may please the court and good morning my name is steven susser i represent bars products i would ask for five minutes of this case asks a question question is can a simple assignment of intellectual property assets be converted into a forty year restraint of trade that was a question that was posed to the jury that was a question the jury was forced to grapple with in the end it is bars products position i'll call it bars but that was an unfair task for the jury and ended up being unfair to bars as a result there are three buckets of issues to address one being a breach of contract and there are two theories there have been two theories of breach of contract throughout this litigation there was a theory that was started at the beginning of the case and went all the way until the cases which rely are a little bit different from this one correct i mean they arise in the context of an employment situation where somebody agree if you know if upon leaving an employer not to compete for a certain period of time and that's where all that reasonable in this case law arises from correct there are certainly employment situations appear to be the latter the other situations because it's not apparent to me that the cases from which you grabbed most of your support for viewing the case in the way you are attempting to frame it have anything to do with this litigation ever parent like it wasn't apparent to the district court either well your honor i think that there was never really any question there's there's no non compete provision here so at it i guess what i'm asking is what case to what cases would we look that would provide the most helpful analogy to this situation if that's the case your honor i would respectfully suggest that it's not a restraint of trade case at all it would not be a non compete case it would not be a in thing you don't have any cases that are outside the employment context that would support that theory your honor we're not that the theory either theory i mean what we're talking about is the way you're opening remark much of your brief is devoted to trying to frame this case as if it were an employment case and all the various case law that has evolved developed in the context of those cases you're trying to argue it's  it's not immediately pair appear to me that that side so what i want to know is why do you say it is applicable based on the case law supporting your theory ok let me try to answer that in in two parts first to say the word is case was a sale of a business that was implied covenant not to solicit former customers to get her case from the michigan supreme court was a sale of a business that found there was an implied covenant under certain circumstances not to solicit for former customers both of those cases have been called into question recently by the michigan supreme court in the rurik case in two thousand and seven which said that compete agreement and its state is spelled out clearly and it's either followed or not followed but that wasn't a complete agreement here just for territory you take the domestic or you take the far well that's just your and there was no non compete that's part of the problem the there was a simple assignment assignment of intellectual property assets no statement no word no mention of a non compete and in fact b p i does not dispute that name said these eight trademarks belong to are being assigned to you are transferred over that was all the foreign business that freberg did at the time it gave its foreign business at the time which was selling to distributors  specific number of distributors under specific trade names it said this is yours in one thousand nine hundred eighty three that was what was assigned and that's all that was there was bars paid p p i for licensing to sell in mexico are that's exactly right there was a license agreement because they had a trademark in mexico we wanted to sell in mexico and we entered into a six year agreement it ended in two thousand and four i believe but it was six year agreement i think ninety eight to two thousand and four where we sold in mexico they got more oil teas and that didn't stop that by the way did have a non competing not suggestive of this arrangement that lasted about thirty years that they were  even though i don't know it just doesn't strike me as the the way that we should look at this i know your challenge in the duration and scope of the thirty year partnership right but the former foreign former former customers because it was there was never any division overnight there is a geographic division i do deny that your honor there was never any division of the world that's a construct there was an assignment of specific intellectual property assets in fact it's a simple as saying i assign each could sell wherever they chose as lean your net in the theme that you come up each could sell wherever they chose with one caveat your honor if there were a valid trademark registration in country one of the hundred ninety two countries if in one of those countries there was a valid trademark registration held by b i let's say in argentina for a specific trade name we could not under the laws of argentina probably so product using that name otherwise no there was no agreement to t that you could sell here we could sell here not at all that design damage significant damage is this year and the grounds for that are do you think there are clear do we know the bases we don't because the jury was given the wrong theory the jury was told there was that the parties entered into an agreement that prevented bars from competition with b p i that's what the jury was told b p s position was b p position on appeal is not that b p s position is there's no non computer agreement there is no implied covenant not to solicit former customers it's a simple assignment and as a simple assignment your honor it would be like assigning a television i assign my television i get fifty dollars in return the argument that the jury heard from from you the jury heard them all folks and they nevertheless came up with these no numbers no your honor that with it with the jury heard hopefully i've answered all the questions i i can't think of anything else to say other than my brief but i'm happy to answer any questions and one this is the way we do it in california i think i've s if you have questions i'm happily ever force the party to argue doesn't really want to argue but i think a while back i think you're ever see a mood to change the oral argument  did you move to and i didn't move to change it but i i when someone else asked for oral argument i feel i'm compelled to come and answer any questions the court has i'm happy to say that i believe that i may can a you have a fair amount of risk here counsel don't you and you don't want to make any argument i will make this argument it was a contractual relationship between the argument is that the jury was mis instructed i mean mis instructed and therefore the verdict is that we should throw it out i'm saying they were in that i'm saying that the jury was properly instructed they didn't object to any of the jury instructions how objections and they waive that under the law they didn't have to jack to any of the iraq or tories the special verdict they waive that under the law they didn't object the jointly stipulated all those things the jury instructions the verdict forms so they waive all that and i think that i think the case is pretty clear that this was when when you when you take a step back a second this is a contract between two men they paid five hundred thousand dollars for the rest of the world that was not automotive crazy in one thousand nine hundred seventy three and that was their territory five hundred thousand was paid by the what's the assuming it's not in perpetuity certainly for a reasonable time and when you pay five hundred thousand which was a significant amount of money back in one nine hundred seventy three the jury found that and they were instructed as to whether it was reasonable or not and it's a reasonable time as i believe where are we now would be on the forty years i understand that but let's say i buy a chrysler or a that's reasonable for years if i buy a sony outlet or an apple outlet and i pay significant dollars for that and that is contractually my territory unless they say this territory is going to i mean in in those days they believe this was they were buying the geographic the rights for in perpetuity that's what these two guys thought because five hundred thousand was they started in a garage remember five hundred thousand was a lot of money for these guys that's what the inten parties and now if i buy now and apple franchise or i partner with apple and say i get all the rights to china unless it's limited i believe that would go on and on and on yes either one of you is that really your bruce is complaining about any error in the jury instructions correct but your adversary has offered up a view of the case that probably is not consistent with what the jury was charged given that the jury was given you know the pre strike pro or breach of contract line if it is the sort of climb that the district court thought it was is there any additional is there any requirement as to reasonable list of the time limit and you said the jury was charged about that but i wasn't sure what context you mean it there was the jury instruction as to the reason was an amount of time and we cite that in her brief and the duration i mean the duration and the location but and there was not a verdict question about it well what's the source of i mean parties agree to things that might be unreasonable and if it's an arm's length transaction there has to be something else special that would require giving that struction the one of a reasonable time i'm asking you where the where that that comes from  some sort of question i was asking you know or the law but they they claim this there was a nine compete and they wanted that to show that whether this contract what did the did the jury instructions permit the consideration of the contract as a non compete i believe the jury instructions with the contract whether it was limited in a number of years the contract was not where there was an not compete but whether the contract itself you have a contract a jury whether it's a non computer or a contract is an agreement and so the jury was charged with whether this agreement was reasonable for the amount of years that it was made for the duration and the scope they did have that you're in still so to the extent required my name expected but in a contract to all i mean there was a jury instruction to that effect yes i was going to ask you about these damages you've got about a million and a half for breach of contract and almost a million been to the jury found them separately and that doesn't mean that when one looks at the record one can not say that is a matter of law there were no separate damages proved in connection with the  competition drive there let me answer that if i may the unfair competition dealt with sort of privately the activities by bars in foreign markets own acts the fact that they label expert we had an expert i seem to remember did not separate out the damages and attempt to indicate what was attributable to things like slapping the labels and that sort of thing and a breach  damages for all the wrongs and make any effort to apportion yeah he did not but but at the jury was given the information of two point six million dollars of total damage if they went under that two point five forty five recall that pretty close to i admit that i was very happy with their result  that they were asked to determine which damages belong to breach of contract and i argued this and which belonged to the unfair competition the jury had the information from the expert as to what happened in the instant and how it that we had a graph showing what happened here and what happened there the answer your question is they have ample information to segregate the damages for breach of contract and the damages for unfair competition nobody's complaining about instruction that might be given about causation right they waive the yes we're not it's not an issue as far as the jury instruction i mean there there was no question that the damages that they could they could be you know you might have been entitled to get a two point six million dollars verdict for the breach of contract but that's not the same thing as saying you're entitled to all of us to be in for the unfair competition that's absolutely correct actually was i didn't see it on the chart i may not have been but i had a dollars and i actually was there but i mean for this label slapped on this product amounts to  damaged feature you now we're talking about numerous roles it's all part of the breach i mean i know there was an objection but i'm having a little trouble with that you know there was no objection is that what you're saying and i hear it and i'm saying to you this the separation of these two damages and the calculations as to why the jury found some of the damages to beat the and restrict unfair competition and why some of the damages were breach of contract why the jury found one or the other after the expert testified they categorize these and i actually in a closing argument if i go back becomes unfair by virtue of the breach doesn't it only become know it only becomes unfair because there was a contract i can have a contract and and not have a breach of that contract or have either or both if i do something like label something with the wrong label call mcdonald's arby's or something to that effect and that could that's a wrong separate from the breach of contract and that's what the michigan law says and so when you buy trying to separate the jury separate those damages because they found their actions horrific as to what occurred and i did that where they completely barred from ever competing in that area where you claim that you had the right to the same product and calling it the same product on their website calling it labeling it the same product i mean  apple logo on here that they put the nectarine over they could have marketed that product without that confusion like that i mean they could have put out something that was barred call  negative but you know in this day and age if you give away for the rest of the world fifty percent and now i mean all the rest of the world and you the next day make a nectarine or make the  exactly the same thing exactly the same bottling exactly the same look i'm not sure that that this is what international trade or what we want and this is what really happened and i  would like to say one more thing i mean look at these guys did it for thirty years the fathers knew the the sometimes comes in and change the gig because they want to bigger bite of the apple sort of speak and i know that going back to the other and i didn't mean that i mean i'm sorry but that you made that they observed the territory agreement for the company that the fathers did it all that's what happens in this world with fathers and sons i mean the fathers knew the gig i half a million dollars and seventy three i was there i'm not saying how many of you were there because i don't want to go into age here it was a lot of money  forever for guys that started in the garage yeah your buddies have a motion about this case well your time is up but let me just say one thing that i that i was trying to clear command memory for i think we thought we needed argument in this case however it does strike me that when mr susser mood to change the date of argument that rather than opposing that you might have said if you didn't need argument our way of argument if you'll live argument but instead you opposed it and then you come tell us you don't need argument and the reason we wouldn't change is we didn't think it was appropriate since he didn't actually have a conflict and since i append since we didn't want you to be put in the position that you would feel that he had successfully delayed the hearing of the appeal and then you come to tell it you don't need argument so you just might think these things through i apologize and and i think and i hope that i apologise you don't have a thing to apologize even if it's no big deal it was just a it was just a shocker shocker no it wasn't a shocker it was just something the court needed to say to a lawyer ok and i answered all your questions yes  it ready for mr saucer thank you so there were no objections to the jury instructions because we had already objected to the theory several times the jury instruction would have been appropriate if it had been for the right theory we could do anything at that point i mean after all think you get the absolutely virtue of the jail or what but by virtue of while there was a first motion for summary judgment asking that and that was denied then there was a motion of several motions in the mini than to j m a well fifty eight fifty feet ultimately they're asking the same question this one with a half page assignment was it unambiguous as the court said it was if it's  the court said it was you know finding of ambiguity the court had an obligation under rory to interpret it before sending it to the jury if it was a non compete than under certified restoration the six the six disc this court's decision judge would had an obligation to find that the non compete was reasonable and she didn't do any of that shit because she didn't do any of that none of that was done what the jury had was on the one hand being told that the party non compete provision they admit there's no not complete provision they then go on to say the issue is not whether a breach of an implied not solicit taishi covenant existed between bars and p p i now they're saying no not compete no non cetacean but that was the case that went to the jury that's a case we were forced to argue against improperly because the judge the trial court judge did not do the threshold duty of interpret in the contract as is required in michigan law and this court's law closing became the defendant but we have a valid trademark case that ironically that the court did not act as a gatekeeper on the counter claims at all and yet on our claims at before discovery we were thrown out based on a faulty reading of the lanham act use in commerce specifically says in the lanham act one one for one essay says use of commerce including advertising no requirement of sale but the court found there was acquirement requirement of sale that's simply improper under the law we should have been able to prevent present trademark infringement case what was that presented to the jury it was present there was it was presented the jury there was in fact it was it was agreed that there was a likelihood of confusion no chance a likelihood of confusion valid trademarks valid enforceable was stipulated by b p i and the fact that they marketed to people in the united states  us trade show the largest trade show was also stipulated or undisputed none of these facts were disputed and yet the judge said because i ruled out a twelve b six you can't take it to the jury so it was not presented to the jury i'm sorry you know i understand when counsel is put to the wall here and but having asked and asked and asked how many hours the preservation of these errors in the motion for summary judgment you would you raise judgment which other it in a motions in limine your honor there's motions of me among others for resume rizla makes up ninety eight percent of the damages your honor nine hundred seventy three we didn't own wrist loan and could not have transferred it as part of the assignment that's basic law you cannot transfer or sign what you don't own we were unable to transfer rizla own and under even the broadest interpretation rizla would not be included in any kind of compete if that's the theory that's at issue but apparently it's been disavow products we have a bars leak line of products and a risk of products but no one has ever said try to market rizla as if it's bars leaks in fact there's no mention of bars leaks on the resume bottle it's rizla it's a new company it was a different company that had a separate brand probably a stronger brand than ours because it had been operating since one thousand twenty one we bought it in two thousand and six and began selling it globally in two thousand and seven result had been sold globally we just continue that that's all we were doing and now they're saying because the damages that they have for bars leaks sales are twenty two thousand dollars by their own admission their bootstrapping the rizla on sales even the result was never any no one even thought of or is long when it came to are put stickers over the top of the product if anything your honor that was under seat because we were trying to cover up i mean what there was no deceit there what it was was it was a trade show we wanted to get product in the undisputed of it and says we covered up the bars leaks with result because that was our current labor we were wanted to use and sent them there there's no deceit in fact your honor the judge could found in denying their motion for injunction there was no public to see no evidence of deceit of the public but that was required for their unfair competition claim because they needed a separate duty and that separate duty had to be to see to the public there is not no evidence we thank you for your argument