before the court today your honor is the judgment of the district court in this case suffers from multiple defects we believe the most prominent of which are the use of an incorrect body of state law law i think it's perhaps the most involved so i'd like to discuss there first first off it hardly need be said that the use of a correct in a diversity case the use of the proper body of state law there is virtually no other function or issue that could be more fundamentally critical in this particular instance selection of the of the proper state law reaches to the validity of the no compete agreement which of course is a central issue in the case the choice of law to be used as well as a form of selection clause that was contained in the in the agreement that strike proclaims m ridgway signed it's the law of michigan that whether the choice of law question one needs to make resort to the restatement second of conflicts of law to resolve the question and in that respect section one eighty seven to be of the restatement speaks to the very scenario that we have before the court today starting point ordinarily would be that if there is a contractual choice the parties ought to use that contractual choice but there's an important exception to that provision it says that if in forcing that contractual choice would be offensive to the fundamental principles of another state here in this instance louisiana and that other state again louisiana has a materially greater interest in the dispute then does michigan then the contractual choice should be set aside in disregarded it goes on to say it almost unnecessarily i think but that absent the choice of law contract provision louisiana law would be the proper choice in that in this particular question  does the materially significant and knowledge does the because the parties contract factor into louisiana's interests versus michigan's interest and has more significant interest not in terms of materially materially greater interest and that's why the don't want to be seven to be says from the outset that ordinarily we're going to respect the choice of the parties in their contract but in this particular instance we do have in the state of louisiana a a a principle or fundamental principle that fundamental principles fundamental policy i should say that relate specifically to these kinds of agreements title twenty three section nine twenty one which we cite in our brief speaks to this very clearly and the starting point in louisiana as opposed to michigan the starting point in the e c m is a not compete agreement is invalid it's no one void there has long been a hostility toward non computer agreements in that state dating back to at least one nine hundred thirty four which is when the statute was originally enacted and it's been amended over the years and in that statute it says quite clearly that if an employer attempts in an employment agreement to force upon that employee a choice of law provision and if or a form selection clause or even a non competition obligation that's going to be considered nolen forward unless you can bring yourself within an exception to the statute now without getting too far down into the weeds the exception doesn't apply here as with serving with respect to form selection and choice of law on the non compete part of it that portion of the remit would be rendered null and void for two reasons first the statute requires that the employer at quite adequately specify what its business is for for purposes of of a non compete is ok sometimes in very narrow not just about being hostile toward an agreement provisions along these lines in in this one twenty four case the louisiana supreme court took some pains to talk about what animates that particular statute and there are two things at work one is the louisiana legislature's desire to protect its citizens from overreaching in an employee just because a state says a statute that says we favor something or we disfavor something that alone can't possibly  be resulting in their having a materially greater interest so in other words you're about to say that louisiana said we don't like non competes and we really mean it ok we get that i don't think there's any question about that that doesn't make it material and that does not mean louisiana has a materially greater interest or no national corporation could ever have a uniform non compete across the country that would bind people to their law when they were doing business in a state like louisiana that said we don't like them and we mean it well as i said the drivers know that the statute does not completely prohibited from happening but there has to be something more than the fact that they have a statute that except in less exceptions apply make it against public interest well here's here's the public interest part and i was just about to say to judge rogers there are two things that are animating this particular statute the first is of a said to protect its own citizens and what i'm asking you to to address is not what louisiana says we get that something there has to be something more than louisiana's policy to give them not only a significant interest which they have but  doesn't really matter what the louisiana says i don't think in connection with assessing whether their interest is materially greater i understand what you're saying judge the answer is i think that question is that the t is is there a fundamental policy of the state that's an issue of course we say that there is but there's more here because fundamental policy of michigan that's at issue two they feel they do not disfavor non that i would have to take issue with you on i don't believe my opponent is cited to any case that says its michigan position or not competes is fundamental to a principle under michigan law and let's not forget back to where i was before because louisiana said we don't like nine competes and we really mean it i e its fundamental and michigan said non computer ok but they didn't say and we really mean it so it's fundamental therefore definition louisiana has a materially greater interest well you know it's a bet with me that would mean louisiana always trumped the law of any other state no matter what one says in a non compete i don't think that's necessarily true because i can imagine a situation where there may be a mother state that has expressed in very clear terms that allowing broad ranging non compete is an essential policy of that state but let me let me get to the other point i wanted to make about louisiana's policy that respect it's not just about let's protect a citizen who signed an agreement that really is going to be contrary to his interests as the court discussed in swat twenty four this is about preserving louisiana citizens ability to earn a living which is important ok but it goes beyond that because if the court identified its white twenty four it also said that's important to the state of louisiana as a matter of public policy because people who cannot earn a living are a burden on the public and so the state of louisiana is saying not only is it a good thing for you employ you that we protect you in this way it's good for the entire state of louisiana there is nothing but but  again we are in a multi state union here where you're trying to assess the interests of two different states and looking at this transaction there seems to be no question that both states have an interest you happen to think that louisiana's is greater and it trumps because louisiana said it's a fundamental policy of that state the end result from that argument is exactly contrary to comment  one eighty seven two it would simply mean that if a state says something is point fundamental that will always trump the otherwise justifiable expectations of the parties and i can find no authority that find the authority that says well louisiana thinks about the issue i get that i agree with you on that but i can't find any authority that says that because of louisiana says it's fundamental to louisiana that means that trumps the expectations of michigan or any other state where do i look to to find that authority outside of louisiana law i don't think it would trump in every instance i think that where do i find the authority for your position outside of louisiana law ok since we're talking about the restatement let me also direct the court's attention to comment g under one eighty seven which specifically speaks to a policy of a state that is designed as a protection against superior bargaining power that is exactly the kind of policy that the restatement anticipate would be a fundamental policy of a state that ought to be respected in the choice of law analysis so but but to directly to your point  honor in this particular instance not only do we have a state statute that dates back well over almost a century but every court in louisiana to address this issue has repeatedly emphasized and underscored the fundamental  trying and trying to make the point and get to give you a chance to respond to the problem i'm having with your analysis that what louisiana says and how seriously they mean it can't trump the outcome of this case it simply can't under the restatement so simply give me some authority anywhere that says the because a state says it's really important to us that trumps another state that might not say it's as important in a case as louisiana did you where do i find that you only answer i can give your honors under your test there would be virtually inconceivable for any state to have a fundamental policy of the only way to determine what that state's policy is is to look at its case law and its statutory law i'm not even coming close to saying that i want you to assume that it is a fundamental policy of louisiana as you're saying i want you to assume it's existed for a century i want you to assume they really mean it all the things that you've said i'm not questioning what i am questioning is how under the restatement does that alone mean that louisiana wins particularly in light of that says we are to honor the party's intentions were possible when they've entered into it freely and voluntarily the answer we give you your honor is that is not the only thing that should be considered the other thing that ought to be considered and this is one eighty eight gets into this in more detail but the connection of the parties to the state your red light is on so i just want you to understand what happens when there is a dialogue like this i've asked you three times what authority what case i should look at and every time you've diverted over into something else i just want you know understand that when you sit down i was only one judge on the panel and got to assume that you have no authority but you won't admit it that's that's what we're sort of bound to do so you can think about that and if you've got some authority when you come back please tell me and before i sit down i want to clarify the question is i know i'm using up my time but i think you're going to i think you're going to get i am going back to ask your adversary a good morning may please the court my name is michael wexler i represent the appellee in this matter the appeal taken by the appellant in this matter should be denied it should be denied because this case was properly handled by the district court and the decision of the jury should stand i don't want to recruit the beginning going to is an important question of us the questioning during your adversary's argument dealt with whether two things could be considered as a part of the material a greater interest analysis the first one which judge rogers talked about was whether the parties choice of law figured into that or not and the second question coming from judge mckee was whether the state's own statement could be that pretty into that or not and what's your position on those two things the panel has seized on important point which shows the flaw in the appellants argument number one under one  seven one which is where the starting point is for this analysis if the parties could and did contract for a choice of law that should be followed let's assume for one reason or another we don't go with what id seven well let's assume we're  ok so then if we look at the district court was yes and then if we look at to the problems that the appellate conflated the test it's not simply using the magic words fundamental policy that's one element is a fundamental policy and then to the second point is this is immaterial greater interest so to judge gibbons and judge rogers they say that the choice of law does matter and what was agreed to by the parties doesn't matter and to judgment key i say that there is no authority that says a fundamental policy trumps because as judge because he correctly points out that is the common points out the conflict of law analysis would be nothing if there was simply a case in any jurisdiction that said this is a fundamental policy so louisiana would trump every other state in the union if that were the situation then the national company could never have an agreement that would be enforceable in louisiana that's exactly what mr curry is saying he's saying the it would trump unless some other state said and this is a fundamental policy the other direction but he's saying that it would always trump the at least that's what i understand his position to be so did you find any cases that stand for that proposition no your honor that there aren't cases that say simply because you say fundamental policy those magic words mean that you don't follow factor or is it inappropriate to consider it it is simply one element to look at a fundamental policy or the answer to both of those things is yes you can take them into the chaos of course because the test is you should look at fundamental policy as an element but then you also have to look at material greater interest in this analysis what what exactly is the terminus whether there's a materially greater interest it can't design or stand it be that there's a provision which chooses because that's the assumption that for the whole want to eighty seven and it can't be whether there's a fundamental policy because this is something which qualifies as contrary to a component a policy of a state not a policy but a state which has a materially greater interest so that when we look to determine whether it's materially greater interest so you look at numerous factors for example got a lot of factors you do look in a number of factors for example where was a contract entered into where was the harm felt where does a national all the sort of one eighty eight factors yes you're just look and see are they are they not just strong but materially stronger all those factors the idea i think you look if they are strong each one separately and then together you make a decision if it's materially stronger the point is is that a national company and you look at the court's decisions in law you look at those decisions and you decide this is a national company have an expectation that their agreement should be interpreted under a choice of law that they've contracted for and uniformally with an employee who signs the agreement that's one  contract for the choice of law that's realises stops and i believe the decision says no exceptions then what's the problem with the appellant's argument here is that they look at one eighty eight i'm sure one eighty seven two and they skip that first point of course because that first point is not in their favor because the parties did contract for the choice of lobbying michigan so that when you look at one eighty seven two you don't have to look at all of these factors as to why there's a material greater interest in michigan versus louisiana district court did that and said there are factors that go both ways so that means even if it's greater it's not materially greater cracked and that was a correctly just sort of make the pot we look at a pile of factors and see whether it's material unless there's some court case that controls yes and in this situation when you look at the various factors you can a lot of them relate to louisiana some relate to easing all the whole the whole compliances in louisiana right whether you comply with the compete is all takes place a year comply with it in indiana and louisiana or you don't comply with it and louisiana there's no issue of whether you comply with it in some other state well true or not that's not exactly true because in this situation some compliance was in the easy ana whether or not for example mr ridgeway went to customers he wasn't supposed to go to but in the facts of this case for example mr ridgway sent fraudulent bills to michigan for double billing purposes and to increase his commissions and increases bonuses so his compliance for example with his  is this is it a trial we are actually exhibits that showed where he made a proposal where he stole information on michigan servers so he didn't comply with his agreement by going to michigan to get them information he then took that information then in louisiana he prepared proposals that he showed our information against information from a competitor that he was now working for so in that instance compliance is in both states so as i said earlier there are some complaints issues in these iana some accord with michigan law right so the tab the district court made the decision about what jury instruction to give it her all the evidence of this type that would bear on the comparison of the interest between the statutes so it was able to make a legal determination that was in part based on the evidence that had been presented trial that's correct and i also note that mr ridgway the appellant actually waive that issue because there was no objection made to the instructions given to the jury by the court they had submitted the seven structure and the striker had submitted to serve instructions the judge then came up with the seven struction and then there was a conference i thought that the judge already ruled in advance of the trial in michigan lho is going to apply he did not  he actually said in his opinion when he initially made a prime a facia a crime a shit official really early on in the case that michigan law would apply he said as a prime official ruling and then we would deal with it later and when he got to that point in the trial we actually had to give instructions to the jury the appellant never objected to the instructions that the court gave so in fact there's no subject matter jurisdiction by this court over that because they weigh on that you don't have to object again if if if the issue had already been ruled upon you're saying that it did come up prior to the trial which was going to apply right it came up very early on in the case that's what i mean so are you are you essentially saying that that was a conditional ruling at that point at that point the judge i believe his words were the prime of that and the prime of facia evidence was presented to come up with the court's decision that michigan law would apply but then the court indicated that the court would listen to the testimony would look at the facts of the case and then during the trial made a decision after hearing all the evidence yes it was conditional on the evidence that came in during the trial and yes until the end of the trial there was no indication that go back and look at that thank you so ultimately the appellate never objected to the judge's instructions that were presented to the parties that this is the law these are the charges they'll be given to the jury and no objection was made because no objection was made the issue was not preserved for appeal so it's not properly before this court ultimately as the court has noted the judge made the decision to apply michigan law after hearing all the testimony after hearing all the facts after coming up with all the information that shows that michigan had a material a greater interest in this matter than did louisiana was the issue of what law should apply essentially re argued in the conference in settling on the jury instructions it was never brought up by the appellant your honor i assume that they submitted a proposed instruction would've instructed the jury that louisiana law applied right they  submit the initial seven structures that did have a louisiana a lot based instruction correct when you say an initial set are you talking about at the time of the trial or sometime earlier just prior to the trial both sides submitted jury instruction ok so you saw at that point are conflicting instructions on choice a lot now there was a conference to settle the disputes about the instructions right there was a conference but that issue wasn't discussed at the conference so at the conference objected to settle the dispute between conflicting instructions how did he sees upon one law versus the other if it wasn't even discussed the judge had presented  instructions that the court felt were appropriate to give at the conclusion of the trial it was a both sides submit their own the judge then condenses them into one and resolves the disputes in his mind and then gives them back to right  that point did ridgway object to the instruction as to michigan law no objection is there any more general noting in the record without regard to specifically discussing the choice of law point was there any discussion of mr ridge wise preserving is his continuing to allow the instructions submitted as opposed to those you scimitar that is the judge came up with you know the appellant did nothing about the issue as i recall the instructions were given to us i believe on the friday when the trial was concluding the possibly on thursday and then there was a conference i believe late friday as i recall that and closings are scheduled for the beginning of the following week and  i know in the instance of the appellee that that we had certain objections that we preserved by filing objections to the court's instructions but the appellant didn't orally or in writing raise any objection to the court instructions that the court intended to give and the reason we had the instructions ahead of time was so that we could look at these instructions and make objections if we felt anything was appropriate but the appellant did nothing either orally or in writing consequently this and the motion to dismiss for like personal jurisdiction and again in his trial brief is that not accurate or doesn't matter those things were done but as the law requires if you look at the ortiz decision by the supreme court going to start you aren't saying he did what he needed to do and say he did these things the judge roger points out what i'm saying is that he didn't do enough because when he actually got those on enough exactly because when the court had when the court came up with the seven structures that the court intended to use they never objected now where we're we're we're now being diverted into something and the diversion is into whether what he did was enough he thinks it is you think it isn't and what do we look to then to determine whether the specific context within which he contended that louisiana applies in these earlier proceedings is sufficient to preserve it so that you don't have to renew your objection on that particular point what do you say we look at i make two points and i see my time's up may briefly conclude on answer your question sorry first which you look at is what was done when the s instructions were given by the court to both parties and were objections made to those instructions to preserve the issue second though most importantly it's quite frankly irrelevant because even if it was properly preserved and even if it's probably brought before this court it makes no difference because the parties contracted for the proper choice of law one of the seven one dictates that should be followed and louisiana does not have a material greater interest in having its law applied over the last michigan which the court applied so very saintly is what do we look to to determine if it was waived by virtue of not having raised it again at the charging conference but is there a case you want us to look at for that not how one preserves an objection to jury instructions i think it's the same case it relates to the issue of whether it's it is it relates to the issue of then it didn't deal with the sufficiency of earlier generations two or submission of jury instructions to constitute an objection to the jury in such course i'm not i'm not sure that this really comes to us as a question of the objection to the jury instructions now that i'm looking back at the appellant's brief i mislead that issue doesn't matter because as i said if less material greater interest and a fundamental policy and the court made that decision with all the evidence in front of it it matters a lot if iran then materially a number to reality but i'm saying the issue preservation i don't believe it's properly before this panel but even if it is the test that is you look at one of the seven one it was contracted for and the choice of law was made and then even if you get to one hundred seven two it's the the choice was still proper because there just a few points to make first off you got i hope you didn't think i was being evasive in your questioning earlier i was trying to answer as best i could at let me offer this to to your honor when we talk about the materially greater interest question you want me to summarize the question again it might be helpful that your argument is that this is a fundamental policy of the state of louisiana in connection with not compete clauses so they're for the interest of louisiana is materially greater than michigan that's what i synthesize your argument to mean is that it do i have it right that's pretty close ok now pretty close is good enough that yeah yeah so do you have a case that says that specifically no i don't think that i have a case that says that alone get you over the hump ok that is all that i was trying to find out but let me add to the mater of services and it says very plainly setting aside a choice of law question or choice of law issue the place of performance of a contract is almost always going to be the appropriate form t litigate that particular question but is that juxtaposed by comments to one eighty seven that says the agreement of the parties is almost always going to control well it's just what it's just a different way of looking i understand it and you want to argue that you're citing a section that doesn't apply because there is an agreement of the parties i suppose that the difficulty is at least that out that i'm having is the question and materially greater interest to my greater interest in the dispute and i say i wouldn't say materially greater means fifty one forty nine forty one i don't have a case that quantify is it but my point is is is only that when you add up all the different pieces in this puzzle and that is the statute which we talk about we talk about the you know section one hundred six which says the place of performance is paramount and we look at all of the things that happened in louisiana i mean the connection to michigan really is well that is where they are for sure and we look at well what what is where should you that's where all the harm is going to accrue if he violates the clause but but the case law has said that i mean that is always going to be the case and that is insufficient really in fact in a jury in a jurisdictional analysis that's not sufficient to confer jurisdiction i mean that's what this court has said in its earlier decisions something more some purposeful of ailment is required and so you know this is i don't contend that this is a black and white choice sharana obviously it's not but when you weigh the way the competing interest in the balance to my view it's overwhelmingly in louisiana's favor i out of time i thank you for your time we thank you both for your arguments and will consider the case carefully it's an interesting play and we don't often get the opportunity to revisit things like this you know it was some complexity that we learned a long time ago in law school so it's been very interesting to prepare for the case you need to get a chance to talk about because i know the two of you on that panel now have some interesting questions as well i'm done the other day for