good afternoon your honor the openshaw for appellant never been lee in this case making and breaking a contract for brand development and consulting services with a branding company is commercial activity under the foreign sovereign immunity act branding is a quentin quintessential private sector activity private companies enter into these types of contracts all the time especially today in the age of social media the district court did not have the benefit of the pablo star case when it concluded otherwise and that case clarifie that at whatever level this court defined the contract surinam engaged in commercial activity here whether the commercial back to the is defined as making and breaking a contract full stop whether it's making and breaking a contract for branding and marketing services or whether it's making and breaking a contract for branding and marketing the republik of all three are activities that private companies routinely engage in and the text of the foreign sovereign immunity is act actually counsel courts to look at the higher level of generality to look at the nature of the activities and not the purpose and that's what the supreme court's decision and well to over says as well but even at the deepest level of we can all think of examples from private companies promoting particular countries as destinations and these companies might have exclusive flight rights to that particular or the plaintiffs can neither be characterized as a government employee nor was it contracted to provide services akin to those provided by the plaintiffs in cato so in cato the plaintiff was an employee of the government to alleged harassment and retaliation and here we have a contract and the injuries alleged arise out of that contract and on the nd point about the activities the activities and kato that the plaintiff was engaged in are different than these activities the plaintiffs was going to trade shows and promoting particular products and particular businesses engaging in business development whereas here our contract is for branding it's for a country promoting itself itself promotion and for those reasons that cases distinguishable and published are explained that distinction to us and makes clear that the situation here is more like that in published are where the wealth government was the case under any test and courts that have analyzed this question about whether someone as an employee or effectively an employee have used a peer to use the test under the common law agency which is you know whether sauron have the right to control the manner and means by which the product is accomplished and through and did not control the manner and means here for a nonselective the four projects from a menu of thirteen options that ever are finlay offered and ever are executed the manner and means of the project and joint appendix page twenty four says ever art was responsible for quote implementing the project in cases where courts have found that contractors employees were effectively employees of the government for example in the the lear case you know they were integrated with the military in that particular situation they worked directly for and under the control of the military they could have been considered military personnel were clearly not in that situation here and even under other tests that might be available under other statutes everard was not an employee of stuart and doesn't offer any test under which ever are to would be an employee and honest cato's language suggest that we actually do have to look a little at the purpose of the activity that the republic is engaged in the court there seem to look at the commercial activity as particularly software because they were promoting various businesses japanese businesses and you know we have promotion of tourism versus promotion of commerce one could look at it at that at that kind of propose that level of not like there's a spectrum or one could look at more granular fashion as providing web services as you've described it  trying to determine whether the government employee was a quote unquote bona fide a civil servant and we don't have that same inquiry here so here we have a contract and cases about contracts a which you know counsels that the court is to look at the nature of the activity and not the purpose and the supreme court's decision in wealth over you know there's a certain level of granularity after which it's inappropriate for a court to examine but as i said earlier under any level of granularity we want to slice it hear the contract was commercial activity the activity was commercial activity whether it was contract will stop the contract or branding contract or branding the republican there you know there's no level of granularity at which this contract a by you know email and telephone what is the substantial contact element require yes your honor so that it's caused one and there are actually two separate clauses that provide the required connection with the united states but all focus on cloth what for now so the test is that the commercial activity has substantial contact with the united states and the cheek your honest question about the specific activities the house report says that the substantial contact test is m if the activity includes commercial transactions performed even in part in the united states so here on earth point the meetings that you discussed the fact that an official of the tsunamis government came to the united states substantial contract negotiations were performed here the contract was signed in new york in the united states and the fact that certain chose to contract with the united states based entity performing work in the united state and the contract targeted the united states market soran was particularly interested in the united states traveler and the united states consumer and all of that all of those factors counsel but this was a commercial activity carried on in the united states and there's also clause three which is where an act of a foreign government has a direct effect in the united states and we also meet that clause as well as an independently sufficient basis for the require connection and the effect doesn't need to be substantial or foreseeable it just must simply follow as an immediate consequence of the dependence activity and here we have monies that did not appear in the united states we have the fact that this was a u s base company that suffered a loss and we also have as i said earlier the targeting of united states consumers and suriname act of nonpayment meant that commerce tourism surinam and improving the image of the nation as a whole throughout the world not just the united states were we submit not commercial activity under the f s a is take full squarely within branding advertising directed at us market that are the type that are provided to quite a company as well as governments or to any entity that wants to establish a media presence targeted at the united states  why is that the right level to look at this activity you're sure i am engaged in a contract to procure services distinctly commercial nature it seems to me so tell me tell me why i'm wrong but i'm missing sure let me let me address both aspects of the question both the nature of the activities and then let me just start in terms of the nature of the activities these were not as i said it's not just a branding dream and very far from it this was not the kind of activity that  producer nd though i mean by that you know if i want to sell crackers i hire an advertising company or web company to write me a jingle and to you know make an image and develop a plan for making sure the american public knows knows about my crackers what i meant is any different when you well i don't country sure i think it is different it's an entire country this is the national identity of an entire country and not merely an attempt to sell a single product this is an attempt to burnish the image of an entire country in the world community at large and and another another important aspect of this case and the agreement is that mr agreed to serve and i'm quoting out of the agreement as the press office of suriname creating press releases and content for suriname that is that is outsourcing that  but it brings it much closer to the realm of cases like air injure and other cases in which private parties are contracted or engaged to do governmental activities in that case a private spy for monocle of all understanding why all of those services could be provided for a private company their commercial services and the only difference here is that the client is a government and so one can contact that ever arc was hired to do that is distinctive and it's well again i think it is because of the nature of the activity it's not the purpose in it is its nature it is it is designed to create an identity for an entire country and of course here in this case the the country paid four and a half one million dollars to what i think is a very small operation so that is a big chunk of the budget of this of a small country for the promotion of commerce and tourism so this is not a discrete assignment yes you could break it down into you know creating a  nice looking suriname brand and if that's all that was involved perhaps it would be different but here that this is closer to cato where you have a you know what an individual who is being engaged to promote the and i think maybe the most important part in the fact that the copyright infringement case was that there was no relationship whatsoever between the photographer and the government of will the government may well decided well we're going to use photographs of the person's permission and we don't have to do it so so the so the absence of a relationship made made a huge difference you know countries cannot just you know appropriate other people's intellectual property to promote their fortunes let enterprise or its public presence in the global spear that all of those contracts are not going to be enforceable because they're not commercial activity under the  involvement of mr findlay in in this project to do more than just push tourism this is not solely about pushing tourism this is about creating an identity for an entire country creating a entire you know internet presence promoting commerce promoting tourism promoting trade burnishing the identity of a country that has some image issues in the world and so that you know i think it is far more extensive than then than the run of the mill case and that's what i think distinguishes it and by the way we're not saying the contract wouldn't be enforceable the only question is whether a u s court would have jurisdiction over certain you know there's by the sovereign or plus three activity outside the u s sovereign that has a direct effect here the focus is on what the what the nature of the action is that's what the statute says and that's what this  action is based on a claim of payment you have to look to where did the nonpayment occur it's kind of a metaphysical concept where did something not happen well it really is the decision not to pay that matters and in this case of course there are differences but insofar as the question of the locus of the of the activity that is the subject matter of the playing i don't actually see a difference so thank you very much your  create taglines for countries and in fact they often do as judge lynch mentioned at oral argument and pablo star delta might have exclusive flight rights to scotland and create a commercial that is entirely about scotland and its national identity and a hotel may have an ad for aruba you know come to rupa and we have we've all seen these ads and i would point this court to a number of other cases one from the d c circuit about a contract for technical assistance in consulting services for rural development in bolivia that was commercial activity the you know the other side spoke about the website for suriname zones that isn't there's an th circuit case about a contract for providing services including a database for honduras to register its aircraft under the honduran flag that was still commercial activity the case about in for providing information that would lead to capture of a fugitive involving peru that was also commercial activity so examples abound where these types of contracts that may promote governmental ideas are our commercial activity and i also want to address the record ok so we did not involve the commercial activities exception and had to do with the takings exception under that society which is not at issue here and the plaintiffs waive the issue of the commercial activities exception at oral argument and that case is distinguishable for a number of reasons that involve totally different facts the plaintiffs bear allege that land livestock and personal property in what is now namibia stolen by german were either sold or leased to private parties and some of this money was you used to purchase real property in new york and these buildings were used in part to house german diplomats there was no contracting its activity involved in that case as there was here the german government didn't ask any private company to do anything it was engaged in direct diplomacy and cultural influence and ultimately the that is whether this is the type of lawsuit that congress would have wanted an american court to hear and where strong arm reached outside of its borders to sign a branding and marketing