so i of course want to address any issues that your honour's may have spotted in the briefing and for my part i want to cover two things st i want to show how the district court's exclusion of the prior arbitration award between these parties and then  exclusion of three d system c e o s statements about the contemplated value of the transaction were evidentiary errors and then of course if we satisfy you that those are evidentiary areas then the burden w dollars d systems to prove that those errors were harmless and nd if there's time i want to address the far easier question in this case which is whether it's permissible for a federal court equity to award monetary liability against a party on a common law claim where there is no dispute at the fun's that a court order is discouraged have already been dissipated and are no same standard that applies in criminal cases if you find it evidentially error that's material to the case in the language of o b v johnson we must reverse unless it is more probable than not that the error did not materially affect the result but which one are you going to start with the arbitrator's or you know i think actually the more important one probably to the jury's verdict are the c e o s statement ok so as to that my question to you is i read the record as indicating that i guess it was you only argued that that testimony was relevant to the issue of damages and of course that's irrelevant now given that were how the jury came out so is there a place in the record where you told the judge that hey this testimony is critical to our case on liability because i did not find well so i would say two things st of all we made that argument in response to three d systems motion in limine a number for where that any reference to it comes out the record is either five or six million dollars should be excluded as a measure of damages and so that's the argument that we were making at the time and to answer your honor question no during the trial we did not receive what the district court had previously found in the summary judgment order that those statements by the c e o would make it more likely that there had been a commitment to invest resources but i think the procedurally the issue is to ask st whether or not that was an evidentiary error at all the evidentiary error being to exclude that reference as a measure damages within the contemplation of the parties at the time because of course when you're making that argument we don't yet have the jury's verdict and so we can't you know i suppose rhetorically we could argue to the district court that well this well this might be important to the jury's findings as to whether or not there was a commitment to invest resources but that's not actually and admissibility argument well if the judge was thinking was basically allowed to testify i can't remember the specifics because of a little while but he got in some version of the story and what you're arguing to us now is that no no what was critical is that the jury hear that you know it was the other guy who was basically saying here's how we're going to get to that number that's what makes it more likely that the promise was made and i completely agree that that is that certainly would be relevant to that issue but i said when i read the record it looked like all you were telling the judge is that we need this evidence admitted as to damages and i think the judge kind of sensibly in my view said both know that that's not really that important to damages because your guy is going to be able to say x y and z and that's really what's most important for the jury here on that issue if the judge was never alerted that but there's this other reason we really need to get this evidence in your honor then i guess i'm sort of hesitant to say that the judge abused her discretion by not but by keeping it out when you didn't alert her to this much more important aspect of the case that it was  perhaps have already said it but that i think is the is the rationale but we're looking for whether or not there is a precise evidentiary error it is that the mount of the value of the transaction that was within the contemplation of the parties and i think it seems like your honor has already perceived this but the it's a very different thing for a plaintiff to come up and say i value the transaction at five million dollars even though he wasn't allowed to use the words five million dollars  because it's self serving i mean from the jury's perspective he comes up and says i thought you did two million dollars or i valued this at twenty million dollars what's the jury going to do with that as far as thinking about well is this really considered a valuable transaction that w necessitate the investment of resources if you haven't of course we cited the th circuit case and the on of the national railroad for you know point that is intuitive everyone would know but credibility based on attribution to the other party is far more persuasive than mr bronco getting up and saying yeah it was worth five million dollars and so i i think that that again it comes down to precisely what the evidentiary areas in my mind as opposed to the rationale i would further say that i hesitate slightly to make excuses we were not counsel at the time of the summary judgment we came in only i think it was maybe three months before  trial i certainly wish that i had at the time reminded the district court of what itself had recognized that the rationale of course is impeccable that that testimony from the to have less to do with damages than the perception of whether there really was an agreement how this was going to build up and the like we still like it whether this is and in the harmless or her right that's right that's really what we're stuck with is the end of the dame didn't come in we get your point as to why you think it should come on but if we think it's harmless it's harmless that's right if three d system satisfies you that it's harmless right party game harmless i would say that we have of course the verdict form in the record at the e r seventy two and we see that the jury stopped on the question of whether three d systems had made a commitment to invest substantial resources and so that was really that crux of the of the claim of the outcome of the case and based on the district court's rationale which as i say no one can really dispute that is a very important part of a jury  it's a non it's not an integrated contract and so the parties were free to present to the jury well here's what was supposed to be and here's what we had intended and so i think when when the outcome of the case turns on precisely that question i think it is harmful look i would ask you one thing it is it's not what you talked about but it's related to the jury argument of if if the district court did not have the right to provide an equitable accounting would you have a right to have the jury determine what the appropriate damages were to determine liability but will this be something we go back to the jury or would this be something that the judge would decide as a matter of law non competition portion of my contract where you don't want to go to another company well that's for equity really does play a role and that's why it's almost always said you know the parties agree that damages are inadequate and therefore have your nd will jurisdiction but if you have a debt collection action just plain debt collection and the party said you know we hereby convert equitable jurisdiction of the court to do an equitable accounting a very simple accounting here very simple a child could do it and yet the judge and end up making an equitable accounting that was completely improper we cited at the time the dairy queen case to say that an equitable damages at that point that the core is just freewheeling and adding up and slicing and dicing fifty percent of this ninety percent of that ninety percent of that and ordering it reinstated now i would i don't know if there is interest the prior arbitration award between the parties but i suppose it was well well spelled out in our briefs these two parties had entered simultaneous simultaneously negotiations negotiated transactions for three to acquire these two different businesses that mr bronco was running they were that the country actual terms were slightly different but they were all on the background of these their fledgling companies they will need an investment of substantial resources to flourish and of course we showed you in the record it's page seven of our opening brief the various statements that three d system c f o had made and supported that and so i just to for clarification what you wanted to get in  was not merely the underlying conduct that the defendant gauged in with that with respect to the other transaction but you wanted the jury to learn that an arbitrator had made factual findings in your client's favor correct that just breaks me  judgment i would like to talk directly to you because it seems to me that you are concerned about the exercise of equity in this case and i would like to describe this case to you in the way that we see it  to that in this case the parties mr bronco filed a complaint seeking both damages at law and equity recognizing the inherent power of the court to award equity in addition to that this case was venue in hawaii and the court was applying the substantive law of hallway in addition to all of that the contract itself provided that there would be this equitable remedy and i'm just going to jump ahead and tell you i agree with you that the parties cannot contract to have jurisdiction through a contract i agree with that when i do not agree with however is that the rights that a party that parties has agreed to in a contract have no bearing on what the court does when it finds a breach when a jury determines there's been a bridge by contract it was agreed that in that event there would be a specific performance and an equitable county and civic performance it was it was phrased in the context if you read it it specific in performance including but not limited to equitable county so basically the paragraph six f the p s a talked about this particular form of remedy of relief in addition paragraph six she talked about we also maintain our right this is not our exclusive right we maintain a right to whatever remedies are available at law or in equity can i jump in there though because as i understand it you started out wanting this accounting which is an accounting generally of profits yes and here there were none that could be attributed to the wrong doing so you did get the judge to basically specifically perform the contract if you want to call it that  but then when it turned out were you realize that boy that's not going to yield us anything you shifted to an alternative sort of mode of recovery which was to get back some of the consideration you had paid that's and i understand that form of relief to have nothing to do with that pretty it's just a it's actually you know an alternative measure of damages of law and i guess what i'm troubled by is the fact that the judge then i think over the objection of your opponent did not agree to submit that issue to the jury it seemed to me that the th amendment required if if that if if the plaintiff your invoked a right to have a jury just determine how much of the consideration you were entitled to get back not to have the judge do it so can you help me sort through that set of issues yes st of all your honor from a temporal point of view the determination to go to the discourse meant theory sort of happened as a case was being submitted to the jury the jury was asked if there was a breach the jury was also as they were instructed on the elements of breach of contract they were instructed on the concept of nominal damages and they found  seek this alternative mode of recovery were you required to ask the jury to weigh in on how much of the consideration should be hers no your honor why not because the th circuit and almost every  stated that restitution is an equitable remedy and it basically says that the th amendment is not implicated when one is seeking equitable restitution remember that case very well that's not that's not on point for your purposes return of some of the just consideration paid but that has nothing to do with an equitable equitable relief it's just a different way of recovering the images of all that he said how i read the law maybe you're right maybe my colleagues will disagree with that but if if if that's true yeah i thought that you did not raise the the discordant theory until after the jury verdict came back and you're saying that you had actually put that in play beforehand yes if you look very carefully at the transcript of what happened which i have done in the last few days and see that in the argument that took place between mr pole and i about the issue of the i j m j m a well on our count claim this issue came up in the context of that so it was actually raise really in the sausage grinding that was going on at the very end of the trial about what was going to be submitted to the judge in the specific idea of discourse mn was raised the eckerd case was raised before the court and so that theory was brought before the court as what we were heading for masters i mean you obviously have your perspective on it but if the court concludes that there was no equitable jurisdiction over the damages issue what do we do with this when we do it this case well i can tell you what i think mr poe would say which is accounting if we dismiss it it means we just kind of stepping out of it it stays where it is but if we find that the court i'm just an argument over if we find the court in equity had no right to do what he did that this is the bottom this is a pure legal action to collect a debt in effect and that was improperly done what do we do with it well if i accept your premise that there was no equitable jurisdiction  then i would suggest that the appropriate remedy in order to avoid a situation where mr brock wrote profits from a wrong would be to send the case back for a jury determination of our panel a new jury and just to decide this alternative theory at this point that particular procedure is beyond the scope of anything i've ever seen before not i don't know i don't know what to do under those circumstances if i would i would just point out that one of the things that i think mr poe's preferred very skillfully did was to sort of gloss over the fact that mr that the jury found that mr baracoa breache none compete now remember the none compete provided that he could not develop or design competing technologies and it required that those technologies had to be monetized he simply could not do that and the court indicated there are good reasons for that he took money from three d systems to make that promise a forbearance and he broke it and the jury concluded that and the jury argue with that ok so my point is there must be a remedy that starts with the proposition that he breached the non compete and from there something has to happen under what the court did here was to look at why a lot and in particular the porter case which essentially was a situation where the parties have a contract but it didn't fully address the kind that i mean just unjustly enrich to the other party and as a result the court stepped in in equity and said we're going to remedy don't you know stop here and they're going to want to be sure we're in done here yes already talking about federal procedural law basically equity and on equity and i wrestle with the dairy queen case because the dairy queen case says and like you know sometimes you can do this but it's got to be a be awarded under contract law oh but i mean in your favor i think why you've all supports the alternative remedy of saying in the event that there are no traditionally recoverable damages that you would normally be able to get as an alternative you as the plaintiff can shift and say you know what your honor we just want to get back at least the portion of the consideration that was attributable to the breach performance and one and when but all i'm saying is that i have not found any cases that say that when you as the plaintiff elect to seek that remedy that it's under the auspices of equity it's just an alternative measure means of recovering damages that look i would point you to the porter case and in the porter case the jury decided unjust enrichment claim but what happened after was the judge changed what the award was the judge acted in equity so that case actually was upheld and what happened there was upheld and what happened there was equity well the st thing i would say to you is that the st question i had was whether you could even recover this on this discourse in theory without bringing a separate unjust enrichment claim i thought that you under hawaii law would have to do that you did not bring in a unjust enrichment claim you had a single claim which was for breach of contract and as i said that is purely an action of law i think that in your favor i think that hawaii law would support seeking this alternative means of recovery but it's not in equity you didn't bring any kind of an unjust enrichment claim that could could even arguably be headed under the caption of equity so i guess i'm still sort of stuck wondering why you didn't essentially forfeit your ability to recover on this alternative theory by not putting it to the jury the st go around because as you said now having to empanel a new jury just to decide this one question is i can't think of any case where that happened so i just wondering why wasn't it coming upon you to say to the judge you know your honor we want to pursue this thing in equity that the contract provides but as a backup we want the jury to at least give give a verdict on the case we can't recover equitable accounting theory we want the jury to give us a verdict on all and all of alternative measure of addition to that what had happened and this is this goes beyond if you're just indulging just a touch so you can understand during the course of the litigation we were stymied in our attempts to find out any information about any wrongful profits that mr bronco may have obtained from his non compete and so as we got close to this actual verdict it was our belief that the equitable counting would allow us to finally look underneath the  what actually happened we just had not been able to do it before that this is your time let me just interrupt for a nd here let's just say for a moment or your window there was no equitable right here and that my colleagues corrected the correct approach would have been under why a lot to bring an action for unjust enrichment and you didn't do it what happens at this point have you waited a while i don't think so and i'm wrestling with that question and this is sort of something that i've been thinking about this morning in our jurisprudence we have had cases i believe that have ha alternative theory of recovery i mean it's a claim could start from the beginning without anything else and claim unjust enrichment because of action right there are cases where it's been dismissed which is the problem how sure y so and dismissed on the basis that it's not actually cause of action so my point is simply this it is true we did not bring in unjust enrichment claim because we believed again that we were going to get this through our contract that or by the way they consider whether you should bring an action for unjust enrichment i don't really answer that question but whatever happened here it wasn't you didn't think about it decide not to do it i simply don't find that there was real real gold there but that was an election you made and it turned out to be the wrong one arguably because as the judge found there wasn't anything to be recovered on that theory and it just strikes me as well you made that choice you could have obviously taken an alternative tack and said forget about the sexual county thing we just want to get our money back and judge please put on the verdict form a line where the jury can tell us how much we're entitled to you did to forgo that it sounds like because you were thinking about it and you decided instead to put all your eggs in the equitable county basket it just turned out that there were there was no money and such i can explain that and that when i actually was there i do know the answer that i would not ever  believe an equitable claim to a jury that's improper and i going back to i know we don't agree here but i do not believe that the remedy of just courts meant for breach of a not compete is an equitable or he say a and if you're wrong on that then which you can see that you made the election and it turned out wrong and they are not now entitled to have a senate back to impanel a whole new jury to decide this one issue of damage w got not entirely why why are you entitle to basically a nd bite of the apple if you got the law wrong at that earlier juncture because your honor if you look at the record very closely you'll see that  with and that particular point i believe if one looks closely at the record we actually asked for lying for a nominal instruction for normal damages in the verdict for what the state of the evidence was at that time i think that on review the court would have appropriately removed that particular word because it just wasn't the evidence in the record at the time so the defendant had made from its breach and of course there are none here and so no one can fault him well it would result would have been the same even if you had brought that but nd then i have to attack mr benedict he was talking about invoke the grand aims of equity to achieve whatever result the district court or any court sees fit rd i want to come back to the exclusion of the c e o s point and  i want to encourage the court to allocate the burden on that issue as the case law says it should be done we didn't hear mr benedict make any argument for how that was a harmless exclusion the arguments and i don't recall them right now but in the read brief there are not arguments made that that was actually harmless to the jury's determination of whether there had been a committee of recess and so on that i would encourage the court to follow brady the presumption of prejudice and less systems has been fully satisfied and i know mr benedict will agree with me on that because of the arbitration correct there was an offset and so that money including the eight hundred and thirty one thousand dollars is in possession of three d systems if the court were to order a new trial the entire judgment the district court should be instructed in a mandate to return that entire two million one hundred thousand judgment to us because there is no longer any prevailing party for the attorney's fees even if a new trial is not ordered  mandate should direct that the eight hundred and thirty one thousand dollars be returned to mr bronco with interest at the same hawaii's day rate that the district court had applied when it was against us and i say it only with a modic trepidation because mr bronco had it had it hard before this district judge and i think it would be best to have a clear mandate kind of either of those issues i hope you have a nice lunch together ok