mr alexander off appeals of contempt are among the most important cases that the philip court is called upon to decide that's because in an error in a contempt case strikes at the very foundation of justice here there was no contempt the record was in disputed that elex it spent more than three velux a two man corporation had spent more than fifty thousand dollars attempting to comply with the injunction in this trademark case along with hundreds of hours of their own time that figure is grown out of two hundred and ninety nine thousand dollars goodwill well goodwill can only inherently be defined as that which f x the public again it's in disputed that there were three boxes that got through here three infringing boxes and they were all purchased by agents for play nation so where's the damage to the goodwill there was none a where upon the district court  ended in order for forty five thousand dollars in attorney's fees which is more than thirty dollars times the amount of this supposed damage to this non existent damage to good will again fifty thousand dollars of work and hundreds of hours of time by the wives and children of this tiny corporation had been spent supposedly in merely taking the infringing boxes maintaining the infringing outer box and then just putting them into a plain box there's no support in the record for that finding at all also significantly and throughout this contempt order i mean yes the question that's right yes are we review the district court's findings of fact for clear era and we review the ultimate decision for abuse of discretion want you to help me with where there was a clear era in fact finding on the part of the district court among other things the district court said that your client did not take all reasonable efforts to comply the district court said that after the injunction issued the l x took over two weeks to direct capacity remove the box the products from the infringing packaging and place the products into plain boxes and that the locks did not make any effort to verify compliance with the system which velux said was a new system with which capacity employees were not familiar until after the likes notified that was notified that capacity was still infringing and he goes on to point out that it took seven weeks after the injunction for you to go ahead and direct capacity to stop shipping but by then capacity had already shipped some infringing goods both the carsten and  to make also fail to make rule fifty two dollars findings of fact and all the district court did was throw out these conclusions citing nothing in the record in there is nothing in the record to support that whatsoever the fact is is that the district court was shown work order to screen shots receipts for reebok seeing a timeline what happened here was they immediately contacted amazon and told them and took down their web page from amazon amazon had eight hundred units in stock amazon however has what's called trademark protection default one of the problems that they web page that they put out that they could have immediately looked at it and seen the problem they had the light for the puzzle hard to discover the problem they they immediately took down the web page to the extent that they could but however amazon's trademark protection put the gorilla gem market back on by default that's called trademark protection whereupon they met with amazon and it was again taken down that time perma amazon and shipped the boxes to the fulfillment house capacity and three boxes got through capacity admitted in the record that they had made a mistake capacity by the way is not an agent amazon is not an agent so the district court found velux guilty of contempt for these unauthorized actions of nine agents that were against specific instructions to the contrary as as a matter of law that's not respond the superior there should be no a conclusory fashion well they could have done other things well like what what they couldn't have done anything else this is it the resources of this company this is n this is not general motors is a tiny two man company that spent fifty thousand dollars since their wives and children over to rebox and then there is stuck with this one thousand five hundred dollars of damage to goodwill what damage to goodwill it doesn't exist all again to reiterate all three of these boxes were purchased by agents  for play nation there couldn't be any damage to goodwill all else is innuendo and speculation and that's what is behind the district court's order here of no rule fifty two analysis of no citation to the record mere conclusions innuendo and speculation and i submit to you that a finding of contempt should not be based on something like that may be please the court my name is mark herskovitz and i'm here and i represent play nation places them's the manufacture of guerilla playsets plantation obtained a verdict at trial of trademark infringement and is part of the district court's disposition of the case a district court entered a minute injunction that permanent injunction prohibited the defendant from distributing and selling product branded as with the infringing market which was guerilla jim after the district court entered its order the defendant filed an emergency motion that emergency motion ask for extraordinary relief to be able to sell the product for a period of time because they already had court denied that correct correct we were the facts and after that was denied the defendant began selling the product that which the court prohibited in the court's order did not being that motion the court pointed that if there had been a st sale that the people who had purchased the product could resell it and so what the defendant did is the defendant changed its name on its amazon store front and continued to sell the product then the defendant rebranded and play nation and had some we will call mystery shoppers so to speak and various locations around the country and they purchased the product and and the purchase is that they made were trigged the website said jim one but when the product was shipped the product that the people received mr carsten mr fortan ms  the product that they received was a guerrilla jim branded product they open the box and they get the infringing product that's why i play nation filed i motion for a citation for contempt that's why we're here playing nation made out a prima facia case a prima facia case is what is necessary to allow the district court to infer the facts issue at that point in a contempt context the burden of proof shifts to the alleged contempt nors and they have an obligation to show that they made all reasonable efforts to comply now this court has held that all reasonable efforts is a substantially high showing that they have to make the size of the defendant that they might be a two herson company and they have to make all reasonable efforts and it's very easy here for the defendant to have made those efforts you stop selling the product this product was in the possession of without question the defendant's agent and the defendant's agent delivered the product so the way it worked was amazon had a the the front end the individual purchased  that order was transmitted to the defendant the defendant responsibility in the the e commerce transaction was to deliver the product to ship the product and that's what the defendant did here and they did the violations were consistent and persistent that there was for purchase actually the st purchase was by mr carsten it was shipped he got infringing goods the nd purchase was by mr foreman it was shipped infringing goods to him the ether and purchase was by rachel rachel the baby is an officer of this court she's an attorney in florida she purchased the items ordered the items one and she received in october after this the contempt motion had already been filed she received infringing goods the other purchaser was an individual by the name of dan gold bar he purchased it from directly from the defendant on their website not through amazon and it was shipped to him and then plantation filed its motion and all of a sudden he had been receiving fed ex update notifications about the tracking of the package he got a notification that the product was recalled by the shipper there's only one reason that was recalled by the shipper and it's very easy to figure out what that was and so a prima facia case was made out and the defendant had an obligation to rebut it and we had a four hour hearing before the district court and the district court heard evidence and the district court reached its conclusions one particularly important piece of evidence is that if these were isolated errors which we contend that they were not consistent and persistent but if these were isolated errors the defendant could have but did not introduce evidence of compliance with the order meaning people who were shipped and could testify as to receiving orders that were not branded gorilla jim the defendant who had the burden of production and the burden of persuasion did not introduce that and so very clearly a prima facia cases been made a clear and convincing evidence standard case has been made and the defendant has not shown the defendant you can believe everything the defendant has said that they spent fifty one thousand dollars that they did massive efforts but this court has held that substantial efforts good faith efforts to use the defendant's term massive efforts are not sufficient the only benchmark is all reasonable efforts and capacity is the agent the defendant has the ability the defendant asks capacity to ship store and ship the product capacity agrees to ship and store the product on the compensatory damages if during the the hearing the risk testimony that the defendant sold one hundred and fifty nine dollars units of product believe the the defendant breakdown was because whether the court wanted to order discovery and so we said we would plow ahead without the need to have a discovery period and come out you know and take up more judicial resources and so based on those d figures one hundred and fifty nine units forty of them worse alleged by the defendant to be children's products that falls within the range of an abuse of discretion i cannot speak to a mathematical calculation the judge didn't do that in court and saying one thousand five hundred dollars  thing materials that your people got right the correct your honor the burden shifted in a contempt context the burden shifted to the defendant to prove reasonable efforts and compliance once the case is is made you know that's different in a normal trial context in a normal normal trial context the burden of proof rests with the plaintiff but in and for in a contempt cont there is something the burdens are flip flop after a prima facia case has been made the other thing i wanted to touch upon is the jurisdiction of this court with regards to the contenders the district court found the defendant and the defendants to six sole d shareholders principal officers directors  company all to be in contempt and the notice of appeal that was filed in this case was filed saying defendant  appeals under the under the federal rules of public procedure rule three under the supreme court's decision in torrance the principles of the company mr alexand lake and have not appealed that the trial courts the district court's decision as applied to them is file is final and this court lacks jurisdiction  to address that also under the the district court's decision is final as to the finding of contest because the defendant did not timely file a notice of appeal of the district court's contempt finding that the time period for an appeal begins to run if the when the district court enters the judgment a separate judgment document you have thirty days from that date or if the separate judgment document is required which is in this case well when was there a final to create your was there a final decree when he simply said there was and there was liability or was there final decree when he actually set out the amount of fees and costs to be awarded as part of the contempt of the final decree i always thought that in order or awarding attorney's fees is not final until the amount to be awarded is also determined that it wasn't here until later in the day so i'm not sure i understand the thrust of the argument the thrust of the argument is you have to separate out the contempt finding the one thousand five hundred dollars finding from the attorneys fees finding that the contempt finding the the underlying merits and there's a supreme court case on this point that the supreme court has created a bright line rule that attorneys fees determinations can trail a merits decision no question about it but we're looking at though is whether or not the appeal was filed time right and i'm simply asking whether they could have filed an appeal before the award of attorneys the attorneys fees and costs have been assessed as to a specific amount or are you saying oh yeah we should have taken up the contempt issue  liability st and then had a nd hearing to take up the other issue i'm saying the is that what you think the law requires that we be smee only appeal your honor the the s supreme court has said that and i it was not cited in the briefs because that wasn't necessary as a response brief but i'd be glad to present is your answer yes we have to take it up piecemeal pick up the merits appeal when the merits appeal is ripe interest action is appropriate and i agree the notice of appeal is timely as to the attorneys fees award but that notice of appeal is only timely as to the defendant velux because no notice of appeal d has ever been filed on behalf of well that's a different question that's not a question of timing that's a question that goes to who is actually filing the appeal correct unless the panel has any further question that thank you very much thank just to your honor just to put to bed this one point the the rights of the agents here the owners of the company are inextricably intertwined with the rights of the principal so that the appeal of the principle inherently involves the appeal to the court so you have to do is take an appeal not just the name of the company but in the name of the two individuals as well and that probably wouldn't be here that's true in the it was a little confused and maybe they were fact and that's that plain asian here reads the word reasonable out of the standard they pretend that nothing that no efforts of any kind would ever be sufficient erroneously there may have been more indeed there may have been as many as forty one we don't know but at this point the burden of going forward plainly shifts to you to show what you did and what you couldn't do and why you took all reasonable steps and i think that you don't disagree with that being the mode down of the of analysis in part i do it your honor because the burden of going for you didn't think the burden of going forward shifted to the contender to come back and show either compliance or an inability to comply on a so you know some sanction oh yes i agree with that as three boxes but not as forty or a one thousand or a one million or some other speculative number that's not supported by the record there are three nets here three and you are right four but it let look good for you would it not if you had come forward with evidence that of the other things that were shipped you were in compliance that would have been helpful  there are probably other areas of evidence it could have gone into but the question is what was reasonable to have been done and the council argues that you can separate the idea reasonable most from the resources that in order for forty five thousand dollars in attorney's fees pool where they could have called they say well we didn't have a duty to call you and point out this error well maybe not but they could have so the question becomes forty five thousand dollars and is there any case anywhere that ever how that they had an obligation to attempt to work out the matter with alex before filing a civil conte motion no i don't think they had that duty but i think that when your might have been a reasonable thing to do but they were in obligated by law to do it no but i think when you're talking about what's reasonable attorneys fees and you have five hundred dollars damage that's not a damage to goodwill at all and you're assessing somebody's forty five thousand dollars i think the equitable thing to do is to look at the entire record at that point because they created their own attorneys  advisement and we will be in recess until nine am tomorrow morning