company has done is they've used this invalid in an inflow simple released agreement and as a mechanism to go into state court to charge mr racketeering and with fraud and a third count injunction if you read the injunction count you see what they're trying to do to get him to testify favorably because they had falsified records they had polled insurance commissions that was retain complicity at all not to speak to the press and this is an issue of general public importance mr gave an interview to the dow jones newswires people think published the story about the parents as well the department of insurance that's an issue that should be in front of the public he can't place it in front of the public because they use this contract basically if you want to stay costly and use the power of the state court to compel him to stay quiet that's what we stand today i think that's a very very important issue that issue has been developing over the last several years there's and you have a question for me ok for lack of federal jurisdiction federal jurisdiction was alleged it was alleged long as you allege something that arises out of this and he stashes the united states or the constitution you have jurisdiction and judge initially found tell mr truro who he can who he can do business with who he can't do business with and then they turn around and tell him you can't you can't speak to people you can't engage in certain lines of business we do have evidence in this record that the publicly about see from completing so he said that very plain it's simple we believe that they were contentions that we made sure judicial admissions and we saw very very quickly we want to get rid of the in this case very quickly and that's what we this federal the first of many complained to try to get around the fact that it had no jurisdiction when clearly federal question j orders i would submit that there are three primary issues before the court first whether or not there was diversity jurisdiction second whether there was a viable federal claim for relief and third whether the sanctions award should be upheld first with respect to diversity jurisdiction this was the second bite at the diversity apple republic western started all of this by filing a state at the same time he removed the state court litigation and that is what led to the remain and order by judge so judge silver found that in fact there was no diversity jurisdiction yet that change day it certainly can your honor and the dates here there is a little bit of difference because with respect to the state court suit the determination would have to be made on july sixth which was when the state court suit was filed a federal there were several pfaff's that suggested that mr turner had not changed his down in south texas and both judge silver and judge bolton analyzed those facts the starting point was the thousand and one he took a job in texas and at that point time maintained an apartment at the same time however he kept his residence here he kept a joint checking account here he visited his wife here on weekends and so there was the question that was from this court though the court held that you look at objective facts and certain self serving statements are given very little weight the trial court both judge silver and judge bolton weighed all of these facts and made a determination and  she did not say that and i'm going to adopt the any doubt standard what she did is that she said as i just said a moment ago that the plaintiff has the burden of proving or establishing jurisdiction number one and number two one of the  case there is a presumption against a change of style and so judge bolton applied the appropriate legal test and looked at the relevant factors and i think that what we have here is certainly the danger of having inconsistent decisions and that certainly would not i don't think be appropriate to finding in one case that there is diversity in in another case that there isn't in any event the judge did not simply blindly adopt what your silver did but she also looked at all of the relevant facts and made a factual determination that was supported by the evidence in front of her the pla contended that they should be allowed to replete the problem with that is they never explain never proffered an amended complaint and never alleged exactly what it would what it was that they would contend they would replayed and how they would rectify any problems all of the operative facts are in jurisdiction were there and they haven't identified anything new that they that they would propose to to offer with respect to whether or not there is a federal claim there were there were three potential federal claims that were raised here a constitutional violation of free speech number one a claim for and i trust violations in a claim of the older workers benefit protection act judge bolton appropriately found that the complaint did not state  viable claim for relief on any of those grounds with respect to the free speech claim there simply was no state action and no state action has been identified in any of the papers or hear the only thing that they've cited to watch telly versus kramer and shelley found only that a federal court might be able to review a state court order that unconstitutionally imposed restrictive covenants in an unconstitutional way there is no such there is no such order here the injunction that mr prongy referred to is not before the court in this record and in any event all of the arguments that have been proffered here of been proffered to the state court with respect to the and i trust claim this fatally flawed for at least two reasons there was no group or concerted activity and there was no injury to competition there was certainly no allegations made with respect to those in the clain did not state a viable cause of off what he is alleging was unfair is republic western own actions against him and republic western's own interpretation of that contract for public western is wrong or has done anything unfair mr turner off very well may have at least a claim for breach of contract perhaps even on her competition what he doesn't have is an i trust claim there's no one i trust claim for unilateral activity which is all that we have here there's also no allegat claim there simply if in fact they are correct in this case every contract that an employer and employee enter into that effect some type of a at nine compete provision or anything along that line would be subject and i trust analysis and quite frankly i'm not aware of any cases that have so hold the only case that we cited that was cited in the briefs was the postal case which is from the district of colorado that said look he says that the well with nine competes between employers and employees simply pretty extreme stranger but i think that what positive simply doesn't state a claim upon which relief can be granted if you look at the allegations of the complaint taking them all as true all he has alleged is a contract between himself and republic western he's not allege that there is any anti competitive activity there's no conspiracy there's no illegal commerce quo of the one jurisdiction it certainly it certainly has but i think that church bolton's order found and what we argued to her was that these claims that federal claims did not state viable causes of action and that's what she found that they were not viable claims upon which relief may be granted and therefore absent those claims she found that there was simply no federal jurisdiction because there was no was also no diversity and and also in connection with the antitrust claim for a second reason there's no allegation here as there must be that there was any harm on competition the o s c case against those that harm to the plaintiff just isn't enough in this kind of goes along with the with the  notion that there must be some group activity harm to the plaintiff has not there must be some damage to competition either under the rule of reason analysis or under the per se analysis and there's simply no allegation that competition here in the insurance industry was damaged by this this i would submit your honour's didn't even come close to alleging viable claim for relief under section one and i would submit your honor certainly was frivolous but there was no allegation that there was any any damage to competition here in the insurance industry and again of the o s c court case that's what they have to or stablished and they certainly can establish a per se violation per se violations of course are grounded that there are some allegations that enough themselves are so serious that they will be presumed to cause an impact on competition such as horizontal conspiracies between competitors or vertical conspiracies that deal with prices only there's no such finally with respect to the older workers benefit protection act the older workers benefit protection act contains certain requirements which are necessary to relief's age discrimination claims that's what the act deals with twenty nine u s c section six twenty six f states that an individual may not wait any of the any right or claim under the chapter unless the waiver is knowing and voluntary waiver is may not be considered knowing involuntary  resulted somehow from some illegal combination or conspiracy by a group of defendants and that had some effect on competition that is certainly possible but it but in this case there is no such  allegation there in again your honor there's no allegation that there was an impact on competition in this case there may be a case where it could be a legend or could be an illegal there could be some type of illegal combination but certainly not on the  other i was on the older workers going to for protection act and i think i was saying that in this case mr turner is not contending that he was discriminated against and dissent on based upon age in december of two thousand that's not what he's alleging and no contention is made by either party that there was any type of waiver of any future age discrimination claim in this case all mr corrupt claims is the republic western sought to enforce a waiver a future rights but there was no attempt by republic west route to enforce any type of waiver of future rights in the act all that there was at most based upon the allegations in the complaint is that republic western sought to enforce contractual commitments in the mutual release agreement so what mr argument is is left he was a contention that whenever you have a contract between an employer and employee that may be subject to the eight because the employee is entitled to those benefits and i think that anybody over each forty but if you don't follow all of these strict requirements the notice provisions except for that no none of the provisions in the contract or enforceable individual may not waive any right or claim under this chapter that's what it has to deal with it does not mean that each and every contract that may be entered into between an employer and employee anybody over the age of forty is and void or not enforceable unless all of these requirements are met there simply has been no case cited for that proposition and there is no support under the statute that they are relying on in fact the mutual isa greenman in this case contained mutual covenants back and forth mr turner off got thirty thousand dollars in exchange for this which you certainly has repaid and there were releases that went back and forth both ways and i would actually look at the complaint mr just on the releases for his contention that republic western's claims lacked merit there's simply no claim one of the older workers benefit protection that lastly your honor with respect to this your honour's with respect to the sanctions motion  this entire matter simply should have been litigated in state court that's what should have happened all of the things that were raised during really nothing more than defense it's in fact if you look at the complaint in particular the first complaint that was filed but even the first amended complaint essence says the state court case has no merit that was filed by republic western that's what it says that's the essence of this complaint that's not a federal claim it should not have been litigated in federal court if that was position then he should have defended the state court case and not filed a new claim once judge bolton saw the merits of the claim determine them she agreed with that she agreed that this simply didn't need to be done and it wasn't just honour's there is simply no basis for federal jurisdiction here this case was started it can start by republic western state court it was remanded because there was no diversity the trial court here properly found there was no diversity and there was no viable federal claim in this court should affirm my time just run out and thank you for your attention the state action is whether or not that power has in fact been exercised they use that they use the power to work for him they wanted him and they wanted me to agree to have him testify in a way would be favorable to get rid of this huge tens of millions of dollars  not to file any charges against this company that's a violation of twenty six section six twenty six f four and it's also violates public policy he does have a right to speak to the press about his case and the issues of general public