arbitration under an agreement to which it is not a party and which it did not even know about until the onset of this litigation and in any event an agreement that does not contemplate the arista plan white claims that are at issue in this dollars plaintiff's claims are brought under five zero two eight two of a risk to enforce the provisions of four zero nine and two as the specific language of that statute provides holder way in liable to make good to such of those cases contemplate that the ninth circuit seems to have a slightly different view of these claims under section five to zero right i don't believe so your honor i assume you're referencing them on roe case and i think that basically the court in monroe reaches a decision that is consistent with supreme court authority that is five zero two eight two provides for plan wide relief and the rule has the rules facts i think are very critical because  they get to stored it in both briefing and the briefing in the monroe case if you look at the facts of larue that involved and individual participant who was complaining about losses to his individual account context particularly if you look at the concurring opinions it becomes very clear that the supreme court is saying five zero two eight two is plan wide relief you can get plan relief and you have a right as a participant or beneficiary just the same as you would is if you were the department of labor or a fiduciary to seek relief under five zero to a two that statue makes no distinction between the rights of a beneficiary or a participant on the one hand and the rights of the department of labor or a fiduciary so in this instance mr cooper is standing in the shoes essential e e of the department of labor and seeking to enforce play on white relief and that's that's even more so in this case because in fact as the record reflects we have a joint prosecution agreement with the department of labor and we're actively working with them in this case to pursue plan wide relief there hasn't been any  related to an employee covered by the plan he might also have standing right he has standing because here he is a participant in the plan but if he's a participant in the plan and he's and that's arises out of his being an employee of d s t then why isn't that covered by the d s t employment agreement because the d s t employment agreements articulate is that it is intended to cover employment related disputes arising out of or relating to mr cooper's employment with dozens of employment related dispute it does your honor what are you referring to if you look at the arbitration clause itself which i believe starts at the record in the joint appendix around page one fifty nine states that the arbitration clause is limited to individual employment claims between the employee and d s t this arbitration program and agreement covers all legal claims arising out of or relating to employment yes your hon r i'm sorry that my reading of the statute of that language is the same which is what i mean arising out of the relating to employment is generally considered to be very broad language for purposes of an arbitration provision right it is broad but it is not boundless and in fact when you look and i think that that is where the monroe case is it gets it gets it right in the sense that you were talking about individual employment claims versus and the arbitration clause is very clear it has to be claims brought by a single associate and it cannot in any way reflect collective claims class wide claims claims of other in this case other employees who would be plan participants and in that way it restricts and does not contemplate mr cooper's rights to bring five o two a to claim which is a claim for plan wide relief is it your position that  monroe had a decision monroe that the supreme court might issue would govern this case no your honor because there are a number of reasons there are a number of reasons the court certainly could follow the reasoning in monroe  and we submit that that would be a correct outcome but in this case i think the language is similar enough in the two arbitration agreements i do your honor in fact in this case the language is narrower than in the monroe case the monroe arbitration agreement talks about all claims between the parties of any type this this arbitration agreement focuses on arising out of her relating to employment but there's a whole is separate argument that we make at the outset which is that frankly rulin that he was standing surely by virtue of the fact that he was a participant in the play i don't agree that that is the connection right i do agree that mr cooper is a participant in the plan and he is a participant in the plan by virtue of his employment but when he is suing under five five zero to a two he is suing on behalf of the planet's a representative plant claim and the arbitration clause talks about individual employment claims that's just not what this case is and if particularly if you're talking about ruin let's remember that ruling is not a signatory to to the arbitration a denim so the only way we get to remain is if this court finds that the five zero two eight two claim is within the scope of the arbitration shore so the equitable a stoppel claim as the score is aware that the doctrine of active equitable stoppel the idea is that you cannot both take advantage of a contract and resist its terms at the same time it the district court basically just applied the concept of equitable stoppel too broadly because sort of assumed that there was some cause some connection and that was enough and that it didn't really didn't look at that question of is mr cooper trying to take advantage of or rely upon the contract in any way but even assuming you then get to that point of ok let's apply equitable stoppel there are two steps that the court needed to go through if needed to find that the that there's an interchange linus between mr cooper's claims under a risk and the arbitration clause and then you also have to find a close relationship and i would i would submit that ruling doesn't satisfy either of those tests particularly if you look at the close relationship cases  suit against the company and the play yes your honor i suggest there's a pretty close relationship no because then you're looking at the close relationship between cooper and ruane ruing continues to make this this argument that you can look at the relationship between d s t and ruane but i submit that if you look at the equitable stoppel cases and contacts that's not in fact what they say you look at because again you're looking at can can cooper be stopped from resisting arbitration and so if by a third party is there some contemplation that cooper expected or consented to arbitrate with a third party who's clearly not a signatory not a parent not a subsidiary not an agent of d s t does not have that kind of close relationship very different from the situation and then we're going case where you're talking about a joint employment context he was an agent of d s t but it was working closely with the advisory committee were right and was at its it was hacked as an agent to manage the plan at their direction was acting as their investment manager correct and was acting as a fiduciary for that for the for the d s t plan but not an agent with respect to cooper's employment no connection with respect specifically to cooper's employment only connection to cooper was to the extent that cooper was participating in the plan and again remember this is a claim for plan wide relief so cooper  not the way that you described it the what the what the district court found the destroy your right that the district court does suggest that there is a close relationship but if you look at the record mr cooper testified he didn't really yes he received these statements he received arbitration in the s p d m those are documents that those are the documents that mr cooper received that identified ruane and he testifies that he really didn't know about ruane until he saw these losses so yes there is there is evidence in the record that he received these documents but not evidence in the record that he actually understood rulings connection intil the loss of started to occur just one quick question d s t was originally named as a defendant correction actually telling agreement it was a dismissal without prejudice and it was it was done and this is all in the record again because the for two reasons one there was a strategic decision made to focus the efforts of the case on  remains the primary wrongdoer here was investments that led investment mismanagement that led to the losses and secondarily that there was an agreement in within the tolling agreement that the parties were willing to go to mediation to try and resolve the dispute former employees potentially or in employees who did not sign the arbitration agreement or opted out is that right that's correct that's the ferguson action they did not opt out ruling does make that statement in its papers but that's incorrect the participants  case as decided by the ninth circuit i think it's the mineral case as excuse me as as described by you know the apology here but first off i don't think we ought to get into the moment not up to me it's up to you know the court i think that the monroe issues if you will raved in the lower court the argument made by the appellant was that the i am a the investor management agreement was the agreement that  duty of our c g and that the i m a did not have an arbitration clause and therefore there couldn't be arbitration it was very focused to graham a very focused argument and it was very focused on the i m a only now before this court is appellate saying well that's not what we're arguing what we're arguing is that no participant can agree to arbitrate a claim because the claim belongs to the plant that's not the argument that was made before the lower court the argument made before the lower court related not to the plan and  its rights but related to a textual analysis of the i am a so i think that the issue was weighed under the well established authority before this court and i think it may have been judge sullivan and i'm not sure of actually judge carney you mentioned that  the supreme court may and it's unfair we're fifteenth are supposedly going to decide the issue of the writ of cert on the monroe case what i'm trying to say is i don't think there's any reason this court should be looking at the monroe issues and there's two more reasons i would say it first and i think judge of and this might have been you said that what happened almost immediately after this case began because it was mr cooper suing ruane and eleven related d s t defendants and i was we put in the record is t is a company with two point eight billion dollars in revenue most plaintiff's counsel and i'm not maligning them but are not going to let go of a two point eight million dollar defendant unless they have to what happened is counsel for d s t shortly after the case was brought up contacted plaintiff and said you know there's an arbitration agreement within a month or so that the claims against d s t were dropped now if mr cooper you have anything on the record about them back and forth between that initial contact and the dropping of the lawsuit there was a substantial amount that was on the record before the lower court because we did discovery judge pauley allowed us to do discovery to look into those issues for the life and i apologize standing here today i don't know what exactly is in is in the record  appendix before this court but certainly all of those issues including the e mails back and forth between the appellant's and d s t and their counsel or clearly in the record before the lower court but the point is what happened is if the appellant really believe the position it's taking right now which is that the plan owns the claims and that no participant can can and can sign an arbitration agreement they would not have dismissed against d s t d s t was the bigger fish by  far and i heard i hear it appellate counsel say well we dismissed them and i read in their papers to go after the primary defendant not the secondary i mean if you read the complaint and i would apologize because i can't focus on one or two paragraphs but if you read the whole complaint it reads jointly against both d s t again sorry c g in fact when i took the deposition of mr cooper he said they were jointly responsible they jointly took care of my plant it's largely i understand what you're saying stop it does but what i'm also saying your honor is the argument was waived because if the argument was not waved at the lower court they would have not dismissed the g s t they would have said to d s t you're in because no one could sign this arbitration agreement they didn't do that and they didn't do that when they were arguing the i m a argument which was purely checks will related to the i may in the fact that it didn't have any arbitration agreement there only raising this issue now because of monro a have called them opt outs by accident and i apologize there were but they're seeking to represent the whole ten thousand members of the plant just like mr cooper who was subject to th would have to say i'm not sure but i don't think it's not an important question not an of the answer it's actually not an important question because there are so few retirees it's a ten thousand member plan most of whom were employees what is their standing what is the standing well this there's there's two ways that they've tried to do it and one mr cooper came up he had signed the arbitration agreement but he said i'm bringing this claim on behalf of all the members it was a class action now  mr cooper it was acting as a class plaintiff and we pointed out that he couldn't do that by virtue of the arbitration agreement but the three ferguson plaintiffs are also trying to act on behalf of all ten thousand members so i'm still back on my feet same first argument which is why this court shouldn't deal with the monroe issues and i'm sorry that i'm throwing it out but the fact is that the ferguson has the same issue inherent in it that palin is trying to raise and calling it's a man right we're calling it the monroe issue which is that we will when we get to the right time make a motion to dismiss with respect to the ninety five percent of the plant assets who signed the arbitration agreements so the court the district court at that point will decide whether or not the arbitration agreement governs there is a arbitration clause who are suing on behalf of the plan yes your honor and they are not subject to arbitration the three of them are not however ninety five percent of the rest of the plant signed the arbitration agreement so the issue before the southern district in the ferguson case which was raised by appellant in its papers is whether or not the arbitration agreement governs with respect to those ninety five it has a class waiver in it i mean scuse me just to represent but you're not taking the position or are you that as to those who did not sign the independent that they also should be required to arbitrate because ninety five percent said no they can proceed they can proceed they can proceed and in fact there is another action before the southern district not brought by the same coun where there is a class action for the for the for the either the retiree's or for the opt outs but my point and i'm doing so slowly and i do apologize for that is this same issue the monroe issue is going to come back to this court if it i'm sorry can't field and mandan and they're not and they're also before judge carter so the issue is going to come up to this court at some other point and i think in a much cleaner way typically the way it will come up and that's why there rules and i'm not getting into equitable stop a but let me let me very quickly let me get very quickly get into what will stop will what we need for equitable stoffel clearly is an arbitration agreement and coopers claims are subject to the arbitration agreement it's a broad arbitration a it's the relationship with the signatories one or both of them and here we point out that we have a close relationship to both services around in my committee i think my colleague mr winter will probably get it to me but i can go to the facts very quickly remember there is he would not have been in the d s t plan you're i agree i mean you there's a but for relationship he wouldn't have been in the plan there is a term but in terms of what facts he would need to show in order to establish his claim it seems to me that none have to do with his employment they have to do with investment decisions and in terms of arising out of his employment mean the fact that retirees and people who are not employees could make the same claim on behalf of the plan suggests me that its relationship might be up but for relationship and it does have to do some with compensation is somewhat more remote  then i think it's not an open and shut case let me say that i hear what you're saying around it but i think one thing to point out is that no one would ever have been in this d s t p s a without having worked for d s t some of them became retirees at some point most of them were employees but you don't get in there without but woman but but much much further afield thing here just just to clarify that you do agree then that we have to decide that it is related enough to be covered by the arbitration clause by this part of the operation clause which is there really are two types of arbitration agreements and i think there's some confusion brought about by the appellants brief there are intrinsic there are intrinsic arbitration agreements where you have an agreement for example a contract between x and y which says that everything arising out of this contract will be arbitrated relationship now those are different from the any case for example where there was an intrinsic arbitration agreement when there's an extremes of arbitration agreement that's broader that says everything arising out of the employment relationship  the fact is what the courts look at is whether or not when the plaintiff played its claims they were indiscriminate in terms of their not just indistinguishable in terms of the complaint and judge carney is not entirely sure i understand what you mean by an intrinsic i apologize maybe that's a word of my own making i meant there are some some of the earlier cases on equitable stoppel involved contracts  express let me do it this way in some of the earlier equitable stoppel cases there was a contract let's say shipping contract between x and y company and within that contract which was a substantive contract on its own there was an a agreement that said or clause that said everything arising out of this contract is arbiter bill those are most of the cases if you appellant is relying upon it saying that it's a very narrow set of circumstances then there's a second set of  cases relating to a different type of arbitration agreement and judge pauley below recognized it he called and standalone i called an exchange much like the one here where it says any claim arising out of the employment relationship and that we're going case this court's we're going case the baroda case the lismore case all have similar standalone agreements and what judge pauley pointed out which is true is if you strictly applied an argument that the subject matter of the dispute has to arise out of the individual contract itself then when there's a standalone agreement you would never have equitable stoppel and that's just not the law because we're going clearly you know you had a relationship which was not set forth in an agreement but referred to a stand agreement arising out of the employment relationship so what i'm saying is there's a slightly different test when there is a standard an arbitration agreement and in that slightly different test what you do is look and see what the plaintiff did when it played its complaint and in the gannon case  other cases what the courts look at is to see if the allegations against the signatory and non signatory defendants are indistinguishable and that's exactly the fact here if you read this complaint you can't tell one from the other so i think we meet the first test of intertwined in case and chase mortgage which is a southern district case i don't know that we have the site your honor but smith enron is a venerable case in this area and the language in these cases is the relationship between you know the focusing on the relationship between mr cooper and wayne just pulling out wrong that is he should have focused really between on the relation between d s t and again i think he needs to i think we need to focus on both and the reason i say this your honour's there is a number of agency cases in ross the court points out that you look at whether or not the non signatory was an agent of the signatory not the plaintiff but the signatory defendant in festus stock you look and see then what on the record would tell me that it's a sufficiently close relationship i think should call it went through that i think you did it very well i can do it fairly quickly your honor which is and and we take great pains to point out that mr cooper was a very bright man math and physics undergraduate but he's is i mean forget the standing issue for a second he is suing on behalf of planned so tell me why a plan participant would have a close relationship with its employer's investment advisor because he did your honor because from the day he started he saw from the s p d that we were managing his money upwards of two hundred thousand dollars secondly on a regular basis he got by e mail by hard copy on the web and he followed it he said in his deposition plan like this i don't think it is your honor but in terms of the class rep should look just at him what we should and you're out of this something it's very important i should say and i'll do this very quickly because i'm running well over in the rue case the supreme court made a very important argument a very important distinction between a defined benefit plan and a defined contribution plan this is a defined contribution plan when it comes to a defined contribution plan the money may go back into the plan but it immediately goes into an individual's account a defined benefit plan as we all know which was the prevalent type of plan and you know years ago there's one corpus it's not broken up so a number of the cases that are cited by appellate which focus on the on behalf of the last plan language relate like russell for example which one of the members of the panel mentioned that was a defined benefit plan there's one corpus if there's a damage to the corpus that it damaged all this is a defined this is a defined contribution plan to not make that distinction i think and we have not not not not in russell they made it in the rue your honor and where they pointed out that individual ised harm is enough to allow somebody a participant standing and i think what's kind of confusing things is that the mix that the opponents have done of the cases the defined benefit and the defined contribution plan this is a defined contribution plan mr cooper and the reason we focused on mr cooper not only was he the putative class rep but the fact is if he was damaged he was damaged in his own plan there could have been of these ten thousand that could have been many people who who i think it's in the record valley it was bought at nineteen and eventually went to to sixty one and was sold at a lower number but there's still a sixty percent profit depending on when these individual members of the plan got in and out they either made a fortune and made a lot of money or could have or could have lost yes but that's very different from the defined benefit plans where it's the plan that's the corpus so it's the plan that's going to lose and everybody within the plane is either going to win or lose depending on what happens to the plan so the defined benefit plan cases are very very different and that's where the on behalf of the plan language is much more important it's much less and and that i think is the take away from the rw i wasn't talking about mass mutual and i apologize if i confused the court the take away from the rule is that it's it's a it can be a case of individual iced harm because individual involve investment decisions on behalf of the plan they do not involve mr cooper's personal employment work conditions and in that way the claims at issue do not arise out of or are related to his claims and that is the first question we would submit that this court needs to answer before getting to the equitable stoppel piece of the first question was yeah and a question it is but it's only the second sorry yes your honor so it's i view those questions as coming under scope is is the i understand you're right that in terms of the the analysis the first question you would look at is is i mean it is part of the scope analysis in the sense that is this dispute within the scope of the  sheer speculation what the reasons for that dismissal were there's certainly nothing in the record to suggest out that we believed that we were bound to arbitrate the claims with with d s t and that certainly has nothing to do with this waiver argument that it's raising we we did not waive the essentially the men row argument because again that's a scope argument we made the argument below that this dispute is not within the scope of the arbitration clause that ruane is claiming it is and that is first because the i am a is actually the controlling agreement and second because even if you did look at that agreement it does not arise out of or is related to cooper's employment so and that's clearly argued in by looking at the i am a in determining that there is not an arbitration clause that that would control the dispute if the court were to look at monroe and and consider the arising out of or relating to it still would be different because our clause is different it's narrow or th em than the clause in monroe and so it would be a different analysis and there wouldn't be there would be distinguishable reasons to to resolve the case on the scope basis the the last point i want to make is with respect to the ruin this defined contribution versus defined benefit plan if you look at our complaint and the site is a joint appendix at page twenty one paragraph twenty nine of our complaint actually describes the p issue here which really function as a defined benefit plan it's paragraph twenty nine of the complaint and that's because the way the p s a operated was that ruane controlled the investments this wasn't  classic for a one k were indeed jewels have individual accounts and they're controlling what happens in those accounts the p s a was totally separate it was governed simply by d s his contributions that brewing managed and invested and in that way the l es that were incurred and the focus of the breach the fiduciary breach claims act operate as a defiant essentially as a defined benefit analysis in the in the way that lou talked about because they are planned wide losses they're not losses duty play right there's no carve out specifically for research related fiduciary duty there is not a specific carve out what would be the reason for treating them differently and you think of any well because because the benefits claims are individual claims but the fishery duty claim is ultimately going to be down to the benefit of cooper right he's i mean the damages he's seeking ultimately going to make him whole on the deficiency in the benefits right that they ostensibly but really you're pretty sure when you prosecute a claim as a plan claim you are taking the position that you want the losses recovered to the plan and so you know the way that that ma work out once you get to judgment and distribution is maybe you get your losses back but there is a very complicated analysis that gets done in terms of how the losses would be because you have to do this tracing you have to sort of figure out where the losses come from point it's actually and so that's another reason why this is a very particular kind of claim it's not i lost this amount of money in my account therefore i get the same amount of money back that's not what a five a to a to claim really contemplate