the the brewer sub a little too has a bunch of activities that don't involve buying and selling i'm one's own account right such as underwriting financial advisor in consultant service research and testament advice yes it was the follow up the follow on provision says that all of those other things only our municipal securities activities if if they if they pertain to the matters that are set forth in a b which are the basic underwriting it please the court i'm thomas bradly on behalf of the estes group i'd like to begin by explaining how the in this a miss or b rules work rule thirty five is the one that says that everything dealer shall be subject to the code of the national association of securities dealers the known as in the city it's now and the reason they did that is that there were so few arbitration cases before in this are be that decided to disband their own arbitration process and so that's why they use finra so it doesn't matter that the bank is not a member of finra it's by back there's there's two separate issues one is whether or not the bank as a whole bank of oklahoma or whether it's separately identifiable division is the appropriate defendant in these arbitration and that seems to be what the cross reference to g one is relating to g one defines whether it's a bank or subdivision of the bank is defined by g one and g one lists all the different activities what doesn't it do both so i thought you one had a little one which is about a separate defined apartment and then g two which is about municipal securities dealers activities right so it has both of the parts of the d eight that you're talking about you saying that that's not where we look for whether he's saying we only look at the activities not at whether this is how you know if it's a dealer at all and you're saying that's wrong because of de correct and and what what happened so what they wanted to do was to the goal of the m s r be was to prevent fraudulent acts and to promote fairness in the municipal securities field and they also wanted to protect investors so what it did is it classified bank dealers and municipal security dealer activities in g one but when the statute talks about the trading on your own account business like where has that gone they have expanded beyond that and so it's not you that appropriate i mean can we look at that under chevron deference or what i mean where where does this come from g one modifies it and expands it how do we that is a municipal securities dealer will count and then what's interesting is that the language of cheat thirty five uses the term in connection with municipal securities and activities of the bank deal or sort of peels it appears that correct ok even if we say we agree with you which activity do you think they did here what the district court found was that miriam nielsen who was their head of  corporate trust department she advised in consulted with regard to the terms structure and timing of bond offerings and that came directly out of the f c c investigat is she advise ing she was of advise in both the underwriter and the issuer christopher brogden and this came right out of the s c c's investigation of the bank of ok so do you want to address the customer question yes  compensated from the money that was held in trust by the bond holders so a bond is purchased the bond i'm sorry bond that could be that they're working for the issuer that doesn't mean they're working for the bundle that is their claim but it was from the revenues that the facilities that the bank was being paid and the revenues from the cillit from the facilities were held in trust for the bondholders so it's the bond hold it came out of the bond holders ultimate money because it had that money not gone out to the bank to pay for trustee fees or other things that monies those monies would have been given to the to the bondholders so it's a bank account owned by between bondholders and and the bank they are the beneficiaries of the agreement to do their duties and so it was the bondholders who provided the funds that paid for to be ok services and in return for those services be ok provided was required to keep track of all of the records and notify under emma and everything else the bond holders of the status so the bond holders were receiving the benefit from so is there any so it seems like maybe you should have notice that you're going to need to go to arbitration and if there's ambiguity about whether this counts as a customer because they don't really purchase anything then who does the ambiguity away for here like we're in favor of i don't know what to do because we don't really have a presumption of arbitration like we usually do in the city of reno case  the court said that it the question turned on whether the presumption applied on whether or not there was a there the question was whether or not there was the scope of arbitration or the existence of our of a in agreement to arbitrate clearly there exists a m s r b rule that requires but only of some only with the customers right so if they thought these people aren't our customers how do they have any idea that they're supposed to be expecting arbitration i think because it goes back to the same customer question and because they were providing they had a fiduciary duty to prove provide  did a number of things they were the dissemination agent they were supposed to notify the bondholders whenever there was a failure to make payments were drawn reserve funds the bank but that was in pursuit of an application from the issuers right through it first and then contest it i don't understand where why having to go through an arbitration that you don't want to go through is a harm certainly that is would abernathy in campaign construction  hold your honor it's that permitting an arbitration to go forward is generally not appealable unless there's a final order judge hicks decision in this case was not a final judge hicks in just like you go through a trial even if you think you should have got the summary judgment and then you appeal direct so that you want to stop it now you know they want to stop it i think they want to stop so you think  continues to allow an absolute rule like that so i mean there might be an absolute rule that going through an arbitration unnecessarily is never irreparable harm but even he seems to draw into question blanket rules in this irreparable harm context i would agree i would agree with the court's interpretation but i don't think that you haven't at least in my research there wasn't any cases that cited to be and said that going through an get the sides confused too they're saying we don't have to arbitrate you're saying you do have to arbitrate if we agree with them say that they don't have to arbitrate then should we remain to the district court to find out whether it would irreparably harm them because it has to be case by case  arbitration and will proceed in federal court against the bank on behalf of the group and not proceed in front of so you basically saying we should just side the issue because you're basically going to take the position you know you add in one minute what do you think should happen with irreparable harm and whether we need to look at the other factors in the in the absence of an agreement you're compelling a party to subject itself to the regulatory jurisdiction that derives from the exercise of governmental power by the securities and exchange commission and the self regulatory organisation to me that in itself is irreparable harm but but then we sheet with the g one which is the definition of a separately identifiable department which is decided which is by reference to section three a thirty of the securities exchange act of one thousand nine hundred thirty four and if you go to that section of the securities and exchange act it says that if the bank isn't gauged in such business that is the business of buying and selling securities for its own account through a separately adana file department or division that a department or division a short break and clear the courtroom of because the next case has a closed court thank you