and rome the supreme court's recent decision and roe mag abrogated this court's prior standard governing awards and profits under the lanham act both the jury and the district court in this case applied the prior incorrect standard and there should be no question that the court should lean and i guess as a result there also should be no question that the application of the incorrect standard profits affected the district court's order of denying attorneys scenes and that's the case in the court there short we think the answer to that question is straightforward the district court already ruled after a trial that the parties had consented to a binding jury verdict on profits that ruling choir's a new jury trial on profits under will thirty  the fact finder is going to be if the other side doesn't consent and so why isn't it i mean i've always read a new trial was starting all over again we've wiped out the previous proceeding and we're sending it back for a new trial but why prejudice that that flows from the situation that we have here which is the defendants are changing their position presumably because they now believe they know how the district court would rule and now we don't think that we know how the district court would  because he was applying the wrong standard in his post trial ruling but defendants are changing their position with the benefit of hindsight with the benefit of having the district court's ruling when until that point they  know you're really telling me or you're really telling me is that they've changed their mind and i understand that you might rather have a jury but tell me what tell me what principle in the rule because we're trying to instructions and defendants really have not articulated to the court any basis for any and any reason why they should be permitted to withdraw at their consent the only argument they've really presented to the court is your mind yeah i'll just briefly respond to that question which is yes that is what the court did a monster energy and in that case the court cited in a footnote precedent from this court that says when there is an intervening supreme court decision that be decided on an advisory basis which is very commonly done commonly and in trademark or false advertising cases the legal issues will be tried to the jury and the jury will be asked to decide profits on an advisory basis that's not what happened here as a district court recognized after a trial the jury was asked to decide profits on on a mandatory you know on a binding basis and so there's really nothing about the law as it now stands or about the case that would warrant allowing defendants to change their position with the benefit of hindsight given that this was an equitable decision at the time of the st trial it's an equitable decision now and the only thing that really has changed fees and allow the district court to reconsider that issue at the conclusion of the proceedings on remand that attorney's fee to session as based on the totality of the circumstances and of course the circumstances very well might change on we now and including one need to go back to the jury i think it's important for purposes that i didn't but then that now we have now you're butting right up against a rd circuit case which says the district court doesn't have any discretion under this circumstance so is it i decision would be to send it back it would be a decision made by the district courts to weigh the equitable multi factor arguments and are just so now i'm going to stop because i doubt now you're confusing me your position that the district court could impose a non advisory jury i remember now as this was simply that if the issue is sent back simply with respect to discordant profits and attorney's fees that would be a court decision not a jury decision now let's assume forget about whether it's aquiver legal for a moment might you said it's up to the district court i thought your brief said it's up to you that you're not going to agree to a not separate bases for how there was no misconduct how there was no intent and how there was no deception or confusion this was simply a group of individuals trying to comply with an existing say court advisory jury did it i think it's one thing to reject a new trial motion and say i don't think you know it's against the weight of the evidence but fact finding on willfulness should have been done by the jury shouldn't yes and the jury did not find one way or the other on the issue of will there was no we don't really know what they thought about the work to just be i mean the trial testimony the work bench and the fuel costs are really relating to people as a whole spectrum of allowing discord i guess maybe the important thing is that procedurally and my understanding is that the this appeal is of the post trial motions not of the jury verdict so the the issue of what the jury did or did not do it i think is rather a relatively a red herring in this case the parties submitted the issues to the court the appellate court says that it was down by juries determination because it was a non advisory jury and so now the court will have to do it over yeah i did and i'm still stuck on the procedural issue here if both of the parties agreed and they did that the post trial motions were within the just records discretion that was the issue was killed i don't know that it's relevant to we're resting this within the sound discretion of the district court that's the issue that was put forward that's the issue that was yes i don't i'm not worried about the jury's decision for a moment what i'm what i'm trying to find is where they said and we'll let you decide the issue profits whether we get profits we argue that it was a factor that the district court should consider in determining in making the equitable argument are you telling me that you agreed in the post child reading that it was that was advisory and that it was a multi factor analysis to be done in th i think your answer is absolutely correct if all other parts of the judgment below are for but doesn't the situation changes we send it back shouldn't we make a the attorney's fees awarded if we send it back to the judge can your five and six exactly correctly the district court clearly held that it was bound by the jury verdict and it's clear that what it's doing in the paragraph that ms mackenzie is focusing on is addressing a potential argument for to decide the issue correct that was our position which he rejected so why doesn't this district judge now have the discretion to decide the issue you're setting if you're talking about judicial stoppel and changing positions i take it you the district court agreed with that submission by defendants and then the idea that the district court actually applied some sort of multifactor at roe mag test and reaching the decision on profits on his own is just not supported order it cannot be clear i cannot sex where the district court said as plain as have failed to prove that defendants false advertising was willful plaintiff motion for order for disgorgement of profits is denied the district