you call a first case of the morning enforceability of an arbitration agreement or arbitration agreements the plaintiffs do not dispute that they signed and that govern their wholesale grocery supply relationship they each circuit is held has have virtually other other court in the country that the f a a establishes a strong national policy in favor of arbitration the supreme court has similar held in the lytton case that we've cited through our brief that there is a presumption in favor of post expiration arbitration unless negated expressly and where there are any doubts according to the eighth circuit concerning the scope of our bridgeable issues they should be resolved in favor of arbitration one of the arguments that the appellant's have asserted here your honour's is that the arbitration agreements are directly enforceable the police have argued that this argument is not properly before this court and we respectfully disagree this case super value in seeing us couldn't force those agreements directly without relying on any of the doctrines for meeting non signatories to enforce the arbitration agreements so that argument was absolutely asserted in the first appeal of this case broad presumption that we would permit arbitration in this case there is nothing in the lydon or the coke case that would preclude an arbitration for example as we read the cases where there is an assignment for example or for any other differentiating feature that might exist in this case and coke and linton you know you're right about all those matters but i think that i may be wrong and i think it's boils down to you have an arbitration agreement that you are not a signatory to and it was signed away in and district court says well you don't know you don't own the rights to that anymore as the acid or  views still retain the rights of an arbitration agreement that you signed away yeah i do think that's really the crux of the issue here your honor and the reason that we think that that's the case is in part because we don't see anything in the in the directly on the yes we do it the now they're not it's circuit cases i'll concede that but the the bank here i'm not sure i'm pronouncing that right but the vent your case southern district of new york case that we saw in the brief in the stations west case which is a district word in case  addresses the issue of whether or not in the end cuts off the right of the ass ignore to enforce arbitration i think that there would be there is a lack of direct case law for both parties on that which then causes and we think that makes sense from a policy perspective to not just under the law that we've cited in our view but that if if the what the apple e's are seeking you know from this court which would be affirmative the district courts case we think that that would create perverse incentives here because that the the point of the f a a is to to encourage arbitration where it's a sound decision to do so but if if it's the case that an assignment automatically cuts off the right to arbitra assigned back the the rights to arbitrate in then you know is it creates massive inefficiencies that this is this different though because it's not you're not seeking to arbitrate a particular term of the contract whether or not the facts and circumstances predated the assignment it's not a particular contract term we're talking about is it we're talking about the asset exchange agreement which is you know through the end you know yeah i think i think i think that's generally right it is there is no particulars not a breach of contract case for example has no particular term within the wholesaler  i think this court recognized in the first appeal that covers not just the contract but the relationship that it doesn't matter whether or not you're just arbitrating a contract term or not it has to rise from the from a wholesaler relationship and i think the case law stablished up to that in general even when you don't have there are plenty of cases where the arbitration provisions are much narrower where the courts nonetheless say that you're looking at the relationship not just the contract and so for those reasons i think that the the conduct at that issue here would fall within the scope of what is what is before the of the the arbitrator and i don't i don't understand the apple lease really to be arguing that there's an issue of scope as opposed to whether or not it's enforceable the issue of scope i think is similar to different arbitration clauses arthur one for the super value agreement and one for the other agreement there i think technically there are three but but yes yes your honor they're not all the same they're not all the save the scope of one that's broader than the other two yes so on the super value agreement which applies to any controversy claim or dispute of whatever nature rising between the retailer and super value that's the broadest i think would you agree i think it is with one possible qualification the arbitration agreement that relates to millennium talks itself specifically that the arbitration agreement would quote survive the rescission or terminations of this agreement i see so i think the question of survival it might be more specific i guess that's a separate issue so i would i would agree with you that they go on the super value agreement when would you say that the controversy claimer spewed a rose between the retailer and super value well i think based on the plaintiff's own allegations that the earliest or the skinny the latest that the controversy would have arose was in july of two thousand and three and so the timeline here i think is important and there's and there's a number of pre assignment as there is a a lot of just just so we're clear on the timeline july of two thousand and three and the assignment of the agreement happened when it happened in september of two thousand and three specifically september thirteenth of two thousand and three so you say that this controversy arose before the agreement was assigned and therefore the agreement to arbitrate applies i think that's right and i would quickly follow up with with so there's the july twelfth of july twentieth two thousand and three that that the plaintiffs cite frequently as the secret agreement or the side agreement or the real agreement and that is it all in degree going according to village market they say you know either that some of the e mails or the the a t f which was signed the arbitration absolutely i think all of the levers by the plaintiff's own allegations they say it's a one shot deal that one shot happened before the assignment all the levers of the alleged conspiracy had been pulled t in motion everything that they allege happened well before the assignments but by several months in fact now the other agreement the cns agreement as i recall is narrower in scope and it speaks about arising between village market and superstars superbly it's states that it will relate to all disputes relating to this agreement that's the millennium you know the millennium and then the in our first opinion say well these don't relate to the contract these are n h s claims and so they wouldn't be covered by the scope of the clause yes in a different context well yes of the first part of your question the first  decision that the court had there rendered related to the equitable stoppel argument i understand is a different context but would the reasoning also mean that the dispute here is outside the scope of that millennium i don't think it does i don't think it does because because it doesn't matter we think the law that we cite states that it doesn't matter whether or not what you're it would be inappropriate to focus just on the agreement that the that the law  looks at the relationship of the parties that comes out of that agreement and i think that the language that this court that you're referring to your honor has in relation to the equitable stoppel argument it necessarily had to look at whether the facts were intertwined with the language of the contract for purposes of equitable stoppel that was a different analysis and here i think that the issue is whether or not the scope of the relationship and that and i haven't talked about the close relationship doctrine my colleague mr coons says that the critical issue here is the wholesale relationship well c n n s never howell's sell relationship with an arbitration agreement that millennium had with its previous supplier flemmi cns his entire argument for its claim to be able to enforce the fleming a lenny i'm arbitration agreement rests upon an inaccurate promise namely according to defendant's brief at six that cns actually acquired the fleming millennium agreement when it purchased certain assets out of bankruptcy with fleming defendants brief at six sites a number  of records none of which remotely support the conclusion that cns actually acquired this agreement and their best documents probably are complaint don't you think of depending upon how you read the how do you how do you read it well your honor i think charitably read it doesn't distinguish finally enough between see an ass causing the fleming assets to be assigned to super value but the answers to the complaint certainly make the distinction where as we distinguishing between cause an actual assignment beat the complaint could have been better written on that part i certainly can see but you say in reality what happened is the assets never went to  the agreement never went to see innocent we went right from lemming to super value absolutely and b your honor if one looks at the asset exchange agreement for example section one point one which is at appendix this is defendant's appendix eleven quote cns shug use reasonable best efforts to cause fleming flemming not cns to convey a signed transfer and deliver directly to super value the assets described in this section it's hard to get much clearer than that but it's the fact is that this is underlined in the very next section in section one point one eight also  appendix defend its appendix eleven were super value acquired quote all of fleming's right title and interest in the acquired contract fleming's right title and interest in the  contracts not seen ss if seen elsewhere write that they acquired these contracts and then somehow passed them off to super value the asset exchange agreement would not talk about acquiring flemings right would talk about acquiring cns is right but it's it doesn't it talks about a flyer all of fleming's right title and uterus the bankruptcy orders in this case approving the sale that's the september ninth those three order talks about authorizing quote selling debtor's which would be flaming to quote assume assigned to super value the fleming contracts and that's that plaintiff's appendix one twenty five this court's may twenty first two thousand and fourteen opinion the last opinion on these  follows seven fifty two third at seven thirty quote cns agreed to designate super value to receive fleming's midwestern assets  i think it's pretty clear from the bankruptcy record from the defendant's own documents from this court's prior opinion that cns simply has not carried its burden of showing that there is a valid arbitration agreement between cns and the lenni and because cns never actually acquired the contracts in question now let me talk a little bit about looking and coke of course your honour's are aware that neither lytton or co deal with the effect of an assignment on the ability of an ass sign or to retain rights that were signed lytton involved a dispute between two signatories to a contract and coke involved a dispute between the ass i need of a contract who wanted to retain the wanted to invoke arbitration and a signator has nothing to do with the issue in this case about what assignment does to cut off the rights of an ass i nor who freely and completely a signed contract of the rights under a contract also note that under lytton my colleague says well there's a presumption of post expiration arbitration well that's true but litton itself says that only applies only where a dispute has its real source in the contract and that page two hundred five at lytton as this court has already decided with respect to similar know in an agreement between competitors not to compete in the midwest that's a statutory claim that is completely independent of any agreement and certainly the agreements here they are times expired thank you in some way to the very agreement it assigned and the answer to that is clearly no and that has implications for all of the issues raised in the case it seems  a first of all this is controlled by minnesota law the restatement of contracts three seventeen section subsection one makes it clear that when  in my brief that say that again and again and so the question as it seems to me the law being clear and it being clear that the parties did not raft into the green meant that arbitration continued after an assignment or terminations of the arbitration agreement can the value in some way find that there was an implication court already stated page nine twenty four of the first appeal these antitrust conspiracy claims do not involve the terms of the contract the face of the contract does not provide the basis for the alleged injuries and there's no evidence that the contract anticipated the precise type of relationship giving rise to the call and there's simply no way to say that my current the village markets agreed in any way they did agreed to free assignment but to arbitrate a claim or dispute of whatever nature not just one arising out of the contract but i think that what that  clearly means your honor is it's a dispute between the parties that is subject to the arbitration agreement the question is once you've assigned it is it still subject to the arbitration agreement and point  saying if there had been a dispute just based on the supply agreement that occurred entirely before the assignment of the arbitration agreement and then your client brought an action after the assignment of the agreement it would not be yes what i'm saying so you're all you're not saying that the end i trust claim is outside the scope of this clause if the agreement is not been assigned as it is a claim arising of whatever nature between the parties it would stretch it but let me put it this way we do not dispute that c m s which received the assignment has if it was if it was if it was something that arose before the full rose before and that involved interpretation of the contract in some way or a vested right under the contract know why not if the greed to arbitrate it while it and it occurred while the agreement was in effect why did they lose the right to arbitrate any more than they lose if the agreement had terminated because they agreed to assign and they agreed there are also a great in my client determination cases they agree that it expires as of a certain date my client agreed that the contract could be assigned my contract that my client did not agree in any way that once assigned that both the ass and or and the asked and they get the benefit of arbitration they didn't agree to that but i'd like to is your point that if you have a  you're signing all your rights to the ass and the includes all causes of action whatever yes and if they wanted to reserve or sherman a claim they should have put that in the contract and say we were  fact i just wanted to answer the the court's question that you asked of the other counsel as to whether or not the cause of action rose before the transfer because that's one of the items  and that relates to the some other words rather than hypothetically it might have arisen before what happened here that's critical the grab them and the heart of the case as it were is that after making an agreement super value in fact did stay away from the new england jurisdiction for five years as i'm sure you know the case laws  laden with cases where an agreement is made but never carried out or an agreement is made and carried out for a while and then it ends and then the cheek the cheating occurs the heart of the matter here the reason why there is a cause of action is because they stayed away and they were over charges after the agreement was made and after the assignment was made so i would say this did not arise rama unless you want to use things that are really preconditions or conditions to the tort violation here to the overcharge to the fact they stayed away unless you want to say any preconditions any events that occur a handshake a signed a a whatever is the basis for the cause of action it seems to me that the questions you've been asking way the cases have applied it is that unless in some way the cause of action actually rose before the transfer  basis for the cause of action full basis for a rose the heart of the matter rolls they not the cases have not indicated that arbitration is required  that the complaint is somewhat clear on this point more importantly at appendix a want to one millennium itself in section b of that document says recognizes that all of the assets ryan or and the ass in the would be allowed to compel arbitration is it your position that the any can compel arbitration for matters that occurred before the assignment as in the ast sign or also can compel arbitration for matters that occurred before the assignment or is there some way that this candidly i haven't thought much about whether the assoc need to do so because i don't i don't think that issues before you but i don't force in the sense you're asking us to construe this how this agreement applies and he's saying it wouldn't be right to say that both parties can compel arbitration over the whole period of time yeah and i'm not suggesting that both parties should have that right i'm not for closing the possibility that could happen but as i understand do you think our opinion should read on that point that an ass ignore has the right to enforce an arbitration contract notwithstanding a sign what about the s n e i think if the assoc need could certainly enforce it for conduct that happened post assignment and that's where you have a situation where where is here where you got the assign or is a rule in a relationship but about my question is that typically these contracts and i haven't looked l one of those rights which is arbitration over your say in a claim that occurred during the their in their own their ownership of the right why is that not just basic contract law once you sign all your rights there goal forth apply and so forth there's some language in there about that so certainly that's true but doesn't that bring back and just basic contract law i don't think that given the for example the let in the coke cases  statement that for example there's any dispute between whether it's our beautiful or not i think that necessarily dictates that arbitration clauses are treated differently they're not treated like every other contract pr in an analogy i would use to answer your question your honour's if you have a confidentiality provision for example let's say the contra confidentiality provisions that existed in agreement and that agreement is then signed it would be within a contract where it makes sense of the law supports up and also there's a lot of common sense saying that's different that is different because it doesn't make sense to say that you can now explode confidentiality because an assignment and policy is is so broad that it that you still retain an aston or still retain to do that within minnesota or within its circuit first minnesota but that anywhere it well not not in deal with whether an assignment cuts off the right to arbitration would be the case in the station's west case southern district new york and just people oregon that both say yeah arbitration survives including in the context in the southern district of new york retain as the last ignore the right to arbitrate in the in the district court said no that's wrong arbitration will be recorded arbitration like it's ok time's expired thank you mr thank you for your time and move closer or shaded thank you both for your arguments with the