argument given what's been going on in chicago so i just wanted to let you know st that we don't have the same kind of formal timekeeping that we would ordinarily have so i will  ask whoever is arguing st at how much time you want to say for rebuttal and i will endeavor to remind you when you have reached that point in time that we might need to be a little flexible so  seventy three the court is ready to hear argument thank your honor this is todd holmes i would like to reserve five minutes for rebuttal pursuant to your request there you go and it may please the court my name is todd omes and i represent these most difficult circumstances this matter involves an appeal from the district court's order denying plaintiff's motion for a new trial as well as the district court's order partially granting defendant's motion a partial summary judgment after a lengthy stay that resulted when one of the jury was instructed the continental had to prove as an element of the claim that plaintiffs quote unquote were entered by either or both defendants x in other words between these two claims there were overlapping elements the jury found those elements overlap certainly injury of some type needs to be shown for each of them but when the measure of damages be different the breach if it is sherri judy claimed then it would be for the unfair competition claim well the measure of damages might be different depending on the nature of the damages that the jury chose to award as the court is likely aware the other inconsistency that existed here was the jury found a fan interest guilty of unfair competition ruled upon regarding rule fifty nine motions and inconsistent verdicts this case really has to inconsistency is the st is the one between the counts but for purposes of this discussion another one that's extremely  circuit precedent on this issue judge is the inconsistency internal to the unfair competition count alone you know we are required to reconcile these matters if it's at all possible and i wonder two things i wonder whether this court is bound by the district court's assessment about whether they could be reconciled and my other question which you can come to in a minute if you w nd by the district court's fine in the district court did find that the verdicts were irreconcilably and consistent was the quote used by judge durka that has not been appealed by defendants appleby's also diff continental breach of producer duty claim arises from the fiduciary duty that mr continental has its president in its unfair competition claim involves a duty that he owed as the owner of a rival wine company that the fact that those duties are separate and natures of injury so i just wonder about that because the cases for inconsistent verdicts so interested to read a case which i know you rely on quite a bit it was actually literally impossible to implement both parts of that verdict you couldn't do and not the same time where i don't see quite that level of inconsistency here well i think if you look at the unfair competition  count it's noteworthy because they're the jury in order to reach liability added to find injury but yet awarded no damages and so that's very similar to the case addressed by judge conelly in re testosterone case  and part of me i just lost my right here so it when you look at what judge durkin did and your question was did we not did we waive this by not raising it committed to its inconsistency internal to that count alone by one unanimously saying that defendant adam gauged an unfair competition which required this finding of injury to the plaintiffs one or more plaintiffs but also you see these situations where the producer of the less expensive less quality product is trying to pass off that product as the more prestigious product this is inverted this is you really fits in the normal paradigm so the kind of that was an issue here specifically was dressed defendant as president of this company right allies and all the same resources the same wine maker the same grapes the same mixing and actually entered the same two wines under two different labels in the same wine competition and so you can imagine if you're a purchaser of wine especially it's driven and ball if you taste too and you're trained in this and you have the ability to discern that while these wines are dramatically the same but i can buy one at ten dollars a case less than the other that wine does have a benefit obviously in the marketplace also the other aspect that that is cited by the district court judge that i  think's important here is that during the interactions with the jury when he told them there was no mention of an offset and that was consistent with the fact that the fence failed to raise offset is an affirmative defense or really a deuce any evidence at trial regarding that  so after attempting to address that inconsistent can consistency between the within the unfair competition count lone the parties in the district court could apply to had an attempted to address the inconsistency between the unfair did you try the case i was one of the tree yes yes your ok so close that we had a conversation before trial and i would have said to you we can predict one hundred percent certainty that you're going to prevail on the unfair with a level of confidence that you just articulated why why no contemporaneous back i think the answer your honor is the the st objection in discussion that occurred sidebar with judge durcan was regarding the the no where the aspects of the jury's verdict on the unfair competition and once that was done it was  apparent and we see this in many of the cases that the th circuit has ruled upon for instance chief judge wood and in the attorney a case just stated even if we have somehow overlooked a way of reading this verdict that might in a stretch of the imagination support a verdict for one side or the other we're convinced that is sufficiently confused that a new trial on count two is necessary and many people have asked me about this case and said well do you think that the jury was trying to abuse its discretion i have no evidence of that that would be speculation but we do know just attempting to resolve the unfair competition count inconsistency that there was a fair amount of confusion and so i think the answer is when we start to look through this especially from the standpoint of a trial lawyer in response to your honor's question we can try to come up with all of these type of circuit breaker instructions that would say if you find for x on cow why you need to find for the  z i've actually seen that attempted in other trials and it was eventually rejected before the case was submitted to the jury because the instructions became so overwhelmingly complex and i think the answer as a trial lawyer is you know we as as a bench and as the bar have collectively generally decades of experience before we try these types of cases to a jury and we attempt to communicate to the jury the law that we have the benefit of all this education  experience on through jury instructions and we try to distill it down to what they need in our system there is a benefit to finale but our system is premised upon  not just finale for the sake of finale and i think if we look at cases like cosmic where circuit breaker type instructions were were advocated there's still an inconsistency in this case a circuit breaker instruction couldn't have precluded the inconsistency internal to the unfair competition trial because it wouldn't be referencing other counts it would be just referencing the elements of the unfair competition claim and i think what we have to basically except as a bench in a bar is that our efforts to distill this body of knowledge of the law down to instructions that the juries can use to apply the facts that they find to the law to reach a verdict sometimes like many systems and wife suffers from friction points and that consistent because there is a later cases that cast some doubt on that and really our whole system is designed to try to allow the district court the opportunity to fix whatever problems there are before they become you know baked into the system court becomes you know a frozen record on appeal and our sister circuits have looked at this and have said you know maybe there is a way to solve this problem if you call it to the district court's attention maybe by now you would have long since finished nd trial i don't know you know bit if it's generally efficient to have to just record do that in his i could look at this record you would have plenty of time to do that as to just record is polling every juror saying did you really mean zero damages here this this isn't something as happened in toronto where the just record actually for it's the lawyers from being in the court room  somewhat bizarre aspect to back a case so you know i'm just concerned from a procedural point of view about coming in at this late stage with a motion for a new trial your honor i believe your question is addressing  the cases of fox pierce and carney fox and their sister circuits you know that have developed this further sure let me address those cases within the circuit and then i'll turn to the one outside of the circuit before i exhaust my my  original time and pierce and as you know did not find it any inconsistency they found that the verdicts were consistent and were able to reconcile them and i don't think as we discussed earlier that that's possible your given the nature of the overlap  carter was interesting and that carter cited the progress in the counting case and cites a footnote that says this is an open issue but if you look at that footnote in that case footnote six in real account will versus comprehensive accounting you find that the footnote only it really addresses the speaks of an open issue in terms of an inconsistency between a special verdict and a general verdict all of the other cases in the seven circuit that have addressed this ever dealt with the situation here which are inconsistency between general verdicts or as we know from my prior discussion an inconsistency internal to just one general and so i think the weight of authority from this circuit even if you look at carter and will versus conference of the county with respect to this specific situation is gordon tim in turn you all fine then you can raise this through time without reference to her several times you've used the phrase given the nature of the overlap this is much easier in person with paper the nature of the element here of the overlap is that in the breach of fiduciary duty count the only element that was not stipulated to through trial or the only element that was remained in dispute was quote unquote whether or not the plaintiffs were injured by either or both defendants acts in the unfair competition count to find liability the jury was forced to find that one or more of the defendants quote unquote apply this more stringent standard that you were referencing however you know our case makes a specific exception that it would apply here it says we're not going to require it to be raised for the jury disbands because if there is an irreconcilable address something initially that i don't want to be overlooked and that's the issue of the alleged that consistency's themselves now if you take a look at the actual jury instructions that counsel is arguing require consist unfair competition claim in the st sense references that defendants randy is or does or ski and then a fair wind company l l c engaged fair competition now what's been ignored in the hundreds of pages duty those two items are not dependent upon one another in fact they can be completely end dependent on one another and it seems to me from looking at this i was not trial counsel but it seems to me that that's exactly what the jury did the jury looked at the unfair competition and noted it number one that there is an additional party added to that instruction that's not a breach of their shared duty instruction so it broadens their ability to find liability on that particular issue now the other issue on the claim of inconsistency is among the two causes of actions is that if the nd claim of inconsistency meaning finding liability on the on for competition but zero damages if that's proper and that's a held by this court then it's a moot issue ok whether or not there would have been liability on twelve dollars or five of the cause of actions the jury still found the plaintiff failed to meet the burden to prove any damage so in the event and that's really going to be my nd argument but in the event that the court deems that that's proper that would be proper for me no cause of action where they would have in theory found liability but again the plaintiff failed to produce any type of  reasonable certainty as any damages and it looks like that's what the jury is telling us also that while they may have sustained their burden on the liability side which requires only some element of the existence of an injury they could also at the same time fail to establish the amount of that injury with any reasonable certainty or that the injury was nothing more than something nominal and then just having a conversation about this earlier point  one percent of a penny would be in theory the existence of an injury but it's not necessarily a compensable damage ok it's not an amount that can be awarded and those things are not inconsistent with one another  damages from that seemingly because the jury was maybe they just thought there was a failure of proof as to the certainty of them out i'm not sure but then we have the trial court going back to the unjust enrichment claim saying this was an equitable claim it should you know it's basically for the court it was an advisory jury verdict but i'm now going to make my own findings of fact and imposing the two hundred and eighty five thousand some  he thought was an equitable resolution of these claims that maybe unfair competition was not quite the right match and the jury sensed that maybe for that matter to reach a secure sherry judy we haven't talked about the corporate opportunity issue what's wrong with the bottom line of what the district court came to well the bottom line is that the court took this out of the hands of the jury after a decade of litigation w advisory jury was the court obliged to meet it with the jury well the core was for two reasons and number one and i point to solve my brief i don't want to belabor the point but there is no authority in michigan or that we've located anywhere else other circumstances have looked to rd restatement for guidance and there's no reason to think they would not do so here so what's wrong with that reasoning well there's nothing that requires that the restatement we just accept right or we're trying to predict it's just advisory the other problem with that is the same trial court judge months earlier indicated that the jury's finding on the fiduciary duty issue is going to be exhaustive of all issues both legal and political or tribe of monetary and equitable and that became at that point time the law of the case that was the court's order and the court was required to comply with its own orders just for substance of due process and fairness to parties the parties do have a real right to rely on the court's april two thousand and eighteen order which indicated that the jury will decide the question of li result and that day and age issue it's very interesting how the damages issue was presented to the jury and i understand and i appreciate counsel's argument about the offset when the offset language was used that was simply a possibility especially as i could be that the court was speculating as so what a jury could have done in finding liability on the unfair competition but no damages and did your court indicated  written order well they could have been believe that there were plaintiff failed to meet the burden of proof that there are different burdens there could have been an os and that could have been an offset i'm sorry and that's a paraphrase has been kind of hard done by opponents in this particular case as well look there's no offset there's no pleading of an offset but even the damage instruction given to a jury asked them to look at quote lost profits and expens ok now the st issue that the jury was looking at lost profits would require them to offset things i mean a profit as we all know is a revenue minus expense so there is a requirement of an awesome  would require a little bit more it's not just a profit but a last profit what it was for the best and in doing so there was a lot of testimony that i brought from the trial court about the benefits that were provided to continental based on all of the things that were done by the defendants in this case so certainly the possibility that a jury could a looked at an upset sudden offset from a defendant stance and a promise that's an offset just because they have to look at what's a profit begins by saying ok no damages friends fair competition cool down for defendants and i'm just enrichment that's established sufficient evidence but then he says he explained in a pretrial  he thinks it's is relevant so so has he just issued conflicting statements about this or why why can't he when all is said and done make sure that he's tied up all loose ends and considered equitable discouragements wow well i think it i don't want to hear it i don't want to be redundant but i think simply because previously ordered the jury will be the determining factor on all factual issues  which of this would be a factual issue so i do think he's given a consistent results or orders in this particular case and i think for the for the issue of fairness that should be rectified this should be rectified from his previous equitable and monetary damages ok aside from that i don't want to belabor the point i think the majority of my argument is that incorporated into my  repeat everything in there i know that everybody has read it if the panel has any questions for me i'll be happy to attend to them one more question as as the court was originally dealing with the alleged inconsistent verdict the judge himself says you know i actually omitted in a court instruction this gets a little bit to the rule fifty one dollars issue but also more broadly the way he handled this and he says i should have included in these structures to cherry an instruction that says basically don't render inconsistent verdicts and i was not terribly taken by that point seems to me that would clutter up  instructions and you would need to say that all the time is if you had a multi count case which is not uncommon so you know it is what else do you think the judge should have instructed the jury in was any such argument preserved and that's a great point i'm actually glad you asked that question that instruction is i think necessary and i agree with the trial court judge in any event that you have cause of action and in the event that you agree with the appellants position here that those two cause of action are mutually dependent upon one another that you cannot find liability on one with my ability and the other certainly that should be addressed prior to the jury being a panel and prior to them making their decision now it's an interesting approach that the appellate stake in this case indicating that they have no issue with the jury instruction but they have an issue of how the jury applies those instructions well the part about it is and i'm again going to be inconsistency that they claim regarding the true cause of action those jury instructions the claim to consistency directly relies on these jury instructions so in order to solve this problem and it's a little bit of tapdancing from a frenetic standpoint in order to solve this problem from the pellet standpoint if he was right you would have to revise those jury instructions were provided or add a cautionary verdicts neither one of these were done we're trying to paint a picture that this is not a problem with the jury instructions because that's how a power can try to avoid rule fifty one but it actually is there is either a revision required or an addition required that the jury instructions in order to alleviate this issue and again these are jury instructions that were produced by trial counsel at the trial court level  everybody approved them without objection and they say what they say but i go back to the point he personally i don't believe there is any consistency i've read these jury instructions i think that they the jury verdict works both ways and it can and legally appropriate to find just as the jury didn't this case ok you still have a little bit if you're finished we are perfectly happy to move on any other questions from my confusion resulting from some citations the verdicts are inconsistent between the two counts there is no doubt defendant was found liable for unfair competition and defended the neferet was found not liable for unfair competition that can be found in the sites a ninety five dollars in a ninety nine dollars so there is no doubt that these two verdicts are quote unquote irreconcilably inconsistent also with respect to judge durkin's rulings that were addressed by chief judge what he did not find of the case issue nothing would have prevented him which he did to go back and revise the prior one i also want to talk about this this idea that these differing parties explain away this inconsistency that does not solve the inconsistency internal to the unfair competition count there was only one defendant found liable for unfair competition and that was defendant and if we look through all of the cases including the that at least with respect to the unfair competition count that confusion reigns supreme and so in terms of thinking about this in terms of policy and finality i don't know what else judge durkin could have done with that jury to try to highlight the inconsistency i was there at sidebar everyone was it was in effect stunt and so i think when we look at this policy determination as to whether or not the th circuit wants to kind of follow along with some of the other circuits i think ohio is extremely instructive in that we need to realize that despite best efforts to craft in communicate your instructions juries there will be these moments where the confusion of the jury should not result in an unfair result for the parties this result is unfair to both parties either party could claim victory here  finale is important but before we leave this it's important to think about this particular case what took this case to go from plaintiff's filing at two hundred and one thousand two hundred and twenty eight verdict in two thousand and eighteen well there were many delays were specially none of which were caused by plaintiffs one of the defendants filed for bankruptcy that bankruptcy instituted an automatic stay as to one of the defendants he was the president and chief witness for the other defendant so i can tell you from having try tape discovery of the other defendant remain the defendant didn't work so well ok i think your time is now absent you should wrap up please share the other factors where he was then subsequently indicted which delayed his bankruptcy and we had the retirement of two judges that had been assigned to the case which obviously has no no part no fault of the court where the parties but that's what extended it to have a plaintiff go through that extended delay and then simply be left with a final unfair result i don't think should be the policy of the circuit thank you