for attorney field courts in lanham act claim to what a prevailing party has to show and we've mr berger has shown that that the pursuit of this claim by accounting practices legal based on the fact that they they really never had any evidence to support their of their findings and you agree that that decision is subject to review for abuse of discretion correct  you know recognize it is a high standard so when when are fees mandatory when are they mandatory that's what you're arguing here and well i guess it would be mandatory if if if litigant a prevailing party has shown that the that the claim was objective reasonable i think what we have what we have to show this court is that that the district court decision th just before the fight or summary judgment response it did not consist of documents or anything that they provided in discovery to mr for what was the name that your client was using situation where you got somebody sets up automobile sales and he sets up a a lot down a street called the american auto automobile sales it's it's different states what he was doing and he also indicated he had called his american because accounting practice sales was not just in america but they were a worldwide operation but he he opened that company the same day that he was terminated right correct when he was in under the agreement with accounting practice sales at american accounting practice sales and accounting practice ales are not totally in the same business because accounting practice ailes  done under the accounting practice ailes umbrella stroller me ask you about your terminations contract claim what a plane is damages look like on that claim given the rather the sales records that we see for the last couple years before the terminations the contract well is damage actually rather substantial under that because his his income dropped off  each which according to the defense is way below what it should have been right corrected as well and especially in the in the earlier years two thousand and eight nine and ten ability if i read the contract up to the very last sentence i tend to agree with the district court this this all looks indefinite and therefore it would be terminable at will last sentence he p s defendant cannot terminate this agreement unless it is violated by burford i was trying to think whether it would be possible to frame that intent more clearly but obviously it could have been framed more or more clearly and you know and in retrospect should have been framed more clearly by how i don't see how it could have been intent to to make those terminable only for cause well the argument is that the  operating as practice you know that they believe to be valuable operating business it's our position that if you fail to follow those guidelines procedures that they might have a basis to terminate him because he's not following the guidelines procedures that they that they promised to provide him when they entered into the agreement the other thing is under believe it's paragraph eleven and other discusses the minimum sales requirements or the minimum production standards and that right so they could reassign his territory to somebody else right which terminates his contract mean once the east peace sign this exclusive sales territory if it's reassigned someone else he's he's net and that was what is it that they would reassign all his territory or in just certain regions of his territory because by the time he got to where he was he was actually responsible for more states musea correct that if they're able to if they're able to resign all of his territories whether it's you know as s the party system disputes whether it's one territory multiple ter calculation of how that was determined for each of the territories that was you know one of the dispute between the parties it whether it's that the minimum production of apply to the territory as a whole or to each individual state hall let me ask you about the illinois law as you understand it do do you understand illinois law to prohibit indefinite contracts that are terminable only for cause or simply to require a clear statement that that's the parties intent that it be termina only for cause i my understanding of the law is that if that is the only only thing in the contract in it then it prohibits a perpetual contract  unless there is some well back to some other that are you familiar with employment contracts for example that provide that there terminable only for cause correct whether you're talking about civil service or union contracts or a football coach who gets that in a lot of those instances it's not those contracts are not at least in many instances are not to be automatically renewing and that was that was civil service contracts those were new to you retire as i understand it this is a fairly new business burford joins a to develop these territories starts out with louisiana and then adds other states right correct so he develops the territory and he's he'd be vulnerable right to somebody exploiting him if he develops the territory and then a p s terminates for no reason right right now with you know it's a legit complaint one of them going on the other side if to developing that territory taking advantage of what a p s has taught him and their name and so on he can just leave and take all the good will with him and stop paying a p s he subject to the non compete right that's a were you aware that means defendants were going to be raising those arguments that this was an at will contract during discovery  and so why didn't you move to amend at that point it's before the close of discovery you realize that they are going to be making this argument and you think the way around promotion because you know like everything everything raised at one point discovery makes its way into a pillar motion first you know first thing it appeared in a sea motion for summary judgment we did we did not view it as as they were violating as it has a really franchise act by aleisha and as much as the they were violating the contract as it was written there's only one you know when you a contract and so the district court should have at least considered does the statute allow under these circumstances this type of these type of provisions to you know they don't have to be strictly make a term of will they can be enforced as why did you do amend your complaint to make that argument but we don't think we did actually it you know terry we we did not argue the amendment in a brief we we just focused on on effect of the agreement it was written should have been enforce stretches and tries to find three the first you don't you don't think you are entitled to terminate him for bad sales performance we don't i've never heard a manufacturer or upstream party make such an argument your honor the contract is very clear in that instance it says at the very last sentence as you pointed out a p s may not terminate the contract unless it is violated by burford it as you said it could not be clear now what that means is that under jefferson that is a material breach provision and just person says that a material breach provision is not in a jet objective event which would create an automatic terminations the parties relationship and i don't think that's agreement without a fixture ration but which provides a distro to both only for cause or upon the occurrence of a specific event is in one sense of indefinite your ration but is nonetheless terminable only upon the occurrence of the specified of it and not a will of the senses it has a little ease a little to be desired but it obvious this obviously provides its terminable only for cos right correct ok so we've got but clear statement to that effect when you say this are you talking about just personally talking about contracts talking about the contract here a p s cannot terminate this agreement unless it is violated by burford correct ok now and i agreed with your position as i read through the contract until i get to that sentence in your statement your position is that that sentence has a legal effect that is one hundred eighty degrees opposite from its plain meaning right you're saying that in fact a p s can terminate doesn't need a violation by birth for but can terminate anytime it wants that's an extraordinary position your honor it's  contract and makes it terminable at will so if your question is does illinois law prohibit indefinite contracts that have no objective event the answer is yes that's not my question ok my question is does illinois prohibit contracts that are terminable only for cause that last until somebody until the parties either mutually agree to terminated or one party has caused terminated if those for cause terms are defined well for example in the donahoe case which counsel cites how well how well do they have to be defined so that it is an objective event so that the eight  one doesn't have to be breach of the contract for example a performance goal that is set forth in a sales representative contract and where it says this contract will last until mr smith fails to achieve twenty five thousand dollars per year in sales that was the donahoe case and that was terminable at will that was a terminations that was not for well but for cause because there was an objective of it but if you have some future undefined concept that a employee might not perform generally illinois law says that that is terminable well that's extraordinary and i don't think sperson does not extend to scase is where there is no ongoing intimate relationship between the parties that is required that one of the public policy behind us proceed well baldwin piano actually includes makes the point that it is since it's a clear statement rule and it's a what a clear statement all right we've got two public policies one is freedom of contract which may include the protection that somebody in erfurt position wants to be determinable only for cause because he's going to invest in the territory in the other public policies against having contracts that go on forever and judge easterbrook so pinion for the entire  baldwin piano explained that that's resolved in essence by require a clear statement that the contract will be terminable only for cause or not terminable and less it is breached so and and i think that there's something in addition to that i think the court involved in piano said that this is not a just person type case where the only public policy is implicated because you're not forcing people in a contract or relationship to stay together forever when so do so you're saying that employment contracts are again spoke with policy if they are terminable only for cause and this is pretty close to an employment contract or in well not exactly no your honor because the employment contracts that i've seen the talk about for cause define what cause it is you think they have to it and nobody because i think that for cause is defined in the common law at this point in turn you know i mean we know what for cause is when we talk about employment can we talk about felonies or dismiss dishonesty or investment or whatever or for a simple failure to perform up to expectations that's right yeah so but getting back to the ball the piano case this is a case in which this contract would have required or could potentially require the parties to stay in an intimate relationship indefinitely it did yeah and because of that indefinite relationship that was intimate jespersen says that that's  argument though extends to employment right employer employee long term intimate relationship you've got a clear statement well let me put it this way how could you express an intent to make the contract a contract terminable only for cause more clearly than this didn't you would define what cause is in other words taking paragraph eleven of the contract for example mr burford says that the upstream position in this distribution situation argue we had no right to terminate this contract under the contract for cause and yet that's what you're telling this judge it's the way it's written in other words if if if i could go back in time and rewrite this contract for my client perhaps i would have written something different but the what what the party signed limited my client's rights substantially you know what you're arguing is that they in fact gave him utter freedom to decide to terminated will that's where you're going for by operation of one i like yes but it by not defining his rights more clearly you multiplied his rights to terminate to utter discretion complete with the intent of the parties cause that result yes the intent of the parties was to create a n said the jet and i'm quoting here just person held a quote a contract permitting one party to terminate based on a material breach by the other party is deemed terminable at will and that's exactly what the last sentence says when it says that it may not be terminated except for mr berger violation now to try to avoid the result that just person compels mr burford says that violated does not mean breach to mean something else but that's pretty clear that that's not the case the plain ordinary meaning of violated is breached in this context turning to the second reason the mr burford says that there's an object because he tries to identify an objective event in the fact  my client revealed to mr burke for trade secrets and methods of how to broker an accounting practice successfully and mr burford says well if he had failed to perform in a way that met those procedures met those methods that that would have been a reason that he could be terminated but nothing in the contract says that it just simply requires a p s to reveal its methods to him it doesn't say the mr byford has to follow but even if it did say that it would still be  a permissive and equivocal right of determination and that gets to something else that just personnel just person held that if a right of terminations is not mandatory if it's not automatic if it's permissive then you have a nonobjective seventeen the only supreme court said quote a permissive and non exclusive terminations provision will not create one contract terminable for cause the non exclusive part welcome i mean i've never heard of a mandatory determination provision right those recent surely extremely rare well that's that's actually been if we want to continue even for example sales or mr quotas all the time who have a lot of slots of excuses for it and they're not required to the you don't have to terminate them for that right you don't unless it's the donahoe case because when the parties write a contract that says this contract terminates upon salesman's failure to sell fifty thousand dollars in a month then it's automatic and it's not discretionary  the third argument that mr berger makes for an objective event deals with this minimum yearly sales volume and during your colloquy with with mr hall i think it became clear that this is a ri nothing that required that it was a discretionary exercise and so it is not the objective automatic event that is required in illinois law i'd like to turn now to  the franchise act issues let's be clear that mr birds raised this issue of the franchise act thirteen days before trial four months after the close of discovery and after the court ha ruled on and the parties had briefed summary judgment we relied on the pleadings as they existed in moving for summary judgment in sort of a district court in granting summary judgment and it just came simply too late even if it had not come  is arguing for the extraterritorial application of the illinois franchise disclosure act none of his territory was in illinois i don't know how he expects to apply that act to sales territory outside of the state of illinois even if the franchise act could be applied it's a territorial and extra territorial levy and had been raised timely mr berger didn't pay a franchise free he owed nothing if he was not successful in our brief we cite cases holding that  a optional or contingent franchise fee is not a franchise fee under the act finally i like to turn to the lanham act issues now the idea that a p s had no evidence going into trial for its landing that claim it's you simply flat wrong we did have evidence first and foremost we had the fact that mr burford found value in the secondary meaning of accounting practice alles and the reason we know he found value in it is that he took it the day after he opened his new business adding the word american to accounting practice alles practice sales does nothing to distinguish it all mr berger testified in his deposition the i found value in the a and that's because my client spent a lot of time and money developing the strength of its brand it advertised in trade magazines it advertiser conferences it did on line presences it spent time and money doing this so all of these things would have been testified to a trial by jury holmes my client's principal who testified of these things in his deposition and in our interactive tour answers we identify these things that would have done a truck market studies and wanted to end the case we were ready to move on i think you told us in your briefs the damages would have been minimal yes we have some record information to that effect yeah  know those are in the record for us yes that that went that really went up that was another factor i mean a place a prevailing claim on the lanham act the trial would have really the main value would have been the attorneys fees that we would named gail says must happen now to get there to get that type of inquiry you have to all do basically do a mini trial on why a p s decided to file a suit originally and why decided to dismiss it and that's what nightingale says you shouldn't do we shouldn't turn these post claim motions for attorney's fees into an exposition of every fact that went into the decision to file we had an objective basis for doing so we pursued it we disclosed the evidence we under the contract and all of his listings and he kept the listings that he had when he when he started a new company you know the words his his business operations for himself continued on as if they had not been interrupted so the idea that he was somehow impacted adversely by his disassociation with a p s doesn't really work he had the same listings he was the same guy he could have continued if there are no further questions not only you know his profits but also that they obtained it and in an injunction to prevent him from using the name that he destroyed all advertising materials they saw their own tourney's fees so it's kind of misleading to say that well he didn't make much money so we just missed because there were there were many damages recoverable that doesn't that completely ignores what they had sought in the lanham act mask with regard to the franchise thirteen days before trial is not the first time that the franchise disclosure act with raise it was raised in a response to a summary judgment motion as a basis for upholding the contract and again it is the court t competing public policies you know with regard to these automatically renewing contracts the franchise disclosure act insert another one where you if if if the relationship wit extraterritorial application of the franchise disclosure act here we're just asking to enforce the contract terms that the parties agreed to we're not saying it's not a case where we're saying you know add new terms this contract and make them apply in other states we're just saying this contract would enter into an illinois and here's an illinois statute that says the terms of these parties agreed to are perfectly acceptable and it can be enforced and what the parties agreed to should be enforced and then the question is not thank you very much thank you mr hall thanks to both counsel case will be taken under