restatement but if the concept of the same statement about which to fix so to begin with there are two separate claims there's one claim that's about this bogus investigation and then there's another that's about this defective assignment a bridge negotiation in the serviette and they have to be analyzed separately what we know we've happened is the smaller claim which was the investigation claim to apply the rule which is that rescued a cot it does not apply unless it is a compulsory counter where he would think there's been a problem with rule forty four point one here in the determination of german law as to what needs to be included in the suit what what did did the claim for the investigation under german  have to be included in the litigation yes it was the the central error was that it was that question wasn't considered by the judge what the judge below said is that there's a dispute between the experts a lot about whether counter claims are story but that's an irrelevant consideration the consideration that's relevant is simply whether the claim could have been asserted in germany and and that is that that's a clear error under  judge to make a factual determination yes your honor the that question should have been decided except i would say that rescued a kata in the context of the investigation claim was never even back they were dismissed he allowed them to come back he looked at the investigation claims and particular and he said and he did look at the look at what the law in germany was and he found that what was happening in germany was a matter of whether there was a good cause terminations and under german law you have to look at only the the the last two weeks of of facts of what happened up to determination that's the law investigation that happened before that and so what judge davis said in his decision of september two thousand and fourteen and if i can just give you a reference it's  five on the third page is that there's no way that rescue dakota could apply here because this is a completely separate claim that's not necessary to a good cause determination entities united states witnesses primarily and even the german court and this is the last preference i'll give you on the investigation and then i'll move on to the asylum claim the german co a joint appendix six ninety seven and what he actually says i can just read it is the judgment of the higher regional court did not address the investigation against k in its grounds the court this is it was referenced in the in the background by the german court when i was describing what was going on between the parties the not planned as the cause of action it was not quite as a cause of action i did not need to be politically it is hopefully judges acyclovir are wise enough to sift the wheat from the chaff and consider only those facts that are truly relevant to the issue in his or her immediate adjudication thus overlap of irrelevant facts and possibly the the sensual allegation there is that mr schneider after having been advised by outside counsel that he had to assign his employment agreement to this german entity and have to having been told by  secretly worked with his accountant in order to plant language into the assignment to ultimately make it defective is that in the record that's in the record it set forth  below made the same and asked the same question you asked the same couldn't this claim couldn't have been asserted and the error that the court made is that the time under the morgan bright line test of the third circuit that that analysis has to be made is at the time of the filing of the german complaint which is in two thousand and three and two thousand and four and during that time mr schneider was taking the position that this assignment had occurred so there was no claim for hager behavior that sorry it had in fact a good had you saying that technically there's some drivers with  he the question is why didn't why didn't why wasn't there counterclaim in two thousand and three two thousand and four again schneider firm for breaching is produced very duty by messing up this assignment language taken a position that the contract had been assigned to exactly but he reversed course he said no no no it's still right my subject to dutch law i think that point hayes group knew that he had changed his says that we're going to adopt the rule of our sister circuit courts are making a right line the test has to be at the time of the filing so that we don't have this kind of dispute and say we could have would have should have a different compulsory counterclaim rule is if you're seeking to nullify the judgement but you have to the whole thing has to happen under morgan specifically in two thousand and three and two thousand and four if you agree with you if you're your position you   under the supervision of judge davis over much objection we were able to push and get this hague convention discovery we've got the discovery of the accountant who admitted candidly tha planted the language in this case to put into the language and that should that was his star you're absolutely correct in the record the citations are well set forth in our in our briefing and i am clearly  paraphrasing as an advocate he certainly did he did not use the he did not use the word planted but he certainly admitted that he used the words for execution in order to favor mr schneider's interest because he knew that he was in conflict with the company in case he were to be terminated because he wanted to have an entity who he could go after who was liquid that's again paraphrasing i don't have i'm not reading you the words but that's the opponent at the time of filing is pleading something that's consistent with your ultimate position then you can you can challenge that you have no you know action our action in this case arose crystal that we have to look at whether those positions were irreconcilably inconsistent but under morgan at the time of the filing of the of the german complaint so in two thousand and three two thousand and four he's pursuing inconsistent positions in the dutch litigation in the german litigation he just he was and this this goes to the traditional one stop all cases where you have these inconsistent positions there can be a finding supports a finding of bad two thousand and four so that's that's why it's it's that's why stop will pick said that for him he's a stopped from asserting to rescue a cot and now because at that point in time when they're saying that we should have brought t old man and wish i were that young but my point on this your honor is that he's being gauged in this litigation now for sixteen years and your honors i think understanding the context of what this case is about and it's all about the very same thing will assist greatly in her solving the legal issues before you to get the same thing that you need to save money or i think it's all about whether or not mr schneider was wrongfully terminated and what caused what was the basis for that terminations so undisputed that an employment agreement hey entities take the position that under the employment agreement mr schneider had to was compelled to assign his employment agreement a germany there was a cost allocation agreement to avoid permanent establishment issues in other countries well him mr snyder was required to sign his contract to germany why did you bring the litigation in the netherlands on the wrongful discharge but he didn't run it he brought that let me just go through the facts and get them to leave him out we're not address your question right here after he was terminated after the he investigation he brought action in germany saying he was wrongfully terminated by pain evidence shortly thereafter several months later he said oh by the way i'm pleading in the alternative here i was also if it was a joint employer situation or a germany were my employer i was wrongfully terminated by a german who else was confused says you know i really could get it would be nice to get some guidance from the netherlands as to whether the terminations is valid or invalid under dutch law and so right around two ten of two thousand and four two thousand five the parties go to the netherlands and mr schneider at that point was taking alternative positions either i was employed by germany where the netherlands were both but it was invalid under any set of laws the interesting way enough you don't hear this from the presentation of my colleague and i understand why the hannity's took the position that there had been no assign of the contract and that dutch law applied that hey neverland's with the employer so you go through several years of litigation in the netherlands ultimately the netherlands court says guess what terminations is invalid under dutch law not surprisingly at that point they hate entity say wait we're changing our position we believe that the agreement was transferred to hay germany so that german correct so that's what happens so this argument that somehow the hay entities took a different position based on the alternative pleading of mr snyder makes no sense because even as the court that there had been no assignment and that dutch law applied and it was clear the reason why they changed position was right after the dutch courts ruled that their terminations notice would be jury they were stuck by it because it went all the way up to the supreme court in the netherlands and then mr snyder said he's always said i was wrongfully terminated under either dutch or german law regardless of who the employer was but after the netherlands finally resolved the the issue he said i'm no longer relying on an assignment of the c e o agreement to germany and that way dutch is but every other matters to you could could did it have to be brought and the german testimony from both sides as well didn't really have to be grog right a very poor it is still extent and it shouldn't just have been dismissed investigation that was not a claim before the german court that was met mention in passing in the german court it was mentioned in the decision and it was the very basis for the entire action this investigation so it was settled to what was going on at rose it was cited as a reason for firing mr stein correct but but the damage is caused by that investigation were not dealt with in the german case they did not have to be dealt with in the german case and it will forty four point one determining what german law is on joining claims it did not have to be doing so how can you simply dismiss it the district court without any further opportunity for the plaintiffs here to talk about it was simply swept in with the other prevails we would end up with inconsistent decisions yes and that would affect the rights of the parties in terms of work for example what mr sharp schneider recovered in germany yeah that's exactly what they're trying to do here money back is under the cost allocation agreement and it's correct of cost allocation of blame that hey germany was responsible for a portion of the salary and then he management was the testimony below is in practice the salary of  statement before suggested that they were taking inconsistent positions yes in europe firstly sorry that the ritual applied but that didn't seem to favor them in some over to germany and then they went the other way so they were strategizing which court w five he never lives not he germany was the other party to the c e o contract at the time the notice provision was given a contractual relationship was not transferred to germany this also corresponds to the point of were told by a german who was looking at the cost allocation agreement that included the assigning a provision that take a look at the assignment provision and you may want to check with your lawyers they did not check with their lawyers mr snyder signed the p they were instructed or they were told you may want to check with your attorney there was some internal discussion about it they never did and i wonder you never did we never call consulted with an attorney about that bad language that's the record i think it's irrelevant there's no mr schneider all he was interested in with the cost allocation agreement was his tax advisors that said you have to avoid criminal establishment issues and there is you have had cost allocation agreements in the past we should have one in place here as well at the he entered at the heart of this case is apparently decision in that case your honor you recall that you had creditors that were lied to their detriment nobody relied on the prior positions of the others they were struggling to find out who the employer was and the to make decisions on the basis of that so i don't think the one holdings or the crystal cadillac case were the doe case that they sided is in any or in any way applicable mr schneider was not hiding everything everybody knew the facts there were two agreements and the import of those agreements was what part of the parties litigated about the employment agreement and the cost allocation of grey and the parties clearly were not sure who the  there is a dispute between us about whether the employment agreement as a matter of law required the assignment that was part of what's been briefed on summary judgment our point is analyzed his duties under the employment agreement and told him in writing that he should make sure to get this assignment completed fully sorry did  drought the whole the whole drafting process was supervised by mr schneider and mr and ms bowler it was governed by german law he was the german party they were they were they got counsel from their working with the war in germany so in the hayes side he side was had sort of allocated that the primary drafting work to mr snyder so he had gotten that advice he didn't tell anybody that he had gotten that advice he told the company through deal was in a letter that it actually had ben fully assigned as doit had recommended and then once again it was only through this hague convention deposition that davis allowed us to have that were able to figure out what was actually happening which is that the language  assignment that he not only ignored the advice but he failed to tell the company that he had gotten that advice and he further did not tell the company that he was manipulating this language in a way to protect himself he could have there could have been a way to say i want this language to protect myself this is in my interest i want it i want the liability in this entity and not that entity that all could have been done but the breach of produce your duty was a self dealing that has that ultimately led to this the record mr snyder's pleaded positions and it's all mine and verse to which paragraphs of which pleadings over a six year period and i am going to get your question of his of of what his position was in two thousand and three two thousand and four and i would suggest that if you're honest look at jay leno thirty five eleven thirty six and see this six years of concept pleading there was simply no case or controversy for the group to be able to assert a claim against schneider so that leaves us leads to your question while it doesn't now if we assert that claim now isn't it  the the conduct to which your honor just referred is the investigation we knew all about that that we were deeply involved in that in our view that's a complete u s based claim us and it is us witnesses and those claims were just they were they were irrelevant to the german litigation where we asserted that we asserted those under permission of judge davis explicit permission here because they were separate claims irrelevant to the term we  historically we actually going one of the reasons he was fired well with no no no that was some of the background that explains why there's there was tension between the parties but it's completely inaccurate to say that the that the termination had anything to do with the investigation the target the under german law and this is what's explained by judge davis after looking at the expert opinions under german law you can only look at those last two weeks the basis of the terminations was that schneider had entered into secret salary arrangements with his very close personal assistant or and he never raised her salary he gave or separate a special severance deal and then wrote a secret term an asian letter that they stuffed in a drawer never told me about one day she disappeared claimed all this money against the company company says what in the world is going on here discovers it all and fires him for costs those that that the basis for a determination is not the investigation basis or the termination has been committed within two weeks of the term correct correct and your german under german law u so the second part of your question is why didn't we know about this about him getting advice from his law firm about how the about that he had to assign it and that he worked with his accountant in order to protect himself over the interests of companies that all came out in mr rustlers but the accounting piece came out of mr rustlers hague convention deposition in two thousand and sixteen under our  here now my position is that under morgan we could not have brought that claim in germany bright line rule so therefore we have the claim so they're not inconsistent decisions we we endors the and accept the german decision the german decision is what it is we had to pay and did pay the thirteen million euros our case is that this was caused by his breach of fi duty to the company by not disclosing his his that he was drafting the assignment cause in his personal interests and not in the interests of knowing was that you for the termination  it was in two thousand and three across elk in october twenty eighth two thousand and three and the terminations in two thousand and four early two thousand and four late thirteen million euros in damages and us pay that money back we yes essentially we want we are not really i'm not saying they're not related i'm saying under the morgan bright line rule i could not have asserted that that claim in germany in two thousand