that israel discount bank was required to satisfy and which israel discount bank made no attempt whatsoever to satisfy the standard is well settled as this court wrote and i wants to call it a showing by the defendant in support of the inconvenience to israel discount bank of litigating in the central district of california appears in paragraph twenty five of the r anchor affidavit where mr rosenker declared i would be far more comfortable testifying in hebrew rather than english that's it that's the only inconvenience to the defendant in california there's nothing in the evidence proffered by israel discount bank to show that it can't it's witnesses would not be available in california it wouldn't have access to compulsory process nothing of the sort and as the cases teach from the plaintiff's perspective we don't have to show any inconvenience what your best reason for having it here is that because you've chosen this or are there so that there are many reasons why the central district of california is the appropriate forum yes we found this case originally in a los angeles superior court and then it was removed to the senate district there is a lack of compulsory process to require third parties to travel to israel there are no depositions according to the unanimous agreement of the experts that are permitted in the israeli system there are some witnesses that either are unlikely or unwilling to travel to israel for trial there are many witnesses on key elements of the plaintiff's claims that are based in the united states is not about the foreign currency account agreement for a form selection clause to apply the defendant is normally the party to invoke the clause which have to admit a binding credit agreement between the parties the defendant israel discount bank goes to great pains to make clear its contention that there is no binding agreement first of all in its motion below its seven page motion to dismiss it says quote if the line of credit had been established in the resent her affidavit paragraph fourteen the application process could have  two thousand and one unbeknownst article ogg a quest for israel discount bank it instituted a business plan which it later documented in its public filings and was later confirmed in conversations from the on our good quest for board from accepting credit and finding elsewhere and that's in paragraphs thirty seven fifty seven sixty six seventy three eighty and eighty eight of the complaint all claims that do not depend upon kind of right if the bank had to get incredible if the bank is established a policy that it is not going to provide funding in one area at the same time it is discussing providing a credit line with a prospective customer knows that it's in competition with other sources of funding for that loan and notwithstanding its policy that it's never going to get money it says come ahead we want you to do business with us we're going to beat anybody else's terms go with us yes i believe that creates a cause of action in the plaintiff against that are going to let me ask you this is a practical matter from what i read for education and i understand all that but no i think the court is well aware that in the early part of this century high tech companies had significant value and then the entire high tech market the nasdaq index collapsed and you look at values of the nasdaq exchange at the beginning of two thousand and two it was trading about five thousand and now it and you know we went a low two thousand in about six months and yes that's fact that and the first request to draw down on the line was made in september of  c which it can gauge to assist in its efforts to locate funding its interest floaters which included you know prominent american businessmen and companies such as broadcom shamrock holdings and  its members and given that the deteriorating conditions in the high tech high tech industry they were not able at that point to raise funding they did have opportunities to raise seven million dollars of financ in two thousand and one that were not no longer available come two thousand and two meetings in israel and there's some indication that israel dished out by getting branch here in california was that during all those negotiations or was that subsequent to that israel discount bank had a an office on carefully drive and beverly hills according to the documents in the records that branch closed on may thirty one two thousand and one so subsequent to the internal decision made at the bank  of what evidence has to be presented concerning witnesses and what they will say from the opinion that said it suggested the defendants taking form no inconvenience dismissal must submit affidavits identifying the witnesses they would call and the testimony of these witnesses would provide if the trial were held in the alternative forum such detail i not necessary so the moving clarity which has the burden doesn't have the detail showing it doesn't have the burden of showing detail regarding the witnesses what the moving party did in piper aircraft is it showed what h named the witnesses that would call and show their connection to the case relatives of the deceit it's the persons responsible for maintaining the aircraft the persons responsible for training two or three of its own employees that's what they said the court said that that was fish and what we did here is we presented a list of fifty witnesses and showed their connection to the case we asked to describe what the claims were the court in its opinion focus narrowly on one subject you know the face to face discussions about the terms of the credit line agreement it didn't focus on how the other elements of the plaintiff's claims would be proven y authority to sign on its behalf who are from california and the board of directors of arco qwest and all of those individuals are listed in there all based in the united states the un s were located at the time was more than amply provided in the evidence submitted to the court hearing in mind again that there was no burden on my client to show that the balance of factors in favor of the united states the burden was on israel discount bank to show to make it clear showing of oppression and taxation it made no showing much less the clear showing let me go back to earlier agreement but it says that the place of jurisdiction should be the court of the city closest to the branch at which the account is made so that's talking about an existing foreign currency account that document also provides elsewhere in paragraph forty one which is on here at sixty nine the extent to which that document will apply to other arrangements between the parties and that's w from the customer to the bank as the same are enforced and shall be enforced so this case is not about according to the plaintiff who has the burden if they want to win folk exploring selection clause this case is not about an obligation that was in force it is not about an obligation of argo quest to the bank who think what you're saying is it was really no force because you never put any money in the of no force according to the plaintiff's side the defendant who wants the benefit of that form selection clause it only applies if there is a binding credit line commitment and they go to great lengths to say there was never a binding credit line commitment and as the court said in evolution on line which is the case cited by the district court below and relied on by the if no contract exist in this case if there is no binding credit line commitment the language of the form selection clause cannot logically deprive evolution of the significant right of access to the courts so they can say we don't have an agreement but the agreement we don't have has a form of selection clause they have to pick and after a rise between the parties it doesn't say it applies to any claim arising from or in connection with a related to it says it relates to credits or loans or covenants as the same are in force and it relates to covenants or obligations funds this court made clear in that a federal versus gucci that you look at a form selection clause and in deciding whether it applies not only to a contract claim but also to twenty claims the question depends on whether the resolution of the court claims relates to interpretation of the contract the clerk claims presented in this case all predate the credit line commitment again as i said earlier they relate to the fact that in may two thousand and one before there was any credit lying letter written by id be in may two thousand and one the bank made a decision it wasn't going to extend credit in this area and the question presented in the first five causes of action is whether or not i d p is liable for consequences from  in paragraph thirty eight of the foreign currency account agreement which is it sixty seven and what that says is the laws of the state of israel shall apply to this document the foreign currency account and the  era that's all it's talking about it's not saying that if there's ever a dispute between the parties about anything it's going to be governed by israeli law there is no dispute here about the handling of a foreign currency account thank you very much thank discount banks material witnesses are in israel that it would be unnecessarily burdensome for israel discount bank to have to negotiate to have to try this case in california when there is a controlling form selection clause when it's really not governs credit you've changed your policies but you passed the torch to the ultimate of that which is that there would be an agreement to fund a line of credit businesses are allowed to change their policies all the time it's only with the tying to the contract claim that you get to the level of almost an alternative to jurisdiction right that's correct but at the time that the court decided the motion that was that had not been addressed by the supreme court the supreme court has responded subsequently and still can and the developing the formal you have to go and work together with paragraph forty one in paragraph thirty eight of the terms and conditions paragraph thirty one says that the terms and conditions of the entire agreement apply to rome credits and a whole bunch of the breach that's defended and we have the right to say that we didn't agree to fund a line of credit what's material is that the plaintiff alleges that we didn't promise to fund a line of credit and having made that allegation they have to abide by all the terms that come with that which would include the terms and conditions which would include the form selection clause which would include the choice of law clause which would include having israeli rob cry which would include having material witnesses and israeli they are in a catch twenty two only in the sense that they don't get their preferred quorum of california they get their contractually obligated forum in israel and they also get the point where it makes all the sense to have it was off i will discount banks witnesses or in israel provision that israel plies those are your twos really his strongest arguments for having the matter go to israel i would say that those are two strong indications or one so that there certainly are strong  with mission here that there is a binding credit line obligation of israel discount bank without such a binding obligation to israel discount bank may not invoke a form selection clause in a nonexistent contract unger talks about how it was unnecessarily burdensome to his client the word boon inconvenient much less oppression or vexation appears nowhere in that there in the evidence that proffered to the court they have the obligation of strolling oppressions taxation unnecessarily burdensome yes they have witnesses that are located outside the central district of california i would guess that most cases in the central district  california have witnesses that are located outside that's not enough to show what burden they didn't present in the evidence mr unger didn't say anything about how this foreign selection clause in the contract that they claim doesn't exist what apply to the tort claims if there are twelve claims forms selection clause is irrelevant unless the twelve claims are based on an issue of contract interpretation which is not presented here are the foreign sovereign immunity zakk was not before this court they did not