there are three areas i want to discuss today hopefully be of interest to you and those are the three areas that disney never talked about the first and most important one has to do with judicial admissions as chief justice stewart on the panel in the kiki case said factual assertions in the complaint are judicial admissions conclusively binding on the pla in this case this city has judicially in mid that it's not just a mere license so or it licenses in merchandise is not only throughout the country but it has pled that it is specifically targets texas market in this merchandising and licensing of its disney characters that are protected by its various trademarks and copyrights creates consumer demand for such products and services in texas this dea has actively pled this in all four districts throughout the state of texas this is targeting of texas has been sufficient in many different situations in order to invoke personal jurisdiction for example in the t v s tech  case that was from the texas supreme court the fact that the defamation defendant targeted taxes relying on the conduct of its other parties indicated that it was continuously and deliberately exploiting texas and this was also true in the sense of the key can be huster supreme court case or a defamatory magazine article defamed the plaintiff in new hampshire even though that particular was that particular point it was a new jersey new york resident disney enterprises directs its trademark infringement to texas creating reversed confusion on the part of texas residents for b that disney enterprise engaged in merchandising and licensing not mere licensing and this is what d e i has told  courts in many jurisdictions not just in texas and that it has it made it that it has efforts to develop these texas revenues that facilitate this infringement the enterprise knew that infringed good would be so in texas and what's interesting is is that this issue of judicial admissions is an issue that is only peripherally addressed by disney units and its arguments and if you look to their brief it page thirty five and citing the fine weather case which really is not on point in fact so far as we have been able to find we've never found any case where a party takes a position that it is a mere license or when it has judicially that it made it throughout the state not only in the eastern district of texas but elsewhere in the no sir the reason that's not confusing the two is it is the enterprises played in different cases in texas that it is the license or in the merchandise or they took that position which is completely in absent to what they're saying in this case they would like this court to believe that it's a mere license or and that it doesn't have any in washington's clean from any liability to be sued in texas it wants to take the position that yes we can sue someone else we being disney enterprises on behalf of the entire does d franchise we can sue people in texas for violating our intellectual property rights our trademarks our copyrights but when we're sued we're going to mandate that you sue each and every one of these parsed out disney companies back to the statement that i started out with that factual assertions in the complaint are judicial admissions conclusively binding on the point it so in one instance does the enterprise's is claiming it is the license fact that they're saying that well we don't merchandise in texas big ever but our licensees do that and so therefore we have no exposure to being sued in texas because that's done by someone that we have licensed and that's the antithesis of what it is saying in its pleadings and has pled throughout the state of texas which corporations one entity in the face of disney enterprises when it soused but when it sued it wants you to sue every every possible different different company in and then it tries to escape liability through this web different companies as originally put it as originally pled in the first minute complaint in the ost seven ok so it was against disney enterprises as well as the other disney entities which could have been as many as eighty different companies it's subsequently when the thirty minute complaint was filed that those eight companies was pared down to ten companies where the best at least we had the best evidence that those were involved in these infringing activities that are a part of this case i'm sorry to mercenary is confusing but to the extent possible would you please try to be specific about which corporation you're talking about s or as it relates particularly to the judicial admissions disney now one of the other things that district did not talk about that and i'll talk about in our all talk about it in the context of apple these if you are collectively is the fact that a number of these dismissed defendants have interactive websites and in texas and they're all refer to disney dot com or some variant of that for example disney shopping has the web internet website shop disney dot com interactive web site when the vista home of home entertainment is movies dot disney dot com disney interactive which has games dot disney dot com disney licensed publication is books dot does the dot com well disney records is music is the dot com the cruise lines and parks all use disney these are part disney parks disney dot go dot com all of these internet websites they're interactive and they all present disney as one entity they're franchise one big company in fact judge pain in his two thousand and seventeen gotoh opinion it had no twenty two said there's no meaningful way for customers to determine defendants are separate and apart from their domestic subsidiary partly because they identified an advertising selves interchangeably or as related entities on their websites thereby making the exercise of specific jurisdiction over them fair and reasonable and judge payne helped this to the same effect in this case at record excerpt one seventy eight in his order of denying disney enterprises original motion to dismiss so we have a situation where we have a judicial admission of unity when disney enterprises seeks to enforce its rice in texas but there's no unity when charged with liability sibling might make it subject to personal jurisdiction and i'm not aware of a specific case with that facts and there are many cases objecting companies to person through stiction just by having an interactive website in this particular case though these these websites are they are interactive and they do contribute to the acts of infringements that are complained about there not just an active website or something else this is part and parcel of what is being claimed by the plaintiff that is part of its particularly the supreme court in the dam are a g case said corporations can purposely avail itself of a form by directing its agents or distributors to take action it's clear that was it five seventy one u one thirty five on that same page the supreme court also says that agencies come in many sizes and shapes and also direct of course attention to the new york tax case which talks about the disney  presented by disney itself retroactive denial of the third amended complaint after substantial discovery experts say expert reports which we believe is to be an abuse of discretion to that end i would just draw the court attention to the year in the appellants first brief that pages twenty six and twenty seven where there were some twenty three depositions that were taken after the consolidation was granted the dismissed defendants and that under the rulings of this the southern mellowing southern milling case nine hundred fifty nine which requires a strong showing that dismissal is proper in this case there is extreme prejudice just imagine there wouldn't be any it would be a lost cause i mean if there's no personal jurisdiction over either the tendon dismissed disney defendants or the two remaining the separate apart from dealing with an issue of the third amended complaint which was dismissed after a year's worth of extended discovery which was really compacted into six months a fourth media complaint was filed as it related to the remaining to defend it's in the second file case and two defendants as it related in the first filed case that subsequently was stricken by the court and again over those two entities and asking this court to reverse the district court's ruling below plaintiff is arguing for a radical departure from fundamental tenets approach to addressed action at base plaintiff is contending that the walt disney company which is the ultimate corporate parent and is not a defendant in this case are an appellate that the walt disney company and every one of its direct and indirect subsidiaries should be treated as a single ego entity disney for and that the former contacts of any one of those companies can be imputed to all the others because it does in plaintiff's words disney is everywhere that would mean that every direct and indirect subsidiary of the walt disney company is subject addressed action anywhere in the country regardless of what contacts that individual defendant itself has with the former state that is not the law and that would violate constitutional due process not a licensing situation but there's actually a manufacturer of goods that invokes the stream of commerce they are your personal jurisdiction it's possible that a much broader reach or personal jurisdiction would be available that is available here but ultimately even in cases where in this instance this case we had to deal with a license see there is at least one for where gerson action or all of these various disney subsidiar direct or indirect can be exercised and that's california that is the principal place of business for many of the disney enterprises many of the disney company's subsidiaries or indirect subsidiaries and it's also a location where there are significant business contacts so the question isn't is there any a form a convenient form where the plane of could have done gone this is a new jersey plaintiff who chose to sue in the eastern district of texas fourteen disney entities at one point in the case actually up to eighty although some were unnamed virtually all of which had no formal contacts with texas had the plaintiff filed the same case in california the plaintiff c proceeded likely against all eighty or eighty plus of the of the defendants without facing a person addressed section challenge so the plaintiff doesn't get to pick it anywhere it would like to sue all of them but that doesn't mean that there isn't a location where the point of could conveniently adjudicate rights with respect to all of them i do want to touch on two of the points that mr schwartz raised first  and i'm going to refer to some of the pages of the record excerpts to identify that the allegations are not made with respect to disney enterprises inc that mr short suggests they are on record excerpt one forty one disney is defined as the walt disney company the parent company and then the allegation is defendant disney to gather with its subsidiaries on that same page in paragraph twenty five a significant aspect of disney's business is the merchandising and licensing and distinctive elements associated with the motion picture and television programs so the disney that's been referred to there is that is the ultimate parent company and the allegations are with respect to a whole group of of the subsidiary in affiliated companies same in the complaint that begins on record excerpt one fifty three on record  elements associated with the motion picture and television programs record excerpt one sixty this is the one that i believe the but one of the ones that appellant was focusing on playing up disney enterprises inc which in this case in this complaint is defined as disney says among other things d or one or other of its subsidiaries is engage in the production acquisition and distribution of motion pictures for theatrical exhibition of home entertainment and other forms of distribution so again the reference to the activities is with respect to the group of companies generally record excerpt one sixty three another complaint paragraph four a disney or one of its affiliated companies again disney there is d e i but disney or one of respect to with respect to so that you didn't doubt in additional admissions that are pointed to or actually say anything about d e i negating anything other than as a as a license or and in fact use of the term merchandiser and license or a merchandiser is nothing other than a license or for a movie related merchandise so that doesn't emerge and dies or doesn't mean it's actually the person that's manufacturing goods it's actually selling goods to consumers it's the be a call by which motion picture properties are licensed so that goods can be created and sold the evidence of what d e i actually does that's in the record is in the read declaration which is in the seventeen four one two six eight case at record three zero two two three zero three the reid declaration specifies exactly what it is the d e i in d c p do and what m declares and there's no evidence to the contrary in the record is that d e i is a license or and d e i neither d i nor d c p for that matter sell any goods in texas including goods based on lots o or other toy story three characters so there is no evidence in the record by way of judicial admission or otherwise the d e i or d c p are themselves and gauging in any activities in texas that then comes to the point that the whole case for personal jurisdiction depends on either the nonexclusive license says that d e i and d c p grant to third parties being sufficient to give rise to personal jurisdiction in texas or the contacts of the some other walt disney company subsidiary being imputed to d e i or d c p on the first with respect to non exclusive licenses the uniform jurisdiction across various circuits including the circuit is that there a bear or a license alone without quote something more will not support the exercise of jurisdiction what is the something more the breckenridge case gives a good example of what would be something more if the license somewhere is actually exercising day to day control over the licensing sales and marketing activities if it's telling the licensee where to sell what quantities to ship how their market the goods what advertising to do and where to direct the advertising that could be something more there's no evidence in the record whatsoever of anything along those lines or anything that would constitute something more the only thing  missions or in the websites that would constitute something there is not and with respect to on the web site point i think it's important to note that we're dealing with consumer facing web entities which are collectively referred to in those companies as quote the company and quote while such documents might arguably establish the existence of some corporate relationship between w w i and the other will bros entities they are insufficient to overcome the presumption of corporate separateness we have the same thing here we have websites that are pointed to that refer to the walt disney company in various subsidiaries colloquially as disney but that i itself doesn't even come close to what's needed to create an alter ego a problem a class a showing let alone to prove an alter ego relationship which is what's necessary to disregard the corporate form in the way the plaintiff argues this court should do  only something more that the that the appellant are identified here is that there's quality control exercised by by d e i with respect to the intellectual property rights that are being licensed but is this court is aware quality control is essential to any trademark license if the license or doesn't exercise quality control the trademarks abandoned so to argue that quality control is something more would swallow the role an essential would mean that a license or is subject to drones diction everywhere and that has therefore been rejected including by the district court in the circuit in the sunshine the sunshine kids case the extraordinary breath of the appellant's argument here really was captured in an exchange between mr schwartz and judge shrader on nov thirtieth two thousand and seventeen in the hearing that resulted in the opinion that's being appealed here the court asked mr schwartz quote it seems to me it really boils down to this whether a license to third parties to sell products throughout the country supports pacific jurisdiction in the eastern dishes of texas do you agree with me that is the issue mr schwartz i believe it is your honor the court ok your argument that it does let's assume you are correct your argument that it does result in a situation where disney could be sued anywhere in the country for merely being a license or would it not mr schwartz that is true that is what the appellate argument here ultimately would require that without an alter ego showing the fact that disney enterprises inc and disney consumer products licensed third parties to manufacture and sell merchandise nationwide including in texas means they're subject to personal jurisdiction nationwide that's not where constitutional due process allows with respect to the imputation argument there's a lot in appellants papers in their briefs and then in mr schwartz this argument today about a single business enterprise both the fifth circuit and the supreme court of texas have rejected the single business enterprise rule as a basis for exercising personal jurisdiction the texas supreme court decision impeachment p h c mynd then is an especially good example where in that case the parent company and the subsidiaries of affiliates had just shared business purpose the parent company articulated the general paul business policies for all the subsidiaries the parent company monitored the subsidiaries performance supervised its finance and capital budgets decisions and was otherwise involved in the policies and procedures of the of the subsidiaries and the texas supreme court in that case said that's what a parent company does absent some specific control over day to day operations being really involved in the day to day allegation of alter ego in this case the come none of the complaints first second third fourth none of them alleged even allege the existence of an alter ego relationship between the companies there certainly is no after two years of discover this is actually is not argued in the opening brief on appeal and this was not argued in the district court it's argued for the first time in the reply brief therefore the argument has been waived but even if it had mr schwartz quoted a non  case for the proposition that basically agency is this mushy concept and almost anything can constitute an agency relationship but i or texas law which would be the state law that governs the definition of a principal agent relationship in this case agency requires two things proof that the principal has the right to assign the agent the specific tasks that the agent engages in and second and most importantly controls the means and details of the process by which the agent walk complex the task that standard is quoted in the sunshine kids case and also numerous cases from this court simply having a synergistic relationship among the var subsidiary and affiliated companies is not enough that doesn't create an agency there's not a shred of evidence in the record that d e i or d c p i had any involvement in the means or details of the process by which disney shopping or disney store sold goods in texas or anywhere else there's no evidence that they directed disney store in and does the shopping to make sales in texas or heading in any involvement in how it was done so for a person e i and d c p did not themselves in gauging any business within or directed to texas and that the form contacts of the two defendants that are subject to drug addiction in texas disney store and disney shopping cannot be  in the first instance because we don't have a dismissal of all claims as to all parties in this case we have a case that is going to go to trial against two of the originally named defend mr short sighted in the southern male case the court had federal question jurisdiction over the primary claims in that case and there was a third amended complaint that had been filed under the court supplemental jurisdiction the court granted summary judgment on the primary claims and then said for no reason other than it wasn't required to exercise supplemental jurisdiction in the absence of the primary claim i'm going to dismiss that the third amended complaint that did not have a separate basis for federal jurisdiction there was no analysis of judicial conduct me no analysis of any of the factors that would go into exercising discretion it simply was not required to exercise jurisdiction therefore not going to in this continuing tort so the plaintiff and i don't mean to be handing the plaintiff arguments to pursue here but the plaintiff may have lost a period of damages that the plaintiff can sue for but if the plaintiff believes it has claims against for trademark infringement they can still reach back for years so it's not it's not as though a claim of infringement has been forever waived but even with respect to do periods for which a damages recovery may no longer be available that's purely of their own plaintiff's own creation plaintiff knew how to request a towing agreement had they wanted to they requested two of them in this case the defendants had granted tolling agreements in the first instance one went could also have filed a new complaint in texas and california or there were they wanted the very day after the district court the klein to maintain that there are many complaints if they had filed a new complaint the next day they have no remedy it's not because the district court vacated leave that they're demanding complaint it's because from december of two thousand and fifteen which is when the district court did that through now november of two thousand and eight hundred three years later they haven't plaintiff didn't file a new case either in texas in california or anywhere else so to the extent a statute of limitations has run on any peer damages periods it's run because the plaintiff has not done anything since that to many complaint was vacated not by virtue of the complaint itself ha with respect to the record excerpts of counsel in a targeted attack to go back to the record excerpt page one sixty two and on the face of this pleading that was filed in houston it his affiliated companies was sued by offended in that manner which is to be satisfied with it or stop they want to be able to lump all of its judicial horsepower in the context of disney enterprises as the enforcement arm of disney but when they get sued it's like cutting through the layers of an onion you have to pull apart each piece of the lawyer to find out who's the proper party to go after council made a comment or read into the record a brief excerpt that was taken in the context of the hearing before the court and suggests that while it appears to be saying there really is a lot more to that dialogue that it's not a simple it's just because there is a nonexclusive license that subjects a company to jurisdiction throughout the country this is the case where disney enterprises has used the texas courts to enforce particularly its trademarks particularly its copyrights particularly things that have to do with toy story three and the fact that it does that actively in the state and uses those resources as its judicial  enforcement of its intellectual property rights seems to violate a fairness principle that if you can enforce your rights in technique in texas then the converse ought to be true also that you should stay there and defend when you have been sued of as to be the  amended complaint situation i have directed the court to the record excerpts on page one thirty six were it is a somewhat  abbreviated history but it helps set the context of where there's a first and second amended complaint in the in the first filed case in a first i'm in a complaint in the second file case consolidation in the d consolidation and that the first amended complaint which is the last act of completing in the second file case was the one against