that impacted the public health and safety vidic a after five years of trying to resolve this began to withhold some royalties alternately this dispute resulted in an economically crippling set of orders against  requiring it to forfeit their businesses three businesses with all tenant improvements valued it roughly seven hundred fifty thousand dollars without any compensation a large portion of that is in the south center franchise for which there was never any act that occurred at south center based on an arbitration proceedings that expressly excluded south center from the scope of the hearings issues such as the potato handling process and kickbacks to escape from heard in the prior litigation second it must have been actually litigated third it must be critical and necessary to the underlying decision disc it must show all of these elements with clarity and certain  inspections by health inspectors now it's in a different county than other the stores so we've got different inspectors the inspection times are different the kinds of warnings for penalties to be applied are different  mandated is the same but these other differences are very significant for example the arbitrator found that d d k are merely aerated the difficulties by various equipment that it suggest to be used which means that escape mediated the difficulties but each of the stores are different in their set up and the amount of space they are allowed in the mall and first style center in particular it has a very small space allowed to it it doesn't have room for certain kinds of cooling power equipment that might be able show that the kickbacks were attributable to the business to the supplies purchased at the particular stores we never put in our evidence or had an opportunity to show that it was particular to the delivery of of equipment to uniform and it's the same vendor for all goods correct well for produce you know i i'm not i my understanding is generally they're similar now i don't i don't have the level of specificity  with respect to the support i don't think there's a record on that i can tell you that as i've cited a lot you it's very clearly the burden of escape to show in the record specific especially on matters affecting public health like food handling significantly affect the equities between the he's in the palace of equities and therefore it undermines the giving of injunctive relief until the course determine whether there are such serious act or unfair competition allegations that you are alleging so i can understand what could be specific itself and i understand the potatoes and i understand your argument on that royalties to do regional advertising you know in in western washington and that's arbitrary and found not to be a violation that would seem to be an example of one that would be the same claims against which claims truth still be tried the potato handling the kickbacks to suppliers and the failing to provide promise training and support which manifest differently from one restaurant to another in judgment this comes about because bt d identified its restaurants and called them fillings and philly's the question is whether products it still is are substantially similar to products that states steak escape which triggers the summary judgment the court is required to view the evidence in the light most favorably that the nonmoving party which appears to be carrying became sworn testimony was that quote the menu color scheme employee uniforms and cetera its beliefs are proper for the court to decide this material disputed issue and to go forward and find on summary judgment that there was substantial similarity between philips products and the products that had been sold at stake escape the  writing well it really comes down to a question that's an important one that we try to address the judge really that he did not focus on and that is what is similar and we maintain that the only place that there's any standard for that is hide from the general language substantially similar which doesn't tell us a lot because in paragraph ten c of the franchise agreement for star center which talks and it does not require them to entirely get out of the sandwich restaurant business now that's different from say the non competition clause in the the armstrong case that involved the mexican restaurants that require them to get out of fast food mexican mexican type fast food mexican type food restaurant business so with that in mind the very specific testimony that we're not using the proprietary items and methods and he went on in a subsequent declaration to say that we do not even have access to the meats cheeses and grads that are exclusively used and defend his restaurants that testimony at least creates a question of fact and requires us to addressed by judge silly as a tax question i mean at one point he even said i think this creates a question of fact and then he changed his view but there is this kind of in call a question of what does the and which point a veggie stand with your turkey sandwich is pretty much a generic item the third issue i would like to address very quickly is non delivery of the amended uniform franchise offering circular and  forfeiture of the franchise business that be the case spent twelve years and hundreds of thousands of dollars bill building up forfeiture is just favored by the law non competition agreements are all sleep also strictly viewed by the law requires actual delivery of the offering circular the district court agreed with that and found that the amended offering circular was not delivered that's a transcript of page fifty three because the skate cannot show actual delivery it was on lawful to sell the stuff center planet earth now the appropriate remedy is really the question here and it is are we're not contending that the entire thing that was was kind of lived by for twelve years by everybody should be set aside so that it was voided initially but what we are saying is that when the court then is being asked by a scale to specifically prospect of lee and force these anti competitive clauses including the conditional lease assignment requiring the assignment of these of this valuable restaurant business through these businesses it needs to take into account the illegality in the formation of a contract and not specifically enforce those wrangling and has got rid of the stores after terminations was upheld and while there are a lot of legal issues i think as we get into the facts the facts are pretty simple i think the reason judges really threw it out is it's pretty clear  let's talk about the legal issue that some things are thankful for south sudan or like whether they could accommodate the potato operation and that would depend on the site plan and that might but also depend on the king county inspectors versus the that the judge had to rule on outside of collateral estoppel one was the first thing where their attorney didn't read that agreement by nine hundred eighty eight and the second was just whether the implied in fact contract so eighty nine ninety four ninety five so the full fourteen years once we come in and saying rest tips a local it or plus all these other issues where they planned it and everything is identical they and so it's a it's a shifting burden issue first of all although i understand your motive analysis but do we have any precedent that says that the district court under these circumstances should put the burden on them to show house for why think that's just standard fifty six president you know without the fact that it would be pretty hard  or picture of the store before and afterwards it looks identical menus just change the names briefly so in our case it definitely is the same or similar to if she had won an open space subway sandwich where they didn't meat but they microwaved it and you know i don't know i don't know what the answers might be arguing that somewhere too he went open a mcdonald's that's not similar to it i mean those are generic sandwiches a deli is a generic sandwich these the they also raise an issue about the arbitrators relationship being not disclosed and are our  trivial that it can't rise to the issue of a reasonable impression of partiality the only case that they address and they found a reasonable evidence reasonable question partiality was the that they're the arbitrator represented the corporate parent of one of the parties so as direct representation there's issues of confidentiality there's issues of vias most corporations do not like if you find against their subsidiaries  with the other firm as of it's a pair i guess from their evidence you could tell that because his name appears as the junior associate on some papers that were submitted and then in a district court in that case proceed to the arbitration so that would be clear from the record so he's a junior so as to the court case which started first and a later point the arbitration the arbitrator saw some of those pleadings where his name was on it so you know that he was not there for history there are many other issues and i'd like to address any questions you have if not i'll just go through them in the order in which they were raised by  support it is not enough that the party that is that introduced the decision of the prior court rather the party must introduce a sufficient record of the prior proceeding to enable the trial court to pinpoint the exact issues previously litigat