here the breadth that the arbitrator can take given the issue that is presented to the arbitrator in this case wasn't pretty broadly drawn it wasn't narrowed pages long asserted three claims breach of contract tortious terminations of a contract in violation of a california civil code for willful failure to pay commissions pursuant to a written contract all of that was in front of the orbit absolutely and we want to all three of those claims what makes this case and usual was that the arbitrator without notice ruled on two claims which were not ever arbitrated and the key point for us was that it was arbitrated that there was a written contract the issue before the arbitrator was how to interpret their contract the pre arbitration briefs on duty starting at the excerpt of record one ninety talk that there was a written contract the only question was how that covered the subject matter the only question was i was going to be interpreted the opening statement talked about repeatedly ten times in his opening statement that starting with the excerpt the record from nine sixteen to nineteen twenty six talked about how the contract coverage of this there were eleven days to testimony one hundred percent of the testimony from both sides with that this contract covered mr shand juvie the principal testified excerpts of record nine thirty the contract to this agreement or its breach the parties agreed to submit the dispute to the mediator and i'm looking at twenty nine the demand for arbitration in which the claimant basically identified the nature of the dispute as being an action to recover commissions arising from the wrongful conduct of the respondent and the claims for relief sought that he has substantial damages arising from a breach of contract and other claims against ensure you got copies of his demand for over to you absolutely and subsequent to that he filed a twenty two page arbitration brief that said the three issues he said that this is what we're going to litigate in this case and this is what the witnesses are these are the three issues he defined i agree submitting if the demand for arbitration is essentially to resolve a dispute that has arisen between the parties and that the man is i'm entitled to a commission point why isn't that broad enough to include a theory of recovery that gives him commissions that he says were wrongfully withheld from because the i think that he could have argued it your honor i think that it was covered by the contract what i fair for the respond in the arbitration to lose on a claim that's diametrically opposed from that which is there was no contract that covered i'm not sure it's diametrically opposed if if it is framed as being a dispute that arises out of the relationship between the parties and the matter is submitted to the arbitrator to decide what i hear you claim complaining about is he didn't award damages under the contract but he did award damages for in resolving the dispute that arose between the parties over entitle me to commission that's correct but you worded damages on a theory that was never argued in the case and which was because we  the opening statement made by lucent before the arbitrator and lucent made the exact point that you're making here that the existence of an enforceable agreement precludes recovery in classic yes or no your honor yes that there were words which let me read them to you until you tell me what i should conclude the sales representative was may not recover under three of unjust enrichment the existence of a valid and enforceable written agreement precludes recovery in such a quasi contract theory there is no basis for recovery under the procuring clause they read because the theory does not apply in a sales representative agreements right right reason why they only submitted those pages and not the rest and why they never filed those pages in the district court either is because opening statement the point what he did was he picked up some words which were in a court case top which i was quoting dealing with bad faith terminations where did new york law come from was that contained in the correct absolutely well if you choose new york law it's the substantive law that is to be applied why would why does it necessarily limit the arbitrator to simply new york law on contracts why can't he apply new york law on ways i contract theories i think under the right circumstances he could your honor what we think is improper here is under these circumstances where the parties people argue in the alternative then it would have been in the case and i wouldn't been standing here and i gather if the returns just gotten it wrong on the law you wouldn't be standing here either you're wet you're just arguing you don't have a chance to present you absolutely because the all the cases that talk about it say that we're entitled to a fundamentally fair hearing the case this talk about that you're entitled to fair notice the fact your honor is if it was in the case how come sean to be who was suing for millions of dollars didn't put it in it sixty eight pages and the second one was fifty six pages the words like contractor and in there i think you made a tactical decision not to do it because although legally you can argue in the alternative as i said i wouldn't be here if those words were in there you could what's fascinating here is the thought obviously entered the arbitrators mind because he asked one of their most important witnesses robert just by the way are you telling me that you provided services outside the contract and straw said no all the services were provided pursuant to the contract and that's what makes this case what i think is exceptional and why that why we're here and why we weren't titled to notice the they didn't put it in the case that quasar contract shows up in none of their papers and there are hundreds of pages it shows up in none of their testimony none of their oral argument clearly for us if we were on notice that we were going to be sued for four million dollars approximately for that we could have put in our arguments and that's all that we're saying we should have been indicted to put in our arguments the arbitrator then could've accepted or rejected it and if he rejected it i agree that it's a differential standard we never have that opportunity and that's why  it's particularly in print improper it's also improper because the a rules the guy to commercial arbitration at least i did on our brief talks about how the arbitrator is not supposed to do legal research if you have a question you're supposed to go to that nobody cite so we didn't get a chance to present our argument that it was incorrect the in addition the a code of ethics that we talked about talks about arbitrator supposed to give everyone a fair opportunity to present their arguments we because i would have made it that i would have made people take a position now are you saying that the contract covered you saying the contract didn't although you can plead inconsistent absolutely the reason why it lawyers in texas and many times don't want to take that position in front of a judge or jury or a fact finder is that puts people on the spot so i could have asked the question are you saying that it's covered or isn't covered are it is your legal argument set forth in your appellate grief in this case before us yes can we take it into account as we reconsider whether or not the award should be given absolutely although our point your honor is not that in my opinion the correct legal analysis is not because it's thro arbitration it was through a district court with the three of you say is of course the definitive like still the definitive law but here the reason why it's an angle is we were entitled to make our arguments to disarm betrayer and we were entitled to that so this court could accept or reject it but that's not what we're without what the arbitration was the point where the reason why we put it into the brief was not to guarantee that we were going to win but to show you that we had something to say this wasn't just ephemeral we did clearly had things to say new york law for example says that a finder's fee contract can't be oral and that you can't excuse if i stop will and that you can't get around it like watch america that's the heart of our argument we were maybe we're right maybe we're wrong but the reason why we're prejudiced here i may please the court my name is jack russo with me today is my partner tim how as well the c e o of sons of the corporation james on duty we do have a few slides your honor but i'm going to make three points here and i'm going to walk you through why counsel in saying he never had the opportunity to present and did not present this exact argument is false as demonstrated by this record he made this argument before the hearing he made this argument during the hearing he made the argument after the hearing he made the argument after the transcript was done in post closing briefs i will cite you different parts of the record with the quayside contract argument was sought to be re by counsel he is standing before you today making false hearsay step statements about a record the eleven volumes of which are not before you he chose not to put them in he's making all sorts of hearsay characterizations about that award that were not raised according to mr river either by him or by you you're out of the citations are in the record based on briefing that occurred to the arbitrator or i so you disagree with disagree entirely perfectly all right well let's get let's get let's get to it your honor if we were going to make three points here you are first point is the standard review in this case and in all arbitration cases and particularly commercial arbitration cases the narrowest known to the law that's never discussed never discussed you are one forty seven this is brief where he quotes a your honor quoted in previously where he says this page ten of his summary judgment brief he says there is no basis for recovery under quads i contract the argument was there in front of the arbitrator that's before the hearing at one forty seven now let's go start this argument is that he that's a case citation when he was discussing your climbs and had nothing to do with an independent response to kweisi contract like you run or what your license to that yes your honor in our brief in our opening brief which he characterized as just three theories we actually said this contract under their view that no commissions are paid becomes an illusionary contract if so it's void we stated specifically in our brief if so they're entitled to even larger damages under non contractual theories that was before the arbitrator during the course of the ten to put and terms of the non contractual theories to you saying use the words classic contract and you're pretty familiar i know we use things like services rendered just as a district court found here when the what was before the district court the original complaint which they had notices on is services rendered for which fair compensation was due that's the exact herman ology that is often used in lieu of just using the words quote as a contractor celebrate your brief didn't say kweisi contract we're fifty four this is when he is then briefing again this is a brief that he submits on april fifteenth two thousand and three before the arbitration is closed he makes the same argument again he is saying that during the arbitration hearing quazi contract was never an issue yet before on summary judgment he raises this issue of quires the contract after the transfer after the testimony of eleven days occurs he raise again the production products case and he says again the sales representative here and this is that you are for fifty four page seventeen of his brief of abel fifteen two thousand three the sales represent may not recover under the theory of unjust enrichment the existence of a valid enforceable written agreement precludes recovery on such a clause a contract theory so he's he's here saying that after eleven days of testimony he's citing your relevant law to the arbitrator which he claims he had no notice a contract and an unjust enrichment are different and you can categorize as such a theory but the elements are different runners all before this arbitrator this was a fifty year veteran  citation i would use would be five thirty one of the reason i would use five thirty one in volume number three is that's where our are the only indication of my opening statement or one of the indications of my opening statement that we were going much broader than just the pure contract theory is the slot i used during the opening which is in a record at five thirty one where i say lucent repeatedly reassure chandu me corp repeatedly reassured relian stop all those arguments were made for hearsay statements by counsel to somehow say they weren't made is refuted by the record here and we got a five seventy four and this is really the ultimate statement after all the great thing is over the again production products the sales representative may not recover under a theory of unjust enrichment for counsel the say in front of you that the idea of quite as i contract an unjust enrichment was never discussed when it was raised in the in the summary judgment in the opening brief in the opening statement in the closing brief and the post closing grief five times it's just strains credulity to say that this arbitrator somehow picked a theory out of thin air that did not occur your honor you don't have the eleven volumes before you what you have is a very detailed one thousand page decision by this arbitrator which under the standard of review under the stand this court applies what would pass every form of scrutiny and certainly passes the minimal deferential scrutiny that exists in this case so when i ask your position do you think the contract covered this or not we we went into the arbitration certainly with the view that the contract harbor and the reason for your honor is mr santelli was told by mr stocker during a phone call you will be paid under this contract the arbitrator recognized that and said there was an acknowledgement by stock we believe that the contract did apply we believe there was an interpretive issue about whether appendix c of the contract from other language in the contract the arbitrator to me said i'm not going with that approach i'm going with an alternative approach the terms of approach is the  contract new york law unjust enrichment theory rob your eyes can only overturn this award if you find something on the face of the award where the arbitrator applying new york law somehow recognized what council's arguing which is somehow the contract is crystal clear in their favor it says shot in lucian's view it would have to say shonda doesn't recover anything for all the work it's did and the arbitrator ignores that that's not what we have here we have a reason where a seven hundred fifty year veteran who's been in practice you know if he was seventy years old he had many arbitrations he looked at all the facts in evidence after eleven days and made a decision here i think you know all these cases i'm going to flip through them but it's clear in this case that the argument about notice is that is a false argument it's a false argument as found by the district court the district court in this case interpret in his own decision to compel this case to arbitration makes the finding its findings important because it can't really the ignored by loose and saying this case somehow didn't involve unjust enrichment or services rendered the district court says in this case the complaint had raised all of the issues that they're saying somehow what didn't raise including the general issue under seventeen thirty eight dot  i want to turn to that page of the district courts funny because i think a lot of this case which can't be disagreed with is that this particular district judge who had had the original complaint in this case says at page three of the decision which is e r nine sixty seven sun juvie brought several causes of action including breach of contract bad faith terminations payment for services rendered at loosens request a common count and violation of california civil code seventeen somehow that opening statement locks the case down locks it completely down what you now and you would be i guess to what a rule sixteen order that we would enter in a federal civil case which would narrow the focus of the one five sub issue about willfulness that's false we were never agreed to it it wasn't part of the case it wasn't what happened it's why the post hearing brief is sixty odd pages because based on all the testimony that came in there was a lot more and if you contrast the post if you contrast the closing briefs with the opening briefs you'll see there's a much more expansive recitation including there were replied to our brief saying there was wrongful conduct here that's go get me your honor to some of my last points here because i think this is a case this case is a case where you're ours have the opportunity to send a message that commercial arbitration awards have to be respected this is a frivolous appeal i'm going to prove that if you don't you know it's not in the sense you need both parties it seems to me litigated primarily the question of whether or not contract coverage that was that was the focus of this and the only the only question here as an and we just have to gauge that by the documents here it seems to me that's that's a fairly narrow inquiry it's not a this isn't just doesn't strike me as a send the message case you are if you give me a minute i'll try to explain why i think it is because i think they've had more than enough notice they had notice for more than a year this testimony was not eleven days straight this testimony some of which was a new york some which was in california went on for about a year the whole process of the arbitration was over a year what i want to get to and i apologize of the slide is not care but i'm going to get to it is certainly we had the california manufacturers representative act theory in the case and that theory includes failure to enter a contract but if you want to look at the level of scrutiny and this is where i want to get to in terms toward means you must strictly construe and strictly review this record which is the opposite of all the standards of review from the federal courts under the f a a even that the fact that the arbitrator finds a violation play what remedy with the arbitrator have to go through under rule forty five that calls for a just and equitable remedies other than quads like contract when he finds a violation of the statute except there they're talking about you talking about fair notice that's that's what this is this case is all about and you're saying you're trying to parse the nuance i'm not saying you're incorrect on this but i'm just saying that you have to go pretty far if you're litigating a stop where you litigated differently you do litigated differently than if you're if you're if you're if somebody making asserting straight out of a nice theory of cause a contractor to litigate it differently you may litigate differently in arbitration or are in my experience it all comes in it all comes in and it's not constrained there is no rule sixteen order there are no pleading there there's certainly no order from an arbitrator i'm only going to hear the seven in fact goes the other way the rule is general i hear everything in the point i'm making about strict scrutiny if the level of scrutiny was there has to be an underlying legal theory for how this arbitrator came statute once that's in the case and clearly they have notice of it as i said judge white makes clear and our pleading our our briefs make clear that the whole statutes in the case the norse of arbitration had the entire statute clipped to it as an exhibit the entire statute was clipped to it that theory of closet contract arises from there is no contract there's a violation the statute the statue talks about damages dam just are in the nature of quasi contract damages because there is no contract they violated a statute that they shouldn't  violate that gives rise to the attorneys fees award that's that was a challenge here that i don't hear raised here by counsel but they violated the statute in titling shown to be two attorneys fees and my argument here of the argument is he is a california statute to bootstrap in new york common law california statute to establish the violation for value under contract the arbitrary then apply as damages under new york law correct that's correct or are that's what happened here that would be different under new york and california anyway new york and california are the same on clause a contract damages are awarded council's argument that he wanted to make arguments to the arbitrator that would have prevented this outcome he did make those arguments he made them five three million plus an accrued interest plus attorney's fees they were a fraction of watched on duty had sought in this case they're here claiming that after eleven days of arbitration and a year they got san included numerous non contractual theories to go with their view or even to go with the view that there's a colorable argument here is to allow millions of commercial arbitration cases to play the federal courts with a view that you know issue in fact there's another record citation where they do put in testimony where the arbitrator is asking a former employee of loose and i'll find a citation for your honor where it's clear the arbitrator his raising on his own the question if the contract doesn't apply what's the appropriate remedy here given that lucent had repeatedly represented to shawn the movie that sean dooley was going to get paid the arbitrary himself is raising that in the record your honor and that's in the record here i believe it's that  three forty nine three fifty and any trial lawyer just hearing you are three forty nine three fifty this question from the arbitrator has to raise the question in their own mind is the arbitrator raising this issue is the arbitrator saying what's going on here i don't know if you want me to read this to your honor three forty nine three fifty but it's clear the arbitrator is raising this point and the reason i'm here saying attorneys fees are appropriate or honor is really along the nature of something that judges scanlan said in the case not too long ago that if there isn't finality in arbitration words in the case of the arizona lecture power versus berkeley fifty nine f thirty nine eighty eight i believe it starts at pa of the printout pages page four quote the finality of arbitrary awards must be preserved if arbitration is to remain a desirable alternative to courtroom litigation the work of shonda v corporation in this case started determination he would have found that the termination was wrong here you know he came out the other way he actually said that he was asked to find what it was wrongful and he said that it wasn't wrongful under new york law and this is yes that's when he states this product i suppose the more fundamental issue is is an implied and this kind of an arbitration that everything's on the table i agree general everything is on the table your honor but here when the pla exactly the opposite quayside contract only applies when there's not a contract regarding the subject matter here the plaintiff trying to be took we believe one of two things happened either for tactical reasons decided you didn't want to have us people testify otherwise or he didn't think of the theory and if you didn't think of the theory it's unfair to for us to lose four million dollars because you never put it in it would make me just as other advocacy no sense that we should say by the way here all the issues in the case contract covered it that's why it's fundamentally unfair to say you know affect to our side by the way the next time you've got an arbitration even though the testimony is one hundred percent you should go spend your money and go brief something that's not even in the case but it's the whole question you're supposed to raise it to the parties and a hundred percent of the arbitrators legal citations and ways like contract and stop all dealt with things that were never briefed a hundred percent of the arbitrators cases were not there so we never could say the by the way will be submitted for decision