the record will reflect that right now the clerk will receive the document which we have authorized to be distributed in titled timeline of events related absolutely your honor yes when we were here last then this court vacated the pool in marion junction with instructions back to the district court and that took some time and then there was the issuance as we've discussed in the appeal the findings of fact conclusions of law and that's the appeal that you have in front of you we also since that time based upon the comments that the lower court made on our initial motion to vacat injunction that we should come back when the time periods had expired so we renew that motion and my fellow colleagues on the other side made various motions for summary judgment  education issue sanctions i don't recall all of them they were all heard together this fall judge daniels understood that there was an appeal pending and he also stated that he expected to have decisions to us before the end of the year that hasn't happened and that that year could be that of these some of these covenants have expired correct and that was the reason we ask permission for a new graciously granted us to present you just sort of with this timeline so you can see how far we are since the expiration of the covenants that are at issue with respect to the preliminary injunction is the nd time that we have been here and have been required to ask this court to vacate the exact same injunction from our perspective it is just as wrong now as it was eighteen months ago in their last year and just as wrong as it was twenty nine months ago when it was st issued the appellants have been wrongfully restrained for over two and a half years from competing with the largest provider of workforce logistics in the industry and just for  is the name of the industry it's a fancy way of saying that my clients load and unload trucks and warehouses and my client is a one single holder shareholder company very small and capstone on the other side represents that solves as one of the largest if not the largest competitor in this workforce so and the scope and breadth of the polemic junction as we noted it's not limited geographically ambiguous as to customers because for example if capstone has a customer called a b c grocers and a b c grocers has five hundred dollars sites throughout the united states and capstone only services two hundred of them three hundred sites serviced by other competitors in the industry judge daniels has unequivocal you stated that this preliminary injunction prevents clients from bidding on those other three hundred sites those are still capstone clients so when you couple that with the lack of geographic limit there you look at delaware law or california law it is overbroad and should never have been issued in the st place and then secondarily at this point in time from our perspective for the injunction to have never had an end place is a clear abuse of error and should be reversed by this court henri man the district court from our perspective did not conduct its own independent legal analysis but simply adopted my adversaries recommendation that under the ministers and missionaries case there should absolutely under no circumstances ever be a contractual choice of law as we've cited in our papers in the cases that have come down after the ministers and missionaries case that is not true there can be a choice of law discussion and decision where the application of the choice of law provision would be contrary to the fundamental policy of the state which has material greater interest in the chosen state here the contracts were signed in california by california residents performing work primarily in california the new company which is also intention as as we read it or as the courts have analyzed the missionaries case since that there is to never be an analysis certainly there contact with the state is no longer relevant but there are situations where there this fundamental policy which has a greater interest and we submit that it is on ambiguously clear that california has the greater interest and that it would be contrary to the public policy of  where there's been a lot of discussion from the other side that these provisions are appropriate because they arise out of a sale not the language in delaware or california you can't arise from a sale you have to have been agreed to be restrained because you sold something because you had something to sell a business or an asset or goodwill none of my clients were the sellers the sellers were large equity companies production in fenway and then there are two individuals mr shelton and mr haley who had good will to sell they signed different agreements called  ok so if we look at the top mr nava ready and these these st three dates are the same for all of the individual defendants capstone enters into a stockholder agreement in august of two thousand and fourteen in may of two thousand and fifteen that's when the capstone pinnacle merger agreement is is enter into and it closes in june of two thousand and fifteen that signed by and that's when the are the restricted activities agreements by mr haley and mr shelton for their good will are signed because they are part of the deal only after that in july of two thousand and fifteen because of the issuance of stock options to a variety of employees as part of their employment mr not already below him mr popham burger and below him mr willis sign in exchange for employee stock options under now mr rojas has also been joined he didn't sign a restricted stock agreement he didn't get any stock but he's enjoying nonetheless so that's why those dates are important restrictive covenants are issued in connection with employment or the issuance of stock options that is given much greater scrutiny as to whether it is appropriate to enjoin people from earning a living because they got some stock options by an employee if however they are subject to the exception in california it's actually statutory under the business and professional code one million six hundred and sixt and one it specifically says yeah we can allow you to be enjoined because you sold the business you sold an asset you get you saw them your goodwill so it is very important that they were part of this employee's stock option versus part of the sale and that has been a fundamental misunderstanding in this case since the very beginning and we have attempted and tried over and over again to get the attention of someone to really look at these and recognize that they were a part of not the sale of good well the business but issued as part of their employment but when we as part of the sale at the sale hadn't happened i suppose none of these thirty plus employees would have been offered employee stock options right it was not a well employees were going to get the stock options and whether or not they were going to agree to sign and they certainly had a choice to accept or reject an offer of stock because they had to pay tax on it it wasn't free  virtually every one of these and what was read into the record of the transcript when his were adopted was that there were very few changes made and they were adopted from our expected out by the district court maybe you could describe the hearing on the preliminary injunction with a final injunction i guess you could have done that right yes it's quite common and this is the reason why this was not a permanent permanent injunction it's based upon a restrictive covenant of of two years that was the sole basis for the issuance of the injunction in terms of the competition could it be a permanent injunction to not use their confiden also based very largely in part in that the fact that the injunction should never have been issued in the st place because the covenants not to compete were on their face and enforceable so there are two issues if he simply vacated them because he has not decided that they have expired that still leaves open the question as to whether the plumber injunctions were ever issued appropriately in the st place can i follow up on that mask you what what is it be vacated that it be determined that based on and on all of the arguments that we presented to the court that the injunction was improperly issued in the  instance because under the choice of law analysis that the missionaries case still allows california law should have been applied and that california an ambiguously and clearly would have prevented these non computer provisions from being enforced in this manner or seriously for vacated or the preliminary injunction do you want anything more from us in the sense that it are you actually asking for reversal rather than a mere vacate or i mean you're asking such if i understand you to simply reverse the situation of judge daniels and effectively enter judgment for you is that right or  to put it another way if it's rule in line with the rest of the case based upon your reversal that california law applies  you will i think it can and i think it should i think we need a determination once and for all and especially because this area of law has evolved since we were here last time the public policy in california well i think that they trade secrets is a red herring they certainly had a right to return of any confidential information and that happened through extensive discovery discovery all kinds of forensic imaging and they have it and there is if you look there has been no identification of a single trade secret in this case and there's more than just that you have to prove that it was used in interstate commerce and that it was to our benefit and to their detriment none of that has been presented and when we look at the cases that they cite you know there are cases really exciting but the number case involves the secret formula to the nth degree as to how we use driverless automobiles we don't have those kind of trade secrets in this case and there is never been an identification of one and even even if you were to believe at some point that they would prevail on that point that doesn't allow them to have a preliminary injunction to stop people from competing on the terms and conditions of this bill and it would be that they have to not use the trade secret document drafted by capstone capstone chose to reaffirm and say that this document superceded and to say that it is to be ruled in accordance with california law and specifically also incorporated paragraph eleven which says california law applies to reaffirm these so yes they really of they reaffirmed those obligations under california law so to the extent because those provision in the a has much more than the non compete has a large confidentiality provision and has an under spared from a provision so those things were all reaffirmed in the separation agreements and they were specifically said this is the final document this is this is the only document you get to rely on and any interpretation of this you do under california law and the reason for that is because at that point in time california law had already progressed so where now employers cannot allow california employees to agree to have their disputes govern under any other law in california so there's a reason capstone drafted it that way district court judge and one thing that ms fermor papers actually don't mention was st of all there was a motion to vacate the injunction that was made this was the st injunction that was made in mid two thousand and eighteen and at that injunction motion we opposed it we raised the fact that the restricted stock award agreements contain express tolling provisions and judge daniels found that the denied the motion and expressed a lot of frustration about the fact that four months after the injunction was entered the defendants continued to violate that injunction and they continued to attempt to do business with capstone customers and he didn't sanction them but he did say on the record at the hearing and as i understand it defendants you've been talking to captains customers and since at least last month and they would not have stopped had not had one of these customers not product or attention i bring and on that note i just as a foundational matter i do want to highlight because i think it's important to note based upon the clear standard that the opponents actually don't dispute or seriously challenge a lot of the evidence that c vast majority of the underlying facts that gave rise to the court's preliminary injunction motion and at high level there's no dispute that these were for very senior executives of capstone their former senior pinnacles of employees who engaged in the campaign some of them while they were still working at capstone to replicate capstans business then there's no dispute that they made pitch presentations and solicited capstans customers recruited dozens of key employees they stones proprietary software program called mobile track and they also had access to that wasn't of capstone files they used which included customer contracts financial snapshots called focus reports that provides a lot of site level data it's a very data driven  industry pricing data along with the documentation for the software that they went into and after we after the injunction was entered expert testimony has revealed that there are copycat program isn't your verbatim copy of the mobile check software that they took all of this is outlined in detail in the court's seventy page findings of fact you're views i understand it is that even as a matter of california law  that and you have to engage in the traditional conflicts analysis the center of gravity test if the contacts all point to delaware as having greater material interest or at least insofar as california does not have a materially greater interest i mean we're talking about all the cases that they rely upon or all california centric businesses between a california employee and california company and refresh my recollection why is delaware why does it have greater interest than the other two jurisdictions so a couple of significant material and reasonable relationship with this state and shall be enforced whether or not there are any other relationships with the state and there's a can there's a contract provision identifying delaware laws applicable yes there is a delaware choice of are saying agreement and it actually says that this agreement and all issues and questions concerning the construction validity and foresman interpretation of this agreement and the plan will be governed by construe it in accordance with the laws of delaware without giving any effect to the choice of war or conflict of war rules or provisions and again as i was saying this is not a california centric business yes the defendants resided in california but capstone is a principal place of business in georgia its corporate in delaware it's a national business all the customers they service or household name c v s home depot with customer sites all depositions to their frequent travels to these customer sites and you know the appellant's point themselves out a small company before the injunction was entered they had were attempting to negotiate contracts with the same customers to take over nationwide all of the business of these customers unifies one of the examples and they testified that their annual business is worth forty million dollars had they successfully taken that business before the injunction was entered that they would not be the small company that they cl was held before the pulmonary injunction was issued and then eventually i'm going to shoot very same question i asked before that is what is it you want from us or would you wish to have from us if you were to prevail on your arguments but but st described to me this we've got to help full time line for which we are grateful tell me what happened what led to the ranger and your kind of what kind of a hearing well i think that their information is entirely accurate i think it's missing some key information but that being said we should give you a chance to frankly i'm sorry that you know who is coming that's an more or less a thursday or friday of last week when they tried to put this into the record objecting to it but that being said you know just at st glance i think you know the days themselves are so more accurate i just think it's missing other key dates that belong in this chart but later mr possum berger who's the senior vice president he leaves in february and then in may steve willis the vice president gives notice and then at the exact same time d p i who is a customer of capstone says you know we're we're transitioning our services all swear thank you very much and the next thing you know we ask them where they're going they wouldn't tell us at st and then we learned that they about were former kind of people they're all for everybody is a former pinnacle person correct and we also learned that several other personnel who had left during that timeframe at all started secretly working for humanity at that time and then rightfully given given the factual circumstances of the case that there's been and i don't want to get into this right now but there's been just a very litigious history between the two between the parties here and we were rightfully concerned that once the injunction is left in it and probably even before the mandate was entered that the defendants would start talking to capstone customers again and you know at that point we already had there was a sense of urgency we had also in the middle of discovery and following just regular discovery we just kept learning more and more stuff that was you know very very damaging for we believe to our client's business interests and so we felt that the injunction had to be immediately put back into place we were in front of the magistrate judge if i recall and we were able to negotiate a stipulated stay pending the mandate and to allow further briefing on the issues and keep that to of discovery back to judge daniel's and once that stay had ended we wrote a letter janice please make a decision on this and that's when he made he entered with modifications to our proposed findings of fact the   we learned for example that they had access again to the thousands and thousands of files that they used that we learned through forensic discovery we learned through nonparty depositions that they had there was that mr palmer for example months after he left capstone was still feeding them file capstone files and using capstone files that contain pricing information for example and actually we i do want to remind the court that we also have a motion to expand the record here which contains facts that we learned after the court entered its nd injunction which is that there was additional evidence found through forensics to through a forensic expert showing that there were documents that were created after the defendants had already left caps on their on their computers and how they got this sensitive information which was used by our business intelligence team to price out pitch presentations to prospective clients you know the only person who would have had it was steve willis because he was the last one who left and that was created right before he left and the motion to break it to expand the record is pending before actual before those that's pending before your honor's and then you wonder why i bring this up is because this is all now part of us well i believe that there would be no issue for this court to decide i think the nd circuit case laws actually create pretty clear about there are there are plenty of cases where during the pendency of the appeal a  and this has not been expedited the you asked for it somebody has to be expedited are we better off in some way of encouraging the district court to do what it said it would do by the end of last year rather than pushing forward ourselves and trying to answer questions that may all be completely moot in a month or two months while we're still trying to figure out just reading  the record in order to write an opinion well i agree to some extent your honor i mean look in a perfect world i would have preferred channels that needed such an honest before i came here today as well i can't i look i can't speculate as to why i on has been made yet on those motions but what do you want now this to go to the same question that i ask you in council what would the queen do you want from us what would work if you were to prevail in all respects what before the to the district court and that's correct your honor and if i may and i know i'm out of time i just want to quickly address because there have been a lot of argument about whether or not these agrees are made a connection with the sale of the business that's actually a whole side issue because we only get  and that's correct because there's two exceptions to california law one is that in connection with the sale of business and here janet made a factual finding that these are essays were signed a connection with the sale and in that regard look the reason why board and it was clearly understood that they were provided with these agreements before the merger and they were expected to sign these in connection with the seal the business and had they not done so i don't think that the merger would have gone through so  california law will allow that to the extent necessary to protect trade secret information and here there is ample evidence found by the district court that should be reviewed for a clear error that the appellants here having gauged in a campaign to take a lot of the information using information copy the information including software code and in fact a lot of it was destroyed that would have prevented us to act in violation of the court's preservation orders  about california's interests in regulating employment relationships recently actually your honor that is correct and there is actually even a more recent case that came out that after all the the appellant's provided in a two thousand and twenty eight letter and that case yes the court found and i believe that's called invasive the court found that california law should applied but that case also decided ascension he says ascension does not address the rd circuit's case of co face which also cites to the delaware statute that i mentioned earlier that says that there should be a presumption of a significant relationship with delaware for companies that are incorporated over and he held so held that noted that ascension relied on the fact that all the parties resided in california whereas here in that case the parties did not and i would see to that is that this so st off i want to say that i think we have to get back to the basics and the basics is that these these covenants and this preliminary injunction have been in place far longer than anybody bargained for to send this just back down or just sit and wait for the district court would be furthered by judicial and and took to the extreme prejudice of my clients and to be very clear when we met with judge moses because the other side was concerned we would compete fact to conclusions of law we have objected to there are seventy seven pages this is the longest one and we found we cited three cases for you that show that ad hoc again in this manner is not appropriate and this is the most extreme example and in the record on the motion for summary judgment that counsel brings up of all of these bad acts put them together all of these terrible things my clients have done that we're supposed to believe happened exactly as capstone says we have contrary evidence to all of them their expert says one thing our experts going to say another there is no determination that someone has copied something intelligent or a fact makes that there's also been absolutely no evidence that any of these all two thousand seven hundred contracts that supposedly my client had have been used it's the same it's the same cycle to make it more confusing it's not that confusing so what we would like again to be very clear and