contract for a not a contract might may be a contract case that was decided on a motion to dismiss in the southern district of new york that is relied on by mr kahn notice and in that case they set forth the principles for unjust enrichment and when they do they say that the law of moore's unjust enrichment and that the law may abhor unjust enrichment but when the facts show that there been promises made  of payment and you will be compensated satirise are over and over again i mean there are facts here and unless we find clear error on the part of the district court judge how to how can you succeed in overturning the call the quantum arrow it award here your honor let's parse out what those facts are there are maybe three categories that you might call as facts of payment over and over the first is verification of hyper saul's recognition for your contribution in locating a possible contact with mutual pharmaceutical company in related to our liquid solitaire knology should an agreement consummate with said pump any i ever saw pharmaceutical corporation will give you a fair commission fee for your efforts all right and they're after they just refused to do that and did not did not offer did not volunteer money when they were got money got paid actually your honor that's not correct thereafter held a meeting and after they held the meeting they entered into a contract between hyper saw and mr caught notice that had nothing to do with the saluting immediately actually that's not true you're on where in the broker's agreement does it mention the introduction of the parties and the grievance that comes from the introduction of the parties your honor if you look at section and i'm now at j one thirty six i believe in section one point two it says no commission will be payable for sales to pharmaceutical companies sales yes that's correct ales the broker does not have a license to market the products which is a defined term are you look at other times for us and it goes on and at the end it says other than the current agreement which is being negotiated with mutual pharmaceutical talking about the sales and marketing a product the product being defined as the nutritional products here this is this is about facilitating a meeting the the september sixth letter let me ask you a question since we're on facts and following up on judgment delta question before we get bogged down in the last because of his efforts in facilitating a meeting your clients made one hundred forty one million dollars plus just between the first quarter of two thousand and one and the last quarter of two thousand and nine is it fair that he gets nothing yes you're on how so because when he entered into a contract he entered into a contract to protect his business he was a nutritional salesman he was a person who had approach mutual in august of one nine hundred ninety seven and met with them about nutritional products now but the good the meeting with mutual was all about pharmaceutical imus rock roberts testimony and what the court the court credited that you've got a clear error standard here your honor the court said i do not credit the fact that only pharmaceutical products were discussed i know that co q ten was discussed and that co q ten had been discussed at the freedm meeting before that and that even dr roberts who was mr can't notice his own witness said repeatedly that dr spiros had tried and tried to convince him to produce co q ten therefore it was not a meeting that concerned only pharmaceuticals oh let's go back to the satanic were six letter that you know is right now and you have discussed that talks of an agreement that agreement could be either as to or as pharmaceuticals that does not segregate or separate or identify an agreement that and then the eight hundred ninety eight margin notes are made next to it will then offer it for sale and mutual will get the right of first refusal in the april nine hundred ninety eight draft which is as you can see a black line version that changes completely the way that the terms of the deal were being proposed to high profile it says now instead of hyper salt developing a product in bringing it to us when it's viable mutually wants the right to say what products will be viable in conjunction with agreement have to do with pharmaceuticals no but what is true is that the only things that were produced under the licensing agreement were harm assumed about that's the only thing that was produced under it first five products that's correct which means pharmaceuticals to me since that's all that was being produced actually a spirit yes because it said that the first five products were totally undefined would be agreed upon between them a nutritional product would come to market very quickly a pharmaceutical company product on the other hand if you look at it this deal was entered into in  middle of one nine hundred ninety eight there were twenty six products contracted four of the twenty six only three of them came to market and those three pharmaceutical products came to market in two thousand and one through two thousand and four the third product didn't come until two thousand and four well why would they have this note agreement about nutritional products when there is a separate agreement with george on nutritional products as exclusive broker i mean that makes no sense and there were three products produced produced pursuant to this agreement why does that note not have to do with those three products from which one hundred forty one million dollars was made your honor the reason that it doesn't first of all is because it's in a draft it did not go to the final well i just i mean we have lots of showing of intent here to compensate and we have robert's statement that you know this is spurious is m o this is what he does he promises he promises people deliver and then he won't perform and this looks like just and this is more than his promise in september of ninety seven this is him telling the other entity you know george bush should get something out of this and i'm wondering whether the two point five to five percent wasn't from each of them so it would be five to ten percent which seems to make more sense to me who gives two point five percent commission all we talked about here was ten ten and fifteen percent seem to be bandied about i mean i just don't understand your argument your honor i think you hit on it when you said that this looks like something where he's trying to get both parties to have an obligation here what he's saying is the course of what we're doing which has not yet been reduced to a contract is moving forward in a strange way and i wonder if we should find a way to give mr conne notice something for that we're zooming explanation in the record where is anything in the record that detracts from the force of this somehow that this you know was not something that was you know something anticipated or intended by him he did your honor but that the court did not credit his testimony in that regard that becomes a finding of fact the credibility credibility illogical it's a handwritten note ation it is classic for all evidence so i think we better move to the law because we're arguing a lot of facts here and i think you're you're better chance i guess and we directed you towards that perhaps perhaps the law where i think there might be a better chance absolutely your hon the reason that new york law is so antithetical to unjust enrichment is that it wants as does every other place in this country to encourage people to enter into a contract and when you enter into a contract you may specify rules that govern between you and the other person so that you have a clear statement that can come before court and be enforced really the new york lawyer is suspicious of perjury and suspicious of people making up agreements that just don't exist at all that you know agreements that are made out of whole cloth here we have substance that shows that that that that worry if you will of the new york courts is not implicated actually your honor that's as to the statute of frauds where they're concerned about perjury what they're concerned about as to the unjust enrichment is did the parties reach an agreement that they reduced to a contract form they did reach an agreement they did reduce it to a contract of parties reach an agreement or nutritional products that is the broker's agreement that's what the district court found the district court found that they decided in the broker's agreement to limit compensation to nutritional products there is nothing in the september one nine hundred ninety seven letter that says this is only an agreement about pharmaceutical products it says we will reach an agreement for how you will be compensated i could be a violinist and i could go to the nashville symphony and they could say i'm not going to hire you to be a concert violinist if a country music performer sits there and listens to me and hires me to be there i'm being paid for something different it may still be that i'm performing a service but it's a different service but there is an if something that is distinct from the covers a subject or a topic that is distinct from the contract itself there is no though basis for saying that that brokers agreement has anything to do with pharmaceuticals your honor let's put put five minutes on will give your opposition the additional amount your honor there they're the fact is that the september one nine hundred ninety seven agreement said there will be a meeting with mutual there will be a contract that will come out of it there was a contract that came out of it there's nothing in the september nine hundred ninety seven letter that says i'm only talking about pharmaceutical products no and there are numerous cases where the court says if the relationship of the parties is governed by a contract that contract precludes a claim in on just enrichment even when the contract itself does not provide relief and in fact your honor there have been several cases decided even since we brief this is the southern district of new york's case kimberly steele versus watch ill management nutritional products are the payment but but does the contract itself govern the entire relationship including both yes you're on a jury if you look at the make a finding though your honor he said that there was an integration clause in the integration the word products there are in one sentence the second one said there is no other agreement between the parties now there than this agreement that's correct how can there be if i have multiple agreements i mean i need to say that there are other agreements regarding the products well your honor didn't limit products in there were arguing that you could you talk about attorneys fees because i found that the attorneys fees argument that you were making really didn't fit because the progress agreement does relate to product and the attorney's fees provision talks about a circumvention real art relating to the products capital p which is nutritional i don't see how you you can craft that it seems like you want to use agreement for some purposes and not for other purposes but how can you craft that as being related to pharmaceuticals your honor the way that is because of how he put this and how he litigated it he brought this case as a contract case he said in his own pleadings you only go to and just enrichment if the contract is to indefinite to be enforceable this contract guarantees commission and i want my commissions under the contract in fact even in his brief he continues to say i want fifteen percent and because he brought this as a contract case he circumvents the broker and receives a payment for the products from a customer the products here were nutritionals only as defined in the broker's agreement the company never receive payment for nutritionals doesn't it seem on its face this provision doesn't apply your honor then that provision should have barred the suit but that is getting a little more vision on which you can get attorney attorney's fees are not mentioned elsewhere in the broker's agreement that's only for a violation of the no circumvention clause which is not applicable which says if you bring litigation on the out point yes or  isn't on circumvention he told judge sauls well that judge jones l could not grant a motion to dismiss because it was not clear that the products that were being sold were healthy nutritional products therefore all of the your honor he entered into a relationship mr can't not assimilate into a relationship with microsoft at the time he was a nutritional broker he had a much to gain from nutritional sales the court found that he was a nutritional salesman he wanted to protect his rights after the september letter there was a meeting at the meeting both pharmaceuticals and nutritionals were  after the meeting he entered into a contract and he said i want to protect my rights these are the mutual but i only care about nutritional products the fact that after that and years after that there turned out to be an opportunity in an area that he did not bargain for does not entitle him to money for something he did not consider important enough to protect in his contract all right thank you very much mrs problems let me start off with something if i might that they just made sense to me before i walked in here and judge randall you said it makes no sense whatsoever what makes no sense to me in this case it's april seventh one nine hundred ninety eight yours spirits spray us you've spent all of your life most of your life developing lippa solid technology you finally find a manufacturing you've hired brokers you've looked for a way to make money with this you found we found somebody you've been introduced to somebody you're in the process of negotiating a contract where you're going to make millions of dollars and on april hundred ninety eight in the middle of these transactions going back and forth what you do is you decide a smart thing for you to do would be to write a note in the market and you're going to write a note in the margin having already entered into a broker's agreement having already written a letter on september the seventh and you're going to say and i'm going to paraphrase i'm not going to quote from it were i think we should pay continentals for the introduction two and a half to five years why would you do that you would do it and this is probably the most important part of this is my you know i just want to quote from one part of the testimony which can be found a j a sixteen hundred and this is this is magistrate hart asking spiro spurious a question and he says we know i understand i'm no idiot that note you wrote in the margin a draft is a very important piece of evidence in this case we all know that you were asked yesterday i don't remember if it was me or from by me or mr behavior or mr fear vomiting what you were talking about in that note you remember that and at one point you wrote i wrote in my notes that when you wrote down the next five products you really meant five nutritional products that's what you said the witness that's the truth what the judge found is that was a law well you're you're saying that he already had a nutritional products agreement so why would he write them in the margin is that you and i'm also say most importantly that the judge determined that that was a lot specifically he says on page twenty eight of his opinion i do not credit spirits his testimony that he was thinking only of nutritional products secondly if i could finish this he says about his credibility i cannot credit spira suggestion that he met with mutual as a personal favor which is what his testimony was on a fourteen eighty two in the light of the september sixth letter and the third things he says is i cannot credit spirits is testimony that the first five products included those that were never marketed so he finds no credibility on what i think these are not side issues these are the heart of the case let me ask you a question there is a pleading a paragraph in the complaint that talks about the repeated assurances given by for a us now we've got a purty long time frame here eight years eight years a long time frame before kind of a light bulb goes on and somebody i guess roberts acts at a meeting like didn't couldn't realise the continent just didn't know about all this money being made is there detail in the record as to what exactly was asked by continent  us and what was said by spurious over this time span because if the court found in a fraudulent inducement or tolling whatever equitable tolling what is there specifically that lets us say oh you know what with statements that content of those in his direct testimony indicated that what's the replete and where and and what timeframe because i found a couple of very conclus statements but not as two and then again in two thousand and one and then again in this you know all along two thousand and two and two thousand and three and because we've got a statute here that it's kind of important what was said when isn't it  the yes the statutes important of course the statutes important and the issue is whether or not there was a lowering how many times do you have to ask and how frequently do you have to ask it in a i guess the more important question would be why were you  waiting and the testimony i'm sorry i'm not going to be able to maybe but we have we want to try to fix the times that wendy would require i mean it seems more generalized you know he frequently asked yes but when well i can't tell you  the top of my head from the record when and where i can remember a couple of instances he testified that what happened is that mister stop communicating with them wouldn't return his phone calls so we went to mr bazza lockett's mr botts alatas is the person who introduced in the first time and said would you please have spurious call me so it's kind of like why are you asking somebody who's not returning your phone calls he then goes to roberts and says the roberts what's going on because i think there's something happening here so it's hard to communicate with a wall and then when he finally what the critical thing is is that he finds out on his own that when he was made because he knew he knew in june of ninety eight he certainly knew no later than october of ninety eight that an agreement had been signed it's that the licensing agreement had been signed correct yes he did so why should the sectional tensions accrue from that  something like a finders fee more your efforts now supposing he had filed suit in june of ninety eight or october of ninety eight after e learned that the agreement had been signed how would you expect the district court would have valued his service at that time we'd be down on the street so the introduction had no value we would know i think that they wouldn't be able prove damages because i think that the damages issue is credit that money being made is critical and can forsee how much money t to know and and and that's what the the defendant was telling him if you're saying wait it's not the right time the right time being when i make money oh i don't know or are you urging that the one point two five percent was erroneously determined by the court no no and the other thing i forgot to mention to withdrawing from your consideration  the second element of our cross appeal which is the future payments well that was only five sentences anyway five lines it didn't take us that long just a minute five it had been zero tell me about prejudgment interest new york law applying versus pennsylvania law ok i'm going to tell you that i don't know the answer to travelers case i mean that's a point of reference for a part in our travelers yes and i'm going to discuss that with you and that is a point of refs and the and where it gets complicated or where it gets let's say less clear is on the issue of what do you do with a cause a contract i think this court would know what to do with a contract case i think this court would know what to do with a tort case the issue is what do you do with a quasi contract case i mean isn't the real key whether we limit johanan to reading a rule to thirty eight case yes and in light of travelers do you do that and then in light of travelers if you do that and you now say ok we're going to apply the subset of law in new york well in a quantum or would case i guess the argument can be made that it's not a contract case well in this case here's what the judge did in this case a way that before you get with the judge did this travelers would say that a law and substance if it serves a compensatory purpose and that's that's what this is what quantum or what seems right right is not your answer yes isn't that his testimony regarding the tolling issue so we've got a credibility case here that judge the magistrate hart had in front of him on critical issues the critical issues that judge hart found credibility and our favor and against them was the three issues that i mentioned with dr spirit ass and also on the tolling issue with thinking your honor first of all i can address a couple of the questions that you asked here one was about at different points in time how much money would have been an issue in october nine hundred ninety eight we know that one hundred thousand dollars had been spent in two thousand and four which is when the statute of limitations ran there was there were products that had been produced and if you were to take that one and a quarter percent of that it would have given him about fifty one thousand dollars so had he brought suit within the statute of limitations he would have recovered something but it wouldn't have made him rich so that justifies his is waiting because if the statute runs from the time when they were unjustly enriched then it really didn't run till later as to the big bucks or no your honor if it can't possibly do that because it is a fair fee for the introduction and it says should an agreement consummated you will be paid at that point but if the claim is unjust enrichment don't we have the greenberg case the talks about the fact that you really i mean if if they had gotten the money hydrocele gotten the money and and paid him then that would've been fine but when they failed to pay him over time that's when the cause of action accrued because that's when they failed to pay no your honor and actually the greenberg case we cited back t colorado case in that the second circuit has now dealt with the assignment of those claims and unfortunately it lists probably fifteen cases where greenberg is asking for money and in the second circuit case which came out after  briefing the court talked about golden pacific's pacifically and said that that's conflating the damages for unjust enrichment with the wrongful act even assuming argue window the total has yet to pay itself any money the wrongful act that gives rise to the claim for unjust enrich and here was the misappropriation of greenberg's confidential information not the payment of money for use of that information is this here is this a case cited in your it came what the foul you it's to me the valuable thing is can there be an agreement well that the district court you you have said over and over in your papers that the only obligation the district court found was the obligation to pay a fee for an in a meeting but the district court was more generous than that it found that the subject matter of the transaction upon which the fee was claimed was the development of the first five products as well as the introduction of your honor not from the september letter at at that point i mean that's what the district court found that when there he was right or wrong it was not you didn't only find the fee was based on the introduction would you agree with that i think that the district court said that the services were the services under the one nine hundred ninety seven letter which was the introduction document and the four seven ninety eight draft is what he used to value those services he was trying to link them together to get around the statute of frauds by by having linked no this court has and actually judge sugarless and judge barry both of you have wrestled with these issues where i think the issue of compensation is different from the question of whether something is an element of damages and what what traveler says is that under pennsylvania law we have taken contract interest and made it an element of damages because it is such a and it most certainly is not the case where you have absolute discretion under both new york law under the statute itself and under pennsylvania law to shape a discretionary abortive prejudgment interest well there may be discretion but if new york law applies which traveller seems to say it should wouldn't we then re man for the district court to say listen you're not at a six percent limit you're up to nine percent so if you want to redo it determined that the six percent rate was a proper rate in part he had brought this case in the form he chose the form he had brought this case against a company that is a pennsylvania company he and there were six percent would have been an anticipated rate he recognized that he had the discretion to not i think pre judgment interest altogether the fact that he chose a compromised rate of interest i don't think travelers changes that because travelers is dealing with a situation where the pre judgment interest and its rate are mandatory as an element of damages but didn't judge heart believe pennsylvania law applied he says i believe what he said is that he would look at the law befor and in looking at the law of the form that he had discretion so he could have chosen the nine percent as a matter of discretion but he chose not to but i don't know the discretion in that way let's you go above the law or some other that would seem to be the outside limit actually your honor in i believe it's the sac versus fineman which is the case that he was looking through under pennsylvania law it says that your discretion allows you to go above as well as the law all right thank you your honor thank you counsel