we still not have cancer year and johnny versus johnny international were you counsel who was delayed this morning who was delayed this morning i was here the whole time it was too late this you weren't here when we when we started court this morning counsel right in any event why don't we get started we'll hear you now you please the court my name is paul siegert i have recently been retained to argue the appeal in this case we seek reversal of the a memorandum an order of judge on its rocket dated september one two thousand and sixteen right from the get go it's the position of the ne the lower court erred by misconstruing the two thousand and nine licensing agreement and by not contained in power graph seventeen the cord said that the plaintiffs however simply ignores the license provisions that x was explicitly allowed the license or to provide point of that's us with a notice of terminations at which point all of the copyrights and the intellectual property would vest absolutely in the license or and then your honor the court refers to section seventeen i'm sorry as section seventeen point nine and saying that you're on a what the court misconstrued and frankly i think what is not in the briefs of either of the parties is that that language refers to two different types of terminations it refers to the immediate term a nation of the agreement but then it refers to a terminations based on a material breach which would require a thirty day notice now in the very beginning of the of that paragraph seventeen point one it talks about the immediate were some assignment for the benefit of creditors it says under those that provision that there is an immediate term a nation of the agreement however when you go to seventeen point one point five is then starts talking about a different kind of terminations what it is is they talk about in the deal a material breach and if there's a material breach of the contract then a thirty day notice is is required now as you go  down the paragraph seventeen for example seventeen point seven is talking about the immediate termination you want to get to the issue of foreign and convenience which i thought was the central issue it is the  the central issue but the question then becomes well does foreign non convenience even apply to this why can't we stay in the united states and the unknown can be twenty six point nine what is it's very limited all it says is that this agreement meaning the two thousand and nine agreement is going to be governed by the laws of england and wales and in the in the party submit to the exclusi expanding it's now saying that including non contractual disputes or claims that's the line which that's their sole that clause is going far beyond two thousand and nine where only the only this agreement only this agreement is going to be subject to the form selection clause here it says this agreement plus non contractual stuff i'm not sure how that client ok the claims that were made were not claims under the agreement itself they went far beyond that the claims that my client was making had to do with actions that were taken by the international on our adversary actions that were taken after they purported to have cancelled the agreement or terminated the agreement nine are this agreement just this agreement and what was done later on was that they they had actually gone to our customers and said that we were  illegally dealing in their products and that sort of thing that happened later on and out here i see in your brief where you argued that the claims you're making fall outside the forum selection clauses if you don't tell me where you made that argument in your brief your honor i'm not sure well i understood your brief to basically be making what i call a step four in corrie which is that it was would somehow be unreasonable or and just or that the clause was invalid or something like that but not not that the claims don't fall within the clauses i didn't see that in the brief and if i overlooked it pointed out to me your honor i don't think you've overcome and i don't think you can make the argument here on appeal orally for the first time well what's your what's your challenge you that i saw that either you can tell us some rebuttal laughter you have a chance oh you didn't reserve time for battle consult with your client if you want to tell us where it is that was filed by my client in the in the us in the eastern district and your honor that case was was dismissed and what happened in that original case and i it's in it it's in the fact pattern is that the our adversaries actually contested that case on the merits and got a decision basically saying that our claims were dismissed and what we're saying is that it that it would be against public policy for our adversaries to go into court litigate on the merits went on the merits and then when there's a second case all of a sudden they decide that oh well let's just invoke a clause where we're going to go five thousand six hundred miles away to to  e and try to invoke this your honor what should have happened in this case based on the arguments that i've made is that the the lower court should have had a hearing okayed to to see which of these clauses a which of the agreements were effective if any there should have been a hearing as to whether either of them was terminated according to the provisions in the agreement and the court had to find out which of these clauses really applied and that's the argument that i just made your honor my client has given me issue three on page twelve factual dispute on scope of form selection requires an eviden what it looks like he started on page twelve that's what he handed me your honor this is not part of the argument the discussion the argument started page thirteen so what what is it that this is the summary of arguments right where where in the summary of arguments is there is it argued that the claim doesn't fall within the law doesn't fall within the form selection agreements my client says it's the the reply brief i'm sorry i misled the court i think when you know we don't have to consider to my client is saying to me base is on page thirteen words says the two thousand and twelve supplemental agreement form selection clause and added and that would be the non contractual disputes or claims that had been added later the plaintiff in this case in actually is filed in this the supreme court of state of new york nassau county we removed that case to the eastern district of new york fell to twelve b six motion to dismiss the motion to dismiss was granted  was filed but was dismissed a new case then was filed and that's the case that was dismissed by judge as rock and that's the case it's an appeal to today another  point about a control claims made within or under the contract between the parties there's no dispute that the parties were the parties involved in the litigation in the group the case law has been very expansive in not limiting the the claims covered by these form selection clauses to the technical claims specified in the language of the form click form selection clause martina's itself was an american with disabilities act claim and that was not specifically claimed covered in the employment agreement between the parties but the court in this court thought that that was the rule that that was was covered several things were argued today that were simply not in the judge as rick we have treated this case in brief in arguing it basically as what the court has understood that the main argument although that seems to change a little bit on the briefs was that it would be unjust or not your client's actions render the plaintiff's completely plain just principles completely destitute that that might be a basis to conclude that it was unjust or would be unjust you went back into the country to litigate as required of the forum selection clause it would appear that he would be imprisoned in maybe he wouldn't get out again so there are there are lines to be drawn in this case there's really nothing that's been shown other than the usual arguments that are made in these forums election cases class for this is an agreement between a commercial agreement that had multinational contact points that our covered not only the united states but also canada south korea and canada so it's perfectly reasonable to have formed selection clauses in both the original agreement and in the  the u k that's correct right as to the evidentiary hearing this claim or request was made before judge as rick the question there were unambiguous form selection clauses judge as rick made the decision that was not there was not necessary to have an evidentiary hearing this part of it is judges judged by it an abuse of discretion standard we submit there was no abuse of discretion judge as rick wrote a very comprehensive and thorough opinion covering just about every conceivable aspect of this matter we would ask the court to affirm thank you thank you very much i don't think you reserved any time for it but thank you all right we will take the case