district held that was our which for more than a century was a leading dime in company in this city which was listed on the american stock exchange which was thriving so the actions of the defendant destroyed has to go to belgium litigate its claims because of a farm selection clause in a bank account agreement that has no bearing on either of the two categories has asserted and that was as a matter of law let me begin  is limited only only applies to claims that are related to the contract and those cases literally call the position taken by the district court here absurd because it is and i would like to add to that list of cases of fraud claim would never be subject to  rights or duties of the contract as a depend upon an interpretation of the contract the does a fraud claim could well be subject to a form of we don't dispute that at all but the answer to those questions in this case each and every one of them is contract the contractual the form selection clause said quote the state and federal court shall have exclusive jurisdiction over any dispute between the parties judge cote nonetheless held that this was on a motion for a preliminary injunction that that by us no that is not the way the scheme worked this exact same theft could have happened if it was our never had a banking relationship with these banks but instead bank as a did bank with h s b c and other banks th back for a parsing of form selection clauses and parties really missed the forest for the trees because they didn't need to do that the theft claim should have just proceeded without any consideration of farm selection right you just tell me those arguments were presented at the time before the panel but they certainly were not the question or the panel correctly recognized that ultimately the question is what claims are subject to the for that's one of them and the court held that that actually was subject to the new york selection clause there are also claims that arise from the bank misconduct in relation to the credit facility including in particular it a form selection because the new york if i may add your honor in any event not subject to the selection clause we also take the position that it is governed by the credit conditions agreement which has its own form selection provision but that provision does not require to bring claims in any particular form certainly doesn't require it to bring them in belgium  yes but the question is which form selection provision is controlling the one in the credit conditions were the one in the new york agreement or the one in the banking conditions and if you if you look at the credit conditions in the banking conditions side by side you'll see that it's not the case that the credit conditions picks up the form selection clause in the banking conditions which is c's contention if that had been the party's intent they would have simply cut and pasted it from the banking conditions it's article thirty seven of the banking conditions into article twenty four of the credit conditions they didn't do that and they did do precisely that with a number of other provisions in those articles for instance article thirty seven of the banking conditions has an express waiver of jury trial by the account holder article twenty four of the credit conditions has an identical provisions that's expressed in terms of the borrower waiving its right to a jury if k p c were correct in the provisions for account holders under article thirty seven were already incorporated by reference into article twenty four of the credit conditions there would have been no reason to include a separate jury waiver in that clause and what that tells you is that when the parties intended for the same provisions in article thirty seven of the banking conditions to apply under article twenty four of the credit conditions they said so explicitly and it tells you that their one was our decided to enter into a relationship with antwerp diamond bank they agreed to be bound by broad mandatory form selection clause that for two well they agree to be bound in terms of one that when they bring their one is i werp form selection club that in the bank follows the credit agreement so i would say that it's wallows the credit agreement the credit agreement and the banking agreement to describe the credit agreement the credit conditions as being an integral part of the banking conditions the banking conditions as your honor said the an account holder you can't be a borrower without being an account holder and so anyone who has an account and one who is a borrower has an account at antwerp bank and the reasons because that is how credit was extended it was extended by getting a bank account and basically a normal bank account with an additional element to it with a different an additional piece to it in that piece allows you to overdraft that account to take out more money than exists in  i guess the question is if there's a farm selection clause in the banking agreement why wouldn't there also be one in the credit agreement if you're arguing that you can't be one without being the let me answer  couple of ways your honor the main answer is that it wasn't needed any borrower is also an account holder under the antwerp form selection caused an account holder such as those are asked to bring any claim in antwerp belgium that's the st part of it well i think that any means any your honor and i would i would i would point the court to the supreme court's decision in m f bremen versus a pata there was a contract reform to action closets and any dispute that arises between the parties in the supreme court said that is quote all encompassing and it's entitle to full effect so yes i think any does on any bank teller your honor there are hypotheticals that we could get into i don't think this case comes close to those hypotheticals because i think the claims are in fact related and i'd be happy to get into that but let me just say what's the answer that question that too would be any time yes your honor i think any claim in any means any and i want to point to article thirty seven dollars this is where the antwerp form cause appears and it says it has a bunch of different provisions it has a provision regarding jury instruction where a jury waiver and that is only for claims related to the banking conditions and there is a service of process waiver and that is only for claims related to the banking conditions or as a for brought by the bank and that it's only for claims related to the banking conditions in the middle of article thirty seven you have the antwerp form selection clause that doesn't have that condition it doesn't have any limitation on it and the drafters used very different language for one provision than they did for the other and that provision should be given effect the way that the drafters wrote it that said i think that was ours tort claims do all have their genesis in the banking and credit relationship between an was are says that the banking conditions cover only banking only account holders and the credit conditions cover only borrowers that is just simply not true the credit conditions and this is  overdraft facility are all governed by the banking conditions as well as the credit conditions and i want to point the court to two things in the banking conditions that are very much related so the kinds of we're talking about here the st is paragraph eleven of the banking conditions which do with the extension of credit that's in the banking conditions of not in the credit conditions or other provisions in the credit conditions but it's in the banking conditions also my my friend talked about terminations terminations also covered in the a dispute over the terms and conditions or disputes over other account agreements between lazaro and k v see that limitation in the nd half of the form collection club the new york form selection cause of the reason why that provision is limited claims and how are they are related to the banking conditions laws are really runs away from the allegations that are in complaint and so i want to talk about those specific allegations we identified three different reasons why in our brief w spines are related to the banking conditions but let's look at some of the language in their claims so their conversion claim for example the conversion occurred when the bank prohibited lazhar from receiving its monies and property by applying such monies to the counts of others that's connected to the banking relationship to the credit relationship lazard doesn't get the money because it goes to somebody else there are unjust enrichment claim the banks have been rich by their refusal to return to those are the proceeds from the diamond sales and by loans to the daily yacht entities being repaid using was ours diamond facilities the declaratory judgment claim bank diverted was ours diamond proceeds away from was our toward the payment of the delhi out that's entities these are all allegations in their st amended complaint in the operative complaint and it is all about diversion taking money away misappropriating is the word that my friend used while he was up here misappropriating as in the money should have gone to lowe's are and it went to somebody else instead the same is true of the rico claim the rico enterprise as they define it the banks role in the rico enterprise and five things exert pressure over destroy those ars business and its ability to operate all of those are about the banking and credit relationship that existed between antwerp bank and was are that is a relationship that they say that our client  id stole their money the theft occurs they say when the money comes into the bank where the money comes into the bank it is earmarked for somebody else and they say the bank knew that the money was theirs an should have given the money to them but instead gave it to somebody else and that's where in new york or belgium that all occurs in belgium your honor because the money comes in to k b c new york but the loan the credit the debt that's all in antwerp belgium money to k p c all of the loans all of the debt is all in antwerp that's all it answered here in the allegation is that the pooling account was misappropriated basically right took money from the pooling account here and sent it when the money doesn't end up in their account and their account is the one that is in antwerp belgium but even if the theft did occur in new york i go back to the form clause the form clause says any dispute any claim that was are bringing armed cause in belgium doesn't specifically reference q b c right so that then you need to rely on the related this doctrine that is right your are think it also covers through the closely related doctrine all the claims against k b c that are not covered by the new york forum clause so the new york form cause governs the one claim which i'd love to turn to if i have a moment it covers that one claim that's what the just record held below and until are held right so you're saying just that one thing that just that one claim why doesn't it go the other way why does it relate in this go the other way too because the new york form selection clause refers to a related entity so for the same reason that the new york form clause would govern the claims that fall within it it is more specific it is narrower with regard to the claim that one claim against k b c all the claims against is that your contractual obligations don't change when there is an absorption that is an argument that is a holding that has not been addressed at all by lazard that's what the district court held and and was are had said nothing about it they never refer that part of the holding they never refer to the to the banking regulations in new york as if you would permit me i mean i did want to get to the one new york claim that judge carter addressed which was the good faith and fair dealing finance transactions with the banks insisted they require that the proceeds immediately be put into the bank after there was a sale so they could track all the money going in the various different directions those are alleges that and banks follow that policy th transactions are not that that's right but even the st transaction the money coming in isn't on their statement so when they look at their statement and they're expecting a one million dollars there was a sale they know of the sale they know the money was supposed to come into the account they are expecting  but there's no dispute that those statements are going to say when you look at them that nothing happens nobody disputes that the money never ends up in their account everybody agrees on that they're expecting the money to be there they know that it's coming and it doesn't what happens they don't do anything they start investigating eventually eventually they reach out to the bank but they had thirty days to do so and they didn't do it then they could have filed a lawsuit they waited over two years to file a lot there's  in the original complaint in order for the banks to make sure they're not getting ripped off of this money is ending up where it's supposed to end up those proceeds are supposed to immediately immediately appear in their bank come back to the bank if that had happened and think this is really critical we will find in the record your honor but they're going to show no in out i think everybody will agree on that but let me let me just make one more i think really important point about this this argument comes up in our motion to dismiss below was our addresses it in one sentence in a footnote and all they say and that one sentence i'm happy to quote it in its entirety but they say you couldn't have been able to tell  needless to say was are could not have detected from a review of its new york account statements of the theft l k i didn't proceed and other criminal acts committed by the racketeering enterprise that is the full argument that they made before judge carter it's in a footnote it beyond the waiver to now allow them to make a much larger argument when they had a one sentence conclusory argument below i think it's unfair to judge hard judge carter worked hard on this case he sat through a two day hearing after three years of discovery he came to a very reasonable conclusion was our made not much of an argument about time bar and if they wanted to do more with that they could and the fact that they didn't i think shows that it's waived but even if it isn't waived i think that it makes the point that they didn't really make any of these arguments and all judge carter did was to say in his opinion you knew about it you knew that there was a theft because eventually you go to the bank and you say that there was a theft how did you know about it you've misappropriated they weren't earmarked for the cattle it was all part of the conspiracy the scheme was to send the money to the pool you can't where they would be misappropriated and applied to that and i just want to be crystal clear on this point yes  provision could all be relevant yes that's right it took it took years of painstaking investigation we had to hire private investigators they figured out that the banks were in on this and were actually stealing the money and then we brought a rico claim holder but that begs the question i submit which is whether the parties intended different rules to apply depending on whether the suit related to the customer standing at the bar or its standing as an account holder and as far as i said i don't think mr silverman disputed this our case relates to the contract related claims only relate to his or status as a borrower the theft related claims don't relate to a contractual relationship with the bank still has to relate to the contract that's what all the case law says that the only thing that makes the vision you're talking about references the terms and conditions of the agreement in a dependent clause or if you look at the st operative independence sentence it says happen limitation to terms and conditions so i guess the bank position is well if it's a dispute relating to another agreement it's very broad it covers everything not just terms and conditions but for this agreement which has the form selection cause it only has it has to relate