rulings at issue in this case but to begin with really i think it's clear the clearest of all involves the ruling under the copyright act and in on the pages of the appendix one sixty one and one sixty t the judge starts out by talking about how an award of attorney's fees is appropriate to promote this is the copyright act a few words will discourage bad faith attempts to undercut contractual transfers of property rights how the court has already determined that in this case the of the reach parties were aware of the of the assignment away of the copyrights in question and yet at the bottom of the page that they alleged in their complaint that they did in fact possess all the copyrights and question and the court is on to say bad faith in the conduct of the litigation is a valid grounds for an award of fees and finally at the end of the paragraph when the rightful copyright owner defends itself from a bad faith claim that it has infringed copyrights and actually owns an award of fees is appropriate this is such a case and quote so in preparing for argument what jumped out at me was this question established all these facts at the end of which the court rendered its conclusions orally about that this had been a bad faith lawsuit it was malicious it was egregious and so forth and yet in this copyright act warning the court never gives to the tort counterclaim any credit whatsoever in producing this this this knowledge these findings was the evidence  what would have been involved was simply who own the copyrights and the nature of the contract looking at it objectively and the difference is that at this at this bench trial not only was that involved with the main issue was what the reach parties knew about the contract in two thousand and seven when they took the assignment and then when they filed the lawsuit what was their state of mind what was not that was really the critical issue in fact they were our expert witnesses on that subject as this court described two pages later none of that would have been involved had the case at the tort case been solely involved with with the copyright copyrights themselves in the contract themselves and i could just be clear about something  you agree that the standard set forth by the first circuit invest should apply in this case sure i think that's you know we argued them and it was a well reasoned decision and so in that case applying that case to this case at summary judgment right tortious interference were not relevant to the copyright claim i'm trying to think you mean the question was was there a minute the bench trial was concerned as you said  reaches knowledge reuse a contractual assignment of his copyright interest right and so resolving that issue was not necessary to disposing of the copyright under section five of a five on a tortious interference play well the quotes that i read at the beginning indicate that that compensation of attorneys to the to the a copyright claim is very much part of the purposes of the copyright act i mean that that notion is designed that remedy is designed to deter the kind of conduct we have in this case and  converse and so we're giving that whole purpose sort of second class or worse or no class citizenship here in this argument i mean that was a part of the what is it that you had to prove in connection with the tor ous interference with contract counterclaim that there was there was a contract that there was knowledge of the contract and that there was interference with it and damages of the copyright interests the property interests explain that to me i missed the first part i'm sorry or and would you explain to me how the elements that you described in connection with th covenant not to sue i don't know i don't recall that in the order of july ninth both science both sides saw the knowledge of the contracts and selves as a major issue here from the other side on that ok yeah just to be clear if we go back to the district court's order of july nineteenth two thousand and sixteen the court says that it it rendered its to its decision on the basis of the full panoply of the materials that was presented at the appropriate times and included in those materials  sanction right after release and reaches bad faith litigation tactics so that was all before the district court so why should we just assume that the district court knew that said that it was all before it understood its in its authorities including whenever an inherent authority and it may have had and simply declined to award fees this comment was in a totally different context talking about proteins motion to reconsider the judgment and this was a very thorough careful judgement very detailed opinions and the judge never once mentioned even in that statement that you just read your honor never mention the inherent power knows one of the points i was going make at the outset i think that the reason for that was the judge's failing to give credit to the whole bad faith litigation aspect of this case which certainly she was exercised about at the trial when she when she addressed the the court it said you know  this court finds it inappropriate to exercise its inherent authority to sanction reachin reef's on what grounds could you could you challenge that determination for the inherent powers sanction and that fact she found it's not contested on appeal as we sit here today yours i stand here today that settled in conclusive and i think all the case law makes clear that that is of a compelling ground for the for the sanction on of this power so we would have made that argument what's interesting is that she didn't mention it ever and so the question is do you fall of the or do you say that the court on the record it's pretty clear that the court simply didn't give credit in this case on any of the three issues to the findings that she made thank you your eyes morning your honor please the court my name is andrew barred from jenner and block and i'm here representing reach music i think is you said judge hatchett katzman the subject relates solely to subjects properly left to the discretion of the trial court both the awarding of fees under the court's inherent powers or into the copyright law act are left to the sound judgment of the trial court and are entitled to great discretion and only to be disturbed for manifest abuses of discretion and the reason for that is obvious and this case is as good an example of it as any it's a ten year history there are motions there are case bounced around from different courts there are there is a lot of evidence that has credibility involved there was an opportunity for the judge then to try and determine an overall equitable result and we believe that she did that here recognizing there and i asked you if i might about the first the court's reasoning in the first circuit that standard to be appropriate well i think that it's the court's reasoning here is appropriate under every stand i understand but i'm asking you about the first circuit standard well i think it's consistent with the first circuit standard absolutely i think it is i think it's consistent with everything that's been rendered in this circuit as well that a party may receive a feel what for a non copyright claim well a matter of just  principle i'm not saying this can't go i understand and in fact there was an award in this case of fees on the breach of contract counterclaim so judge forrest saw herself as empowered to do just what the first circuit was talking and you don't disagree with that well we didn't raise that as a subject of appeal and we think that the judge may get your view that's why i noticed you didn't well i think that what we were trying to do in all  degree of repose here i mean frankly as the pro tunes parties maybe not willingly reflected at the very end of their reply brief this case is about punishing reach music and their metaphor at the end of their reply brief about not being able to punish the arsonist is very very telling because that is what this case is about judge far as i read through everything she clearly liked my client but felt that he had done something wrong she leaned towards the breach towards the protein side in awarding fees as your honor said on the breach of contract claim she reached towards the protein side in terms of when there was a commingling of awards before both the tortious interference and the contract even though the contract was basically on the papers and the to interference was a broad pattern play of other issues she discounted it only by ten percent there were a lot of things in here that if we really wanted to go to the mats and argue for remain and argue that there was a mistake and we had that from a lot of different reasons that the proteins parties don't want to do that they made a motion also we don't have to indorse or say anything about the first so it's no no no and that's why i was perhaps jousting a little bit because  we don't have to take an opinion on what that was we think judge far as decision went beyond what she needed to do but at this point we're not challenging any of it we want finale the proteins parties went in after this massive award i mean look the complaint dealing with these claims and with these copyrights alleged in the amount in dispute of about two hundred fifty thousand dollars the way this case was litigated it they're getting a million for they were unhappy with that they went back and they wanted no more hundred fifty thousand dollars right and then they wanted the permission to go in and make a new fee application on top of that for the time that they incurred preparing their damages awards and they said the same thing that they did here your honor you ignored our application because in a footnote of our motion we said to you that we're reserving the right to go back and ask for more money and just far said the fact that i didn't address it doesn't mean i ignored it i followed your mechanism for how we're going to deal with averages in this case and i did everything you wanted me to do and you promised me that this would be a one shot in and out damages ward and that's all i'm giving so the bottom line here is and  frankly there's even an issue in this case and the fact that they haven't even taken our judgment which we've been trying to pay because they think that there's going to be further litigation down the road this is a party that has believed that once a lawsuit was brought they were a cottage industry they could continue to print money they can continue to make my client liable my client made a mistake he was trying to help an indigent homeless party who was not getting any money he looked at pro tunes rightly or wrongly apparently wrongly and said you are exploiting this and you're not paying royalties to anybody my client is making no money something is wrong here he brought a case he was wrong he's paying a million for for that mistake judge far as to who sat through everything was said this is what we're going to award and we're prepared to live with that the only other point that i really want to make on this that we have and that is how much of an overlap was there at the had mentioned but that the issue remain when she granted summary judgment the issue that remains for trial is the issue of what reaches ok what did reach you know about the covenant not to sue that was the issue that was addressed and that was the issue but if you read her decision after the today bench trial that's the decision that she read the issue that is rise to these disputed attorneys well no that's not what i'm so i'm not saying that that's what everything we have to resolve that you own the copyrights we have resolved that there was a breach of contract you are entitled to copyright recovery which you warded alternately against both reeves and reach they could have gotten the same exact award that they got now if they had done it after the summary judgment was granted but they wanted to punish reach they wanted to get more money and they felt they had nothing to lose they were playing with the house's money everything that they spent would be paid by our client at the end of the day and i think that part of the purpose of why you have these rules of deference to trial courts discretions is at some point the trial court goes ok enough you know we i'm giving you everything i'm giving you full recovery i'm not discounting things i'm not this of giving you a five percent discount for block billing we've looked at the cases there are block billing discounts can be thirty or forty or fifty percent i'm doing it five percent but once you get to the tortious interference claim that's a claim that only relates to what reached new i don't believe that implicates the the purpose of the copyright act and in terms of the inherent ns appeal is premised on findings of they brought he brought the case in bad faith you know that's an element of the tortious interference claim so in order to prevail on that that's what you have to find and basically the implication of proteins appellate argument is that by proving that you're entitled in addition to inherent fee sanctions and punitive damages and everything else that this all gets wrapped in so that even though if you win on a tortious interference claim under new york law you're not entitled to attorney's fees as a matter of law if you do it in a federal court the inherent powers trumps that fat a lot and you get the attorney's fees anyway which is certainly not what anybody intended and is clearly the wrong result i think i'm just going to close with mr bean's comment about what a careful judge this was and both of us happy ability to say that since neither one of us was involved in the trial court but you know we've dealt with judge barnes she spent with a lot a lot of detail she she got to the bottom of the issues she rendered an overall result that she  believed was fair she didn't invoke inherent powers because she didn't feel that it was appropriate or necessary to do that and she was the arbiter of that because what are the inherent powers do they are a mechanism by which a trial court can control the operations that occur in its presence in its courtroom and they shouldn't be respectfully second guessed by the school thank you thank you very briefly on the last point council was equating that every interference with contract claim under new york law is going to turn into a sanction case that we're going to destroy in new york's you know  american rule but just not so not every interference with contract claim involves in fact i suspect few of them to the bringing of a lawsuit in bad faith and as we have in this case that's why we see the the the in here and sanction and that's why we're talking about the copyright act as as justification in this case the claim was closely related to a copyright act and this claim it didn't fall of the bad faith bringing of a lawsuit now we've heard the stor i heard throughout the briefs also that proclaims you know was just here thinking that all of your litigation conduct was that was going to be paid for the we're going to bury you in fees and all this stuff well there's no factual basis for that claim and i'm not going to repeat it here but my reply brief pointed out for a clearly that that simply is a is a story and it's not it's not accurate and i don't think it should be brought up here either  other than that i think there's nothing wrong with the party in this case went to another public prosecutor who's going to bring claims against to reach parties or people like this for bringing bad faith lawsuits we were lining up on the on the victim to bring this kind of claim took a lot of money about thirty percent of the total feel that my client requested was for bring this this interference cannot claim it was very complicated see only claim th went to trial and i say looking at it from hindsight i don't but i went to trial because of it proved that this is a serious case this bench i think of us it is judge forrest called an egregious case so i think we should not be putting that and on the contrary i think this court to take that and give that the credit in the in the remedy that judge force did not so other than that thank you for your attention thank you both your arguments the court will reserve decision