or confidentiality provisions of the contract which are in that exhibit one i think there is there any legitimate claim under there that you would argue this not need to be arbitrated or are you what i'm trying to figure out is are you confidential information overheard michael jackson talking something that would be disparaging and then today told somebody or publicized it would that violate they where you don't think the confidentiality clause and no start by and i think this is some of the questions said it was going to which is and we just saw it h b o is absolutely not arguing that the arbitration clause itself as expired it's arbitration clause and just had a form selection clause for the state and federal courts of los angeles county h b o s argument one be that the form selection clause is invalid or that the form selection clause violates public policy because it creates a quote perpetual forum for a court to resolve these issues no h b o would be arguing what they're arguing which is that on a twelve b six or a motion for summary judgment that the non disparagement clause has somehow expired even though there's no language to that effect or it would be arguing that the scope is much more narrow and it's very broad language says and all we are asking for the only relief we are asking for is that h b o simply litigate these issues which mister mister petrocelli are extremely confident in in the forum that the parties chose that forum is one that the sophisticated parties bargained for and that is before a retired judge of the superior court and as the supreme court unanimously said in and re shine you know arbitrators are fully capable of dealing with frivolous cases we don't believe this case is frivolous they apparently do but i can tell you from personal experience not directed at me i see an arbitrator sanctioned parties for bringing frivolous cases they're generally and have to be in this case a retired judge judges when they leave their courtrooms and retirement come arbitrators they don't lose theirs their stripes so to speak you know that they continue to be tough on parties who bring base lisc way now on this perpetuity issue i i i this is an issue for the arbitrator absolutely but i do want to just make a few remarks school ok and h b o is simply wrong that we don't have a comparable case with the same amount of time on a comparable case but amounts of time we have longer ones i'm to give you an example we cited the nd circuit's case in continental insurance in that case there was an arbitration clause from one thousand nine hundred and seventy five the party stop dealing with each other in the eighty's yet in two thousand and two and despite there being some intervening agreements in the eighty's the nd circuit compels arbitration under that very old seventy one dollars i forget the name of the case but we specifically called it out because we were responding to this it's just tool d which is not a president but i mean let me ask you a question though i'm in the example that we have in this particular case where the connection directly answer your question no you should not say that this is ridiculous but but but more and more specifically no there does not need to be a connection and let me again just give me just one minute on non disparaging clauses look we generally see non disparagement clauses at least as a litigator has to have a relationship to the settlement agreement or to the breakup of the partnership i mean that's absurd that would mean that one former partner could not say that his former partner was a bad business person or didn't know how to make widgets or whatever they were doing but he could call that person a nazi he could call that person you know puppy killer and all these sorts of disparaging things i mean i can't imagine telling my client that we have to list out every single thing you're not allowed to disparage someone be about and let me explain why because we all as human beings know that we can be disparaged for reasons that we just can't even imagine there might be a kernel of truth in the disparagement but it's been twisted out you know people who you know crazy people who say that you know me and my are you know enablers of child molesters because we represent michael jackson i mean that has absolutely no truth and i would have never thought to put that in a non disparagement clause if i ever signed one with anyone but the fact the matter is they are never limited in the subject matter and by the way we all know there's thousands if not tens of thousands of non disparagement clauses in this great state of california and where is the other sites like ation to a single one a single case that limits it to the subject matter  of the agreement and there isn't one and with michael jackson specifically i mean this is in our complaint so what so the court can certainly look at it but you know michael jackson in one thousand nine hundred and two although the allegations of child molestation have never been  and the subject of some extremely ridiculous tabloid reporting so it's not strange that he would want that in an agreement and and frankly this was the price he wanted for this concert as judge just judge van dyke said this was a very sweet opportunity for h b o this was a once in a lifetime opportunity this was michael jackson at this time as for the allegations was without question the biggest star the world had known to that and you know i'm biased obviously but of course they wanted this concert the st televised concert in history it was the biggest thing they ever did and the fact the matter is h b o has remotely talent good lawyers we're seeing them today and the disparagement clause absolutely one thousand percent confidentiality provisions are a material part of the agreement i mean if you read them they say these are immaterial d inducement to the licensee in the performer to enter in the agreement this was part of the price that michael jackson asked for an to the best evidence that that was part of the price is the fact that they're part of the agreement i mean the confidentiality of information is two lines up from the arbitration clause two lines up it says it is understood that h from in synchro there's a very real dispute on expiration but on lytton and i think mister bush has just made a mistake in that case the supreme court very clearly in the last footnote justice kennedy's majority opinion says that they may be able to go back and state a claim for unfair labor practices under the national labor relations act and before the n l r b it's just that it's not an arbitrary issue under the sea so the whole point what h b o has said throughout this entire thing is issues about the length of time about the scope about the st amendment issues these are all things arbitrators are fully competent the rule upon and really what i think my friends arguments on the other side is that well we just don't trust arbitrators to rule on this that interpretation on the federal courts and that wasn't been you know agreements like this that were negotiated for millions of dollars between very highly sophisticated parties who are consumers that sign these contracts you know that that are a reply brief that was also a contract formation issue contract formation issues are always i'm for the court we know that from from all the cases we decided but also this court's decision by judge paul in sanford versus member works which is from two thousand and seven and cited in our in our brief and but issues as to expiration terminations etc unless it is directed specifically at the arbitration clause as it is for the arbitrator and the one case i would i would commend your honour's too although it's not from the circuit is the d c circuits case and i think it was called national and national railroad passenger corporation where they say that look as to question questions of lank the parties have it completely within their power to put a time date minute at which they expire but if they don't put it in there we have to exercise our office of interpretation say there's an ambiguity and once there's an ambiguity it's arbitrary and again all we are asking for in this case is that the arguments that mister boutros is raising that that some of you might be sympathetic to just be resolved in the forum the parties chose just as if there were a form selection clause for the central district of california it would have been it would have been resolved there i have one further point but i wanted to see if there were any other questions that a practical question w was are the arbitration proceedings underway no they're not they were stayed pending appeal by judge ok ok that and just the one final point i wanted to make it just because i i was i was shocked to see  did touch on it in our twenty eight a letter but i just want to say it again we never the idea that we waive the argument that contract expiration is for the arbitrator is just flat wrong we cited it we made this argument in detail in every single brief we even cited make any citations were in our twenty eight jail letters so i won't give them to you there but single brief including in state court and with that unless your honour's of other opinions i we have an obligation to the page to a way to hone in on this literally exact same argument in footnote for the court said we are deciding whether there is a right under this contract a substantive right and we're finding if there's not any issues not a court has found that a thirty year old contract on a completely different subject creates a perpetual right to arbitrate in this context that is unprecedented it's not that we don't trust arbitrators