salutations of computer hacking are currently being litigated and where they are going to be tried commencing in january twenty third we read your brief as a green k is waving at sovereign immunity against a counter claim for damages in the english option yes i know that is correct right or yes if your wait so there and there will be no assertion of sovereign immunity that is correct your honor and that necessarily flows from the part claim that's what was very much debated whether you could have submitted to that to retain your sovereign immunity against counter claims and so that's why i was trying to be very specific that you were green that you would have no sovereign immunity claim against a counter claim the case should be brought in england we submitted the form selection clause with foreign support claims based on alleged computer hacking and we submit that there are three reasons that the case does not meet the commercial activities exception first there is no commercial activity by the foreign sovereign second there  and it develops the economy within the sovereign territory of iraq so that would be a sovereign activity but yes it does engage in multiple commercial activities the key question for the foreign sovereign immunity factor is whether the claim is connected to that activity to start with first principles the commercial activity exception is the codification of the restrictive theory of sovereign immunity which allows a sovereign to be sued in the united states for its pri vate or its commercial acts and there are three prongs and the first prong has been before the supreme court a couple of times the court has held that the connection between the claims and the commercial activity must be very strong the connection is that the claim of commercial activity rather must be the gravel men of the claim and equally strong bonds exist between and the commercial activity in every court of appeals that has looked at this has said there must be a substantive a causal or a material connection between  and the commercial activity and no such connection has been forged here do you agree with those thorny was engaged in some commercial dispute is on the only commercial activity that the amended complaint asserts is connected to the alleged hacking and that is the assistance that mr is enough provided in negotiating activities in which they were engaged and for which they had he was undertaking to give it already allegedly more control it's missed those activities to be sure  understanding the different district court questioning as well is that it didn't show it wasn't made to require if there is one point that i believe mr is the man makes which he says was with me today if i make meeting i suppose we wanted to be circumspect and he didn't mention mr girard by name this address name does appear in an earlier declaration that's part of the record the father be declaration which identifies mr father b and mr gerard as being the two parties are under he said he wanted to serve as an honest broker that's undisputed mr i don't want to talk about what he was doing for the other party you don't get to speak to that so he was providing negotiation assistance to the authority in conjunction with  serve as a commercial mediator it's undisputed he did not ask for money he did not receive money he has sued in the united states he has not asked for money here for mediation services he's in litigation with  contradiction in the district court's analysis if we take mr is even as allegations on their face that his negotiation assistance was a commercial activity and that the happening was connected to that commercial activity then this case necessarily falls within the form selection of clause that the parties agreed to because as your honor just pointed out the negotiation assistance is mentioned in the settlement agreement and therefore the negotiation assistance is one of the subject matters of the settlement agreement or three receipts in connection with the formation absolutely your honor absolutely the hacking was connected to the negotiation assistance or by saying that it was connected to the negotiation of the settlement agreement itself he has pleaded himself into the form selection was because those subject matters relate to the formation of the settlement agreement and that subject matter and are therefore covered by the clause in addition he has alleged a claim of  unfair competition asserting that he was disparage by having his data placed on the internet and there's a non disparagement provision of mutual non disparagement provision in the settlement agreement and any within that within that cause if i can address the direct effect for a moment  sovereign immunity exception and he did not say where his laptop was at the time of any of the alleged attacks that was his second bite at the apple we then submitted our motion to dismiss a pointing out he had not alleged where his love any of the alleged hacks and he did not provide any kind of response all we have is that his laptop if you want us base record shows that he was in the united states during some time period because part of the guarantee of a foreign sovereign immunity set is that the foreign sovereign is protected not just from liability but also from becoming embroiled in u s litigation unnecessarily and what the district court was doing because this fact is within mr izzy was control let there be no doubt about this he submitted the declaration of an expert who had twenty three years of it is with the was in the united states on october fourteenth twenty fifteen and he didn't do that and he had read opportunities to do that and he didn't provide a single one where your time is up could you just give me an update on the been scheduled for trial in january of twenty twenty at the moment the parties are engaged in active discovery documents will be disclosed on march twenty one witness statements will be exchanged and may expert  this point it's going to be resolved during the trial but there's there's also something called abuse of process which i don't completely understand but that's not just directed to the documents but it's intended to strike out the entire claim i believe where the complaint doesn't work here and paragraph sixty four when it says that hacking was intended to interfere with commercial activities girl and lists those martial activities both the mediation and his role in the amongst other things the joint venture with the settlement resolved and the mediation and that the actions of this hacking were intended to cause inflict harm and damage because of related to and in connection with volcom martial activities plural that were just listed elsewhere or more specifically on the hacking to the mediation so i think some of these other commercial relationships are sort of reference to put in contact that the  overall relationship with rocky and this was even intended to be commercial in nature but this lawsuit arises out of that particular interaction which was the mediation and the mediation is only of reference sort of by way of a backgrounder sidling the settlement agreement and it could and if one were to interpret the settlement agreements to include the hacking claim to to determine from the settlement agreement that the parties when they signed on to negotiate this intended to joint venture or to the negotiation role that he had why wouldn't either as long as the charges the complaint is about a dispute as about the role of the point under the complaint what was the that the hacking started before the start before the mediation the hacking started in september twenty fifth teen a few months after the debate it was hard to pin down the whether or not presently kno covers the subject matter of the settlement agreement that's a joint venture and not the mediation but if that's for rocky i believe we have an ambiguity which would require him and which means into the form sort of an immunity issue in terms of the commercial aspect of it whether that actually was commercial in nature there was a factual attack on that question and the district court with the evidence that yes just to focus on direct effect for a moment this court's precedents are quite clear that the effect must be both direct and immediate so if a computer is damaged when it's in paris or london and then it's brought back to missouri that's not a direct effect because the damage happened when it was in paris or london there is no desktop computer in the records the complaint says it was a laptop mr as he had an opportunity to this case and the case in england and he's now asserting the very same factual allegations in england where you have just record he wasn't a mediator he didn't have anything to do with you he was working for the other side even when the settlement agreements have the opposite so it seems like everybody's been trying to have their cake and eat it too the court did not find that there was any inconsistency he was providing negotiation assistance and mr buchanan is declaration acknowledges that he was providing negotiation assistance to the authority  your view is just records are bound to accept it when a foreign sovereign having told the district court that it's a facial challenge and it's reply says now i tried to make a factual challenge even though it's too late for the other side to compose believe that the district court really should not have asked us to make that  we argued in our moving papers that the that there was no collateral damage threat yes that was in our motion papers if i could turn for a second back to the the other allegations