we'll turn to the last case on our day calendar which is it a commission solutions reverses c t s holdings a court counsel michael anderson on behalf of the appellant a commission solutions summary judgment is not warranted on the summary judgment evidence present and this case this case your honour's involves a classic example of unfair competition the apple e collectively referred to as c t s through the course of a business relationship the evidence summary judgment is that they obtained confidential client list and pricing information and then later wrongfully use that information and bid out lower pricing to my clients customers that your honour's submit is a classic example unfair competition the record for summary judgment purposes is that the information wasn't deep confidential and let me walk through that number one what you had was between my client economist and solutions and dal we had an agreement with debt there was confidentiality their debt in turn has contractor relationship with c t s where this was the entire relationship between confidentiality of that pricing information moreover with respect to the client information that was provided to c t s by my client it was stamp confidential as well everything consistent with that and this sort of balled up in this hearing today your honor we had an issue we had a motion for leave to include in the  business relationship over eight years in other words you don't take my word for what i just shown what the evidence is c t s actually player and the district court that there was a confidential relationship between the parties so to answer your question when your honor when c t s says the information is not confidential that is contrary to the facts and we're not talking about there's been a trial this is on summary judgment and the overwhelming summary judgment of evidence presented by economists in solutions is that that information was indeed confidential c in the record rights of the in the we have any do we have any objection to that yes they've objected and this was supposed to be resolved here as part of the entire oral argument it's in the record right i mean is in the record of the court below it's certainly an i mean it's in the court files for sure yes so why don't we get don't you know get access to everything down there we want to look at right yes if your question though was was it did we rely on something that would be for the district court or that it would have considered and in principle i think it has to bend based on the standard for summary judgment which is anything that's you know court can base it for you said even though it was not evidence that i outlined before which was where you had a three party relationship and everything being connected by confidentiality agreements s to death dell then outsourcing its work to c t s with a confidentiality agreement so it was all consistent and there allegation is sort of what i call just the recognition of reality here and particularly for purposes of summary judgment well that's an assertion that i get my initials right that c t s made a counter claim back against your client that is correct all right and we did not deny it we actually when we filed our answer to that cantor claim in that particular allegation we didn't deny it because that was obviously part of our contention is that the parties had a cop eventual relationship when you look at the testimony when you look at the agreements when you look at the stamp on the document and where this is going is this is summary judgment in the testimony in the record is overwhelming misuse of our pricing and client information it is not a who done it they actually did it and the issue is with respect to on the cop and how much of the issue is what is the missed in misuse so you're saying that this was all confidential that's exactly right and that is the mis in the misuse and that is precisely why i believe the district court erred is because in the very short analysis on this with the district  focused entirely on the obtaining of the information whether it was wrongful instead of the misuse which is equally wrongful and so that is the  good afternoon your owners may please the court i'm stuart glick with thompson and knight and i represent the c t s the pallies in this case the bottom line is that judge for us actually got it right she separated the wheat from the chaff and that's what your adversaries focusing on and i think you're on to that in this case the key would be that there was nothing prohibiting my client from using that information afterwards for the reason that there was no confidentiality here  stopped that because that ties into those motions before us why should we just grant the motion and and deem what you said in your  that there was that does information was confidential the reason your honor is twofold st this argument was never raised below to the district court and this right was not raised to this court in the opening brief that was filed this argument was st raised in the reply brief that the appellant's filed and the request including the appendix this pleading was not made in till after we moved to strike that argument or whether it's in the appendix or not it's part of the record already admitted that it has the special relationship and its doesn't in which it says we have this special confidential relationship that's correct your honor they never would never use that argument even though it's articulated as part of a pleading on behalf of seats it's not a fact to be considered on some regard that's correct you're on and i think let me clarify it a little more this was not in the light pleading this allegation was in a prior pleading that had been superceded b claim that c t s as parties are should do is that it amended its pleading when the facts did not bear up to this claim so this was in a prior pleading was not the statement is a part but it well it is it is not a judicial admission it is simply a statement and it is not probative of the facts here where even his counsel has stated in his argument today that there was just he a business relationship but the reality was there was no direct relationship between these parties there was a relationship between dell any c s and that relationship e c s was permitted to sell the deal software package that included back to some connection but there wasn't e c s did for a while a cause of action one of the claims was for rd party beneficiary status and that was denied and dismissed and that was never appealed so e c s has no rights under the c t s and agreements they argue that there was confidentiality here but there was no ever they can't show any place in by the actual facts and certainly there is not a fiduciary a confidential relationship with the same thing in new york law unless the parties agree to it the reason your honor that this was not raised below and should not be considered here is that if it had been raised below these would have been addressed before they just record but they just recorded have all this information before and judge forester not so find because the overwhelming facts were that shown that there was no confidentiality where the other part we can't forget if the issue is not only never asked by e c s is the following mr looney tunes full testimony is that he only agreed that the prices should be kept confidential and should not be used to compete during the term of the reseller agreement that's the cream of tween d d s and the reason for that was in the agreement between dell and c t s c t s agreed that it would not solicit any customer who was receiving the c t s package as part of the dell's overall nothing to do with whether it was confidential information by e c s or not confidential it had everything to do with c t s was not allowed to solicit customers who were receiving the dell package that was what was clear here that was the missing from appellant statement that had nothing to do with confidentiality and had everything to do with not violating its agreement c t s agreement with dell because it was dell's up contractor and it and that was what was driving it on that issue the othe r point as well they just want to get to the time i have is that the there were no damages that have been proven between c t that e c s could show that c t s was a significant cause of there's nothing in the they have an expert report that assumes liability they never connect the dots they never show that the reason this customer left because they can't show any specific customer left had anything to do with c t s and that they were damaged by c t s so there's no damages here the one thing they did rely on is this hamlet certification or declaration that i'm sure counsel will get through but this was a declaration by a former employee of american express and what this was was that mr hamlin had worked in american express american express was a customer of e c s when the reseller agreement expired c t e c s no longer had the authority to sell  but it never towed c t s and it never told dell that it was secretly preparing its own its own product that was unknown to them their only knowledge was that once the once the resell agreement between dell and d c s expired that these customers would have to look elsewhere to get the services one of the customers was american express american express mr hallett had worked at american express when he had left three months prior to american express leaving e c s and going to dell he put in a certification certification lacks any foundation as to how he could know what happened three months after he left the company  for this trial or that would have been an incredible moment to impeach mr learnt and if he gave that explanation at trial because that was not his testimony that's in the record it was a complete statement that they understood it was the next thing i want to address is this notion of no use to hear that argument that somehow c t s did not use our information is completely undercut by the summary judgment evidence the if you look at the attachment this is what i would call the biggest smoking gun misuse of information because it shows e c s is pricing and how