lee refusing to let the jury decide for stations claims allowed s p i to stifle competition and destroy a significant competitor it to its medical apparel business the stage and understood that it could create surgical scrubs that would help protect workers from hospital acquired infections beach a eyes in a way that s p i was not doing the station's real innovation was not however anti bacterial scruggs instead it was its idea to work with industrial standard agencies and government safety agencies in order to create a new safety standard backed by government regulation for health care apparel that lay in between a category of health care apparel that lay in between regular scrubs and hazardous material uniforms council exactly what were preempted that's that was the court's reasoning and i think there were two mistakes the st mistake or depending on the palate you sequence it even if that was the case and the court had found that there correct that's correct but there was no finding by the district court of futility that the answer court dismissed those planes because they were preempted not because they felt adequately  that's that's correct however in the hicks case this court decided last year that when a court district court the knives leave to a man and they must provide an explanation of the futility it's not enough simply to say that well based on the facts that were alleged in the counter claim that the that there would be preemption there could i didn't see anything in your briefing explaining how you in have avoided being superseded i think that what this agent could have pleaded is that it could have pleaded that it was using public information one of one of the hundred and the real focus is anti competitive behavior so it doesn't matter whether the information itself is confidential what matters is did is there an allegation or is there evidence that the wrongdoer is using information in an anti competitive way and the evidence that was attempted to be to be shown at trial was that the various e mails and other in from internal communications by s p i where they said ok now we understand what the staging is doing with regard to getting industrial standards to approve this classification of medical apparel let's stop it let's muck it up those were the words that they used and the trial court didn't let that in because the trial court was focused on whether it was a trade secret had the  had the business of professional code claim still been there it wouldn't have mattered whether it was a trade secret because they this station could have argued and could have gone to the jury and said look this was u cited the general proposition for something two hundred that an unfair business practice is either on lawful unfair or fraudulent and there was an allegation in the counter claim as to that but  court found insufficient faction factual allegations in the counter claim to make that showing and they should been given the opportunity to up to fix that and to amend that and if they could amend it then that counterclaim would have stayed if after amending they were unable to make that showing then the case then those claims would have been dismissed but the federal rules are pretty clear that if you're only able to a man unable to us state  claim in the st instance that the district court almost always has to give the right to a man and less the district court shows futility and there's no discussion of futility here at all there is no discussion of amendment  necessary that the district court is supposed to allow the amendment even if it's not requested and as well as the unjust enrichment claim on the other hand the trial court hall held the trial consistently stated a trial that the matters that the station was arguing were trade secrets were not trade secrets or different california case law states that the unjust enrichment claims can be preempted even if there really isn't a trade secret the issue is whether the allegations arise from the same nucleus of operative facts it does do that and what's interesting is that the cases talk about whether it meets the definition of a trade secret now there can be confidential information that doesn't technically meet the definition of a trade secret and i think that those cases are referring to that situation in our case what what the it any information that's valuable you've made a reasonable attempt to keep confidential it seems to cover everything so what would be a confidential piece of information that was uncovered that information was confidential the trial court refused to allow evidence of the that was going on there because the court said well whatever the station was doing with s t m was public and so therefore i not protected by by trade secrets but surely that is that that is arguably true that the issue however is that the  you could conceivably have public information that in itself is also a trade secret because you could have all this power and what in fact happened here is you have information going to that is public but the import of that information down the road which would be getting that regulatory or that industrial standard approved by regulatory agency that strategy was that it was the kind of the secret sauce the trade secret but everybody knew that that's a question is telling you invited s p i to join the s t m you they joined a committee which had fifteen to twenty members they promulgated proposed standards it was doing that kind of the the grand scheme was that once all of that was in place there would be thou this this regulatory requirement for anti bacterial scrubs but it hasn't had that is the industry not understand  has well i think be clearly understood by by everyone i think that s p i learned of it late and that's why they strive to stop the process and there was there was evidence that that the staging tried to enter into the record that t your clients strategies but it doesn't mean that they're using secret information doesn't well i think that they certainly learned of and this kind of goes into the other claims the country claim as well as the larger the contract exactly the depth of that power point and i think that clearly once the the n d a had been in place and even actually before there was there was evidence that mr favorite had told mr singer that you know everything we're doing here is confidential but is that sufficient is it sufficient for one entity to say we consider this to be confidential we're disclosing this to you and the other entities and bound by the well i believe that there is a there is authority that if the parties intend things to be confidential that that's the parties one party maintain confidentiality that doesn't mean the other does and it seemed from the information in the record that s p i was the larger player in the industry and the stage and very much wanted  been that matters would be confidential but was there a specific agreement before the actual agreement i don't believe there was specific evidence on that and the parties didn't think that it was necessary to actually enter or at least exchange written agreements for non disclosure at some point to memorialize an agreement so before they did that they well it seems self evident before they entered that agreement they hadn't entered the agreement and they apparently didn't think any sort of oral discussions were sufficient because they then later entered  agreement well i'm not sure there is evidence about what they think that's a sara lee thought was sufficient and even even if that was the case i mean one of the disputes a trial related to this breach of contract and we think that and i know my time's running out that there was an issue with regard to the court not allowing into evidence both versions of the alleged non  initially but then there was a subsequent objection after that that when it became clear that the evidence for both agreements was identical that you had mr singer saying that yeah this is the final agreement and yet mr if ever a saying this is the final agreement the judge and the judge has said exactly that while the st one was admitted without objection at which point counsel said well i'm objecting now i think there was evidence that as if i had not agreed to the terms of the st draft there was a disputed issue of fact as to which agreement was entered into evidence specifically was the final agreement specifically mr singer said that the one with the sunset clause was the final agreement mr five race said there were several agree it's going back and forth but that the one that did not have the sunset agreement was under his ender standing was the final agreement now but the evidence wasn't just you know one person's word against the other that the record included writings emails in which s p i responded to the what was called the revised n d a and said they disagreed with particular terms and sent what became the final n d a so there was more than just mr singer's testimony and based on the information up in the record why was it an error for the district court to find that the only reasonable conclusion was that the final agreement was the operative well i think was in error because the court didn't allow the nd agreement into evidence so it wasn't an issue of the court deciding well there's no disputed issue of fact here it was we're not even going to allow in that evidence and so we're not going to allow the jury to decide that well based upon the evidence from mr singh or the evidence from m a and the e mail information that the jury could have decided look the contract was the one with the sunset clause or the jury to decide it alternatively that it wasn't the jury should have been able to make that decision a district court has concluded that no reasonable jury could reach that it's clear that a seven thousand two hundred dollars claim us to be based upon a wrongful act a wrongful act defined by statute public policy ordinance or regulation it is not simply somebody who didn't act well in the marketplace and counsel has failed in hell of appellant has failed to provide the district court level with an alternative next factual pattern that would support a claim for seven thousand two hundred dollars and again in this wrongful act to interfere with their strategy with s t m by delaying the proceedings unless unless counsel can point to some statute ordinance something that we violated this this is a competitor and in fact the f p m standards were not voted on because there was a request for further information at was agreed to by the committee it wasn't one person acting and so the fact that a committee decided to ask for further information before voting on a s t m standards that would allow only one product in the marketplace to be in compliance is certainly a fair inquiry and so unless there is a wrongful conduct attached to contract based on some protected activity or some violation based on a duty there can be no seven thousand two hundred claims and so the court was correct to find that the unjust enrichment and the seven dollars claim were preempted by the act and again counsel has not given any alternative factual pattern that would support a claim that's not preempted and so it was appropriate for the court to dismiss without leave amend at that time and again the there are several cases and we cite to the savant a case that says that the court need not determined that a trade secret exists to rule on preemption and there are multiple cases that followed that decision and the district court err by not giving this june opportunity to file an amended complaint to try to state those claims not if it's not if an attempt would have been futile and unless there was something that they could have offered the court to say look there is a separate and let me stop and add this we don't have to guess as to whether or not there was a separate factual pattern that would have supported it we've gone to trial every fact that could have been explored has been explored and we still see and agreement on the same evidence that disallow the st degree would you agree with i do not position i do not agree with that the evidence a trial took the witnesses through a timeline of the drafting of the agreement the revisions of the agreement a red line of the agreement and then a final agreement attached to an email and all of those documents were admitted into evidence by testimony  and seventy seven without objection from the other side there was never an objection when it was admitted and then published to the jury alternative like to focus on the testimony of the witnesses who were to lay the foundation for that mission is it true that both of them testified that they believed that this was the final document thank you for the clarification i misunderstood the question no that is not correct mr singer who authenticated the exhibit five  seven testified that that was the final agreement to which they executed and that was the testimony and that was how that document was admitted after identifying all of the carets fondness and all of the  agreement exactly exactly and again without objection there was there was never a question of fact just to which agreement was admitted and then i'll also point and so really this does not come down to a question of fact this comes down to an court as to whether or not sufficient evidence was presented that the document was authentic ated and is what it was intended to be and that is in the so purview of the district court and it done that appropriately but having said that the only distinction that vestiges counsel has argued is the sunset clause whether it expires after two years or not and have not cited the court to any prejudice from the fact that that document was not admitted into evidence there is no argument here that the sunset provision and the document that was entered would have made any difference so had both the agreements been entered what difference would it have made to the outcome in this case the issue here was that confidential information that i'm sorry that the vestiges of confidential information were in fact not confidential they were disclosed to manufacturers in detail it wasn't just to s p i that the this plan was being disclosed it was to other manufacturers that vestige and wanted to partner with and it was a detailed power point presentation of here's our master plan so that issue there is the so called confidential information was being provided before the n d a was entered into the sunset provision doesn't come into play so there is no showing a prejudice arising out of i believe those were the two points that counsel addressed unless there is questions with respect to use of that appeal i would like to turn to the  that strategic partners provided really almost uncontradicted evidence with respect to its lanham claim and we believe that so and i believe counsel started his argument by saying protected health care workers from hospital acquired infections was a false claim not only is it a false claim it was citing as a basis for that advertisement to a burman study and the evidence undisputed at trial reflected that the berman study did not test the fabric that vestige and was then using and advertising as the product tested in the berman study as a result that advertisement was literally false and no jury could have found that it was not a false statement it was literally false so we believe and that's the south once what sort of evidence study supporting claims that vest x products protect healthcare workers he testified in court that there was no such study and we also heard also testimony from a user of the  materials that that was just one in a barrage of precautionary measures that were taken in the hospital so how can it be material if it was just one of the measures that was taken well thank you yes i believe the court is referring to the baptist hospital because the issue of materiality doesn't go to what other safety measures are are going into that it also says that whether or not  on that that the the testimony that we received was that they were purchasing and continued to purchase because my memory may be faulty let me assume that that is the case that they originally purchased the fabric that was studied by the berman study but they continue to use the new fabric completely unaware that it has was never tested by the berman study that we're talking about the materiality of the advertising which well let me let me submit the following that if the estrogen had altered its advertisement to say we now switch the fabric in this fabric hasn't been tested but we think it's just as good as the one that was tested would baptist hospital have continued to purchase those scripts i believe the advertisement has a continuing impact on consumers and what vestige and in fact it did was it did a switch a bait and switch it initially had a fabric that was tested changed that fabric didn't test it and continue to advertise that it provided the same benefits in fact a trial i think somebody tried to argue it could have been even better but we don't know because they didn't test it and to say that fabric was tested is fal in addition that's not the only false advertisement they also advertise that their material had been registered under the f d a as a medical device and the testimony from their own witnesses were that was not the case that is not true you cannot register fabric as a medical device you don't and that was even if we agree that was literally false it's hard just and have outs material since nobody was buying a roll of fabric  scrubs cannot be registered as a medical device what vestige it was advertising is that all of our scrubs our entire line hospital scrubs scrubs that you wear you know outside of the surgical room are all medical devices and that's false and they admitted that that was false vest ics they were arguing i'm sorry they were advertising that vest x which is the name of the material that they use was a medical device that's false secondly they admitted that they were making health claims in their advertisements about their medical scrubs that you could only make if you had f d a a class to certification and they did not they only had f d a class one certification and an evidence was presented where they internally had a checklist of what claims we can make and what we can't make and admitted that they were making claims that they could not make without a class t certification and did not have a class two certification it's false and the these kind of hospital i'm sorry these kind of health claims being aimed at health care workers who are being exposed to very significant pathogens absolutely have an impact on on purchasing abilities and we presented as a survey expert to put into evidence that very fact that it has a material impact on consumers and we believe that the clear weight of the evidence entitled s p i to a judgment is a matter of law at the very least if not then a new trial should have been ordered we believe that there were  some improper tactics by estrogens counsel during trial that may have resulted in confusion to the jury their claims and their opening statements about the fact that they were going to establish that  thief and betrayal and stealing etc when the court dismissed those claims it also instructed counsel not to mention them during closing arguments and so we were then precluded during closing arguments from explaining why those claims were untrue were unproven etc and had to direct our attentions only to the affirmative claims that may have been confusing to the jury in addition coun spent an inordinate amount of time questioning our attempting to question witnesses regarding s t m and the court had made it very clear that it found that line of questioning irrelevant and would continue to sustain objections and answers as a result multiple objections over a one hour period of time had to be asserted despite the fact that counsel was clearly given direction asked to line of questioning again that could have been confusing to the and so we believe that based on the potential confusion of the one other point that i'll quickly point out there was a motion in lemony in which counsel is directed not to cross examine witnesses regarding rd party ads over which s had no control over and again counsel violated that motion lemonade requiring the trial counsel to again object and request that the court reassert the ruling on the motions eliminate all of these types of tactics during a very trun cated information heavy trial this was a fairly complicated series of facts that we had to introduce to a jury over you know seven hour trial taking four days these kinds of trial time to seven hours for each party no it was certainly aggressive and aggressive schedule but counsel we were able to get in the evidence that we needed to get in and counsel vestiges counsel when it argues that it was unable to do so is ignoring the one hour of time that it's spent asking the line of questioning that the court had clearly indicated was irrelevant it the court was very clear in terms of our timeline  your own case i just i i was really taken aback by the time limitations and how strictly they were enforced and that was having been a district court judge i just found that to be really difficult for the party i i i think that it did pose a challenge but it required the attorneys to allocate their time to what they felt was most important that should they be required to was able to make a showing that it used its time efficiently and was moving the case along that that may have been a consideration for the district judge to consider in the request for additional time i think in this case however there was evidence and i i would defer certainly to the district judge on this that there was evidence and message and did not use its time wisely and in fact that was raised in the last day of trial when when counsel suggested that they needed more time to put on the witnesses and the judge said you did have plenty of time counsel for vested interest chose to use it in a different manner thank you very much  issues there was language in that case where the court pointed out the district court has discretion with regard to time limits but they should not must not be inflexible and shouldn't be arbitrary and that's what would clearly seems to have happen here and as a result the staging couldn't put on part of its evidence with a guard to its false advertising claim and more importantly the sequencing of the case allowed f b i to dictate to basically run out the how do you respond well vestige and was again forced into this difficult situation where it had lost its business impression could claim was forced into the to continue to put everything into that trade secrets claim it's the essence of its case was the wrongful conduct by s p i and so it sought to put that information into the case as part of its trade secrets case and did the best that it's could best that