can thank you for waiting we've got two cases remaining on the calendar this morning gemini technologies versus smi existing precedent and sun versus advanced china health care and jones versus g and c gemini has as directed by the court in sun pointed directly to both statute idaho code section twenty nine dash one hundred and ten and confirmatory judicial decision that of the teeth three enterprises case both of which independently and convenience analysis by the district court on what i assume will be ever nude motion to dismiss by by smith and wesson and that would be the path that would be followed in accordance with  california found an alibi c and as a result what remains for the district court is to conduct a traditional analysis in accordance with the bremen stanwood part of that analysis  e recognition of the longstanding principle that with two parties of relatively equal bargaining ability represented by counsel sign an agreement that contains of warm selection i don't think so and the reason is bremen says that an exception to enforcement is the strong state public policy of the state of the form and that exception stands today elastic marine did not neutralize or change that exception whatsoever footnote five in the atlantic marine makes it very clear that it landed marine only applies after there is a presumption of a valid and enforceable clause brahman sets the standard and berman says the clause may be overridden by strong state public policy and in this instance just as this court said in sign we've done this something more we have pointed to both the strong state public policy twenty nine thousand one hundred and ten is incredibly strong in fact the court will note that in two thousand and twelve the legislature night home amended twenty nine thousand one hundred and ten to incorporate all of the factors that were previously set forth in idaho judicial decisions to strengthen twenty nine  standard as the policy of the state and in this agree that this case would be different if it had been filed in the district of delaware known and the reason is enforcement in delaware would have taken the same path under bremen in other words just it's it's an interesting no chancellor strine now chief justice trying in a case called boiling makers versus chevron said that the court in delaware will apply any set of circumstances and it's consistent with idaho law just like the seat of the teeth three enterprises case in which i had a whole look to this state of texas xs said we apply brenham and apply in bremen that clause would become an enforceable and so it's clear that across the board sun controls and bremen remains the law of the land and i think that let me ask you this obvious that some controls i mean as a binding precedent of our court what it means may be a different question but it does say you look to the bremen factors i mean i get all of that i got a different question i'm looking at the idaho i don't know i don't know citizen and i enter into some sort of a consumer contract and i mean all of us say i'm an idle corporation and i'm selling things and that's the sum of th e i can't imagine that every contract to which there may be an idaho party would be covered by the statute means i think it's exactly what the statute means and it's what the i don't know supreme no foreign selection clause can prevail over that that's what that means that your reading of it i believe no form selection clause can prevail because the statute says that the policy of the state makes such a the maybe a little or over extended this one seems the core of any properly drafted should i get that but i was having trouble the statue strikes me as overly broad but anyway on the facts of this case almost under any construction of it it seems sensible as to what the statute means now what it means under brahmans a different question well i think it means exactly what berman intended it to mean the hallmark  brahmans policy exception is the strength of the public policy of form and as you've noted your honor our public policy as is as strong as the idaho legislature could make it it's be t three and as a result it falls squarely within the bremen analysis and enforcement is unreasonable because of the strength of the forms public policy it's for those reasons i'd like to reserve the rest of my time i have one question before you sit down council yes and it follows on what my colleague has been a asked and that is there's the application of advance trying to healthcare analysis of whether to apply it i think that the court could look at this as the court did in jones and simply say that it is as important  factor as the clause it self therefore it neutralizes the clause and the court then proceeds to do the traditional form one communions analysis doesn't mean in every case the jurisdiction or venue i should say is going to remain in idaho if the facts of the case may make them more material connection to some other venue but in this case i think it results in and neutralization or and factors private and just factors and public interest factors have been developed by gem tax and the record below and and so this court could charm and that i don't know is the appropriate forum based upon the closing occurring and i don't know the idaho gun industry being relevant the pluggable law and i don't know related to the contract and the earn out provision and therefore i think the court could make that determination to say the fact that the court identified and the form selection clause doesn't exist well that's not a fact that's a well maybe it's a fact there's easily ascertainable by reading exclusively on the and on ignoring analysis because the other alternative forms a state form you can't transfer it's got a business deal that's crap thank you thank you you know you save some time may please the court i'm jason prints representing the appeal these in this case case which i'll refer to as collectively smith and wesson the district court in this case correctly determined that gem pick failed to satisfy its heavy burden of demonstrating that the form selection clause in this case is an enforceable based on extraordinary or exceptional circumstances and in doing so it did not try and dodger sidestep idaho code section twenty nine dash one hundred and ten the district court took that issue head on and correctly determined that that statute is not and cannot be dispositive based on supreme court precedent well the district court made law is not is the district court so advancement of health care did not change the analysis that was in place at the time the district court addressed it nothing in advance trying to health care indicates that state public policy is brahmin analysis yes it did i don't think so so the back up so that the district court determined now i guess one key point is that although in this context we've been talking about bremen as creating an exception for public policy purposes but c enforceable if enforcement would counter of mean a strong public policy of the forum in which suit is brought whether declared by statute or by judicial decision i would explain to me how that doesn't control especially in my advance trying to healthier quoting and relying on that exact provision and brahman as did the supreme court in stewart so stewart quoted inner light on bremen and in that case they were dealing with alabama's strong public policy against enforcing form selection causes it was by judicial decision as opposed to statute but the district court in stuart the term in that alabama state public policy trumped the foreign selection clause it ultimately made it foreign on convenience doctrine and that the analysis does not change when you're dealing with a foreign one convenience issue where there is no transfer available it's dismissal you know i've talked to the receiver for almost forty years and it's very clear that proposition that form selection closet should be given controlling weight and all but the most exceptional cases and if you put that sentence in context and there's very reason for adopting for passing fourteen or for  and to finish that thought though justice kennedy in that concurring opinion if you read the rest of the sentence that read up to what atlanta quoted specifically addressed state public policy and said no you give state public policy some weight you have to look at the controlling interest of the federal courts in having form selection clauses enforced absent exceptional circumstances so in that very case the u s supreme court was addressing a public policy and made clear it's not dispositive now to fast forward to jones which jim tech concedes does not make form selection does not make idaho state public policy dispositive it says that on page thirty nine of its  readily concedes that point jones makes clear that it's not this c public policy is not dispositive and that has not changed in fact posted land in that state public policy cannot be said to be of equal weight to the form selection clause given that atlanta arena has significantly increased the strength of form selection clauses by for example shifting the burden from the defendant to the plaintiff and in order to establish that the form selection clause validly agreed to bargain between in this case the fist a gated parties represented by counsel that in those circumstances the fact that it's now clear under jones that it's not dispositive and then posted last marine it's not even worth the same amount of weight that it had been previously and so on jones one thing i'll note is that opposing counsel under jones prior to atlantic marine these types of state public policies were not dispositive here's a different question this kind of out of left field but i intend it is a serious question the f named here exists no we do not contend that but it is clear if you want to rewrite it so that it says what you wanted to say well st of all if you read it in context it's clear that they're talking about the delaware state courts and it's clear that the parties understood that because that issue the issue you raise your honor was not raised until appeal that was never brought up before the district court because it was clear to everyone the intent was this is going to be litigated in delaware state court unless if you read the rest of the closet indicated that there were certain federal issues that we would be dealt with in federal court so council this this question is probably neither here nor there we're clearly in a circuit we're deciding th is issue we have to apply federal law there are circuits in which this question is decided by reference to a state decision and diversity case would that make any difference here if we were applying state law in my opinion it would in the sense that the parties also agreed and negotiated for a delaware choice of law clause and so we'd be dealing with delaware law and to get to judge hawkins question to opposing counsel earlier if this suit had been filed  delaware we would not have had the same result because even under bremen you look to the public policy of the forum state which if we were in delaware would be delaware's public policy delaware has a strong policy in favor of and forcing form selection clauses and so it would have upheld the form selection clause and we would have been delaware and that gets to the point of the concerns raised in atlantic marine about gamesmanship and form shopping that will be encouraged if idaho's public policy or oklahoma or north carolina or montana or any of the other states that have these blanket policies are allowed to trump and be dispositive in every instance of the others how many are there i think you just named mall and i believe that opposing counsel cited five in that brief and those are just  blanket policy states and you'll note from the various case law that cited in our briefs california has a host of subject matter specific policies like that as does louisiana as the numerous other states so as to blanket policies where as judge windmill noted in the water farms case it would turn atlantic marine on its head because it would be routine to refuse to enforce a form selection clause rather than exceptional that that just simply can't be what what was contemplated by atlantic marine but that gamesmanship and form shopping is a genuine concern because what you'll see is parties are going to actively start looking for opportunities to file and in courts or in  states where there is a public policy that they feel like they can have a strategic advantage and then they get the comic didn't state law advantages and the state law benefits that atlantic marine said you're not entitled to if you negotiate a allard form selection clause you don't get that plaintiff's venue privilege and essentially what jim tech is asking for is a return to the plaintiff's venue privilege only a privilege that would be bulletproof if you're in idaho and that's that's simply not what it landed marine contemplated it's not what stewart contemplated not what rehman contemplated and for that reason the district court did not abuse its discretion now i'd like to touch briefly on the point even reference that declaration in their briefs so whatever evidence within that declaration was never properly properly before the court and on top of that even if it was before the court it's clear that several of those  supposed to pieces of evidence in support of their position are private interest factors so the fact that jim tech is a native idaho business or that smith and wesson is registered to do business in idaho those are private interests factors as boston telecommunications  one circuit case made clear jim tech supposedly received in finalized the a p a and idaho well that statement if you look at the declaration of mr martinez is nowhere to be found and on top of that that is just a byproduct of the fact th genentech was located in idaho and as a i don't resident it also states in the briefing jim tech does that subsequent asset transfers all took place in idaho that's the same thing that's a byproduct of the fact that they are in idaho resident and base there and i couldn't find a statement in the martinez declaration indicating that all of the asset transfers took place in idaho the impact of the case will be felt almost exclusively in idaho not true i mean one thing that j repeatedly is they suggest that smith and wesson is just registered to do business in delaware they are a delaware corporation formed in delaware they are a delaware citizen and where as a strong interest in protecting the interest in the rights of its citizens and the reason one of the reasons the parties undoubtedly chose delaware laws the delaware courts have a well known expertise in corporate law matters such as this asset purchase agreement and the dispute arising out of it interrupt for just a moment the paragraph that contains the form selection clause at the beginning of the paragraph specifies the delaware law shall apply now that makes it a little different from a sort of a bare form selection clause that just says this is to be tried in a court of delaware nor for a moment the fact that the court doesn't exist if you argued that the choice of delaware law tells us that there's been a choice pacific choice to avoid idaho law with respect to form selection clause i think that that is a fair reading and we have asserted in our briefing that there's different from that i guess i'm not i'm not following that well question if you could when you say delaware law still apply does that include delaware law with respect to form selection i again think that that would be a fair reading of the form selection cause of the parties contemplated no i'm asking you did you make that argument yes that is in the briefing now i think because the parties clearly contemplated delaware and the delaware courts expertise and the fact that they specifically said we want to litigate in delaware the other important note is that smith and wesson is actually their principal place of business is in massachusetts the same with their parent entity american outdoor brands so this is an instance where they negotiated for a provision that would give them going to quote home court advantage there was a negotiation for a provision that provided for delaware substantive laws and answered your question i do think that is is relevant so in the last few interest factors in the enforceability under atlantic marine it's clear that they haven't satisfied their heavy burden and there's no abuse of discretion here thank you thank you good fletcher you're absolutely right the court should not blue pencil the agreement for the benefit of smith and wesson more importantly i believe but what points that directed to the court doesn't exist yes  but that was raised awfully late but if it was there's no question about that still is still valid however in the circumstances but more importantly more importantly the court's holding in sun controls here and we have done precisely what the court and sun asked us to do and what the court recognized from bremen is appropriate to do i think it's really important to also address one final note and that is the  actually dismembers the analysis that i think smith and wesson raises for the st time today i don't think they made that choice of the law argument what they argued was gallo and gallo is  or in this circumstance because galla was decided based judges you know on the anti injunction statute and the conflict in anti injunction versus choice of law and it relied heavily on th irrelevant to determining if the enforcement of performance selection clause contravenes a strong public policy citing rowan versus sounding sound view communications that's in footnote one of the audacity says and i think that's the rule in this circuit so under this set of circumstances i think the controlling rule is sun and as sets and jim tech has complied with the requirements the court didn't conduct that an they simply took what i will call the sound bites from atlantic marine and didn't do a brahmin analysis whatsoever for those reasons we respectfully asked the course to reverse and remain ok because they think both sides were good gemini technology versus methane lesson i submitted the last case this morning english versus apple