access charges for traffic to free conferencing and is also in dispute that these charges were a legal question not have had to have paid any of them yet the district court held that free conference he could retain those charges because he provided services to others not to qwest but to its own customers under south dakota law and has recognized the last time this case was before this court what free conferencing did for its own customers is irrelevant it paid nothing to qwest and therefore when it kept the benefit quest gave to it it was unjustly enriched and we asked the court to reverse and a man with instructions to enter judgment inquests favor now the district court's error was in ruling that free conferencing in effect paid for the benefit that it received by providing conferencing services again to its own customers and under south dakota law what matters is that you pay the in paying for the benefit you must pay of course the benefactor or the person who confers the benefit upon you and free conferencing didn't pay quest for the benefit that it received it paid it provided those services to his own customers for free now the suggestion that quest somehow benefited from these services is unsupported on both the and on the law most importantly because quest was not required to pay for any of those services irrespective of what it received what it received it had a right to receive in what it paid in the form of switched access services it had a right to refuse to pay and to withhold payment judge murphy's analysis on this point is exactly correct your honor she was the only judge in the prior panel to address the question of free conferencing services and rightly recognized and quoting from her opinion free conferencing whether free conferencing provided its own customers teleconferencing services is irrelevant and that was true even if some of its customers were also qwest customers because quoting com was not entitle to bill quest for any of the calls going to free conferencing qwest never received any benefit from free conferencing as actions which in fact cost it millions of dollars so the idea that question somehow benefited from these services again it's not supported on the facts and it's not supported on the law what qwest received if anything it had a right to receive and it had a right to refuse payments on the switched access charges which did not comply with the avoid do we do we have to does there have to be a conclusion that qwest somehow benefited from from this in order to reach the benefit received it earned the services spent but to say you earned the services is different than saying who did you earn it from or who who benefited from those services so if you did quest to get anything out of this you out of the illegal scheme or improper proper scheme certainly the argument raised by free conferencing and adopted by the lower court was that free competition provide services to its own customers some of whom were also or may have been qwest those additional services like twenty four hours service calls and some of the other things that made free conferencing service more quality service was also benefiting some of quests customers that was the argument raised below your honor is the record support that the record will show again at most it would have been a marginal benefit that would have been vastly outweighed by the charges that qwest paid in any event there is some of that there would have been perhaps a marginal benefit that flowed to quest customers and the argument again that that somehow indirectly benefited qwest not only not only would it have been vastly outweighed by the charges that qwest paid but as a matter of law and as judge murphy recognize whatever quest whatever questions customers received is irrelevant here because qwest had a right to refuse to pay any of the charges a issue if they don't have to pay for any of them how much of your argument relies on the fact west had a competing conferencing service that it wanted to provide its customers i think with the genesis or whatever that the the competing services that inter the analysis or enter into qwest argument if so how the genesis issue is that it's really irrelevant genesis was used as a way to gauge the value of the services provided by free conferencing but again the important point is that those services were provided to others not to quest whether or not qwest received any benefit from this and again the record is that the benefit would have been marginal at best is irrelevant because as judged by if you recognize qwest was in title not to pay for any of those charges it was intitled to keep anything that received however marginal would have been and who have refused to issue payment at all and this is an important point of the south dakota law which considers as unjust enrichment the difference between what ought to have been receive receiving two hundred ten dollars per month the difference between what should have been received and what actually was received was a measure of unjust enrichment here quest had a right to refuse to pay any of the switched access charges that free concerts and ultimately recei there for free conferencing had no right to receive those charges and it's retention of those charges is unjust enrichment and rightly so why do you society one thing that you leave out here in your answer you just g opinions with respect to this relationship which is small and a good bit of litigation and previous peals to our court you know i've i have highlighted the whether it's in equitable to allow free conferencing to retain the benefits that he had accrued here what about the services that free conferenc supply isn't it true that in this arrangement free conferencing in order to make this this operation this this three sided operation work that it had to provide services including customer support access to its website conference call services there was the twenty four hour customers supporters asserted so what's it what's is not relevant because qwest was entitled to keep the charges that were assessed now i hear your honest question and the question of his well three common scene provided these services they labor they worked why aren't they entitled to something larson there were some twenty five to fifty semi truck loads of rock that had to be faded away and the court in determining whether or not painting was unjustly enriched and in what amount correctly acknowledged that the value of the benefit unjustly received rather than the value of the service provided is the correct measure of unjust enrichment in other words what matters is that the rock be longed to johnson whatever effort penny engaged into  hallway what by right belonged to johnson is immaterial the fact of the matter is it was johnson's rock and well but that but here's the thing and this gets back to the first of judge shepherd's two questions this is not a three way deal this is actually a four way deal because you have qwest you have san com and you have free coppered saying and then you have free conferencing users free conferencing in users also got a benefit here they got arguably they were unjustly and rich because that's why i asked you the genesis question because for genesis they would have had to pay potentially for conferencing or maybe from another conferencing service and here they got free conferencing so why can't under an unjust enrichment theory why doesn't it go all the way to the end user's not just free conferencing now there is actually to another point with the genesis issue that out that matters here and the fact is with the cost of genesis genesis compliant with tariff calls they the charges in those cases were legitimate which is one of the reasons for e commerce it was able to offer its services period less it wasn't paying the tariff charges it wasn't paying for its expenses but another point as you say whether you consider this a three wheel way deal a four way deal quest participation in this field was involuntary and nonconsensual it wanted nothing to do with this and as soon as it discovered the facts kept confidential by free comes in and sat com showing that these charges were in fact illegitimate it refused to pay any want to bring that many claims the fact of the matter is however free conferencing received a benefit from qwest that charge belongs to question should never have been paid and we want to back i agree with you but i guess my question is why isn't there some problem with your theory when it would allow you to go after the end users to me just as as sort of a conceptual matter it troubles me that under your unjust enrichment theory theoretically you could go against the end users which makes it very attenuated and so i wonder whether the lack of me please the court counsel thank you your honors to build on the justices last point the theory that if we were to apply it just to return here would permit a theory of  enrichment against the regulatory consultants to help put together the deal as well and i think that's an important issue to remember i just want to mention that because of your last question no it is the one contrary point is i think that one thing you have here and i was going to ask you about this is that free conferencing had knowledge of of the benefit and knowledge of the of the deal i don't know the end users did i think that taken to its logical extension the end users they if they had knowledge you could go after them but i'm not sure many of them did that maybe right your honor but certainly vantage point the consultant that put together the deal and mr rowe head who also worked for sam com who put together the deal had knowledge and involvement in putting together that deal so i think that could be it extension of the end just enrichment claim could be certainly to those individuals but to to get back to what i think the increase should be today for this court is did the district court abused its discretion when it found that it would not be unjust to permit free conferencing to keep the marketing fees paid to it under its contract qu has made no showing of an abuse of discretion now the district court examined the issue of quest's unjust enrichment claim three times in the lower court proceeding after sixty bench trial after a motion to vacate the judgment and upon by this court and each time the court found that the benefit was not unjust because when a recipient of a benefit reciprocate with consideration the enrichment was not unjust so far the discussion here this morning has been on looking out what quest but the inquiry comes from the other side would it be on just for free conferenc ing to retain that benefit and the court found that because of the services provided which the court mentioned it provided the connection of the conference calls on the bridges the network monitoring record access twenty four hour customer service all of the services that are outlined in the brief and supported by the records these were valuable services that were provided to san c how many they've talked about just a marginal sort of benefit that qwest would receive based on what free concert conferencing had agreed to do with sam com do you agree with that assessment well no your honor i don't because there talked about the benefit so the from what i understood the answer to be from council quest in quest opinion would really receive a minimal monetary benefit is what they were saying because of the amount that was paid to say income to connect the calls versus the amount qwest received from its customers in placing the cost but here we have to remember that every call that was placed was placed by a qwest customer seeking to connect a call that the call was connected to a conferencing bridge and so on come receive the services that had bargained for as did qwest and but i think the important point also is  that the court looked at the rate that was paid so three conferencing provided services and we've gone over what those services are the court then looked at was it unjust amount that was received by free conferencing it looked to the genesis contract as a marketplace value right what's the value of that service is it should have received quests other company genesys between two and four cents a minute for far less services just providing a conferencing bridge so the genesis contract as well as evidence in the record about an eighteen t commercial agreement and horizon commercial agreement those are touchstones to say the services that were rendered were fairly paid for out of at a fair rate no mark let me let me simplify this look this is an incredibly complicated transaction we had a drop going on here and who was who was involved but let's simplify it and what i'm worried about is that the not not kosher but let's suppose we have a bank robber and the bank robber pays for the gun so there is that there's a benefit that's received and the bank looks and uses it use the bank's proceeds to to get the gun and the bank comes back and says i want the money back this is what you were unjustly enrich because you sold the gun that's very different then the bank robber going on buying groceries and trying to disrupt discords the grocery store and so what i'm concerned about is that the district court's reasoning is so broad because there was a there's there's a service here that would allow the bank not to be able to discords the person who sold the gun that led to more bank robberies and so i'm trying to figure out how we can cabin what the district court did here so that just providing services doesn't lead to an unjust you know lead to being insulated from an unjust enrichment theory thank you for the question i actually think in your scenario your honor the bank or the bank robber here is more like sand com this is not a interaction we have sand come sitting in the middle and stand com under the so the concern you're asking about your honor is if if the gun man you are the gun seller was unjustly enriched because of in your scenario i think your honor the gun owner did not provide it to the bank robber a service here they provided the gun well and so that's i mean that's i'm trying to support maybe i'm making it more complicated i made it here and here i think that this i'm sorry to interrupt your honor i think the best way to look at the the relationships is using the parker case and i diagrammed this out as well so in the parker case we have the insurance company it had or it had a contract with an individual named park named parker and parker would get money from the insurance agency commissions and then parker tell i'm sure that was a contract that contract was breached because the insurance agency then sold its company to the purchase the free conferencing would be the purchaser right insurance agency in san com parker is qwest purchasers free conferencing now the purchaser money to that insurance agency but that transaction in effect may be in the insurance company breach its contract with parker and in that scenario the court found there was no unjust enrichment because the purchaser here free conferencing provided consideration to that insurance agency and so even though there was a breach between the insurance agency and parker there was no unjust enrichment because there was consideration on the other side of the transaction when i guess i guess to not to help you but when one of the things that i guess your answer reveals to me is there's a little difference here between the bank robber scenario because here you have end users who had no idea about it you were providing a service and yet a fourth party which is not in my hypothetical that makes that a little difference in the bank robber scenario think you and i would agree with that there were there are a variety of services and work that was being conducted by free conferencing to a number of parties and we have to separate that transaction out from the illegality or or regulatory in compliance that was conducted by stan common quack we have to consider that that secondary relationship between san com and free conferencing the consideration that was provided in that transaction makes it not inequitable for free conferencing to maintain the benefit  the benefit came from quest right the quest stone the benefit right the first two steps of the an unjust enrichment analysis are not issue i believe that is what the district court had found it in found that the first two elements were satisfied it does seem like in the discussion of where the money is coming from who benefits who quote unquote earned it in services are leaving out sand calm and i'm just going with  that's part of why this is really kind of hard to talk about because of the disconnect between qwest and f c so we're talking as if we're with a load of rock kind of case but i'm still struggling with any even if s c put provided these services that are that we've discussed here and i understand it's what was unjustly received but still you've got some party out there that presumably received some kind of recipient benefit from it and it's we're talking about qwest that's why i've been sort of trying to get at what a quest to get out of this quest that is calls connected customers were able to connect to the conference calls they were trying to read much less than had to pay stand to get those connected that would be correct and under what the f c c found the manner in which those charges were assessed by sam com are found to be improper but that does not mean that the services that free conferencing provided were not compensable were not improperly provided that the benefit would not be unjust because there was no finding of illegality or wrongdoing by free conferencing from the regulatory standpoint or any standpoint really in this case yes it does it does so so the district court said this court remained to the district court because it said the district court improperly looked at free conference things intent and the court needed a remained to ensure that the factors were improperly weigh putting all but putting all of those issues aside the district court found in reviewing all of the evidence that there was sufficient evidence of a benefit that was not an equitably received where the only party throughout the history been made by any court that free conferencing did anything illegal or that it violated any contractual agreement that's correct your honor and moreover it performs under its contractual wrongdoing was by a regulated entity that has not that is a carrier under the act and has a regulatory obligation to charge other carriers in a certain way and there was no finding  anything of free conference things wrongdoing in that respect it's very simple why go back to this matter of equity this is an equitable equitable remedy and it seems to me that quest has its legal remedies against contract it has provided services that are that it would be determined to be an equitable that that their status would status would be disturbed that that's that's precisely the point your honor there was services provided it would be an equitable it is not an equitable for free conferencing to maintain what it was paid there was no finding of wrongdoing on by the f c c or by the district court and as affirmed by this court on any of the other counts and so if the court has no further questions i'll ask it to affirm the judgment of the lower court thank you very much counsel i want to follow up where judge sheppard left which is equity discretionary it's abuse of discretion it's not it's not a legal remedy and so we have to accord the district court a whole lot of room here and so does that make this case different i mean it's just we really have to give them a lot of leeway it isn't different your honor and it's no different than it was last time the court remanded to the lower court because it considered an irrelevant factor and what judge murphy identified as in and users of the customers conferred a benefit on san common free conferencing in the form of the switched access charges that sank on split with free cards and that's where the money flow stops it doesn't go beyond those parties those are the ones to receive the charges the second point i governed by the by the federal tariff the answer is no it did not because it did not receive switched access service they did not receive the benefit of its bargain is entitled to pay zero for me as a result but the other question i w seem breached any legal agreement breached the contract neither did penny the defendant in johnson breach any contract it had no contract with johnson if there were a contract johnson could have brought a breach of contract claim instead it brought an unjust enrichment claim because penny whether intending to or not took property that belongs to johnson and retained it so to has free common seeing retained a benefit that quest paid to it and we're asking for it to be returned thank you thank you