mcdowell and we're going to we're splitting our time and them if please the court i'm going to discuss the issues of the standard of review and the claim for attorney's fees under the tennessee uniform trade secrets act or t decision denying our motion for attorney's fees under the fifth shifting provisions in and the tennessee consumer protection act and we recognize that the biggest obstacle that we have to  reversal of the court's decision of the district court's decision is the standard of review that is a political to feel ward decisions on which this obviously is and the standard of review is abuse  discretion whether it's the federal standard or the state standard in and there was some suggestion in our original brief that the state standard overview would apply but wyndham that not much difference is there doesn't matter if there's a while your honor i believe that there is one material difference and that is that according to this court's decision in automotive support group case that i cited in my brief when this court is reviewing a district court's feel ward decision it applies abuse of discretion standard but the district court's legal analysis and statutory interpretation or review do novo and that there is some aspects of the court's district court's decision in this case that doesn't the state have the same rule if it does i'm not aware but your honor they will anyway keep going all right we get that rule so the standard of review is abuse of discretion but that does not mean that the district court's decision oh ok then i'm going to move on to how about how about this  point i mean two things that seem a little odd about your position are one you know this complaint had several claims and you lost one of those claims as a matter of all right the breach of contract claim and i was about that that's not been appealed so we have to assume it's a pretty fair assumption that that was a legitimate claim right yes your honor does the record show what damages that would lead to your honor that a claim was a claim for breach of a settlement agreement that my client had entered into with wyndham when wyndham first approached him and what happened was that he agreed not to work on behalf of wyndham owners and he you know gets passed summary judgment which is just a funny you know now i realize you have some explanations as to why i got past summary judgment but i know it just seems funny to me to say it's sanction claim is essentially sanctionable and it gets that far along it i mean it seems either your side wasn't paying enough attention to how weak these claims were which puts a little responsibility and you or shows the district court was a very good but you can't just of course not responsible for their complaint i mean it didn't get far enough along to get to this final disposition so how do you deal with that well your honor unfortunately although the defendants should have there was counsel for the defendant dropped out and there was a deadline that was there was a an extension given at that time the deadline passed there was an agreed motion which the district court denied but it's hard to say it's an abus discretion maybe there's maybe it's not but that the point of matter is how can you tell you the plaintiffs are missing that the law well i'm we're not trying to take the place for missing that that is if you had filed a summary judgment motion that time based on what we see in the evidence you probably would have won honor and how can we how can we take them for all the damage that happened after that when all the fees that you guys incurred after the summary judgment stage when if the testimony that came out of trial came out at summary judgment i have to assume it would have you probably would have won well your honor frankly i don't believe that we won summary judgment in this particular case just because of the ruling you got on t v right yes your honor but but how does that work i mean how does it work that i mean you're making the point that judge change is just getting this stuff wrong that must be your point but isn't it weird to just i have a hard time completing the sentence that has in it the district court decisions worse it's so bad that i would actually say it was sanctionable i mean why isn't he getting sanction to talk to him that's why them i mean he's the one that's making the mistakes he's the one generating the fees it's not them yes your honor but he's not the one that filed this lawsuit no we that they did not have any claim for violation of the to say uniform to say let's put it this why why would you get maybe you do get fees for discovery if you're right let's just say you are right about all of this but i guess i'm just asking dutch dollars question a slightly different way why would you get fees after the time for summary judgment motions well it just seems funny to me and it seems like the answer of will that wouldn't change anything because this district court judge was just very tough on a sat that's just seems to break the seems almost like a proximate cause problem wit premise of the question the promise of the question is ok you're not filed not required but isn't it funny to collect fees after a point in which you could have stopped the problem in other words i think for you to get fees we have to assume you really are right about all this and to forget the district court decision assume you really are right and someone would have recognized that they would have recognized that summary judgment right well one would think so your honor one would also think they would have recognized it  most fees before but not after well how bad is that how bad is that that's not good for us one there weren't there a lot of fees generated with discovery most of the fees i believe your hon generated in association with preparing for and trying the case that your district court in denying your your directed verdict most yes your it is i've read the transcript just want to see if if there is something we should add to this the sole constitutes a trade secret is a question of fact period is was there any other explanation that your were or why the court denied yeah i'm not if there are if there's more if if your opposing counsel thinks there's more but you know if the district court's thinking here was that the fact that an issue is a question of fact precludes judgment as a matter of law seem to be a problem and that would have precluded summary judgment also it ok the under under the court's reasoning if it's a question of fact in the court believe that based on the testimony at the trial that there was enough evidence in the  record to make that question of fact go to the jury then there's really no reason to believe that a summary judgment would have been me just try maybe i'm a member of the one that's just not following us i'm just trying to work through this but it seems like you have two options here you can assume option a is forget who this district court judge was and the way we look at this is we assume a district court judge that gets it right ok so let's just that's one possibility here if we take that assumption it seems to me pretty fair to put some responsibility on you for not doing something earlier to stop the running of fisa that's a possibility and i think that's you see why i think that's problematic if you're a possibility b is we credit what the district court judge did in this case and if we do that we have to honor his summary judgment and while not that ruling but the ruling is a matter of law later on and that's hurtful to i mean i guess i guess i don't see how the fact that the district court judge made a mistake or wasn't good or wasn't hearing you makes a difference it seems like i we're stuck we're either assume the quote good district court judge the one that would have seen through all of this in which case you're responsible for nots solving the problem earlier or were we assume we give him the benefit of the doubt in he ruled that he will does he did which both scenarios help the other side at least after the time of summary judgment motions so what am i missing with that way of thinking about it i understand what you're saying your hon r but i think that clearly we have argued that the district court did not get it right that he completely got it wrong and under the course scenario we we had to assume some responsibility for not solving the problem earlier and i certainly understand the course position on that issue on the other hand as i think that trying to say there's no indication that filing a motion for summary judgment in this case would have done anything but add to the fees because the judge the district court would have most likely denied the motion and then we would have had to proceed to trial anyway you're making basically your futility argument or maybe january and the trial got continued because there was an emergency health issue for a family member of the plainest counsel and during that interim period that's when i filed the motion since with the trial that continued i said ok well now here's a chance that we have instead of spend all this money to go to trial we can try to get rid of these claims on summary judgment so i asked for permission to be basically extended spazz of motion deadline and to allow us to while we i mean i'm going to give your co counsel some time so if you don't mind i mean i'm i think we're going to get to keep talking about the same points because i i'm guessing both of you are equally a bill able to deal with all of it right i'm sure that she is more she's but let me also just state they're out there it's kind of a it's a pretty hard thing to say i mean would you really want us to say you know well yes you would be answers yes you would like us to say this in opinion now put yourself in my position do you think i can really say  opinion well of course i would in a futile filed a summary judgment motion front of this judge that's what you're asking us to say well i've think that what you're saying is that defendants are required to file motions for summary judgment if they think they can claim is so to just try a slightly different thing which i just want to make sure we deal with here judge chains had an alternative ground ok right this is the idea that you couldn't separate out the different types of legal work on the different claims for this well i was skeptical of that theory but it was an alternative ground and i think i think the way this works i mean i think if you had to my way of thinking about this is if you had a rule that said ok your notice of appeal must identify the three issues you are raising and you or all of the issues are raising ok and after the notice of appeal is filed one realizes that there's an alternative ground in the district court decision that's not covered by the identification of the issues in those appeal i'm not sure i don't as i don't understand why i would say no briefing case dismissed you know the appellate has to change the power has to change the judgment that's the whole point we review judgments not opinions and so the judgment stands with background and so i want to start in with its harsh particulars i think you're probably right on the merits but i'm really struggling with why that's not really problematic here but why we didn't follow measure summary judgment and i know i'm and i'm making the point that he had an alternative ground for denying fees the alternative ground was i can't separate all of this then address the merits of the alternative ground reply and i'm just saying i just think that's too late that you if you have to change the appellant has to change the judgment and if there's an alternative ground for the judgment not challenged in the appellant's brief  i'm just really struggling what we can do about it obviously this is not a question that i anticipated well ok the answer is we have some discretion and you want to structure size ok good and that is going to stick with me where you are starting with your ok i would argue that there's one level of discretion and once you find that they can act the action was frivolous meritless or are brought for the purposes of harassment then you weren't fees you decide how much to award bu that the code is going to say you have to get all the fees because there is a discretionary part of that but i have it there be no point in having the statute if the judge could say oh sure this is frivolous meritless and draw for the purposes of harassment but i don't feel like you should get fee only try another angle because i think this here's just sort of district judge look back here to look at the whole picture and so here's what you see at the beginning the case they had you guys in the room they got a t r o that got a preliminary injunction and they want summary judgment on one claim for which somebody on your side paid thirty five thousand i guess it's it's mr oakley client paid thirty five thousand but at the end of the case you had them on the run you cream them a trial in the meantime something's happened that weren't particularly the way you'd like to think see things though maybe you're going to say that this judge didn't didn't want you to file some rejection motion because he would had wrongly deny it but but you know in the middle there at least we look at that and say to somebody judge if your argument is j o b s there was no evidence you should have made that argument summary judgment so if i step back and look at they had they they had you guys in there at the beginning you guys had them on the road and in the middle whole bunch of stuff happened some of it shouldn't happen some of things should have been done differently a pox on everybody's house no fees everything stays where it lands well isn't evidence and my client and mr at least client are operating on a much lower attorney's fees budget much much much lower and they would have had to cash in all their chips to make a measure for summary judgment and then if we had lost understand why the burden should be shifted to the defendant and i don't think it should be the plaintiff is the person who brings a case about the close of discovery they don't have a case in the burden be on them to dismiss their case at that point  a tennessee bar for the apple e winter vacation resorts as the chords well aware there's a single issue presented by these appeals and that is did the court abuse its discretion in denying this motion for fees there are at least three independent entirely sufficient reasons that that question should be answered negatively there was no clear error in the court's finding that there was no bad faith here and that's the standard of review under the  a finding of fact even where that not the case there is no showing of an abuse of discretion here as judged as questions of just pointed out even when bad faith is found there ward remains discretionary there are a lot of facts here that would weigh against that if there are two ways to read the evidence choosing one cannot be an abuse of discretion and finally again if your questions have pointed out even were that not the case the  defensive fail to establish the reasonable amount of fees incurred on the fee shifting claims here as try to say seek fees on your breach of contract victory we did not your honor that but i take it as a statute that would allow it or there is not a statute that will allow that we are  so you talked about your first freedom one of the elements of your trade secrets claim was misappropriation correct and the statute defines that as disclosure or use of a trade secret in a way that's impermissible not just existence disclosure or use now is i understand the record i want to give you a chance to correct me your thirty six witness for all purposes was asked well what what are these trade secrets in particular and how are they used the answer was i don't know in iraq the tories were sent to you guys same question answer i don't know were seems let's just start with this point it seems to me that there is zero literally zero evidence of misappropriation that element in the record really the heart of that claim misappropriation as opposed to existence so i want to give you a chance to respond to that ok thank you anna i would respectfully disagree with the characterization of the record in the discovery responses there was a description of what wyndham considered to be its trade secrets here if that if those answers were insufficient then the response is either a motion to compel which was not the answer was the list that the answer if that's right the answer was the the answer was it was what the complaint said which  correct that's correct or why i mean why would you think that's a sufficient answer when they already had the complaint because it complies with the statute that you defined is a compilation of information in a play and ok i understand  was it seems like we're complaining existence with misappropriation what's your evidence of misappropriation because they they used that method plan that they learned about sales they use that in working with wind and customers to try to cancel contracts where what's the record evidence that says i mean that exit exhibits four five and six in the letters those are the letters us i mean in mr amano wix testimony he testified that the letters were word for word the same right that they used words that in twenty five years of working with consumers with windham owners he did not see consumer issues right they were quote insider terms that one would only know if one had gone through the training including sales compliance policies that had been addressed as being confidential giving a competitive advantage in the testimony of the bill which turner and is not a trade secret what is not a public fact what is not a public fact is that under the confidential sales compliance policies that those are red flags that if you want your contract rescinded say these magic words but it's more likely to happen that is part of that method where is that testimony the red flag the way it's in model works both direct and cross examination didn't do you know i mean none of that i've never seen any of this i mean frankly mr oakley in his brief kind of throws down the gauntlet and says they can't come back they're not going to come back with any specific evidence misappropriation and unless i missed something in your brief all you do is quote the district transcript differently i read the train that you tell us to place in the transcript to look just you know you may not remember pages but would be most helpful so we can if you think there's some evidence there that shows the use i will your honor i believe in the  at pages eight hundred fifty eight three ninety five of the transcript eight hundred fifty eight to nine hundred fifty eight to ninety five he discusses the the sales compliance policies the violation of which could trigger a rescission in a refund and why he believed from writing from reading those ghost written letters no no question those letters were ghost written back t a i for former wind customers that those were written by somebody who had knowledge of those he believes confidential trade secrets sales compliance policies and the sales compliance methods not language he'd seen in twenty five years from other consumers ok well we can take a look at that now the district court's actual holding on this point in denying fees as to the trade secret claim was that looks down and here we are quote the record reflects testimony related to which is the core element of your claim so why why isn't this an abuse of discretion when these folks weren't even heard in their argument not only on j n o v but here and saying your honor there's no misappropriation of an answer well they had access that's why isn't that an abuse it's not to be shot because they did have access and that's a correct finding in the record they didn't have unfettered access they did have access and the jury could have concluded based on the fact that there was it needed to be a violation of the settlement agreement in continuing to contact wyndham owners that forty percent up to forty percent of t a i s business was windham owners the jury could have concluded that was circumstantial evidence supporting an inference of use of that information that they had i don't is the only evidence regarding how they got the four owners who wrote the letters in this case was that the those folks came to t i a a via their website and mr model where you know not your brothers were equally knowledgeable i mean he he had no reason no but he said he had no idea whether these folks ever contacted those owners he did your honor but but whether those contacts were directly from those consumers to the defendants or the other way around was a question of the defendant's credibility defendant a defendant to defendant's t a i mr x you had no evidence is my point the idea of what you just said there's no evidence that they were contacting owners we had no good confidential information they took we had no direct evidence there was circumstantial evidence from which the jury could have concluded if forty percent of their business is when the moaners that that's not a coincidence as they get the other sixty percent they got the other sixty percent through their billboards through the numerous websites they had through the scimitars they had starting out you know i mean the circumstantial nature of starting that you know that i mean it's just there's nothing i was obviously your honor the jury didn't draw that inference obviously we came back in forty five minutes they did but the trial itself lasted a little more than a day i don't think forty five minutes tells us much and it tells us we lost we  had we had an unsuccessful claim that doesn't mean it was an unfounded claim there was evidence as it is the judge concluded on the motion for directed verdict which is discussed in detail in the transcript from which the jury could have reached a conclusion that there a trade secret and that it was mr appropriate when he says that's an issue of fact i think most of us would understand that to mean there is evidence sufficient to support a jury finding on these elements it's a question for them he says that many times in the discussion it's up to the jury whether that's true or not he never says anything about why there's a genuine issue of material fact he simply says this is a question of fact well you know you've got to read in context we can't take it apart here i think that's right and i think and you can experience district court judge who in denying a motion for directed verdict says that's a question of fact to saying there's enough evidence here in my view for a jury to reach that conclusion about the consumer fraud a claim i mean as i understood it at trial it was based on the  letter right that's correct but you guys had the letters before to file the complaint and then if i look at the trial testimony there isn't a word about a misrepresentation which is and it's sort of the judge kepler's question earlier about what's the misappropriation is is the is the element on which a trade secrets act claim will turn and misrepresentation is the element on what the consumer fraud claim will turn and as i read the trial testimony there's nothing there no one could say that there's anything in that single the same people testify at trial could look at that letter before you filed a complaint said ok what's wrong with that letter and the answer is we don't like it well it's certainly true they didn't like it but it goes beyond that the tennessee consumer protection act prohibits any unfair or deceptive act or practice in connection with any trade or commerce unfair or deceptive now there was evidence in there from which the jury could have concluded it was unfair because the defendants were using confidential proprietary information which they had agreed in their sales persons agreement was confidential was valuable was proprietary and that they would not use to aid these people ghostwriting their letters using those magic words to try to rescind their contract the jury could have concluded that was unfair i don't i didn't see anything maybe i missed it about this unfair angle for this claim i thought it was all about you were arguing the letters contained falsities it's unfair or deceptive and i know the statute says it's talking about the way this case was was what about her instructions and this is the jury instructions gave the standard to see consumer protection  act instruction which is unfair or deceptive act or practice in my recollection is that the reference to letters now again again it was was the proof was there direct proof well there was proof that the letters were written by t a i on behalf of wyndham owners and that t a i z involvement was not disclosed is that deceptive obviously the jury found it was not is that unfair the jury found it was not up to the home deceptive to wyndham well i thought it was your theory for the reason why wyndham corp can bring a consumer claim against these folks i thought that there was a third party standing that your standing in the shoes of the people the actual consumers who are working with them is that is that accurate understanding of your theory i don't i don't think so your you guys are the consumer that's your theory we are not the consumer we are a person who has been injured in our money or property by an unlawful act under the tennessee consumer actually argued any unfairness theory at any point in this litigation as opposed to falsity theory in my overlooking something in the record i don't think you are your own and as to falsity i'm not sure that issue was sentence for findings as to each claim here for this one quote during trial john mano act testified as to letters that plaintiff believed contained false allegations and were written by defendants in the plaintiff introduced several of the alleged false letters into evidence so it seems like the district court thought there was maybe some evidence to the effect that there were falsities in the letters is that your understanding with the discourse and that is what he's saying and he's citing monna work for us now if one reads monna works testimony monolithic on this point as on so many others says i don't know i don't know if there are any why isn't that clear it's not because what i want to work also says is when we got these letters and we originally said we've got to give these people refunds then we got enough of them in we figured out wait a minute somebody is writing these letters for these right right so we stopped doing that we stopped doing our own investigation and we said you're going to need to give us more information on this because this is a form letter that's coming in over the rights and and he says after that we didn't get follow up from those  doesn't answer why there's reason to think there is a false statement in the letters right now you got the letters this wasn't something the had to track down you receive the letters you all know your business it would have been the easiest thing in the world for you to identify something false of a sentence in the letter that's false monna why can't do it nobody else does it it's not even you don't even argue it in closing so you have a falsity you know false statement in the letter theory and you never offer any evidence any explanation ever and these folks got to try the case in the district court it seems just totally misunderstands the record so again i mean why isn't that clear i don't think it's clear because i don't think the district court misunderstood the record after managing the case for two years and listening to all the testimony given what modern wake says is when we said to these consumer sending these four letters we're going to need more information they didn't hear from them now the jury could not have to do with whether the letter also you mean is the falsity who the author was no that certainly was false who the author was i mean that but i'm just that's not the theory though that's but the falsity was also did this ever actually happen that are are all with these complaints that these consumers are sending which all look pretty pretty much the same in which i'll just happened to be the things that increase their chances of getting a rescission did they actually happen they were originally gave refunds and then they said wait a minute these are form letters maybe maybe this is not happening to each one of these people the exact same thing so they said let's get some more information now again obviously the proof was insufficient to convince the jury that there's no question about that we lost we lost fair and square i mean to this day nobody can point to what sentence in the letter is false and it seems like you think that the fact that these folks are coaching customers is illegal and and it is if by doing that they are using information they gained that's covered by their sales person agreement or that constitutes a tra any allegation in any of these letters was false in any way wyndham objected when we tried to ask their witness whether the allegations in the letters were true windham objected and said it was hearsay and we had an discussion with the court in the court sustained the objection and when i asked for clarification the court made it clear that i was not allowed to ask the witness questions regarding whether any knowledge that these are true and he would have said no and could have said that's my point thank you very point john but look just again i'm just trying to make sure i'm getting this the if you have just for the sake of argument form letters saying similar things over and over a stance simply by different people why am i missing something i think there's not an inherent falsity in that well i mean you could keep go ahead well i mean first of all your honor the the letters don't say the same thing over and over there they're different allegations there are specific allegations regarding specific sales people things that were said they look but they look like they're coming from the same source that's fair enough right well they were coming from the same source john ok so if you look like there's someone behind this letter writing campaign and it's not actually the individuals in charge of this that are signing the letters i don't and my first reaction would be to wonder whether everything the letters is true is that it's just that that would be a fair reaction your honor but there's no evidence in the record of this case that any of the allegations in the letters were untrue and if they wanted to put on evidence that the allegations were untrue they were certainly capable of doing so and not only did they not they objected to us asking about the allegations and you know there's nothing in the record about where the allegations are true or false so even though maybe it might have raised spin about whether or not they're true that's that's not the question that's before the co question is before the court is whether there is any testimony at this trial or anywhere in the record that the allegations in these letters were falls in it's important i think to note that at the time that i've checked at scuse me that wyndham objected to me asking questions about the veracity of the allegations in the letters the t c p a claim was not that there were misrepresentations in the letters that version of the claim never appeared still we were arguing our rule fifty motion over the earlier it was the consumer protection act has a specific list of a numerated acts that constitute unfair deceptive practices  one of those is the misuse of trade secrets and the complaint that t c p a claim in the complaint in the pretrial order and everywhere until the end of the trial was that the t c p a violation was that misuse of trade secret information now i was able to persuade the judge that the preemption provision preempted several of the other causes of action that they had alleged and this was their way of getting around to to preemption for the face let's just say ok so on your side you guys have your ducks in a row right from the beginning you get this thing you file a motion to dismiss you ask for clarification you just do every right thing ok and for whatever reason the district court that case that's the thing i just can't get my arms around i mean it's true that just a court judge may just one mistake after another in the case and happily and it ended well because the jury got it right and the judge didn't take that away from you but i don't i just i don't know if i can tell the logic point i'm just having a hard time i'm going to guess it's hard to find cases out there where district court judges you know you have a ruling on the giant ovi dignifying the if i did not cite it in the the motions for the proposition a great tommy name of that tell me what it says it says that the survival of a case doesn't ask a passion motion for a directed verdict does not mean that you can't get attorney at least supportive i mean i understand it seems to me even wrongheaded district court decisions are supportive of no fees well i understand the court's point but i don't understand why my clients if that list if we just assume that the dish or course wrong about everything it we assume that they these claims are frivolous that they did they never they knew all along they didn't have a real claim for trade secret  procreation and they made up the t c b a claim at the end of the trial and there was never any proof to support it if we assume that then it otway i don't understand is why ma clients should have to suffer because the district court made an error when there's a fee sitting provision every time there's a mistake understanding of the federal court it does happen your honor but you know the fee we have is the shifting provisions in this it for these two statutes that allow for the recovery of fees for frivolous claims and if you're if we're going to weigh the conduct of the parties and say well you should have a motion for summary judgment and you should have done this and should have done that well if you have to weigh that against the conduct of  party that files a knowingly frivolous claim then why should i mark clients the defendants be the party that suffers in that equation that doesn't seem to me to be the correct result the party that suffers a party to file for the groundless lawsuit to begin with and you know she we filed a motion for summary judgment if i had to if i had gotten it in time i would've thought a motion for summary judgment i'm telling you right now the action would have been is let's say the dischord isn't just hypothetically simply isn't just working hard enough to sort it all out and realize the distinction between existence and misappropriation and it's just you know offering up re assertions that are themselves baseless or meritless and that's kind of what we're here to to review but but i mean is that is that an affirmative defense to this sort of fee claim under no but you're still saying you're still asking for fees after the jayne of a right yes your honor ok so your theory is at that let's just talk about that point i agree with you i understand your earlier theory that's where the summary judgment cut off comes running doesn't seem a little counter intuitive that someone has an obligation to drop claims after winning a judge was a matter of law motion judge just ruled is going to the jury but your view is that they can still be sanctioned despite wrong headed district court decisions yes that is my view exactly your honor they go forward of me error if that's not the case then the the provisions don't apply when the district court screws up and there's no law out there no cases or anything to support that position i mean it doesn't seem to me that the fact that the district court made wrong decisions should mean that we don't get attorneys fees it's just it's a it's just kind of a commonsense thing i mean how many people do you know in their whole practice lifetimes dropped claims let's go to summary judgment drop claims plaintiffs they want to go to a jury the judge says you can go to a jury rightly or wrongly and they drop their claims after the judge says you go to a jury just i'll grant you that the a radically  have fees but just as a matter of common sense that's just not with lawyers do well that's true but sometimes part is part of being the ones that have the choice or i've been in lawsuits where out while i've gone and argued a motion for summary judgment on on both sides and that the judge will deny the motion but will make other rulings or make comments that make it clear that the motion is being you know it's sort of that the case is surviving by a thread and if something you know doesn't turn out the way that your thinking is going to turn out and you're going to lose it if you know what's good you know where that road is leading then you will dismiss the case that happened here that didn't happen here that's your point that's my taken for example and he could not identify a trade secret that had been misappropriated said he didn't even know what they took with them he couldn't identify any trade secret that had been mis appropriated they had a duty then to voluntarily dismiss this claim of course they never should have brought to begin with but it should have been clear to anybody after that deposition that they did not have a claim for trade secret misappropriation and one or two depending clauses was the issue was raised about the discretionary nature of the decision and even if the district court finds that there's a frivolous claim it's still discretionary whether or not to award turn cities and i would submit that in practice that doesn't happen and maybe it's if you read the statute that way it technically could but the important thing in this case to consider is that that's not what this judge did the district court didn't rule that these claims are frivolous but i'm not going to ward attorney's fees any way that the district court ruled that there was evidence of misappropriation know that there was evidence that they had access to owner information which by the way is not a trade secret under to see law so i think i don't even know if you're from the other side actually address this this is so i think we got the point here is the third point in your opening