the appeal by those fans from the jury's verdict in favor of my client emirates bank from in that appeal your honor we are the court is faced with a verdict by a jury  in complete rejection of the plaintiff's claims and if a spend came to the district court and presented to the jury a theory that it had spent one hundred million dollars over some period of years between five and eight depending on the testimony to develop a proprietary system that involved cards and would allow international remittances payments by low income workers in the gulf region this court should affirm the jury's verdict from multiple of the record and use it in the deference that it must give to a verdict which although styled and captioned a special verdict was clearly a general verdict the court asked the jury to simply find life and then the amount of damages assuming a separate cash crop and there were none and we had asked for that the court declined we objected to the verdict form info span did not and i think despite the the name the substance of the verdict is clearly a general verdict so one exhibit out of one hundred eighty one that were emitted and four piece of testimony out of seven hundred pages of trial transcript the error is harmless because in full span could not sustain the most basic elements of the story that it circumstantial evidence to prove that fact a party should have accounting records receipts invoices there should have been at least one of these cards which includes being claimed three hundred thousand were made they could not present any of that honor we put on testimony under subpoena from a gentleman who worked for him post fan for a year as the person in charge of the project he's the only person ever employed as an employer consultant by in the span with you know  to impose fines case despite the assertions by the plaintiff that they had a working system he rejected that he ultimately left info spam because he did not believe in truthful with the bank and it's compelling to us that lee placed its reputation at issue out there could be cases and appeals were a lawyer would come before you and try to convince you why some manner of claim or damage theory could reputation issue we don't have to put any spin on the ball to make that argument they put their reputation issue explicitly in the jury instructions they submitted in their version of the statement to the jury they stated forbade them that the bank destroyed the reputation that was submitted weeks in advance of trial this is not a slip of the tongue by counsel or a witness this was a purposeful injection of the reputation at issue by trial counsel in writing before trial point one point two  that their damage theory was predicated on a total destruction of the trade secrets and conceded that the reputational harm went into that theory so there is no dispute that reputation was at issue second their first witness dan johnson the one of only two board members of the company and one of the only ones to testify admitted that this incident whatever happened in pakistan did impair the jury there certainly were disputes about that but i would submit the following number one we did not put any evidence we asked their witnesses who would raise it a deposition raise the word rape in a trial as an approach a case or in the forfeiture case where reputation is a is an independently relevant fact that evidence can come in and that's where the evidence was admitted it was not to smear a witness it was not to smear info stand the last point i'd like t simultaneously with this i guess unrelated parties remember they were asking for five hundred fifty four million dollars potentially troubled based on a total destruction of the trade secrets so the fact that there and reputational harm is a promise of that of that destruction so any other basis for an impairment other reputation the incident with mr and dr hosts and pakistan the ensign with a geisha and where they challenge another company another pakistani company totally unrelated to this case or the point of the other case that they were making up this reputational injury because the election all over the place or was it that it was pertinent to how much the representation was injured because it was also issued by this other thing or what both case was a letter accusing askari bank of reputational injury because they were delaying implementation of the same technology at issue in this case so the fact that multiple other parties were accused by the same plaintive of reputational injury and financial damage is absolutely probative wrong for a three year owner so the question is is it a bit over do as i understand it and i just want to make sure because it's so me interest to me seems to be at least two as to the ensign litigation there's motion in limine a and other then the rape and a host allegation where there was a sidebar request no sidebar requested and just to focus on the host example this came up with the first witness second day of trial the next day they were most other than ten minutes across that i conducted of mr scott or they were cross examining our witnesses they could have gone to the courthouse for cured obstruction the could ask for a limit instruction the third day was a friday i put on mr scott or no objections when this topic comes up we then of three days off saturday sunday monday court is dark a month no motion filed no cured instructions on the limit instructions off so so number one they're not making it easy for the court which has to rule in real time and this panel has more collective that it was of no moment in terms of raw bonding the claim or the claim of damages or would they in essence arguing for exclusion they suggested a very brief line that the issue should be excluded suggest that a trial court has to stop proceedings make a formal recitation of rule four three where the parties clearly have brought it to their attention and this is not a surprise and with a free motion limon a vailable to ask this court to disturb the general right but it didn't show its work and i just think that on now there could be cases where you don't have to completely unscramble the eggs but we had a two week trial we call dozens of witnesses we floor witnesses from dubai which is probably a good segue to more complicated legally actually boils down to a simpler issue which is where should the parties arbitrate and in that respect we would submit the issue is is it proper for a district court which i concluded in an understood ruling that order as to those still challenging jurisdiction on contract though in the span gulf drops out and this is where it can get very complicated but it drops out because it destroys diversity because you lose alien his jurisdiction so in full span gulf the came in out of the case for several years we come into the case in two thousand and fourteen and we say we want the bank to sort counterclaims it's right it doesn't waiver stiction just sell no initially said you're too late that's not a challenge i think that's that's a  hang the court sided of the premise that if there's no agreement of of the side of arbitration a court can only order arbitration in the district but touch ten is also doing something and that decision that i think the judge selma should have done here and i think this on the point fishtank says if there was some implicit agreement something that told us where the parties want to arbitrate i could order it there you can be an express agreement or implied agreement and we submit that there was substantial evidence in the record in the form of the it would be appropriate for a district court to say i think these parties who have already found did not did not sufficiently engage and actions in this district to give rise to personal perception that in fact on your theory i mean you can a little aside because you think misused by the trial court where you noted that affirmative litigation conduct in these courts bringing claims in u s courts can give rise to specific jurisdiction but defending actions should not and that's really what happened here everything we did was defensive  issue and the issues that went to him for spans reputation as counsel this counsel is split and one of the problems here is that the information that the each of the allegations here go to the reputation of i so you're going to measure the level of what this is probative to to the amount of prejudice the amount of prejudice i think is accepted is quite high when you're bringing up something when you're using when you're bringing up something like in a sexual assault or rape and you're also accusing the company of these other things fraud in the bringing up these other litigations each of those are extremely prejudicial and then in weighing the four zero three issue the issue is are you getting to something that is really has an effect on on anything you're urging that the absence of argument in closing the admissibility of of the evidence because the bank did not demonstrate the probative value is that is that the gist of your argument not so much clothing as they did raise this issue in closing but just in terms of actual evidence between being there and being here once this begins with the first witness and as this is explosive allegation on the first day of trial all it needs to be done in closing argument is do is to refer to it and refresh the jury's memory of what has happened so it sounds like it did have great probative value on the reputation of introspect no i disagree with that what i'm referring to is the prejudicial effect  because if this was going to have probative a strong program value on the reputation of him for a span there would have been some proof that other pump anees other customers other banks had some awareness of this that other people who had dealings with him for spann had some some information about this none of that is part of this record well wasn't it enough that this particular young woman was the daughter of a pakistani military official and that the bank with whom the the the bank in this case was planning to do business with these cards was also own door controlled by the pakistani military i don't i don't think that linkage of the bank being known by the pakistani military or this individual having that sort of influence on these banks is at all on the record with what i'm sorry i don't believe that's in the record it isn't isn't the fact that the young lady was the daughter of a military in their plan was to do have this supposed card used in pakistan by this pakistani bank and that they were going to be able to do that because they were never coming back to pakistan but then i don't that's for one thing that's not  scary bank was the bank that the migrant workers in the u a e he were likely to be transmitting their funds to and therefore was important to get the pakistani bank on board if this is going to work right that that part is relevant yes but i see no leverage or they couldn't wouldn't be able to do it that's what i meant by app right in pakistan and we're going to be able to deal with this back but that's the those are the but but the evidence of record as i read it at least was this was the bank where many of the pakistani migrant workers would be expected to be transferring the funds  therefore a smooth connection with that bank was critical to the operation the visa program set up by emirates back i got it right and so the the inference is that you are raising i don't think are properly reflected in the record below that this that it's it's not even an argument i back her before so it's interesting but that this military official would have some influence over in pakistan such that th capable of doing what was promised now second you made fall for a present a shoot at the bank that you had a functioning technology that had already been deployed for commercial use third they investigated to determine whether you were a trustworthy business partner and specifically whether you owed own technology that you promise to supply and forth their decision to terminate the agreement was premised on its discovery of the many misrepresentation should given them that's the evidence and i don't know why any of these four things had anything to do with that so it's that recitation of the bank's evidence that is to my mind why this why why this other evidence about practice was so important because it was good for the case the bottom line is this evidence is something that was never ever contra contradicted never your one hundred percent wrong oh ow ok i mean i read the record now then know you got it so the the head of there was user except it's testing of all this there were thousands of transactions tested at the head of the project piece gangland right set start date for this project to go forward it was only what people who did not know the technology stepped in and were concerned about revenue sharing that it was blocked there was there was there were who was inside and post fan basically backed up the bank story so that was a non technical witness and i was in charge of the project without it from a business point of view and the testimony was that he moped that once the company became unhappy with them that during the critical period he was home alone in this basement hole the problem that i have with you is the same broker that i have on appeal was a lot of lawyers who are i don't want them to give me a fury argument i want me to tell them why there is no evidence none that i could rely on to suggest that you never develop the bank card capable of doing what together i think the other litigations i think are substantial importance i do think that and that's why the the law says we have to be very careful about letting in other litigations but you're right but your honor the the whole point of having a dreary verdict where you're saying who's who's evidence to the police because we had witnesses documents internal documents from the bank saying this pocket was ready to go well let me ask you because maybe maybe we're talking past one another here was there evidence that your client had a stored value card at the time it negotiated the agreement with the bank  and what was that evidence that it had a workable card marketed card at that point in time nothing's been marketed at that point they said it was not marked no you know they said that it was how it was for the plants if it was working with a bank in the united states and that was the testimony of the interest of the impulse band witnesses including mr scott or and mr and mr bottle and that there was a card in testing yes but you did you had never successfully produced and used in the marketplace and s p c card by december is right there was no evidence of that right it was in oklahoma yes testing but not it was not in the marketplace with actual live customers in use but that was not the representation that was being made there was no notion of that that there's a bank with bank card out there on our side on all of these things so once the jury becomes distracted and inflamed by the prejudicial information prejudicial aspect we don't get our side of the case fairly h including documents from the bank that said we're ready to go with this project it's working it's been tested user accepted testing has been has been completed so it made no sense to say  statements made or was your testimony to support that those statements were made that a jury could believe i'm trusting that you're reading the statements from the record but actually whatever is where where reading was from the first of all the issue of personal jurisdiction was not for this case was not decided in for a span one because in in for spend one the issue was contacts with california and here i don't understand that one right and why isn't it wrong so the waiver decision is correct because there were deliberate strategy employed in order to do two things one was to argue the claims that the tort claims should be arbitrated and the other was to argue that arbitration should take place in dubai but when you have a court saying there is no personal jurisdiction or there is one of the other you have to go forward the council can't just sit on their hands in this particular instance there's no question the court said they have personal jurisdiction go forward this the other side has to give every objection fight on every particular issue that they can come after they've lost the big issue that they've got in front of them which is exactly what you are suggesting they did and i'm still trying to figure out why that's a waiver so what you're talking about happens in forgive me for saying if we spend long when the personal jurisdiction ruling and what happens then is that the bank says all right and once they have in place bantu we're going to bring counter claims in order to try and one overturn the court's previous decision and get this arbitration or you're suggesting that if you get a ruling against you on personal jurisdiction you cannot bring a counter claim though but there wasn't that is what you're saying no because what i mean what you're saying i'm saying that there was not that's not what happened in this ban to this was so there's no doubt that if they were going to wear the personal jurisdiction they wanted arbitrate that is what they wanted and they has the right to try to do that in every way they could in the district in the court  so what what what was the waiver why did they do that was the waiver you have to break down what you're saying between if the spam what if there's been too so they've got the adverse ruling and purse you know jurisdiction with respect to the tort claims and arbitration oh so you think they went to this such if you are hit i never saw before a star as i know in other words you're saying that the waiver wasn't an info spend one it was an infant spend two it is a rule twelve waiver that you're urg it's a peterson waiver is how i think of it well i mean you're not you're not suggesting that they didn't preserve it in an answer or by moshe it is it is it is it is right it it was you know that answer and then what the sequencing of it is and this is what unsuccessful then saw raise the personal jurisdiction issues and that's particularly offensive when they said that they weren't going to be pursuing this other arbitration and i not that they were trying to get a ruling on on the arbitration protect they went and instigated the arbitration and to buy separately but i don't see anything and where he's really are can you show me where he is relying on anything that happened ok thank you very much on the last point that was raised it was completely incorrect we moved to dismiss and was going to we threw that motion when they wanted to amend but i don't know i honestly have no idea what counsel talking about and i couldn't address it other than to say in the only reason we filed the motion it goes into after the conduct counsel references because they filed it three years after they filed the original action so i think that's all factually correct and i think was that after the time in to spend gold dropped out of the case the same jurisdiction they went silent for almost three years to my recollection and then they filed in post bantu ostensibly a deck relief action on these  but it's all defense of conduct and it chills litigation conduct of anything we did judge posner's decision rice were a party declined the invitation from the district judge to raise jurisdiction again or the  e connection between a story bank and emirates bank on this project judge must tell you you've nailed it it's and page fourteen of our brief it is absolutely vital and you don't have to again we don't have to get really complicated here you have record that went in without objection that they used a scary bank or reputational injury with three different instances where they use other parties of injuring the reputation which they put issue and lastly on the point of the link mr scudder testimony