decisions on motions does this mess from the southern district of new york cases an unfair competition case between app attacks and it's a larger rival hospital and let me by way of illustration discuss one of the party's contract and by stealing apa texas confidential information its prices its customer less its production schedules and knowledge about its supply constraints in short not by competing on the merits but instead by using the leverage that it retained under the party supply agreement appetites how spirit was able to destroy appetites his business and steal apple texas customers and make them i new pattern that i just described with seven pm repeated itself with all of the other drugs at issue in the case the district court concluded this conduct as alleged in fact state of the claim under florida's deceptive and unfair trade not to willfully injure another party and its property what he concluded however was that the allegations in the complaint did not quote and this is his words possibly state a claim that no trier of fact could have accepted those allegations as true and concluded that in fact the duty was breached and that is why your honor i began talking about suffolk because those allegations about s fall squarely within the new york line of cases which begin with riches cited in our brief and adam arly and then your own case from this court carvel which demonstrate that where the trailer is not the breach plus but i want to make clear that it's really many facts plus the breach in other words how spirit engaged in many independent acts separate and apart from the breach of the contract those acts included going to customers and revealing to those customers are confidential information those acts including using the confidential information hospital obtain from us to sort of plot it strategy an effective strategy going forward and it's that combination of factors which clearly establish that separate apart from whether hospital or breach the contract there are many other factors which the recover lost profits under for that there is in fact no authority from any state case in florida on that point is there not authority from federal district courts there is split authority from the federal district courts and where is the trend there you're on to each party has cited many many cases each party claims that the trend favors their side the th circuit in an unpublished marco island which we cited in the braves said the trend was towards lost profits in another case they didn't allow an office another unpublished case but that was a consumer case not a competitor case as to competitor cases there is no state court opinion at any level addressing this issue given the obvious importance of the question to the florida courts if the court leaves it what is really an easy question of statutory interpretation here which is what is the meaning of actual damages really within federal and and all you have to do is look at florida common law to get that answer and the answer is it's the damages necessary to compensate the injured parties but not is you know how long it's i do not know the answer this question the florida  whether we should do it as your honor you should do it it does the standard mean clearly this is an important question of florida law clearly it is a question that no court of appeals in will happen as results of that so if we were to send this back what would happen there be no diversity jurisdiction would go to new york state court and that the new york state court would have this question of florida i correct well that would depend on what you did i believe your honor with this let's see let's see we didn't start what would happen if if he sent it back without reaching the merits on some basis such as that you thought there was not jurisdiction i believe our view is that the decision of the district court would likely likely become final and that hospital with then argued to the court court that the final decision of the district court on these issues was binding on app attacks and that is precisely the result we seek to avoid here because we have a decision of the district court that was made when it had jurisdiction which is adverse to our position and we had to use it because it's a decision based on the st of many complete that's exactly correct your honor and so what we would what we're asking this court to do is to reverse and vacate the orders challenged in the appeal and in that event without workers vacated then in the state court proceeding  hospital will not be able to take the position that the case has been decided and really it's finding in the state court proceedings turn it of late if the case with if the court were to reverse and vacate and rule in our favor on the think it's true but you are deciding a case that is very much lived before you and you are telling making a ruling on whether that judgment in the district court is or is not correct and the consequence of that that ruling is if there is no ruling is that a police here are likely take a position in the state court proceedings that the district court's judgment is binding in which case even if th florida supreme court were to disagree without this court weighing in and issuing an order affecting the district courts earlier judgment the wrong one may be applied down the road and so no you are deciding a live case with the power to make a decision that will have a say and impact on a life case it's just that the case is not proceeding in the district court it's proceeding in a steak were but the disk it's the district court's decisions that create a problem and therefore if the district court's decisions are incorrect they should be corrected they should