amy you could use then so when we first learned you're very very persistent in your requests to come and intern in my chambers and you know i agreed only when i looked at your background and i under your fellowship as a as a licensed lawyer passed the bar in florida and you contributed to the work of my chambers and to that of the sport so now i see you're headed for a career in  who is a member of the bar good standing of the highest court of florida i have knowledge over credentials and i'm satisfied that he possesses the necessary qualifications well with consultation of independently support an exceptional case find oh i forgot and i'll explain that further as i go forward i think the recent supreme court decision in fox really is a that where we stand on the kind of sanctions that sanctions decisions there's no doubt the trial judge has discretion we're all familiar with the importance of a trial judge managing the courtroom but if the court said we don't want to help micromanagement one hand there about the pinion on the other hand it's only when the call to the rules are  there's litigation misconduct we all agree that under the rules of the game if you have litigation conduct you don't need to involve the question of facelessness or intent that right age misconduct  the litigation misconduct in and of itself the suggestion but what if one of the elements of it i think it that has to be there has to be bad to make good faith litigation which kind of does is an oxymoron to me so i think there has to be bad faith and i think if it's under the supplemental sort of your point of this automatic petitioning is that you don't need to show that each of the cases is baseless if there's a thousand of them right that was april fifteenth supplemental authority but they put in which said fiore doesn't apply to the vexatious litigation theory if there's a series of cases so that the dish you of at some point you bring so many cases that they don't have to teach the end of objective really baseless and they rely on  underlying finding that the litigation was itself based if the vexatious litigation is based on the initiation of litigation the filing of claimed that definitely under professional real estate the only referred to her findings with regard to already found the one tonight we have that she's sitting here and in fact no one can disagree and i'm sure you wouldn't that i mean she had the litigation misconduct finding here and with respect stations with a geisha and she had a history and a context to  put it i mean if a judge had not been through to the contents in the history you would be here screaming on the phone to be considered in the context so i don't think i mean if you go back to turn the clock back to everything that happened until but not beyond two thousand and four i don't think we thousand and seven she found that because she found the pressure real estate applied to that kind of vexatious activity the filing in the covenant not to sue i don't think you can say that the filing of cases of this kind is of all the judge will can didn't find that what she did find in this decision where she distinguished litigation as coming back and she didn't find it in two thousand and seven when she said special real estate applies and you have the great risk that the exceptional swallow in the testimony it was an error he made erroneous testimony and then she found that there was a cover up or if she put it obfuscation there absolutely was not within weeks after that a brief was filed where they said we do not contest th an automatic dating program it's a manual the motion to strike was we admitted that it's not an automatic dating program we admitted with manually entered having an expert go through and prove that the documents show that which is not a disputed issue we want to rule for three months that's a very standard motion what i would make out of well i mean the plan will stop the argument was based on their statement that it's obvious from the entry on the date that there's a mistake because there's a comma and it was sort sanction even if you accept all of those things and i would encourage regeneration of some of those inclinations but that the ten million dollars sanction violates the fox case c portion of this is four hundred sixty five thousand and one about that almost all of the money of the sanctions almost all of the money issue that's undisputed between the parties so it really you know i don't know most of all that she at the end of the day they and the district court action and she for that she ordered seventy five percent and that was redemption since it was that that was some small amount of debt almost all the discovered like seventy depositions dollars something like the fifty seventy depositions almost all of that would take in the ones not you don't get recovery for the illegitimate claim if the work had been done for the legitimate claim that's exactly what we have here there is no distinction whatsoever and it's the vast majority of the awards it's about ninety percent or whatever the exact amount  we certainly don't have that we don't have any of that but the point being that whatever the wrongdoing was in the district court there's no showing that it took place in the id city so it will continue an attempt to show that happened in the i t c this is a straightforward it which is a good idea and i appreciate right parties everybody agreed to it in the just right just so you can never get sanctions that recovered those fees even though it's clear if the i t c proceeding wasn't going on you would have had these fees incurred exactly right that's so you're off the hook for all those fees you want to comment on the circumstances that exact that's the argument that the other side raise is not an either this that's their argument their prime on the merits and the answer to that is that spot because you could make the same or give about five feet high so if they didn't bring the non frivolous claim then you they would have recovered for their fees and put in the frivolous claim but the president of the non frivolous can you address kind of the point that i think judge raymond i wish someone troubled by and that is this category of p r e and the faceless plus that say and then we're that litigation misconduct i think we're in agreement that that's separate and distinct and if there's litigation come up you don't need the other stuff but in this context she didn't really like who typically what she put under the heading of litigation misconduct she also relied she coupled that you look to see whether the record as a whole support the finding an idiot we had in this case we had six litigations bravo to all of which they lost they continually harassed m p s and its customers for over a decade  in some cases driving customers for example the one of the other defendants in this case to agree to withdraw not purchase from m p s anymore and the district court sat in the trenches saw the series of cases and she to a conclusion about  not pursued perhaps at the beginning of the case for they gave up on the five nineteen through some claims when they were faced with a super bowl on sale bar problem that might be an inference but the district court saw this series of cases s sure that we're not duplicating just i think that's part of the motion i believe in the in the joint appendix but certainly everyone agreed it would make no sense to duplicate the discovery in the two cases you're dealing with the same and better depositions the same experts there are going to be look at nine five three four three six that's the tracing argument they say the fixations conduct was limited to five days and she said no argument my conclusion is that you have misconduct throughout the case and then the second argument is that nine five three six to nine five three eight in which they argued that non discovery for example domestic industry work should be recoverable and we agreed with that and to the extent that we had some that's bacon entries we took them out so what are we to was  five authority anything they do in the i t c in the district court it's scot free it's it would be a windfall to misbehaving plaintiffs and the supreme court certainly didn't endorse that indeed avoiding windfalls was part of the reason for the hol appeal that terminations but i you know i'll get back to the policy issue because i i think of it there are circumstances where a simple but for causation test doesn't make sense and i learned this in first year tort law it's actually in all the s in that case you don't apply the simple but for causation test you look at a substantial factor test because it leads to one just results in the supreme court was not considering that a scenario in oxford was faced with just it didn't deal with parallel proceedings at all  would be terrible to see him over my time let me first address on waiver i mean the heading at nine five three four the only piece caused by entry to the alleging exceptional behavior should be recoverable how else do you make a budget for causation argument and then a ten of four eight six and said the trial court must determine whether the fees requested would not have accrued but for the frivolous claims citing fox and says this decision supports the arguments made throughout our opposition so find a waiver on on this when we brought fox to the court's opinion the court considers fox so judge look at redbox we clearly objected to the i p c c on the grounds that it had the don't rules that's all over the papers i don't even think that's the night to find a way that would be pretty hard hearted in this circumstance the court had it she read it she distinguished it on the grounds that you heard now that somehow frivolous k k first litigation was kind of mean there's nothing meaningful about that distinction but the supreme court decision is is i feel it's a little bit of a twist in between whichever way i move so the argument is if it's a separate proceeding that the fox arguments week or that makes no sense the fact that there's a separate proceeding which itself is bonafide where they couldn't so it seems there's a sanction fee in another institution makes it more compelling than the cases to claim that one case the fact that we need to consolidate them which is sort of common sense to me eliminates the argument that well there are two separate proceedings so therefore whatsoever in this situation now the two point i'd like to make that remaining one is there were sixty depositions taken and i t c everyone knows the i d c is wide open on discovery and a different court and district court you've got a limit of ten why so much of the discovery probably wouldn't happen maybe it would abide by the normal rules of district court this eight million dollars wouldn't have happened it was only because it was being dual use for the i t c so t standard i'm not really all that that's not really the central point the central point is that by having a separate proceeding it makes it more compelling that it's if there's a legitimate proceeding under appropriate tribunal the one which the cost would have been incurred there's no there's