calling case numbers one six four three two four and one seven three eight three two seventeen three eight four one that's premium freight management and generic solutions and both will industries the morning runners we request to reserve three minutes for rebuttal that is fine and you may proceed but you just call me please the court the district courts finding that there was a couple violation in this not uncommon dispute between companies that enter into a manufacturing contract must be reversed and must be reversed because michigan law applies to p b s is tort claim michigan is the state with the most significant relationship to the parties in the occurrence in the alternative it the couple can fails because at most this is a breach of contract case without substantial aggravating circumstances the record does not establish that boles will engaged in unfair unconscionable or unscrupulous conduct now we start with the restatement because of the court decides that michigan law applies to p b s as to a claim in the not address the couple issues on the merits i think you're asked if you went on that what would happen would we have a new debate about whether there was a problem under michigan law or the parties agree on this point what would happen next what would happen is that the couple claimed then would fail at that and then the other claims would that we do not appeal would remain since there is no conflict that they would not have an opportunity to seek tourney's fees damages under michigan law to the extent it has an equivalent statute or common law your honor we would suggest not they have the opportunity to plead in the alternative if they could have found a michigan statute that provided that that leap that relief they never identified that in their briefs they never requested an opportunity if the court were to say yes michigan law applies in that as they've been winning throughout so but this was the chance to do it  this is the first time that the restatement was actually truly argued before the court before this panel and so if michigan law does apply this is their chance to say well we would have requested relief to argue something else for instance the mission consumer protection act has similar language and cuppa but as we pointed out they would have that claim would have failed it would have been no basis to allege a claim under that because this was a business transaction with respect to the restatement the law applies p m s concedes that the district court erred in applying the wrong restatement rule in analyzing what is the law that applies to the tort claim so we have to go to the restatement for to may point other jerk to different directions and so i think the key is to parse through the record in a den of pi what are the determine to factors that point the scale either way they said injury one of the most important factors and maybe the most important factors it can be sometimes but not here your honor we submit we cement place of injury would have been connecticut though it would have been so i certainly partly experienced in connecticut unquestionably that's th principal place of business we did point out that had been represented as a division of p s and industries which is a california company and that the courts recognize that in such a case the injury may not only be in connecticut but also in california but in terms of the importance in terms of the importance in this case as the supreme court has this court has recognized even in the months the case that the injury one is not  and two must be weighed relative to the other factors so we go to since this is not a personal injury case section one forty six of the restatement does not apply such a one forty five applies and one forty five tells us that the factors must be weighed based upon their relative importance and sometimes injury can can be heightened importance in a personal injury case a consumer protection case but this is different when you compare to the relative factors words of fit within the relative weight we submit that it does not get height and weight one it's an injury to a business and a financial injury which is different than th personal injury and in addition it has to be compared to the other factors it's just not that the vacuum were as a compared to the other factors and so the place where the relationship is centered that is a significant factor here this wasn't a case it wasn't a negligence case or tort case between strangers this is a case involving two companies that entered into a nearly two year long business relationship another factor that's entitle to special significance is where the conduct occurred and if the court pointed out that the injury occurred of connecticut the conduct the conduct surely occurred in michigan when you go to war belgium that gave rise to this alleged couple claim it's the starting production to early thirty production earlier than we anticipated that occur in june of two thousand and fourteen before mr snyder was ever on the scene increasing the volume of production that incurred in the summer of two thousand and fourteen before mr snyder was ever involved mr snyder from belgium got involved at a very limited period of time at the end of september in the beginning of october during conversations with pm yes but the other factor is that they allege and there are other conduct that they allege and that cup a claim such as the failure to pay freight the failure to pay account receivables those are suffered a harm we suffered a harm and we're not in your response so we're not paying the account receivables that that's a set off and the freight charges we believe you're responsible for under the general terms and conditions and under trade practice those issues were the conduct that conduct occurred in michigan and the reason that conduct tell me what i'm missing i i would have gone into this case saying you know just forget the actual facts here but in a case we have two businesses one in one state one on the other the misconduct occurs in state a injury in state b and a tort claim normally you're going to say state b controls place of injury that's what i would have thought and i write about that jennifer forget this case for a second and i write about that general way of thinking about it generally but generally you see it being applied under section one forty six but if that's the general rule all you're doing is deciding to talk a lot about the misconduct alleged misconduct i know you don't think  misconduct in michigan and but i'm just telling you the norm in the tort cases where the injury was it's very strange to think it was in connecticut and to two state problem basically exactly and so that's why as you pointed out in the p case that there would be conduct here and there so what are the other factors that tilt the scales to michigan and we think it's three i mean the first factor is that p m yes has a regional sales manager who is located in michigan yes was in michigan and adrian michigan right down the road from epsilon e of course they were there they were delivering products no no that's wor k that's were it's regional sales manager is i mean they solicit it's a p b s has a presence pm yes has a presence in michigan also has no presence in connecticut are and that presence in michigan tilts the factor that goes to what state has the most significant relationship where is their relationship centered just like in the months the case we're looking at two businesses where is the relationship centered and so here when p b s from michigan reached out to both all in michigan initiated the relationship in michigan so you have this independent contractor in michigan who represent  s but you also have the flanges manufactured of course in connecticut and delivered to both of them what could argue in connecticut so yeah i mean this there are factors going both ways and i guess i'm not persuaded that that it's so clear that the relationship a center in michigan as opposed to connecticut where there's a great deal of the underlying contract is performed points is that he's more than any pena contractor when we actually go to the language i mean what did he say the questions asked to him was what was your role i represented pm engineered solutions and the question was that is significant is the presence of general motors the the presence of general motors ties these parties together in terms of the relationship and the presence of general motors matters they say they argue obviously that it's not a party but the language is not limit in the restatement the language in the restatement is the state with the most significant relationship to the currents in the parties general motors which is in michigan no question was their name was raised one hundred and forty nine times in this case and general motors made the decisions in this case that everybody else had to respond to the decision to move to a powder flash the decision to accelerate production the decision to conduct the root cause analysis general motors led that and the decision to revert back to its prior flan flange when pm yes was producing defective flanges so general motors is  case and another thing is that the court recognized that the court they would have pointed out in the breeze put it like the point they don't hear and it's post trial questions doc one seventeen one hundred seventeen of the lower court docket asked the court asked the parties to a dentist by the testimony or exhibits that reflect when and why p m s had direct contact with general motors p s answer that we had direct contact as part of the root cause analysis for the cracking problems in october fourteen points to a string of e mails between p m s and general motors that points to the dock general motors document that shows that the the contract or that the plant is being reverted back  to the prior model and so these are the key factors that we say overcome the injury which in this case which in this case like muncie is not entitled to be killed either way thank you you're in a time of experiments good morning your honor may it please the court henry weinstock for appellee in cross appellant pm engineered solutions inc i suppose the place to begin is to try to respond to some of the same questions that the court addressed to mr  we have different answers to those questions and i think the place to begin is with the language of the restatement itself there are three sections of the restatement that apply to this choice of law question the first that mr mao didn't mention in section one forty eight dealing with misrepresentations that section applies to some of the misconduct alleged and proved by pm yes in this case and under section one forty eight it's the place where the plaintiff or allied on the misrepresentations that governs the choice of law of such claims and that of course is in connecticut  next is section one forty five which deals with choice of law for tort claims in general and there the restatement set forth four factors that are important to determine the choice of law and the first and most important is the place where the injury occurred and that unquestionably is in connecticut that's where a pm yes has it's only facilities and manufactured these  the comment that there was some injury in california as well mr mao didn't explain in their briefs they they put out a theory that because a pm yes may have shareholders in california that that should be considered that's not the law there's no case that supports it it's contrary to basic rules of corporate law under the restatement of the comments it comment to the what do you do with these two big picture reactions it's really just looks like a run of the mill breach of contract case so it's it's hard when you look at this to see a whole lot of evidence here of misconduct beyond not following the terms of the contract and then the award of attorney's fees is so big in relation to the contractual damages that just your first reaction of the case is this just seems a little out of whack the this is soon as connecticut law applies yes so you're you're right about what you've been saying but what do you say about these points well we think there's a bundle of evidence of various types of violations of cut in this case and  e breach of contract or especially when there's a multiple breach of contract that's a violation of cut under connecticut law the unfair boasts all threats and demands for example both souls misleading and sort of secret terminations of the contract along with he referred to their belligerent conduct or secret terminations of contract it's kind of a funny concept in a terminable it will contract i mean you don't you have to telegraph what you're going to do in fact it's kind of foolish if you say we're going to terminate this in six months you may not get great product for the next six months or may not be timely done well kind of understand the incentive system of not telegraphing too far ahead that you think this through a ship isn't working out well the it wasn't merely that they didn't notify pm yes they misled yes they promised to pay for the flanges they received and they had no intention of doing so and they didn't do so they induced p m s to continue performing when both soul had already switched suppliers and this caused  e mail from somebody at your parent company so arguably he knew even earlier than i to over twenty eight saying hey it looks like they're going in different direction it there's a group of emails within pm yes and and with the related companies asking what happened why aren't we you know why isn't about how can you say you don't know if because there was no terminations there was silence and silence is not the same thing as terminating a contract they suspected something was going wrong because both sol stopped communicating with them but that's not the same as giving notice of terminations which the u c see clearly requires them to look at that email but it seems like there was more than just they've stopped communicating to us but actual knowledge that they were going in different direction so how would he have known that the facts are not quite that far all there was was silence and the e mails say you know it's only been a anyone been able to you know reach both sol they're not responding to us and the last e mail says you know it looks like you know they've gone dark and maybe maybe they're looking elsewhere but that's not the same as terminating a contract and they could have continued they certainly should have paid for the flanges they already received which they didn't do and it was expect all that stuff to breach of contract that's one breach of contract i'm just saying when they say they're going to do something they don't do it or the contract requires them to do something that's what that's what you get out of a contract claim but am i wrong in thinking could require something worse it's not it's not a contract law enforcement act undercut for example there are many different ways to violate cup a breach of contract may also constitute a violation of cut if there are various fees and entitle us to attorney's fees if there are like aggravating circumstances so it's not just not paying it's we will pay we want you to keep filling the pipeline and that's what mr snyder was saying from belgium and p m s believed him and they went out and bought more equipment and they continued working on a a phony root cause analysis which was not going to do them any good and they spent a lot of time and effort based on these misrepresentations so there is a breach of contract not paying their misrepresentations we will pay you keep performing buy more and that's and that there are things that occurred after this october twenty eight purchased equipment work with that i think that was purchased before october twenty eighth earlier in our tobar and continue to participate in the root cause analysis and that that there is this act of deception threats and directs to to coerce pm yes to accelerate production to basically give up the sixteen weeks of lead time that the parties had agreed to in the contract these actions a cover so that that gets you to the you know they would crush us yes and bankrupt us right and so i'm just trying to see who's the i mr mouse statements about there being a lot of communications between p m s and g m is simply untrue there were there was almost zero communications between p m s and g m until the very end when g m showed up had some people attend the root cause analysis in connecticut by the way and but apart from that all these all the communications about you know you have to start producing now you have to accelerate production that's all from both sol g m had no role in that m s role it had a contract with bosal the center of the relationship between g m and bosal was probably in michigan but g m under the restatement it doesn't matter what g m nonparty to the contract and nonparty to the case doesn't matter where they're based all the sections of the restatement make no reference to non parties and third parties so now that i guess i'm not as concerned about conducting itself in a hard nose matter in the companies that all the time in contracts and business relationships so it's very common as we all know that you know parties can be aggressive and somewhat intimidating in demanding and maybe  reasonable seems that really the crux of your case is whether the conduct is you know is unfair conduct or deceptive yes and i judge you are unfounded it was and that's that is that a fact is that effect of finding your yes it under there is we've cited several cases the standard of review for a finding that actions were unfair deceptive is the clear error standard and there are possible legal issues although not in this case undercut put that could be done overall review but the question of whether certain conduct is unfair deceptive is judged by the clear error standard and many cases so respond to mr mows comments about the the muncie case which he said that shows that this court has held that the choice of law doesn't have to be the place of injury and and the muncie court did so hold on that's a six circuit decision and the reasons why are very important to be in muncie the court did not apply the law of the place of injury the the the crash occurred in ohio the court apply the law of indiana it's first important to note that in that case indiana was chosen because that's the place where the tank was manufactured in indiana and months he took delivery of the tanks in indiana and in this case the flanges were manufactured in connecticut and both all took delivery of them in connecticut they may have been shipped them you know to who knows where and g m a have shipped them somewhere else than the may have ended up in alaska but for purposes of this contract they were manufactured and delivered in connecticut as judge who hari correctly held obviously an issue  case that's a contribution action it followed the injured person's action there was a first that sion in ohio state court governed by ohio law and the court in muncie said that ohio had an interest to compensate the driver but that interest was satisfied in the prior lawsuit by the driver mr bowling and so in the months he case was a contribution action between the two manufacturers and so the court didn't the court said because the interest the important state interest in compensating the injured person was already satisfied we're not going to focus on that muncie is an exceptional case in this case by contrast the injured party pm e s has not been compensated and under the pilgrim case and many other cases the state with the most important interest under section six of the restatement of conflicts is the state where the injured party resides that state has an interest in compensating parties injured within their boundaries and in this case that's what happened to was injured in connecticut connecticut has the most important interest in compensating pm yes and therefore for that additional reason under section one forty five one forty eight and six of the restatement they all point to connecticut and under connecticut law under cuppa there are multiple violations of cut and in my last half minute i'll just say that while the amounts of attorney's fees in this case were very substantial that was not the fault of pm yes bosal was very aggressive it asserted a whole host of claims and arguments in the case that p m s had to address it argued all sorts of things about what the contract was that were the court found were untrue and and p m s was forced to make motions to compel discovery had represented that it to produce documents that it didn't produce the court didn't find that out until the time of trial and imposed sanctions at that time but it was a very active case and we think under those circumstances the fee amount was quite in notifying p m e s and the e mail it is clear review it is clear air just like in boulevard boulevard a second circuit decision that was a bench trial there has to actually be something in the record that supports this determination and the record reflects unequivocally that both that p m e s knew the email that's reference well that's worth reading at from david plum oh as appendix thirty seven craig now that i'm back and i had this as an item to review with you looks like they went back they also looks like bozo went back to an earlier design which has a stamped flange different planet not the powder flange but a stamp flange and then went deep in silence so they knew no later than october twenty eighth that the agreement was over they knew it was over because they weren't receiving releases so i'm i agree that judge opinion on this and he didn't know what the case was going to be appealed but this is a pretty brief it's it's hard to know exactly what he's getting at but it's clear a review and what i'm wondering if what he's getting at is deception is covered by the connecticut law and why can't one say there was some deception going on here in terms of what your client was doing and saying and does say it will it does say it here here's our question that the connecticut law doesn't apply doesn't say that no but it does say though that a breach of contract case does not arise to a level of cuppa absent substantial substantial aggravating circumstances substantial deception and we don't see it there is no where here that there's substantial deception because it has to be from what the bowls will do when it's a terminable at will contract turning his back and leaving is not supplants of the perception that could have been deceived that could not have been the seed when they knew in october it was over with p m e ss c e o testified at trial that he knew it was over did they invest in this new machine they invested in before and there was nothing that that poll said that induced them to do it also issued releases i root cause investigation was being conducted to try to figure out why are these flanges cracked which was led as the record reflects by g m that they anywhere in there if failing to give notice so the crushing comment that would be this is what business people do very crushing comment we're going to crush is that just a it's like the equivalent puffery you know when you're in sharp negotiation  sides say this kind of stuff all the time and when we look where that ended that's exactly right and you look where it ended it's the idea that hey we cannot shut down g m production everybody agrees to that i mean you know heav will fall and if we shut down g m s production we can't do that and so what happened we worked with us to be able to meet the production they asked ok can you expedite the raw materials to us quickly done can you pay to set up a press dot can you buy some new tool done they reached an agreement on the ramp up production there was discussion holy cow we got to meet g m s requirements and if we don't you know it's the creaks going to iraq is not great so they work through deal reached it that cannot give rise that reaching an agreement cannot give rise to a couple violation and there is no deception here the idea of terminating an agreement without notice calling that deception if we call that the section then every u c c violation where there is a breach without notice is a deception and that's inconsistent with cup up us says we would not we cannot have a contract claims masquerade as claims otherwise the burdens and risks and herenton contract formation would be intolerably increased and that's what this case reflects thank you your hon