trading against illinois may please this honorable court my name is michael j keaton and i have the great honor of appearing on behalf of wheel in food trading this case involves basically two issues i think one is the tree issue and two is the issue of the default so as to the two corporate defendants this is the second appeal in this case as judge sykes know we were here once before and we were sent back down to the district court for basically what we left about in the offices don't apply the yardstick apply the meter stick the international treaty was to replace the u c c in this particular case and see if the outcome was any different unfortunately for us or if it was i think it was an error and the district court didn't explain itself in a written opinion and it basically took the position several times that well the seventh circuit reversed us when we granted you feels the first time so that must mean they don't want feast and they started connecting the dots to get to that conclusion  gee full judgment in the district court in two thousand and thirteen that precluded further litigation of the attorneys fees issue why didn't you raise that in the first appeal i mean if you  the first time so we think if there's any waiver here it's the fact that their status as a default a party and unable to raise defenses under this honorable court ruling in where's that was barred and has been waived so if there is a waiver here it's on the part of the defendants it's not on the part of dealing now with any appeal but we always start from the premise of you know what was wrong what was this epochal standard and why didn't the district court follow  there's two problems with the district court decision in this case even though it wasn't fully explained it that it appears that first and foremost they improperly viewed article nineteen of the treaty as controlling somehow or elevated above the other articles there's four other articles that are implicated in this analysis as article seven requiring good faith and all international transactions there's article eight that controls intent they contract intent of the parties controls over all throughout the treaty in fact we always say like you know the whole point of either the u c c or the treaty is to you know justify or or condone the mean you're partially correct i think in that you know it's not a matter of the of the proper analysis is not to pick out one article over another and say that rules over this if the goal is to read them together now there's four articles here are seven eight nine words as the parties are bound by any practices which they have established between themselves so that was completely over ruled by the courts reliance upon article nineteen there's  there's a obligation to synthesize or read together the articles but to elevate one over the other i think is just an improper analysis there's no basis for that in anywhere in the treaty itself and any of the you know the commentary or review articles on the or on the treaty there is no support at all for what the district court did picking out one and saying that you know rules over these other four but not some of the articles that you're applying on are interpretive kansas sensually for lack of a better way to characterize them and in what the operative question here is when was the contract formed because if the trailing invoices introduced a new term into an already formed contract then you're knocked out you see that that's just at the contract was formed when the parties placed these orders and these goods were shipped our view is that that term was in there from day one that what is as i says basically a usages of trade argument that everybody in this trade agrees to attorneys fees all the time without regard contract language all in fact in this case it's exactly what you know you know the contract industry that all suppliers of produce to the defendant had that term on their invoices it's not i didn't ask about suppliers to defend my asked about usages of trade in the industry there there was testimony at the trial that the the feed term is never on the pullin or a documents the sales confirmation that the district court relied upon there was testimony that it was never on the purchase order that the industry standard testimony as to the industry standard was that the term is only on the pay me document we call it the document that goes back to the tables people and we may just be talking past one another i'm not asking for evidence about where the parties what the terms they use it just of trade argument is that the everybody in the trade understands there are certain things that are true whether they're expressed in writing or not it's just the way people behave is there any evidence about usages of trade yes in this case there is they the evidence of that usage of trade and that's just the objective standard but the evidence of that was the unrefuted testimony of the b l m salesperson saying that this term is in every transaction he's been at three different companies i believe he testified to over his twenty some years in the industry and that this has been on every one of the invoices at every one of the companies he's been at and the defendant's been in the industry for thirty years every one of his other suppliers has it on there he's honored that provision as do all of his other suppliers except to be alone so the seven factors that we found were the fact finding was standard in the produce industry that the president had thirty years of experience in the industry that the fee term was part of all prior transactions between v l m and i t c now all the sudden eight but they purchased nine different transactions from feel him they get to the tenth transaction and all of a sudden they don't think that term is going to be part of the deal if this was a one time transaction where the invoice followed the rebuy arrival of the goods by all means they would they win because they couldn't have known about it but when you're talking about nine transactions prior to this the the book so the other one is the defendant number three of the individual the president of the company who offered no evidence to refute the fact that the industry practice and custom was that this only shows up on the pay me document that show up on prior negotiations all of the other suppliers to i t c had an honor and that they actually paid that they didn't just recognize that they actually paid attorney's fees to its other proto suppliers when they shut down the company before of a sudden like after nine transactions where this term was on there or at least notice to them was was part of this deal why they think transaction number ten was going to show up with that term out of i mean that the reasonable expectations of the parties are what we're trying to like you know and sure here the reasonable expectations of the parties all of the evidence also when factors on the tree be you know in the scales of justice so to speak there are seven grains of sand on our side there's one  is basically the proposition that logically inconsistent judgments involving one party in default and other party defendants who prosecute the case no it's a trust action they basically look at it is the corporate entity is the the trustee of the trust and the corporate entity can't you know act or fail to act on its own it has to do so at the direction of an individual so that is the claim against the defendant number three but as to the default there are some coming up on my my time as to the default issue there are two main errors by the trial court we believe one is that the district court improperly allowed to default the parties to start asserting defenses plant at the beginning of the trial this goes back to what your honor from the first time which is i think this was just a matter of the district court you know getting confused as to what the scope of responding ok but so i think there's you know a lot of confusion going on and it was the over reading the scope of you know the trial and then when it went back on remand to the district court the district court unfortunately assumed that all three defendants were kind of back in the mix one that was never raised the first time they were apparent appeal they never raised you know the defaults against them and tried to get those vacated there is nothing in the record anywhere that would indicate those  those are set in stone recognize that there was a problem with the two corporate defendants in that the the apple appellant here didn't pursue a a default judgment of though there had been a default entered in the case the chronology is correct the first day i appeared in the case which was a week before the trial i request of the vein the judgments and default an attorney stepping into the case just before trial but mr overman was the only defendant that was up and standing the other two are gone out of business that they were there was a default entered against him which i think correct correct correct but he was in court everybody was here i just i don't feel that they had any particularly great importance but it you're correct there were all here and there was question on the first feel that was mr gramley do i have enough in front of me to reverse it all right here and quite frankly reflecting on that moment i was kind of scared to say yes because i i didn't remember the record perfectly you sent it back if the appellant's here wanted to or grant or enlarge the record or add additional proof or they could have requested that of judge line a waiver below but they did not of whatever the charges were and maybe the fees and cost over mr over and howard was only the corporate officer i don't understand in any position that that that veil was pierced in the trial below i mean i was there the evidence really was that he was the president of the two corp of the corporation that bought the potatoes i believe it was and that there was not a payment of this  and that liability was found on that basis i believe it was derived directly through the packet act which creates a series of truss but it's certainly yes wouldn't is not the case und well i ask this because you didn't raise the from logically inconsistent judgment will either that's correct and it seems to me or at least i'm having some difficulty determining whether  the liability of all the defendants rests in the same factual premise in which case holding the president overman not liable for the attorney's fees but holding the corporations for liable for the attorney's fees would be logically inconsistent and you know he addressed this i'm kind of i i agree with the court and i must confess i don't know what the problem rule was in fact i misspelled it correctly the first time on my no all you know a contractual issue under the treaty there were off thrown in the same  claim that they're talking about the district court didn't just kind of wave a hand and say that was waived because of what happened on the first appeal the district court took the position that that was waived because it was raised for the first time in this reply brief that's just factually inaccurate as it is your honor said like i've got the record right here counsel that's not true it was raised prior to trial in that the beginning of the transcript of the trial was clarified with the judge and he said right you're correct the debt it was all about the tracys as to defend the number three that's correct but it right that's an argument that applies across the board on the same facts as against the corporate managers actually the debtor right but when that first came up the two harper defendants were defaulted so there was no evidence as to them the only of the third defend it was the only one left for that trial and he took the evidence from that trial and enter judgments as to all three so the first