the Flint coat company versus VGA PLC. Good morning. Hi. Your honours, there are two issues on appeal. The first issue is whether CU can be compelled to arbitrate in an arbitration where it did not sign an arbitration agreement, but signed a separate agreement with flink coat that said in the event that there's dispute over that agreement that the parties would ultimately resolve that dispute through litigation and arbitration. The second issue is whether if arbitration is not required, whether the case should proceed into this recording Delaware or into this recording in California where CU sought to file a complaint. With respect to the arbitration issue, just by way of background, the agreement at issue arises on a litigation filed by flink coat in California in the early 80s where it's sought insurance coverage for its asbestos claim. We've read the briefs and we're all well attuned to the factual background here as well as the procedural background. Could I ask you, though, a legal question that really overarches this entire controversy and it relates to the DuPont precedent of this court? DuPont concluded, and this is a quote, there is no evidence that DuPont embraced the agreement itself during the lifetime of the agreement or that it received any direct benefit under the agreement. I could turn that into a test, I suppose, if you will, of whether there is no evidence that a party embraced the agreement itself during the lifetime of the agreement or that it received any direct benefit under an agreement, is that a conjunctive test or is it a disjunctive test? That is, is it enough simply to embrace or to receive some direct benefit or are both necessary to be? I think both are necessary. And in DuPont, the court looked at whether the agreement that had the arbitration provision had been embraced and whether having embraced it, DuPont received a benefit. You might remember your honor that in DuPont, DuPont, when the first file that's complaint had a count as a third party beneficiary, it embraced the agreement by having that count. So, doesn't your July 16 2012 letter embrace the Wellington agreement by all the block quotes? Well, that's an interesting point and the point I would make there is to the extent that DuPont embraced the agreement by filing a complaint that had a third party beneficiary count. That's more embracement if that's a proper word. Closer hug
. Closer hug. Then, our July letter of 2012 that said that if we go to arbitration, we have a potential cause of action for reimbursement. I'll add that under the CU agreement, CU has that reimbursement claim as well. So, it is a future claim that as our brief makes pretty clear, I hope, in response to that claim, Flinkco did not pay. So, to answer Judge Miss question, to the extent that letter embraced, there was no direct benefit. I think both are necessary under the DuPont case and a number of other cases that have used Equipals Stopper. For example, the Kaiser group case that Flinkco decided in their letter, in that case, the debtor in bankruptcy sought to get a benefit from the agreement that it's subsidiary had with another party that had an arbitration clause. In that case, the debtor said it needed to recover under that agreement in order to help fund its bankruptcy. So, that's a direct benefit. So, it is that the direct benefit here came to your client through the separate CU agreement, the agreement from 1989, correct? Correct. And going back to DuPont, in DuPont ultimately when the court analyzed DuPont's cause of action, the court said that DuPont, even though it was, even though the agreement with the arbitration clause was at the heart of the case at the district court level and at the heart of the case on appeal, what saved the day, and that's a direct quote from this court in DuPont, what saved the day for DuPont was that it had a separate oral agreement. And it could proceed on that separate oral agreement. Here CU has a separate oral agreement with flinkcoat. You mean written? I'm sorry, written agreement, yes, Your Honor
. So our position is that DuPont, while the court said it was a close call, this case is not as close by any stretch of imagination as DuPont. In DuPont, DuPont actually filed a complaint where it had a third party beneficiary count later with Druid. That's embracing the agreement more we would submit. And DuPont sought to recover indirectly under that agreement. And the court said, no, you're seeking to recover indirectly. I've very caught correctly the oral agreement that DuPont alleged said that the oral agreement was that they would get the benefit of the underlying agreement. And I think in the Boreas case, this court even cited to a seven circuit case where the seven circuit, and I'll get the citation if your Honor would like it, with a seven we have it. And that Boreas was one reason I asked about whether this was conjunctive or disjunctive, because the opinion actually cited DuPont and then referred to the seventh circuit case industrial electronics. And in the first instance used conjunctive to say what we lay down in DuPont and then used disjunctive when saying that industrial electronics was not exploiting or directly benefiting. So I was left somewhat confused. I think you need both. I think the courts, when they've looked at these situations, if looked at whether the party against whom arbitration is being sought, has somehow benefited directly from that. Something that the district court did not speak to in its opinion here in determining that equitable stopper was applicable was identifying what the burden of proof was to show the elements of equitable stopper. And your Honor, it's interesting
. Delaware law apply. Well our position is California law. And I think. And there's a reason for that as we say in our report. Well is there any variation between the requirements of equitable stopper in Delaware and the requirements of equitable stopper in California? It's a long, long, aged doctrine. I'll answer that. I'll answer that. I'll answer that in two parts. The cases that I've used in knowing exploitation, the Dupont analysis, haven't discussed what the standard is. One of the cases that Judge Stark relied on below was the American Credit Case, which is not- The Judge Stark said nothing about burden of proof. And if you read that case, the burden of proof there is clear and convincing. And if you look outside of Delaware and we say Delaware law, if it is clear and convincing, if the standard is clear and convincing, there's nothing in Judge Stark's opinion that would suggest he applied that. Is there? There is nothing in his opinion that suggests he applied a clear and convincing standard. And I would submit that given that standard, his ruling was an error
. I would also say that for purposes of review, it's plenary review, so this court would look at all the facts to Novo and Judge Stark and Flinkko basically relied on four things to compel arbitration. The August letter that basically said, if we ever go to arbitration, we'll have to get to stay lifted in the bankruptcy court. The state was lifted. And your client wasn't even identified as being among the group who signed that letter. It was one of eight or nine. You talk about the August letter. The August letter. But the point of the August letter is that if we ever have to go to arbitration or quite frankly litigation because of the AC and S decision out of the third circuit, I know the purpose of the letter. I just want to make sure because the way that it defines on whose behalf the letter was said, I did not see your client's prior title commercial. It's one of the prior. So that's your representation that the August letter was sent on behalf of what we know now as a diva. Our point is it wasn't exploiting the agreement and it wasn't a direct benefit. The letter was written. The state wasn't lifted until CU filed a motion to lift the stay in December of 2012 to allow them to go forward with litigation
. The other point that they rely on is that CU along with other insurers, there were participants on the Wellington agreement engaged in mediation. Our point is engaging mediation is not exploiting the agreement. The parties are trying to resolve their dispute granted. We negotiated for six years and some of my clients settled with flincoat others like CU didn't, but engaging in some of the negotiations is not exploiting the Wellington agreement. And then there were discussions about entering into a written arbitration agreement and we exchanged drafts. Those drafts, the drafts that issue, they weren't signed. So our point is exchanging drafts of arbitration agreement doesn't compel a party to proceed with your arbitration. In your, both your opening brief and your reply brief, you make a comment that says that flincoat could have sought arbitration during the course of the process. How does that square with your position that they couldn't sought against your client when your client wasn't party to an arbitration? I think the point we made in both briefs is that if, and I think it was in response to an argument that flincoat had made that somehow, particularly in their brief, that somehow we strung them along and the point that was being made is that under the Wellington agreement, if flincoat wanted to proceed to arbitration, it could do that at any time and flincoat admits that at page 28 of belief of their brief. And outside the Wellington agreement, any party could see some mediation and proceed to either arbitration or litigation if they were at an impasse. And the point I was trying to make your honor in both those submissions were that flincoat says that they were hurt by the delay and the point simply is if speed was such an important issue for flincoat, they could have easily proceeded to either litigation or arbitration at any time. The other issue, and I see only a few seconds left, the other issue is that if this court does reverse just judge stark on the arbitration issue, CU sought to let the stay at the file in California. And our position is that the first file rule does not apply because they use the bankruptcy stay to be able to file a Delaware before we were able to file in California. Thank you, Your Honor
. Thank you very much, Mr. Halvarez. We'll have you back on the rebuttal. Mr. Chiafulo? Yes. Can I get that right? That was excellent. Much better than most. Thank you. All of my languages self-talked. Thank you, Daliano. No, too long. That's great. Thank you. Good morning, Your Honor
. Thank you very much. As you said, my name is Luis Chiafulo, representing the flinco company. And going back to one of the questions that Your Honor asked Mr. Halvarez, yes, they did embrace the Wellington Agreement, a Viva UK and its predecessor iterations, embraced it by entering into the Wellington ADR proceeding. And from that very first moment, when it entered into the agreement to proceed with mediation, in what is a very seamless ADR provision in the Wellington Agreement that provides for negotiation, once there's an impasse that's either declared by the mediator or agreed to by the parties, or based upon one party's belief that there is an impasse that it then proceeds to arbitration. So is that language from DuPont that I cited to Mr. Halvarez, language that is conjunctive or disjunctive? I believe it's disjunctive, but I think even if the Court finds it is conjunctive, that both elements are methear. So what benefit have we heard your position already on embracing the agreement? What direct benefit was realized by a Viva or CU? The benefit that was realized under the Wellington Agreement was its twofold. One part of it is that they used the Wellington Agreement and flinco used the Wellington Agreement as the foundation for what we call the Shadow Wellington Agreement that was entered into by the parties. And when reimbursement was... Metruroon characterization because Shadow Wellington Agreement doesn't find a provenance anywhere else in the record here. I do not believe that there is a case that uses that term
. That is what... I don't think the contract even calls itself the Shadow Wellington Agreement. That's what we call the 1989 agreement. The Shadow knows. That's it. But the basis for the 89 agreement was the Wellington Agreement. And in the 2012 letter, as Your Honor pointed out, Viva did rely on the Wellington Agreement provisions on reimbursement because the Ninth Amendment... But I'm not saying a benefit here. Where's the benefit that they received from the Wellington Agreement? Well, the benefit that they would have received from the Wellington Agreement if flinco had agreed to the reimbursement, was that they would be reimbursed pursuant to the terms of, I believe it's Article 20, I'm not sure exactly, but they would have received a benefit of the reimbursement under that agreement, and that would not have been available to them under common law. But you're saying if they had been
... It didn't transpire. Right, but they didn't receive a benefit. The potential of the benefit was there, and they used the Wellington Agreement in order to try and obtain that benefit for purposes of the reimbursement. But the 1989 agreement had a reimbursement clause. It had, you know, with interest. It did, but it was... It was not... It wasn't that what they were really relying on
. It was not... It was not... It was not... That the only thing that gave them the right to even ask for reimbursement was the 1989 agreement, because they're not a party to Wellington. They're not a party to Wellington. I agree with you, Your Honor. But the provisions in the 1989 agreement with respect to reimbursement are slightly more narrow than the Wellington Agreement. And as you look at their letter and you know that they cite back to the Wellington Agreement and not just the 1989 agreement, they're trying to obtain the full benefit of what the Wellington Agreement has with respect to the reimbursement provisions. But not only under the Dupont case, Your Honor, is... Flinko taking the position that Aviva is bound to the Wellington ADR and the subsequent arbitration. But, you know, what they're trying to do is have this court declare that it was essentially a false start, that by entering into the Wellington ADR with Flinko, and by Common Council, who's very well-versed in insurance litigation, all of the companies who are involved on the London Market side are very long-standing insurance companies. They knew what they were doing. There was no advising at any time that their participation was temporary, that they reserved their right to withdraw from the Wellington ADR, that they reserved the right to litigate on their own. I'm trying to flinko, say at any time while this mediation process was going on that will participate only if you agree to the Wellington ADR provision. Did Flinko say that? No, Flinko took steps to try and avoid piecemeal attempts at trying to resolve the coverage issues between itself and these insurance carriers, filed as pursuant to the Wellington Agreement they could with the CPR, a request for Wellington ADR. Mr. Alvarez, on behalf of Aviva, at that point, I believe was Norwich or Commercial Union, agreed and represented Commercial Union now Aviva in that... in that Wellington ADR
. But not only under the Dupont case, Your Honor, is... Flinko taking the position that Aviva is bound to the Wellington ADR and the subsequent arbitration. But, you know, what they're trying to do is have this court declare that it was essentially a false start, that by entering into the Wellington ADR with Flinko, and by Common Council, who's very well-versed in insurance litigation, all of the companies who are involved on the London Market side are very long-standing insurance companies. They knew what they were doing. There was no advising at any time that their participation was temporary, that they reserved their right to withdraw from the Wellington ADR, that they reserved the right to litigate on their own. I'm trying to flinko, say at any time while this mediation process was going on that will participate only if you agree to the Wellington ADR provision. Did Flinko say that? No, Flinko took steps to try and avoid piecemeal attempts at trying to resolve the coverage issues between itself and these insurance carriers, filed as pursuant to the Wellington Agreement they could with the CPR, a request for Wellington ADR. Mr. Alvarez, on behalf of Aviva, at that point, I believe was Norwich or Commercial Union, agreed and represented Commercial Union now Aviva in that... in that Wellington ADR. They never said to us, and if they, when they came back and said that they were going to participate, then at that point in time, that was the fork in the road. They could have then said to Flinko, well, we'll, okay, maybe we'll mediate with you, but don't forget, under the 1989 agreement, we think we have the right to litigate it. Why don't they need to remind your client that when you guys were signatories of that? And it was a very clear reservation of litigation and a clear disclaimer of ADR under the Wellington, the only thing that they signed was the mediation agreement. So your client knew what the result was going to be, litigation, no? No, because there was no, Aviva never advised at the time that it entered into the Wellington ADR that it was going to rely on that provision. They could have, and probably should have said, well, wait a minute, we're not going to participate in a Wellington ADR, because we don't believe we are obligated to go through that seamless process and ultimately end in arbitration. They were the ones that should have said that, and by not saying it, it allowed Flinko to understand, and we believed that that was what the process was going to be. Again, had they said at the beginning, hold on, we're going to rely on this litigation provision, that might have changed the whole scenario. And we're now in front, we were in front of two district courts on the arbitration issue, we're now in front of the third circuit. This could have been resolved a long time ago, had Aviva wanted to rely on the litigation provision in the 1989 agreement. But in compelling arbitration, we think Judge Stark was correct, he found that there was an agreement to arbitrate under Wellington. It's very clear. And there was no dispute that the parties, there was no dispute amongst the parties that the insurance coverage issues that are going to be arbitrated, Aviva hopes litigated, would fall within the Wellington agreement. But the teamsters case says that courses of conduct can demonstrate an ascent to an arbitration provision in a contract. Did you make that argument to the district court? Yes, it was the, yes, we did
. They never said to us, and if they, when they came back and said that they were going to participate, then at that point in time, that was the fork in the road. They could have then said to Flinko, well, we'll, okay, maybe we'll mediate with you, but don't forget, under the 1989 agreement, we think we have the right to litigate it. Why don't they need to remind your client that when you guys were signatories of that? And it was a very clear reservation of litigation and a clear disclaimer of ADR under the Wellington, the only thing that they signed was the mediation agreement. So your client knew what the result was going to be, litigation, no? No, because there was no, Aviva never advised at the time that it entered into the Wellington ADR that it was going to rely on that provision. They could have, and probably should have said, well, wait a minute, we're not going to participate in a Wellington ADR, because we don't believe we are obligated to go through that seamless process and ultimately end in arbitration. They were the ones that should have said that, and by not saying it, it allowed Flinko to understand, and we believed that that was what the process was going to be. Again, had they said at the beginning, hold on, we're going to rely on this litigation provision, that might have changed the whole scenario. And we're now in front, we were in front of two district courts on the arbitration issue, we're now in front of the third circuit. This could have been resolved a long time ago, had Aviva wanted to rely on the litigation provision in the 1989 agreement. But in compelling arbitration, we think Judge Stark was correct, he found that there was an agreement to arbitrate under Wellington. It's very clear. And there was no dispute that the parties, there was no dispute amongst the parties that the insurance coverage issues that are going to be arbitrated, Aviva hopes litigated, would fall within the Wellington agreement. But the teamsters case says that courses of conduct can demonstrate an ascent to an arbitration provision in a contract. Did you make that argument to the district court? Yes, it was the, yes, we did. But we're not relying on just the July 2006 letter where Mr. Alvarez said that they might need to enter into an agreement to stay. The bankruptcy or get a car evaporate of the bankruptcy or not just the July 2012 letter on reimbursement, but the six years of conduct. And they're saying that, well, Flintcoats should have known, Flintcoats should have understood, Flintcoats should have or could have at any point in time go on to arbitration. But the mediation worked under the Wellington ADR because Mr. Alvarez said, Flintcoat did resolve its issues with some of his clients. And there would have been no reason to piecemeal arbitrations against certain of the carriers because that was, that would go against the design of what Flintcoats was trying to do in the first place. So then their participation in the mediation didn't cause your clients to change its position to its detriment because you guys continued and benefited from the mediation albeit with other parties. It caused us to, it caused detriment because we're here now in its two, eight years later litigating over the fact whether we should litigate or whether we should arbitrate. But you haven't at any point as I've understood the record translated that into any cognizable form of loss. I mean, you have merely characterized it as a six-year period, is that right? No, I think that the detriment doesn't have any effort to monetize it at all in the record. I don't know. We have not made any attempt to monetize it. But the detriment doesn't have to be material
. But we're not relying on just the July 2006 letter where Mr. Alvarez said that they might need to enter into an agreement to stay. The bankruptcy or get a car evaporate of the bankruptcy or not just the July 2012 letter on reimbursement, but the six years of conduct. And they're saying that, well, Flintcoats should have known, Flintcoats should have understood, Flintcoats should have or could have at any point in time go on to arbitration. But the mediation worked under the Wellington ADR because Mr. Alvarez said, Flintcoat did resolve its issues with some of his clients. And there would have been no reason to piecemeal arbitrations against certain of the carriers because that was, that would go against the design of what Flintcoats was trying to do in the first place. So then their participation in the mediation didn't cause your clients to change its position to its detriment because you guys continued and benefited from the mediation albeit with other parties. It caused us to, it caused detriment because we're here now in its two, eight years later litigating over the fact whether we should litigate or whether we should arbitrate. But you haven't at any point as I've understood the record translated that into any cognizable form of loss. I mean, you have merely characterized it as a six-year period, is that right? No, I think that the detriment doesn't have any effort to monetize it at all in the record. I don't know. We have not made any attempt to monetize it. But the detriment doesn't have to be material. We don't need to show materiality. The detriment could simply be the loss of the present value of the funds that we believe were entitled to under the insurance policy. Well, it could be, but at no point has it been articulated that way in the course of the litigation? Well, I'm not sure that it needs to be quantified because I think I can say to your honor with a straight face had we known back in 2006 that litigation was going to be the ultimate play by ABBA that we could have started the litigation. It probably would have been done and I'm an optimist. And I think that we would have recovered some of that money. And that money would have been in the coffers of Flinco to in order to pay the asbestos claimants who now have claims against the bankruptcy. But you didn't even want to commence arbitrations in a piecemeal fashion. So why would you want to commence a full blown litigation? Because when we were involved in the Wellington ADR, we understood and nothing was ever said to the contrary by a Viva or well none of the other clients Mr. Alvarez could because they were willing to take it towards. They never said to us that we weren't that that you know, Flinco, we're not in this full bore. We're going to we're going to come out of this at the end and we're going to try and litigate. Had they done that that would have changed the the landscape of the Wellington ADR proceeding because Flinco might not have said, okay, well let's mediate and see what we can do and then we'll start litigation. Sometimes a litigation that starts is better in the context of a mediation because there's something there with meat in it and with you know a judge looking down saying you need to do this, this, this you've got time frames. And that sometimes helps a mediation process along, but in this instance that wasn't done
. We don't need to show materiality. The detriment could simply be the loss of the present value of the funds that we believe were entitled to under the insurance policy. Well, it could be, but at no point has it been articulated that way in the course of the litigation? Well, I'm not sure that it needs to be quantified because I think I can say to your honor with a straight face had we known back in 2006 that litigation was going to be the ultimate play by ABBA that we could have started the litigation. It probably would have been done and I'm an optimist. And I think that we would have recovered some of that money. And that money would have been in the coffers of Flinco to in order to pay the asbestos claimants who now have claims against the bankruptcy. But you didn't even want to commence arbitrations in a piecemeal fashion. So why would you want to commence a full blown litigation? Because when we were involved in the Wellington ADR, we understood and nothing was ever said to the contrary by a Viva or well none of the other clients Mr. Alvarez could because they were willing to take it towards. They never said to us that we weren't that that you know, Flinco, we're not in this full bore. We're going to we're going to come out of this at the end and we're going to try and litigate. Had they done that that would have changed the the landscape of the Wellington ADR proceeding because Flinco might not have said, okay, well let's mediate and see what we can do and then we'll start litigation. Sometimes a litigation that starts is better in the context of a mediation because there's something there with meat in it and with you know a judge looking down saying you need to do this, this, this you've got time frames. And that sometimes helps a mediation process along, but in this instance that wasn't done. Do you have a position with respect to the issue I asked Mr. Alvarez about and that is the standard of proof here with respect to demonstrating equitable stop. I don't I don't know that the standard is clear and convincing. I would think that it was it would be a preponderance of the evidence. I don't have a site for you. I'm sorry I would say intuitively I thought preponderance to until I saw the Delaware case. So would you agree that if Delaware law is applicable and I understand you want Delaware law to be applicable here? Do you not? Well the Wellington agreement provides it has a choice of law prohibition. So whether it's arbitrated or whether it's litigated and whether it's litigated in Delaware or California, it is to be decided under the laws of the United States. So it could be California if if a Viva you know that wasn't exactly what I asked. I got you. Yes we think that the present posture of the case that Delaware law should apply. And short short answer with a very long. Assuming that Delaware law applies and assuming that Delaware law says that clear and convincing is the standard would you agree that Judge Stark did not make any mention at all about standard proof here. I agree with your honor that in Judge Stark's opinion that that would be a big problem if the standard is clear and convincing wouldn't it? Not necessarily because I think that what the judge found was that there were enough facts there to support equitable stop all he didn't address the under some standard but we don't know what
. Do you have a position with respect to the issue I asked Mr. Alvarez about and that is the standard of proof here with respect to demonstrating equitable stop. I don't I don't know that the standard is clear and convincing. I would think that it was it would be a preponderance of the evidence. I don't have a site for you. I'm sorry I would say intuitively I thought preponderance to until I saw the Delaware case. So would you agree that if Delaware law is applicable and I understand you want Delaware law to be applicable here? Do you not? Well the Wellington agreement provides it has a choice of law prohibition. So whether it's arbitrated or whether it's litigated and whether it's litigated in Delaware or California, it is to be decided under the laws of the United States. So it could be California if if a Viva you know that wasn't exactly what I asked. I got you. Yes we think that the present posture of the case that Delaware law should apply. And short short answer with a very long. Assuming that Delaware law applies and assuming that Delaware law says that clear and convincing is the standard would you agree that Judge Stark did not make any mention at all about standard proof here. I agree with your honor that in Judge Stark's opinion that that would be a big problem if the standard is clear and convincing wouldn't it? Not necessarily because I think that what the judge found was that there were enough facts there to support equitable stop all he didn't address the under some standard but we don't know what. Fair point fair point but I think that even under clear and convincing looking at what he decided looking at the facts that were established that there was enough there to get over a clear and convincing standard. And one of the things that is interesting about the FAA and this court's decision in I believe is Guidotti is if there is some issue as to whether or not some regurgiment was appropriately granted that it is then to be given back to the district court in order to have a summary trial in order to have some discovery done perhaps in order to have testimony and evaluate witnesses. But that is correct that's if there's an issue of fact that can't be determined based upon the papers. But again I think that the clear and convincing standard would be met in any event. I wanted to talk a little bit about waiver and I think I touched on it earlier when they may when Aviva made the decision to go forward with the Wellington ADR and they knew and their council knew. What the Wellington ADR was all about because it is a process that gets you to arbitration not litigation. There was never any communication to flink coat to suggest that they were not that Aviva was not fully engaged in that proceeding from the beginning to the very end. And in fact when the arbitration agreements were being negotiated still flink coat was under the impression as it was six years prior to that that the that Aviva had waived the litigation provision as we call it in the 1989 agreement. Thank you. Thank you very much. Dr. Alba Rezrebuttel. Yes, Ron. Thank you
. Fair point fair point but I think that even under clear and convincing looking at what he decided looking at the facts that were established that there was enough there to get over a clear and convincing standard. And one of the things that is interesting about the FAA and this court's decision in I believe is Guidotti is if there is some issue as to whether or not some regurgiment was appropriately granted that it is then to be given back to the district court in order to have a summary trial in order to have some discovery done perhaps in order to have testimony and evaluate witnesses. But that is correct that's if there's an issue of fact that can't be determined based upon the papers. But again I think that the clear and convincing standard would be met in any event. I wanted to talk a little bit about waiver and I think I touched on it earlier when they may when Aviva made the decision to go forward with the Wellington ADR and they knew and their council knew. What the Wellington ADR was all about because it is a process that gets you to arbitration not litigation. There was never any communication to flink coat to suggest that they were not that Aviva was not fully engaged in that proceeding from the beginning to the very end. And in fact when the arbitration agreements were being negotiated still flink coat was under the impression as it was six years prior to that that the that Aviva had waived the litigation provision as we call it in the 1989 agreement. Thank you. Thank you very much. Dr. Alba Rezrebuttel. Yes, Ron. Thank you. I'll start briefly with the waiver issue. The few cases and the United Airlines case. At 933 F second one 10 second circuit and the team search case that Mr. Schifolo talked about waiver in those cases was only applied because the party in those case actually went through. And they were not able to do with an arbitration and therefore waived. If my client had signed the arbitration agreement I would agree that they would have been waivered. But on these facts I think work very far from waiver to address a couple points Mr. Schifolo made. He said Wellington is a three step seamless process. Wellington does have three steps. The first step is mediation. They they're three steps are negotiation mediation arbitration. When Wellington is read in particular appendix C which deals with the ADR the three steps are mediation arbitration and then an appeal to a three judge panel. I think participating in mediation with other parties that had to proceed to arbitration is far from waiver and it's not a basis for collateral or for equitable stop
. I'll start briefly with the waiver issue. The few cases and the United Airlines case. At 933 F second one 10 second circuit and the team search case that Mr. Schifolo talked about waiver in those cases was only applied because the party in those case actually went through. And they were not able to do with an arbitration and therefore waived. If my client had signed the arbitration agreement I would agree that they would have been waivered. But on these facts I think work very far from waiver to address a couple points Mr. Schifolo made. He said Wellington is a three step seamless process. Wellington does have three steps. The first step is mediation. They they're three steps are negotiation mediation arbitration. When Wellington is read in particular appendix C which deals with the ADR the three steps are mediation arbitration and then an appeal to a three judge panel. I think participating in mediation with other parties that had to proceed to arbitration is far from waiver and it's not a basis for collateral or for equitable stop. Mr. Schifolo said that in DuPont the court looked at. Your Honor asked what you like about the benefit C U received. He said well the Wellington agreement is the foundation for the C U agreement. Well that's that's DuPont. The joint venture agreement was the foundation for the oral agreement under which DuPont sued. And that wasn't a direct benefit. DuPont it's not a direct benefit here. Mr. Schifolo also says that the benefits are things that C U would have received. I would submit to the court would have received is not a direct benefit. It's something in the future. In the cases that apply equitable stop all talk about benefits received and that would have received. One more point on the mediation the actual mediation agreement which Flint Coats says in their brief evidence is a waiver of the C U agreement
. Mr. Schifolo said that in DuPont the court looked at. Your Honor asked what you like about the benefit C U received. He said well the Wellington agreement is the foundation for the C U agreement. Well that's that's DuPont. The joint venture agreement was the foundation for the oral agreement under which DuPont sued. And that wasn't a direct benefit. DuPont it's not a direct benefit here. Mr. Schifolo also says that the benefits are things that C U would have received. I would submit to the court would have received is not a direct benefit. It's something in the future. In the cases that apply equitable stop all talk about benefits received and that would have received. One more point on the mediation the actual mediation agreement which Flint Coats says in their brief evidence is a waiver of the C U agreement. The mediation agreement itself says nothing about waiving the C U agreement with the litigation provision and the C U agreement. I think it's interesting that when Judge Stark asked Mr. Schifolo at the argument at the district court whether Flint Coat waived the C U agreements litigation provision. Mr. Schifolo would not admit that Flint Coat waived it. That goes to your honors question about whether Flint Coat even asked are you going to proceed to arbitration. Are you going to agree that both sides would waive and I think it's fair to say that both sides kept their power to dry on that issue. Lastly, Mr. Schifolo says in another amount of time just one more point Mr. Schifolo says that Flint Coat waived that that was the process that would lead to arbitration. I would submit there's nothing in the record to support that assertion. There's nothing in the record from Flint Coat that supports that. Thank you. Thank you Mr
. Alvarez. Mr. Schifolo, we appreciate your very helpful arguments. We will take the case under advised. Thank you Mr. Schifolo