the clerk has advised me that counsel are present and ready in all cases so i'm going to dispense with the reading of the calendar to save us a little time the st case on the calendar is  bermuda relates to the provision of what are called services that is i don't think that's the question and why is that your honor i mean that's a question but even if the answer to that question were yes as you argue what you then have is to applicable conflicting forms selection clauses and then the court would need to decide which one is more deeply engaged which which one should prevail over the other when they are applied to their facts so i don't think the answer to that question answers the case your honor with respect i do and this is why this court's precedents in particular the robie case in philips make clear that a litigant may not strategically plead a case or a cause of action in order to get out of a forum selection clause in the court was very clear in rhody saying this defies reason to suggest that a plaintiff may circumvent a form selection clause merely by stating claims under laws not required by the forum selection agreement a plaintiff would simply have to allege a violation of his country statutory law to render nugatory a form selection clause that's what athena is trying to do by saying and your honor very important when they filed their case in bermuda they didn't refer to bermuda law they referred to facts they included a stat contractual claim and it was only later in the case that they mended to add the reference to bermuda law but this court's precedents say they cannot do that and absent that reference to bermuda along the that's the only reason for me to sit involve your client in his capacity as a director do you dispute that we do dispute that your honor the allegations are that he obtained this information as we allege and it is true he obtained the information during the course of his work as an apollo representative your honor and this is very director not as a director of athena this is very important he was a director but he didn't get a thing information in that capacity and this is why i'm not sure i just asked at the start why that makes a big difference even assuming that he got the information is capacities employee the misuse of it breached duties as a director and where that's the allegation the allegation is that the misuse of the information breached his duties and some of those duties duties as what they now allege as a director but this court's precedent in robey says they can't simply formulate their pleading to say i'm only going under bermuda law philipson robey say look at the substance of the claim and your honor importantly he will need what they have to prove the breach changed to duty as a gives a lot of advice to within on an ongoing basis mr siddiqi is one of the people who did that and they said we're going to give you these services but in exchange and you're not going to pay us but what you're going to do is you're going to agree if you sue us in connection with these services or anything relating to these services you do it under our law you do it in our courts and you give us limitations of liability this is exactly what the agreement was meant to do and your honor getting to your point if i if i could the allegation of the misuse is not in his capacity as a director it supposedly happened in two thousand and eighteen well over a year after he stopped being a director so the allegation at its bottom is mr  confidential information we allege and it is true and their pleading alleges he obtained that principly at a meeting where he was providing services can't be disputed it is true because athene can only hold board meetings offshore and that's why this is of a special case in this regard there is no allegation at any board meeting offshore board meeting any information was imparted about a theme and the reason they can allege that is because it never happened so as a factual matter all of the information was imparted to him when he was providing services that means the case relate to services and to let them sue him in bermuda and then turn around and say well gee it's like what the bermuda court said because we modified our pleading after the fact to refer to a statutory rule that's exactly what this court has said over and over they can't do we have a motion to dismiss the pleading itself refers to services mr siddiqi allege that he was providing services and that's true that he was providing services so with respect there is no question that the case has pleaded and pursued in bermuda relates to services and is governed by the form selection clause and i'll add to this we even allege these facts which the district court did not address apollo had gone to a new york court with some evidence and said this breaching duties to us that is providing services athene took those documents and put them in front of the bermuda court and said look this supports our case they are literally relying directly on evidence of services and then this point as well and the district court misapprehended this point appollo sued mr siddiqi in new york and in arbitration they alleged in that case he was providing services acting in a capacity as an apollo person on the same day athene filed this case and it now admits it's pursuing a case based on those same facts in bermuda well our point was simply that some very powerful corroboration that in fact in this case is premised upon the provision of services the district court said oh there's no inconsistency between that and we never said there was of course a theme consume mr city they just have to do it where they way because in this case they are suing them based on services it just doesn't apply but services provided in pasadena as a director are not part of the services covered by the s s a direct but he's being sued premised upon services not directorship activities it's very simple there is directorship activities which he was not doing here he only does offshore pursuant to a themes laws policies and rules and and this is i think a factual matter we need to be clear on a day to day basis a massive amount of mr sudeikis work was advising athene but in his capacity as an apollo employee providing services that's in fact almost everything he did and there is no evidence that when he was a board member in his board capacity at an offshore board meeting or in any board materials he did any advising about athene and thus the facts are that he providing services if the claim was your honor to get to your point there was a board meeting offshore mr city voted about something based and he didn't disclose some information that he had obtained at that board meeting maybe maybe they can say that's only a bermuda case that is absolutely not what's happened here it's absolutely not what we've alleged and so with respect your honor i do think it all resolves to have we established that he was providing services we have i don't think the district court gave sufficient weight to the allegations your honor can to tell you as i said at the start of question whether he's providing services there are arguments can be made one way or the other it's not absolutely clear but in my view it just doesn't matter because it doesn't i mean it's not that it doesn't matter is that it's not dispositive because even if one concludes that that this all could come under and and is is something that would be directed to the new york courts under the the the agreement the advisory agreement it also comes under the found to be applicable is to way to compare them in their relationship to the facts and to see which one is more is more a solidly entrenched which one has more skin in the game or whatever metaphor you use  bylaws apply is because of their artful pleading and they're adding the claim which roby and philips say this court needs to disregard and they can't do secondly the law they cite one case which involved two arguably applicable forum selection clauses that's a case of course in which the court said the facts were not in dispute and this court has later interpreted that case to mean it only applies when the facts are not in dispute so there is certainly no way you could apply that rule on a motion to dismiss to dismiss this claim thank you shareholder and advisor apollo provides to athene as well as the compensation for such services the form selection clause only reaches disputes about these services but this is not a lawsuit about services the essay states that services excluded any work by apollo employees as a theme directors mr siddiqi was an apollo employee who was an athene director and mr c d he asked the district court to enjoin a bermuda lawsuit in which it is alleg he breached his duties as an athenian director so bermuda so the bermuda lawsuit is beyond the scope of the n s a and its form selection because as the district court correctly found mr siddiqi cannot invent a claim against himself that athene did not plead in order to come within the ambit of the n s a nd by law eighty four dollars says and i'm quoting in the event that any dispute arises concerning the bermuda companies act including any question regarding whether there has been a breach of the act by an officer or director of athene any such dispute shall be subject to the exclusive jurisdiction of the supreme court of bermuda and the operative pleading fits within the scope of section ninety seven dollars of the act so mr siddiqi is contractually bound by by law eighty four dollars to defend himself in bermuda against this claim that is what the bermuda courts held including the trial as well as the court of appeals ruling on a unanimous space science q just turning to your st argument the based on the an essay itself the contract and he's your adversary is relying on the language in that contract that says if it relates to services it falls within the form selection clause in and in how do you deal with with that language your honor i think we have cited case law including the including the charter oak decision from this court which says that the related to language is broad but not unbounded it seems to us your honor that when you have a contract that explicitly carves out of services precisely what it is that this gentleman is being sued for which is breaching his duties as an athene director and you have an entire agreements provision in that contract as we do in section nine which says that the subject matter of the contract is these services on the compensation therefore and you have a form selection clause which says relating to the subject matter of this agreement it's very hard to come to any conclusion other than the form selection clause only goes to services and when you have a claim that is not related to services and you have a claim for breach of duties as a director which i express the carved out of services it's hard to see how that works and i would look up to is a pretty broad term so are you prepared to accept the proposition that your adversary put to us that if we conclude that this was related to services he wins in use and you accept the proposition your honor if if this was related to the subject matter of the a s a then it would be within the scope of the essay but it is not yes and i think that's not what i'm asking you i'm asking you i'm asking you who supposing that this court disagrees with you as to whether it's related to services in view of the book the breadth of the term related to does that mean according to you as a as a do as argued by your adversary that your cla vanquished by the usa clause and you lose no that's because your honor we believe that has your honor stated if there are forms selection clauses that points in opposite directions as a matter of law this court should determine which one comes closer and in this case you have a dispute over whether there is a breach of if you do share duties or not that falls squarely within the scope of the  city is a rd party beneficiary and maybe he is maybe he is in some sense a rd party beneficiary but the real concern for putting in the new york clause in the apollo contract is to protect apollo and apollo is not here telling us that that the new york form selection cause should be enforced apollo has no interest in this at this time of fives correct that that's right your honor and i would i would i would follow up on that by pointing out that the bylaws have been deemed to be a contractual relationship between mr siddiqi and athene mr city is a party to the bylaws so that's a considerably closer connection by mr siddiqi to the bylaws than he has to the ambit of the n s a because he was providing services to he was providing services in his capacity as an apollo ploy the notion that when he took information from athena he was acting in the capacity as as an apollo employee is sort of mind boggling he was not acting in an athene capacity when he took that information he was not acting in a pollack a passive he was betraying them he was place he was placed by apollo on the thing on the board of directors and i was apollo nominee yes stand why you say he was not acting for apollo when he received the information when when well i don't we don't know at what point he he decided that he was going to go out on his own assuming that any of this happened and and tried to acquire the target but at the time that he was placed on the board he was there as apollos representative and he was acting for apollo at that time your honor got that the accusation is that he later when he ceased to be a member of the board and went after the target at that point he was violating the do share obligations that remained on him because he had acquired this information as a board member of of i think that right out of my point is that the the allegation in bermuda is twofold that he took and that he misused and the notion that he took which which he says well i took it in my capacity as an apol director does not if you think of i took it in my capacity as an poem ploy does not really follow he didn't take information from athena to go out and help apollo or to help a team he did it to help himself that's what he's accused of doing he's accused of betraying us by taking this information not of your case your case assuming your case is solid whether what you just said now is true or not that's correct your honor either but just as an essential i don't see any reason to assume that when he was serving apollo on the board of athenian that when he received that information he was already deciding deal is for myself of the if he was in violation of his duties to with the me assuming that was not true if he was if that was not true if he at that time was acting for apollo and for thing he would receiving the information for apollo's benefit because of apollo's interest in a theme but after he leaves he then says i'm going to take this information that i got appropriately as apollos representative and now i'm going to go after this for myself that's a violation of the duties to you agreed your honor and i would let me just add one more point as my time is running out there is a theme throughout about strategic pleading i want to be clear athena's remain a company m director of athene athene believe that mr city he breached his or his duties as a director so i thin sued him for breaching those duties as a director in bermuda there's nothing strategic or tactical about that it's the logical thing to do athena has no basis to su mr city for breaching whatever duty she owes to apollo as an employee of apollo thirteen didn't and couldn't bring that suit and i would also respond just to the point that when miss use occurred he was no longer at athena obviously when the misuse occurred if he's not of the theme he's also not apollo so the notion that he misused things that you know in an apollo capacity he says he's gone from thank you  themes council suggested we invented a claim against ourselves based on services but as we've noted over and over in the themes pleading in bermuda paragraph sixteen an extensive clear description of the meeting that took place in february of two thousand and sixteen not a board meeting not a board meeting as a matter of law it's a five hundred and seventy six dollars and they make a reference to the affiliated shareholder that's apollo including mr siddiqi so we have not invented a claim against us based on services we're just reading the themes pleading that's the factual error there allegation of duty it was breached their allegation that they were later included iran are correct is under bermuda law and robey and phillips this court's precedents tell us you don't look at that we look at the substance of the claim robey makes clear it's actually deemed improper for them to try to get under bermuda law so when you look at the substance of this claim it's based on and relate to services your honor there's no good answer no way to say a case doesn't relate to services when you make factual and they if you look beforehand there are these other general allegations about how we obtained confidential information and as mr siddiqi alleged because it is true he got all that information in his capacity as an apollo person and your honor with respect to that even if and i and i respectfully don't believe that the bermuda forum selection clause could be deemed to apply here because of the form selection clause the entire purpose of this agreement your honor apollo said we have some directors on a theme board we also have a lot of employees doing a lot of work for a theme if they're going to sue us for all this work we're doing for them for free they're going to do it in new york they're going to do it under new york law and there are limitations of liability and a lot of protections and there are non athene sorry not apollo directors who would be subject to the bermuda by  as an apollo employee for apollo his purposes so what are you so assuming that's true i think that very well might be true but what difference does it make the question is if he had gotten if he if he at the time that he got  the information was secretly scheming say oh i'm getting this information now as an apollo employee but i'm really going to quote them both and i'm going to i'm going to go out afterwards and i'm going to go after the target myself but then for whatever reason he changed his mind and he left the companies instead became a movie star in hollywood and forgot all about that there'd be nothing there would be nothing here the fact that he had evil intentions when he acquired the information would be meaningless because he would not have have actually violated a duty what matters you're not claiming and i don't think you can claim that when he went out and sought to target for his own benefit that he was acting for it for apollo at that point nor a theme correct your own right not for apollo or for a theme he so because that because the contract says whether he whether he was acting for apollo at the time that he acquired the information as a director of a theme doesn't mean anything that's not when he committed the tort the wrongful act but the forum selection clause says if a claim or an action relates to services it must be brought in new york i agree with you and if you allege at the time he was out of thin apollo that is before he resigned he intended to use the information he was taking so there is actually an allegation in the pleading that during the time he was providing these services that's part of the tort and in fact your honor just to get on that under bermuda law they're going to say that shows we have a claim so going to your point they actually will try to prove and have alleged that when he was an apollo person he created he had a corrupt intent to take it and compete so that also even puts it more squarely into the very thank you your honor thank you both and we will take the