the next matter on our calendar is betty hama of tokyo versus ben honor in the sense that the parties reached the mutual bilateral settlement agreement and got a so ordered injunction and so did we so we have a so ordered settlement agreement which for practical pur refrain from and then it lists almost all the same conduct that appears in this injunction that judge jennifer they don't refrain from those things can you bring contempt proceedings against the roberson case says that that's not a critical distinction whether or not a contemporary thing can be brought and i think i answering my question was could you bring it in time for speeding against them if they did not refrain from that conduct i believe we could your honor because  parties judging them i also ordered it so what's the import of so or we would say that that's immaterial that the judge so ordered it if we treat this purely as a private settlement agreement it's more than that because embodied in a court order that's what the roberson decision was telling us that you came out as well with respect to what you were seeking as they did with specter what they were seeking better yes and i'd be happy to explain judge tokyo prevailing in certain territories and in other territories both sides before the lawsuit work touting their worldwide the worldwide presence of benihana so there was parity in what we could say what they could say they began sending us a letter saying you cannot tout the worldwide presence of benihana we said we think we can charge them with wire or your trademark is likely world was because we thought both parties could could do it so they're doing it we're doing it we think it's ok they say it's not ok we come to court to get clarification they then bring counter claims which is essentially the mirror image of what we were seeking and we defend those counter claims basically saying you can't accuse us of violating trademarks if you're doing the exact same you're gauging the exact same conduct so we want parity either we both can say these things or neither of us can say these things and that is exactly the outcome that was obtained there is there is perfect parity before the case and perfect parity after the case and what the parties can say the you're doing it so can we and the parties reached a settlement agreement that basically said ok we're going to continue with the same reciprocity the same bilateral approach and the parties opted for neither side to be unclean hands we said they can't accuse us of violating the trademarks when they're engaged in the exact same conduct so we had a firm that we have the defenses of unclean hands latches for their failure their own allowing us to do what we were doing didn't complain clients former employers testimony that the case the case was brought regardless of marrying and the and the motivation was just to cause the other side to incur lots of attorney's  if you look just squarely at the testimony the testimony makes very clear that the lawyer was testifying as to conversations he had with mrs yochi in two thousand and thirteen so he was ascribing to her certain motivations as of and thirteen and he was also doing it in the context of her positions under the license agreement the license agreement applied to one restaurant in hawaii the case that is before your honor's does not deal with the license by by your client and he and he thought that is what led to the settlement after the opening statements that's what the judge concluded your honor but we think that was erroneous and also immaterial to the ultimate question of whether or not this is an exceptional case i mean the standard imports elements of good faith bad faith in the motivations bring in the case and that conduct during the litigation there's no conduct that the judge pointed to  that he that he cast aspersions on with respect to the conduct of litigation other than some potential spoliation of e mails and he made somewhat passing reference to that piece and there was no contention with regard to that that there was any intentional destruction of of e mails it was rather an inadvertent failure potentially to preserve certain e mails but the core of his analysis was not that it was the testimon feldman which we just think is completely irrelevant because it was speaking of different a different case different claims in a different time period so we serve to make you hear from what ever party and that is the threshold question that we begin with and indeed there is a bright line test which judging on my recognized in this court's opinion and roberson b i would be a prevailing party if they succeed on any significant it is issue in this litigation which of which achieves some of the benefit the parties sought in bringing suit so that's the question the judge angle meyer answered and of course he answered it yes not in fact not only did b r i achieve some of the benefits  the court found judging o'mara found we achieved all of the benefits we sought in the litigation and our rd amended counter claim which is the operative document we had a prayer for relief and in his opinion thirty dollars page opinion judging on wire take separate for relieve compares it to the injunction he enters and with the exception of the addition of one word that we had asked for which was unauthorized it matches in one or two documents over twenty years use the word worldwide hers or said that they they had a world famous entertainment at the restaurant something to that effect prevailing party because when they raise these affirmative defenses they lost they said that as a result of the a permit of defenses that the court as a court in equity should find th injunction did issue b i got would it asked for b o t did not so no they they they did not prevail but even if they  were just interrupt you for a nd if you said in characterizing the argument that they made or the claim that they made relating to clean hands if you said world they were claiming that your client was claiming worldwide world famous it seems to me there's a big difference between those two was it world wide or was it world famous because you could say world famous and with respect to mark that is  that is exclusive within a limited territory yes out violating the rights of somebody else who owns that mark elsewhere in the world in mr manson's opening statement he listed a number of different things website said something about that we had to restaurants in america and in around the world something to that effect we never did anything like what the b o t a did here were missi okie was claiming that she was actually the this c e o of our company opening a restaurant in new york in new york city using our marks in new york city and claiming that was part of their global presence i mean  judge went on and on in the discussion of exceptionality he said that you just couldn't compare what they were saying compared to what they were saying but ultimately it is he found it really ask if if judging got that wrong did b i succeed on any significant issue in this litigation did did they were a did we achieve some benefit that we do it within thirty days and on the th day they filed a lawsuit for declaratory judgment which was completely consistent with mr feldman filed that lawsuit and mr feldman is testimony which goes to the exceptionality question was that yes at at that very time mrs aoki was telling him as as the as the judge found we had the the rarest of direct evidence of bad faith and admission to that effect by the lawyer who brought this lawsuit and mr feldman testified it is remarkable and certainly in my now forty year career  mr feldman tatts testified the missi oakie told him that the overall strategy was to force b i to expand large council fees to contest her unreasonable actions in courts plural in new york delaware and no why so that they might entertain discussions to have b o t e purchase b i and then the court in court who lived with this case for for almost five years as a matter of fact i know judge chin was on an earlier pattern on the original injunction which led to mr feldman's remarkable testimony on the sanctions hearing the court says claims and defenses to win a long game of attrition based on that the the trial court found that the octane standard was met he also found  circumstances to determine whether there's whether or not this was an exceptional case frivolousness check motivation check and he relied on mr not only mr feldman most important here deterrence and compensation on page twenty one dollars of his opinion judging all meyer says it's the need to deter b o t from further excesses is compelling and indeed he had already it was awarded sanctions under the injunction that was the subject matter of the case that we were previously here on before judge chin and then with regard to compensation again miss aoki stated goal was to drive up our attorney's fees and on that question it was mission accomplished our attorneys fees for fighting over four years when a case is the core point it out didn't settle until until at trial after own compelling opening statements the other side said uncle and we got the injunction very injunction we were seeking it was only then after we did all the work to get there prepare all the witnesses prepare hundreds of exhibits take all the discovery fight every motion hand to hand combat for four years yes it took a lot of money and a lot of work and work you know frankly with all due respect work our firms are extremely proud of and and  defenses throughout the litigation and at trial in the opening statements we cite circuit case east plastics and we think that's an important line of cases your honour's because essentially says that if there is a dead heat if both sides obtain something some change in the other side's position with respect to claims then neither side can be deterred deemed the prevailing party so that's really the principle that we're invoking here if both sides prevailed in a sense because both sides obtained judicially incorporated  locations worldwide they can't say that they are experiencing worldwide growth and international recognition they can't see their operating across the world as a host of things that they cannot do it's it's an injunction because it says they will refrain from doing this and then the court orders it so there's no practical difference between that and the document that's attached which then enjoins b o t from similar conduct see my time is expired we ask for the vacated thank you we will reserve