record held that the plaintiff's claim that the discount was not provided isn't subject to the arbitration clause in the court agreement governing the plaintiff's account illustration because your client inside the green correct but because in citibank that governs the town i don't want to go right to that issue because this recourse to separate contracts analysis was a clear errol we believe that led the district court to create a sort of materials that the district court held constituted the contract with sunoco was materials that period page forty three of the record you are judge garzon it is holding what i'm referring to these were the three exhibits attached to the pla original complaint i want to make some points about those materials first they identified citibank as the issuer of the card and they are branded citibank and sunoco they need to hear that you get the discount only if you get the card and you get the car only if you survive a credit check they may clear the promotional materials again that the discount can occur at the pump or it can occur as an account adjustment and if it occurs as it as an account adjustment forms the basis for the complaint here that i was denied the discount to which i was entitle and he received account just minutes so now there is a funding in the district court's opinion  discount is properly applied this finding i think was central and a linchpin to the district courts to separate contracts theory his view was that the promise of a discount was made by  advocacy and a pretty good piece about because he it that he summarizes an e mail exchange that the plaintiff pad was citibank in the early part of two thousand and fifteen as it happens that e mail exchanges also in the r exchange is takes ownership of the issue she explains that the discount can occur sometimes at the pump and sometimes later by account adjustment she works with adjustment to m points out we're in his account statements he has received other credits she apologizes and she says thank you for being the son of a customer so and citibank together jointly it's delivered to a customer i think is the same card agreement that's used across citibank's platforms and that's why i think it's important as you look at this case to consider that the new total total mix of documents that are presented to the customer include in the first instance is sanogo citibank joint promotional promise that says if you get this card here's how it will work right the discount could occur if  public can occur as a as an account just not and then and then those materials indicate that the full terms and conditions will be delivered with the card so it isn't this isn't just a case where someone used to citibank card two of the record very citibank then that's a document in which city said it uses the same language citibank is we he's saying to the customer in the promotional materials you can receive a discount either at state law rather than federal common law i would say this year i think the plaintiffs are correct in their brief in saying that there is a there are any conflict in this case would be a false conflict in other words the decision along around equitable stoppel is pretty consistent look at the third circuit's decisions are are i think it's a guiding kind of you know consistent with decisions across the country on the us so it lot if you did a strict conflicts analysis the court agreement case north dakota law as the governing law again i don't think it matters but i think it would be north dakota the one up there would be the second place because they could i think it's important inapplicable here and those the courts in those cases held that the doctrine we espouse here of of equitable or alternatively it's a softball if you know a couple in the case of a non signatory and so the use of those cases was was error i want to i think it's interesting and notable that the district court and the plaintiffs parkways on this concept of it being two separate contracts the plaintiffs had never made that argument and they know that they could never sustain it on the wall or the facts of this case what they have said instead is we're not asserting a contract claim or asserting if that's advertising claim any  what is this is a false and deceptive advertising case the complaint alleges that a merchant sunoco advertised a discount my client purchased the products the consumer transactions between and my client maybe that's the transaction that happened he expected to get the discount in that situation he didn't get the discount that isn't well here the other side has said what he did when he didn't get to this kind of the con whenever he contacted citibank he got the discount pretty as well as in that crew i would disagree with that factual characterization by my opponent there are i think the record play where where where is your factual position outlined in the appendix i would also look at j a two for the sex the beginning of the email thread and the e mail thread between my client and citibank representatives my client did what he was supposed to do conducted leave it at that but in terms of where we go we don't know if he's been we don't know he's been injured or not well i would disagree right he had he has been injured he was injured when he didn't get it when it was promised at the time of the sale he went through at a minimum well but it was not in the promotional materials it was not necessarily promised at the time of the sale it was promised at the time of the sale work and adjustment on this account right we have the documents we have the offer that was made to make a contract to get a citibank card that would recognize five cents at the pump to work and an account and adjustment on the here and if he uses credit card according to the promotional material he's going to get a five cent paper from sanogo who are in accounting just certain of the promotional material materials  suggest that certain of them did not he's looked at a number of the materials and regardless when he went to citibank to say i would like my adjustments it wasn't really what happened is they said we can't give it to you because sanogo has to authorize us to do that  but it's pretty clear what happened here your honour's is that sunoco probably has a number of independently owned stations which still have to honor sunoco as corporate national promotions and the situations we've all seen it before in our everyday credit card i mean that that's what people offer it is right and that's what your opponent is has stated earlier that that's what the deal was and that's what he got and he when he asked for that he every time he law as well and we also referenced pennsylvania was well we think the choice we would agree that the choice of all issue is it would be a false conflict was we think in terms of the equitable stop exceptions which are which i think i heard mr i think the discussions in those cases and the policies and principles they state are important because in talking about the closeness of the relationship and the an extra couple intertwine and the claims alleged to the agreement that has the  any agreement that might arise that was in the car in that case we cited in the other cases we cite where the fraud that occurred is a separate actual independent tort regardless of the fact that eventually someone that is some combination of parties might mr right right i think i guess he i would have to say that's another would have to be some sort of party with some sort of obligation  trial and i haven't seen anything in a brief to say otherwise i also don't understand what that summary trial would be good daddy dealt with one party said oh i never saw the arbitration agreement i never signed agreed to it here there's no question we have agreement it's a i think it's interesting that my colleague is willing to say that north dakota law would apply under the court agreement but that but not that the arbitration clause would apply i'm not sure how that works i want to address his comment that we abandon any arguing that that we have direct contract rights under the card agreement let me be clear we have but we believe that the most graceful and the easiest way to the right decision in this case is under the equitable stop of doctrine because this court's decisions kind of guide us there but the reality here is that there is a credible i think a strong argument that the contract here is a three party contract and that ult terms and conditions that were delivered to mr reich do govern the relationship with sunoco directly and i don't want to get caught up in that rabbit hole but i do think that it there is a good argument to be made that the contract here starts with the promotional materials includes the court agreement and that governs the relationship between the three parties we have we made an argument you just record didn't address it i think that this is it an equitable stoppel case as i as i read it that's the best way to the right  conclusion  one final point without the court agreement there would be no claim here and i think so so the idea of separating everything that happens under the accorded great met and the account adjustments that are made he's record doesn't support that the promotional materials make clear that this is a special citibank card that is offered a better spot for coca cola branded relationship was sunoco and only if you use that card not just any city bank card it's got to be the says you will see the film program terms and conditions with your card yes it doesn't say or tradition but it says you will get the full terms and conditions when you get your card and then by using a card you're accepting no school terms or conditions so i just wanted to make it