take your time setting up no kno hairsplitting but isn't that a distinction with a real difference in the wall that one is a claim for relief which some redress or remedy can be granted and the other is not there is there is it they served different purposes affirmative defenses and chemically serve different purposes yeah and somebody who comes to court with just an affirmative defense when a case is dismissed can't jump up and down and say hey i have a count to claim if they didn't file a character right because a counterclaim stance is an independent basis for relief correct it does stand for an independent basis first of all for the real difference not technical hairsplitting it's a real meaningful legal difference is it not but not in this not in this case because many times an affirmative defense will carry the day and will win so you do get affirmative relief as a result of the defense for example when you say something is i don't get affirmative relief which you get is song some counter to a claim that has been made that's what affirming friends does it stands as a as a defense against a claim doesn't stand as a claim unto itself doesn't it does not but that's what we have here we the affirmative the winning on an affirmative defense in this case would also grant us the exact same relief that we asked you because we were asking for relief to having to pay one severance which we lost on but also any other benefits or arguments that th you could have gone to the arbitrator it was covered by your patrician agreement you could have made your claim you could have said there was a breach you could have asked for some remedy or relief as this was a mystery you guys were well represented but none of that happened that's it that's correct we raised so why why should i'm a human live with what you did that's that seems to be with the other side saying the other side seems to be saying they could have done it they chose not to do correct and that's where i was going to go was it on the one hand i still believe that we could have a succeeded as an affirmative defense in the exact same relief that was granted by the arbitrator but the judge ross point the fact is we believe it was definitely in the scope because it had been argued the entire time and it was in the scope of what the arbitrator could decide the arbitrator's decision as a mistake either of fact or law is not appealable how about how about if the arbitrator had said i think that taylor has the case law that we've reviewed here the cases where the modifications been accepted by the courts has been situations where either or both parties have have agreed that that issue wasn't before the arbitrator so for example in  asserted but we're not talking about the scope here in the sense that i think everybody agrees that had you made a counter claim it would be within the scope of the arbitrators authority the question that they're pressing and i'm trying to get you to address is you can't arbitrate something that isn't actually before the court so you i take it you're saying it doesn't it doesn't even matter how we presented it and it doesn't matter with the the the arbitrator understood it and knew it to be an affirmative defense if he decides to treat it as a counter claim even though no claim was made that's only a mistake of law it's not the creation of a new claim that was not before the correct one specially in this case because we present not only did we put the other side on notice because in our answer we raise that as affirmative as there was discovered in that case there was testimony given at the hearing on those on that issue and there was legal argument addressing that very issue of whether or not claimant violated the restrictive covenant so the issue was before all of the parties and the judge and the arbitrator in that case decided to treat it claim which could be again we believe that there is not a distinction because the relief we asked for is the same that came out either as a counterclaim or an affirmative defense but even if there is a legal distinction and there is an error the arbitrator is that decision is not reviewable by the court would be if it were when it be reviewable if it were something that could be dealt with separate and apart from the merits if it could have been to have if it could've been s modifying either a party name was changed or it was a mathematical error you're actually going to the exact merits which is whether or not fees are being paid by both sides whether or not the covenant has been violated that's a member that merit based decision that the judge made based on the i mean the the problem you have is that we forget arbitration for the moment when you're in federal court a judge does not have the authority to convert an affirmative defense into a counter claim and you just can't do it so what allows an arbitrator to do what a federal judge cannot do well there's two things one is that an arbitrator's arbitrator comes from contract rights of the contract the contract allows an  tor to to view the evidence in his her home her own way they can actually do that they're not bound necessarily by those rules everybody wants to play by the by these rules because it's rules we're familiar with  arbitrator can make certain adjustments this arbiter had a very wide latitude the section seventeen of the on track isn't that your best argument that arbitration shall be the exclusive process for the resolution of any claim action  controversy of any kind or nature the law in equity mean absolutely it's about as broad as it gets it is and we have three sort of points in the contract certainly defines the arbitrators jurisdiction and scope and what is the arbitrator did there was say you have you the the bamberg public schools came forward with charges of unbecoming conduct and that has a certain criteria that has to be satisfied and that's what was charged against this teacher and what the said was this sounds like a sexual harassment case and applied the law against discrimination which is completely has several different his burden shifting it has different factors different evidence and then ruled against bound by saying you didn't satisfy those criteria and bankrupt said we didn't charge him with post right with that criteria why should we then be held to that criteria this is different from this case because in this case everyone's been on notice that we were saying that he violated the restrictive covenant by holding onto his laptop that was in our answer it was didn't discovery it was litigated before the arbitrator and there was legal argument in the briefs on that very issue it wasn't as if it came out of nowhere but let me pursue if it could for a moment whether this actually would have played out different if you had made a counter claim assuming for discussion that what you had framed up was a card put in the same evidence with the arbitrator i mean is it is it a given that if you prevailed on a counter claim that there would have been that the the relief for winning a counterclaim would be  to well i guess my question is would it offset in some way the the monies that were earned by the other side as a result of your client's breach i think the arbitrator actually addressed that by saying he couldn't find possible equitable considerations by the arbitrator should be considered and you know we put those in sort of this matter of course in this may it actually matters where we ask for some type of relief and that really doesn't necessarily have to be money it doesn't have to be offset in this case what it did was offset rights that the claimant had in the arbitration for further relief beyond sadness and the relief you want in this case is a restoration of the order as the arbitra why why you are not satisfied with the arbitrator's award why you like with the district court did because if this were to go work aren't you in a position where the arbitrator could say you know what i can understand that maybe there was some confusion before but let's go ahead and try this as a counter claim now and everybody can put their evidence in that they want to put in and you could end up in a circumstance where there's evidence that undermines you undercuts the whole award that your clients god i mean you are she put your clients a very nice women before the arbitrator have risk by insisting that this is something that the that the district court was  we're not asking for it to be done over nobody's asking it to be done over well well which is why question time and you know you just said nobody's asking for i'm asking you from this court's perspective if we were to accept your argument that the arbitrator got it wrong why wouldn't we send it back to the arbitrator to get a right instead of giving you what you want and just and say ok you got it wrong your true should have a chance to get it right the only thing which we've asked to have vacated with him i think this record vacated and the only thing which is on appeal is that specific portion of the arbitrators decision were throughout investment of this recovery and i know what you're asking my rigid cereals i understand that's what you're asking what i'm asking you to respond to is if we accepted your argument but the arbitrator got it wrong why wouldn't the right answer be ok give the arbitrary the chance to do it right why isn't that the correct outcome instead of what you're asking for now and maybe i'm misunderstanding but the only thing which of any kind or nature lauren equity between or among employer employee related to arising from or otherwise with respect to this agreement or the subject matter thereof could you draft something any broader than not thin and so if we determine that the arbitrator had the authority to resolve the question of the restrictive covenant regardless what you call it there's the district court have any authority to issue a contrary decision on provisions of attorneys fees yes again even though the club the contract claim his for all the overproduced the only has the authority to decide those claims that are property before the are those disputes that are bronc before it says dispute of any or controversy of any kind or nature it's not just claims correct but here it's same as underground or which is that there was there is evidence on both sides there was argument on both sides he can't say if this isn't can modify it without affecting the markets now that's that's something you need to speak to dirty specifically you put your opponent or you've read in his briefs that and as i understand the argument is in fact the very same things that lead to a court to decide the prevailing party question are the merits questions they are the merits issues you can't you can't tease them apart claim that we prevailed on that's actually already been paid to get rid of the arbitrator's decision regarding a counterclaim that was never asserted and for which we never had the opportunity to present any defenses  not change the merits of whether or not mr mchale would just say when you say we never had the chance to present any defenses i mean you were there while they were putting on evidence about your client paid in the laptop knowingly holding onto representing your client was there right yes i was actually there ok that's correct so when you say we never had any experience i mean you knew the dispute was was in front of your career because they were making it part of the arbitration and you were there while it was happening right yes and we knew that the dispute was whether or not his retention as a result of not entitle him to severance if we had known that there was a counterclaim we would have asserted separate defenses such as like fact that it always been brought in the state  but there was a court in satisfaction but there was no claim for breach of contract because there was no damages oh there was no there was no final decision in the state court because he gave the laptop back anyway right he gave not binding precedent correct but they could have asserted the claims who would have argued that they should have and that they relinquished any claims and again we thought that any positive claims affirmed of claims regarding the laptop had gone away when that court assume assume that the conversation had gone just the way you want it and that the arbitrator it said this is an affirmative defense but i think it's an affirmative defense that  wins and it's affirmative defense it wins but i'm not sure how to assess an offset because they didn't put evidence into that but it's an affirmative defense that wins is it beyond the arbitrators authority to say on that affirmative defense they prevailed they are there for the prevailing party and therefore i deem it that neither side gets fees would it would be be in exactly the same position coming out of the arbitration as you were when you came out of the arbitration where the arbitrator said it's a counterclaim at the risk of speaking at cross each other if the arbitrator had decided that they prevailed on the affirmative the facts m by saying that the by saying that the arbitrator got it wrong because that is what you're asserting the arbitrator just got it wrong in treating the affirmative defense as a counterclaim if this court were to decide that true the arbitrator got it wrong and the district court wasn't really in a position to modify it because it went to the merits therefore since the arbitrator got it wrong it can't be modified it should go back to the arbitrator you your client could lose it all again we believe that those are very sad for all separable claims but my client's voting for it could be viewed differently and then your client loses everything right  could have said i think prevail on their affirmative defense but i don't think that that constitutes a full offset so i'm letting the stick and letting the and letting the award for the breach of wrongful termination stand and i'm letting the the consideration that there was a wrongful retention here stand as an affirmative defense in the sense that it should not happen and as equitable relief i'm not giving these i'm declaring their revealing party again the arbitrator you're not saying that that would be beyond the arbitrator's powers are you know if they had actually asserted an affirmative claim if we had a lot on the line to claim that affirmative defense you know other words your argument  to be all about prevailing party they can't be a prevailing party and i'm trying to understand if if that boils down to just that he used the wrong word he said affirmative defense he said counterclaim but if he'd said affirmative defense you'd be in exactly the same spot as and that's in that case if he had said that it was an affirmative defense and that they had prevailed on their affirmed at the fence such that mr mikhail is not entitled to severance that would be a very different procedural and substantive posture than we're in today i agree with you but that's not what happened what happened is he took he failed the firm but it's turned it into a counter claim that it could have been asserted was not asser for which we never had the right through assert any affirmative defenses to that non existent counter claim and then the arbitrator awarded no damages on a claim that was never asserted because there were no damages and  factor that entered into this decision and i don't see how it can be changed without modifying the merits of the overall decision if i made a couple things i'll say about as i mentioned the he improperly kept the laptop for and the arbitrator found that he improperly kept the laptop and that affected the decision on attorney see him but it does not affect the decision which was before him which was about brook you cannot take a dispute based upon certain facts and decide to rephrase into a legal claim a theory that has not been provided by the parties fundamentally recurve the contract about others we would have present we would have prevailed over fully the counterclaim as well again because there was no prime official case without damages that we understood that this was in accord and satisfaction that this  supposedly for cause so therefore he wasn't entitled to severance and the cause that was alleged because of his alleged was that taylor would believe that there may have been undocumented illegal workers in the california facility right had any right to sec record i'm sorry what was on at the arbitration did you also then say that did you attempt to compliment the four cause theory by saying that in addition mr mchale did kept the laptop for much longer than that then he had any right to know that was unrelated what the arbitration was about was whether or not by retaining that laptop before for his right to severance and we argue had breached the agreement they could not enforce the provision with regard to the retention of the law and then to take that and say that even though they couldn't prevail as an affirmative fence and couldn't enforce the contract they can now enforce the contract on a kind of claim rely on the statute but fundamentally as the supreme court noted that even though there is evidence for example that case with regard to the fact that it was sexual harassment you can't take the claim that alludes to sexual harassment wrongful termination at all times be hella took the position that the the retention the unlawful retention of the laptop for four months was an issue was a dispute between the parties and that dispute that we acted and mr lurie says and we won on that we won on that because if we had won on that we wouldn't have gotten the award we got it would have meant that they were affirmative defense was successful and we wouldn't have gotten to have that offset or to have that stand as a block to their relief and having made that decision the arbitrator could not properly then create a new claim out of whole clot so when you say that was before that the arbitrator please speak to mr aris point that yet it was before the arbitrator and he ruled on it and we won well it and in the terms of the severance issue yes they did win the severance issue but what happened was that it wouldn't we thought was true seven if if they won on that in the context of the severance claim which was the only claim that the record shows was before the core before that arbitrator why was it proper for the arbitrator to then say and now one pointed in order to decide how to be clear a prevailing party and whether visa be paid i'm now going to say there was a c question because because first of all the agreement says that you can argue there are disputes he didn't have to necessarily be limited to a claim and what the arbitrator then did was say there are other pieces to this employment agreement that the affirmative successful for so in the severance piece it was not successful but in the other a moments that you get from the employment agreement such as legal fees such as being a considered a prevailing party that where that's where the affirmative defense was successful it was successful in blunting though the payment were for the punishment of those pieces of the agreement not that not just on the sum so i think it's east split the split the affirmative defense in a sense but also as the affirmative defense mr mori mention that in both in the briefing and here that there were these other things they could have done if they knew that this claim was out there those same types of procedural maneuver such as trying to strike at the fans are a political so they say their conduct should be viewed in terms of either a waiver or at least under the measure media how could it be a waiver if nobody if nobody ever talked about it in the issue again yet nobody's denying you brought up the issue you brought it up as an affront if the feds right that's why we're fight here today that's what makes this case a little bit challenging right your real position to say there was a waiver when nobody thought this thing was a counterclaim there are things we could have and would have said in response i guess we don't know that and that's why i ask you when i asked him if we really thought the dark traitor got it wrong is the right thing for this to go back to the arbitrator instead of to