the door on your argument right there you supreme court held that a contract by which a nonresident defined it assumes continuing obligations with a former resident is sufficient to support the first prong of specific jurisdiction especially where the contract has a choice of law provision that says the form state's law governs the lower court didn't apply the burger continuing allegations test the lower court applied the purposefully directed activities test a burger king burger king lays out a destructive kind of analysis and sometimes the court merges them but it actually says where the defendant deliberately has engaged in purposeful activities in the state or has created continuing options between himself and residents of the form he manifests as avail themselves of the privilege of conducting business and there are the obligation is not to do something right  in this case that's correct so you could sue him anywhere in the world no no in this case the obligation was to not do something we have produced a maryland company the era of brazilian company album was to not use the predicts word mark all around the world including united states including maryland and pretty on the other hand agreed not to use the  of consideration it wasn't cash being paid back and forth right but if if we were neighbors and i had a nice mint to drive through your front yard and you had an easement to drive through my backyard but both of us didn't like having each other driving thro we could reach an agreement and it's an agreement not to do something but it's still an exchange of consideration and what we have here is really kind of like a global peace treaty of sorts because you get to multibillion dollar companies that are each agree maryland in many of the same ways that this poor small business owner in michigan availed himself of florida rights go it's never visited florida he had a business partner that did some training in florida what you have in the burger king for struts which you had burger king headquarters in miami florida and of small business owner in michigan and he thought let me open averting operation he never visited the state the only reason he contract with a company in florida is that that's where burger king is headquarters happen to be he actually was initially dealing with the mission district office or he never sold any whoppers in florida he never advertised almost immediately he couldn't pay his bills and so by may of one thousand nine hundred one he was facing suit in federal court so to answer your question if he purposely avail themselves of florida when you only reason he we have the two thousand and three world wide two existence agreement and again this is a major peace treaty the court didn't credit the agreement and it's personal jurisdiction analysis it talked about it but it basically said it's irrelevant the only thing important to the agreement is a choice of but it's a very important agreement and that's something that the court says must be considering averting under consulting engineers the nature quality then you have another group that the two thousand and five a dent i'm in with that europe actually said there's a little bit of this two thousand and three agreement that isn't working out force in saudi arabia so they actually went back to produce and said ok we'd like to amend and so there's another agreement but further in innovations right about burger king there was there was a short duration of a contract of a relationship there but what we have in our case the two thousand three game at the two thousand and five a denim and then as we've explained because of the peace treaty there was spirit of cooperation perdue and b r f did business together and so the r f sold over seven hundred thousand pounds of chicken making over six hundred thousand dollars by dealing with produce people in maryland now that chicken never actually entered maryland but that's business that the ira conducted in maryland well you're not your only contact i'm not sure what you're making what if what your argument is with respect to that order because and the future consequences if the two companies had been battling each other in court they would have done over six hundred thousand dollars business together well it seems to me that maybe there were letters back and forth and maybe there were telephone calls and maybe one that somebody came to maryland but we don't have any of that in this record understood totally understood it's not required under burger king it's not a part of consulting engineers but here's the practical situation that happened over ten years ago produce doesn't have the emails there's no one there who remembers we had this phone call on this date and here's who was on the other side but these are two agreements that didn't just emerge from immaculate conception but sorry to interrupt you and i won't do it again and then you said that that we started talking about this two thousand and twelve two thousand and fourteen chicken orders so whether they have to do with this contract not to interfere with each other and stuff did they don't have anything to do with their contract terms but in terms of what was the relationship created by the contract the relationship created by the contract was a relationship of rather than being global competitors are going to be times when we can work together because we've reached that peace treaty in the past so so it doesn't arise out of the same relationship and that's something that burger king says should be considered well arises out of a factor both in the chicken business that's what really the court to the contract plural contracts the court needed to have examined the nature of the quality of the importance of the contracts and it's as if chevrolet and chevron reached an agreement and they said ok we're going to not use the word chevrolet or the word chevron by itself and all of our advertising around the world we'd all agree that's a pretty substantial contract and if it had a michigan choice of yeah and i guess my point is if chevron said we don't have any gestations michigan under burger king and this court case law the analysis would be that doesn't make a difference because you assume continuing obligations to a resident of the form state it doesn't matter the obligations are not to do something were to do something they're the same in terms of the importance of the continuing obligations so why can't you have the why couldn't they sue b r f in north dakota th because they have they agreed not to not to put their logo up there right if they are if sold chicken in north dakota though they don't have begun selling chicken in maryland today they did not sell chicken in maryland  maryland as a connection to the case because that's where the contracts the communications in the parties are embodied in agreements between a maryland resident and a brazilian resident and that's why maryland has a to know right that's correct but it certainly shows that the parties had a sense of what court would be best suited to handle this matter they they understood it was a maryland a contract arising in  let me let me just quickly address the lower courts there was not crediting the terms and the continuing obligations in the agreement under burger king that is required everything you're saying about the lack of a physical presence in maryland the lack of shipping chicken in maryland the same thing applies to burger king right squids didn't have a physical presence in florida didn't send burgers to florida or sell burgers in florida but there was a contract with a resident in florida that impose continuing obligations the consulting engineers doctors around or they they focus somewhat more on the purposefully directed activities tests unless on the can continuing obligations test their non exclusive the rate factors but they're not supposed to be used as a scorecard either but those eight factors actually support person jurisdiction here so we first have factor number seven that's the nature of the extent the quality of the part communications about the business being transacted we have a two thousand three agreement two thousand and five a denim again multibillion dollar companies agreeing to restrict their respective advertising through the end of time the nature of the quality of those communications and body to those agreements could not be more manifest this is not a one off trivial commercial contract this was a major undertaking by the companies that's what the  for whether the defendant deliberately engaged in significant or long term business activities in the form state as we've said we have the original agreement and then we have beer of coming back in two thousand and five and saying we want to enter into a new agreement into the earlier agreement the ira initiated that contact and we've talked about the over six hundred thousand dollars in sales and chicken that is transacting business that doesn't arise out of a relationship we've got invoices and emails from brazil of people to purdue they're in the chicken business there are times when they really want to work together but because of their relationship they'd fostered rather than having to deal with produce versus predicts litigation in markets all over the world were able to work together as a factor for spurs personal restriction factory where was the performance of the contractual duties to be performed in maryland and in brazil that's what happened and warning it please the court jeffery b r f you cut right to the chase here there is no such thing as a continuing obligations asked that purdue has laid out in its brief particularly its reply were sites that eighteen times and it's already made this morning continuing obligations are a factor included in factor four of consulting engineer which is the courthouse this is court well knows its courts test for deciding whether or not this personal jurisdiction in the case of a specific jurisdiction allocation it is one thing you look at in fact if you go look at can the consulting engineering opinion it cites burger king under factor for there is no separate disambigu continuing obligations test work court were to look to see whether or not this is the only thing that supports jurisdiction one would think that such a test existed would be a case that cited such a test as a stand alone independent test somewhere in the  continuing obligations test it would be frankly up a remarkable outcome here the way we look at personal jurisdiction in a case like this is through this court's well established age factors non exclusive been a factors in consulting engineers that there are continuing obligations and kind as judged to be said over and over again it's continuing obligation to do nothing yes i would agree with that we have no we have an obligation not to do something yeah but there are a lot of contact and well he sold me his boat in virginia beach and we executed the transaction in virginia beach and we agreed that maryland law would govern the agreement and the one provision in the contract that we had says you're not going to tell anybody about this in a continuing obligation of confidentiality i went back to california i told everyone i knew but i bought this book from mr right he then sued me in maryland i have a continuing obligation and i have no connection to marilyn the fact that he's lives in maryland and my continuing obligation goes to him but he can't know i think that's a good example i'm worried about because this does involve pretty sophisticated big corporations and so really what you're saying is that your client entered into a contract that was never going to be able to be enforced against does your contract and your corporation is smaller than i don't know our corporation is exercises i don't mean to interrupt much much more corporations quite large it's one of the largest food companies in the larger then i don't know why i believe they're both private companies from not sure how i'm going to evaluate that but suffice it to say they're both have billions of dollars in sales let's take it away from your record but they've taken here which is to sue us in brazil which they did which they did after the record was closed in this case now by mitt i don't have the complaint to give you i'm sure mr wright will acknowledge that it in fact has happened yet but i thought a lot were problems right as your honor i agree that one of the things you need to consider as the district court did here was is it going to be trouble it's part of the third prong of the ls scan analysis the three part analysis for due process which is whether choice of law and i will give them that one and i think the other seven go our way and i frankly unless the court has lots of other questions on this i mean i think our arguments reasonably straightforward i don't want to bore you by going through our eight factor analysis which is laid out factor by factor in our the question that was asked moments ago was there no sales of chicken in maryland so how does the breach affect maryland that and again this is the same fact pattern in burger it was there was no misconduct happening in maryland you had an agreement that said don't do something don't use our logo without paying for us paying it that's work that was in michigan and here we have an agreement that says don't do something and it doesn't have to have happened in maryland they don't have to have sole chicken in maryland to have caused harm and to be subject to personal restriction in maryland now i understand mr auster says there is no such thing as a continuing allegations test emphasizing it's destructive it then it can be subject to specific jurisdiction by deliberately engaging in purposeful activities in the state in person presence or by creating continuing obligations  and the residence so when you have that and you have that coupled with choice of all provision burger king says you've got the first prong of specific jurisdiction and this court in the supreme court repeated that same principle in other cases so in on my phone just quickly i think it's right now where it looks like it is the court focused on the purposefully directed activities part of this remark quick review and not the continuing obligations just mean there are a lot of one off contracts out there  you buy a t v in your pay three hundred dollars and that's the end of the deal where you ship some weed and you pay a thousand dollars and that's the end of the deal but this is unique because it's an agreement that continues forever and it binds both parties forever that's why the continuing obligations part is so important i know i've said it several times but the lower court just did not appreciate the importance of quality the nature of this agreement it was so important to two multi billion dollar well competitors and i point out as compared to burger king versus what's go it's the europe is not a small business owner michigan they are much bigger than produce and they have a substantial presence in other respects in the united states between being sold in york stock exchange to file and trademark applications at the trademark office the reason this case again i was in virginia as it is but to be from here at that's correct  maryland the reason this case was filed was because they followed the very more complications to use the predicts word mark on chicken in the us and we said oh you can't do that and we spent some time lawyers not companies but lawyers trying to get them to stop doing that and then they withdrew that just before we filed a complaint but meanwhile we discovered that all across the world many many countries they've been applying to use the predicts word mark their chicken  create continuing obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities that's the continuing obligations just it wasn't even a settlement agreement a swedish company in north carolina company were in litigation in sweden about patent friends and allegedly helping in sweden then they had some of the scotians there was an agreement in principle the swedish company said no we're not going to do it and the north carolina company sued them in federal court in north carolina to enforce the settlement agreement about litigation in sweden concerning conduct in sweden about a sudden agreement that never been signed but it was simply some discussions they don't have a case so they have the lower courts opinion but again that you cannot ignore the agreement it needs be credited it's very important to the contact here it is what supports personal jurisdiction thank you very much we will come out and brief lawyers and then go directly to our last