question on appeal is whether a point has proven both breach of contract and a harm is required to put in proof of the extent a form of damages on the data breach to be able to recover dispute as to the fact of and everyone agrees that the whole back here places have assumed over a great value and as we noted in our breaks or even observed on the record during closing argument that there was a lot more than four thirty three cents cent figure i think the record is clear it was a it plus number it was arbitrary to some extent right so why wouldn't your awarded damages for breach of contract  vein i know that you can always look to the conduct of the party in breach to see what value it assigns the consideration under the merger agreement see three agree that it would retain testified at one point seven two was the value at closing and then we argued to the court that that could be carried over eighteen months of the words as a result of a breach of warranty or representation the c three was invited to deduct its costs and then the files look senses from that four million dollars amount on a dollar for dollar basis representing for a dollar call that a claim was damages and i don't think we mentioned that in our folks property and what is the significance of that i don't think it is significant that the law is that if damages really are indeterminate in this in a case that goes to the jury would be grounds to waive but this wasn't the case that went to the jury one of the tribes of the court and there are cases you cited which suggest that in fact you don't have the burden to request nominal damage your right to there's there's only one dollar right busy party but but if it's all or nothing the the delaware law seems to require an evaluation of who wins on quote the main issue in the case would you agree with that  i agree with that and are is it your position that we are in a better position to determine who that is rather than remanded to the district court to see who prevailed on the main issue one additional point that whether you characterize our mission here or characterize the rule as one of raising issues or arguments or quaint under either description or label  our ability to cite a piece of evidence is not or by having failed you argue from it in closing you know the word the preservation of a claim of error doesn't require you to cite every court to sort of mind the rectum to rule in your say iran damages based on an argument that was just never presented to the district court and it's it seems to be precisely the opposite of the way the system is supposed to work that we review is supposed to give the district judge the st crack at it i guess is what i'm saying and and it doesn't seem that you did that here why why am i wrong on that well  district court's discretion although busy broad is not so broad as to be able to simply bypass that admitted link reliable middens evidence valuation evidence for any other purpose as the only question before you is whether the district court clearly erred in his factual finding that the plaintiffs failed in their proof of any damages and seventy two dollars of the forty four cents and the nominal death i'd like to take those each in turn and say why none of them can salvage the last plaintiff in this case to start with a three hundred and thirty three dollars judge argument as you said was used as a input to get the number of shares it was never the valuation of the worth of the shikse it was it was a device for an exchange ratio and the plans hav value of each share but only a representation used to get to the number of chairs to be exchanged and you don't have to take that from from me that that was the only only number the plaintiffs advanced at trial i would honor he expressed he does about anything other theory so three hundred and thirty three is not a measure of value that's a fact finding that's not clearly erroneous and it was the only measure of damages events that trial the other three numbers judge sirica asked what about one  hardiman the law of this circuit is exactly as you say and whatever the th circuit says it doesn't apply here we cite in our brief the united states against two pretty case zimmerman case in this circuit it's absolutely the case that the plaintiff is bound by his for trick forfeiture of arguments as well as claims and the reason this judge hardiman as you just recap for us is you don't want the district damages calculus in your brief that was an advance before the district court at trial so with respect to out of the easy way to affirm here is that three hundred and thirty three the rejection of three dollars thirty three cents as a measure of value of the whole back shares you know the old proverbial saying that the district judge is not supposed to be like a truffle pig hunting for travels rooting around in the words of this court's decision and zimmerman rooting around in the record saying well maybe we could look at one hundred and seventy two dollars maybe we can look at  delaware law we're we're a party to prevail not a breach of contract clint was not awarded noble damaged why should this be the st your honor the delaware law is that a court may award nominal damages if there's a failure of proof or an inability to prove compensatory damages but the law of delaware is not not that the district court must and in fact the two cases that my friend on the other side cites and in the brief a lapointe case from the chancery court and the standard district in case from the superior court they were cases in which the courts of delaware awarded nominal damages they both use the phrase may and  must i think the most important thing your honor is that nominal damages exist in a circumstance where it's not possible to prove with reasonable certainty an actual amount of compensatory damages this is not a case where it was not possible to prove the amount that the shares were worth when the breach occurred eighteen months after the merger in october november of two thousand and thirteen this was just a case in which the plaintiff made a set of tactical and strategic choices at trial not to prove that amount they didn't call metcalf on the contract damages they call them on the fraud damages they tried to change the metcalf testimony at the last minute to a theory of contract damages the upfront contract claims but they never tried to change to a theory of valuation for the hold back claim breach eighteen months later they never put in any expert testimony  contemporaneous with the breach of all your honor and so this is not a case where they couldn't prove compensatory damages this is a case where they didn't and your honor it's especially inappropriate you know let me let me just challeng because what about normandy allchin that's the opinion from this court just in two thousand and seventeen in that case we wore the nominal damages even where the plaintiff failed to provide district court with any evidence of stablish india which is right and that was a case where we applied delaware a lawyer the cases you cited in your briefs like alexander be read and cohen versus resolution  trust in the st one alexander replying to federal common law those are both cases that certainly go your way to support your position the problem i see is the st one applied to federal common law and cohen applied the jury found nominal damages and the district court vacated the jury finding of nominal damages and this court reversed the district court's vacate or a jury finding a nominal damages that raise a th amendment issues that  and your honor you know my friend on the other side cites cases like al a a lot and best east those were one hundred and eighty three cases involving constitutional claims where the injury is essentially conclusive proof damage this is a delaware contract case damages are an independent issue which as you said earlier the plaintiffs bears a burden they failed to meet the burden here and there's no case that is cited anywhere in the brief in which delaware law was found appellate court to award nominal damages where the party seeking the damages never ever mentioned nominal damages below not in their prayer for relief not in their post trial brief look at supplemental appendix cents or nominal damages your honor this is not a pro se litigant in a st amendment case like all of where you say well you didn't have to ask for nominal damages this is well counseled sophisticated corporate clients in delaware under delaware law well correct your honor we would have said we would have said that delaware law recognizes nominal damages as a fall back where it is impossible to prove with reasonable certainty the amount of actual damages this is not such a case all that's that's correct your honor and i would refer your honour's to the dunkin donuts case out of the district of new jersey because that really reminds us what's going on here and why you should not allow in an effort to avoid an adverse attorney's fee ruling here an adverse ruling against the plaintiff and a now mister nichols is trying to say run the other way this is exactly the case where you should hold plaintiffs to their strategic choices at trial they could have asked for nominal damages at trial if they had their eye on attorney's fees but they didn't they put all their chips on three dollars to zero dollars thirty three cents and now they're trying to say there are some others where they wish they put their chips on the judge greenberg the last place in which you nominal damages where the sophisticated corporate counsel below didn't ask for it there's no delaware law to that effect there are two reasons judge greenberg why you shouldn't award nominal damages here even though i agree that district court could have awarded them have the other numbers or the nominal damages and number two you should not reward the tactical behavior that says well i'm not going to make nominal damages i'm not going to give the travel to the judge a nominal damages at trial but now i can resurrect it as a new found claim after the fact to avoid that verse attorney speak through that's not that's not an appropriate use of this court to try to make up for a tactical choice made the trial judge greenberg so had they made the nominal damages claim a trial but it does not require it and there's no case in delaware law or in this court precedents interpreting delaware law to the contrary so if we agree to if we agree with you there's no question about your being the  for him to award attorneys fees to see three dollars at the end of the case but we would submit that even if even if you were to send it back and say well maybe you should consider adding nominal damages that would not change the prevailing party outcome the prevailing party outcome is not that they get if they win on one claim the prevailing party analysis under delaware law as judge hartman said is a holistic analysis and this whole back claim is this whole back claim remember there were three contract claims fraud claims crime fraud claims this is the proverbial tail wagging the dog even if you were to give nominal damages on the contract on the whole back contract claim and we submit you shouldn't for all the reasons we've just discussed that should not change the attorney fees here because this is a case in which the whole that claim itself was a trivial portion of the trial in terms of time in terms of evidence and in terms of emphasis this was a sixty eight million dollars case that fail making extremely sensational allegations against mister siebel and his colleagues which were rejected mister siebel was found to be entirely honest and forthcoming in this sort of rebuttal i just want to say in advance that that was a contract claim in which the vice chancellor did under delaware law find that nominal damages the basis for tourney's fees the express they found there that the contract claim on which you worded nominal damages was the to the nominal damages claim especially where the nominal damages argument is being made on appeal only for the opportunistic effort to correct an error because it affects their attorney's fees but even if you awarded nominal that which is this is not a i'm happy to answer any further questions solomon's argument based on on what you just repellent to judge connelly finding to be had your colleague asked for specific performance of the delivery of this years it would have been required i think we all agree on that right but the harder question is not having made that argument what do we do about it now right i understand in that vein let me try to address the three hundred and thirty three point which i think is the subject of some is clear as counsel asserts that the court found that for purposes of the fraud claim re dollars and thirty three cents the unit by all was not a prompt and therefore we could not  ask to hold on to one million two hundred thousand shares if in fact it was they were worth something less than four million and we submit to the fort that the three as the parent entity with the best knowledge of its own revenues and its own business  fair to say in other words that in the context of the whole backplanes where you have a separate number agreed do specifically asked for either by the by the defendant by c three and a number of shares corresponding that's intended to offset