confirming an arbitrary award it's a little bit unusual in that both parties agree that the award was properly confirmed where the district court heard however is in how it implemented the confirmation of that judgment of that award in its judgment and it specifically deals with the scope of the injunctive relief briefly by way of history the arbitrator in this case issued two different awards one on january seventeenth twenty seventeen in which he found that the trademark that was at issue would cause consumer confusion if the name saying was used by itself it wasn't really two different awards or did he simply amend the the original award and make them for the clarification i think i think both of those propositions may be true judge  donald there were two separate awards in the original dated one seventeen twenty seventeen the supplemental or clarifying award or amending award dated july thirteenth twenty seventeen and the specific reason that the arbitrator entered that second clarifying award was because the parties both sides indicated to him that they were uncertain about what he intended in the scope of the injunctive relief that he was entering  as you know from the briefs he asked the parties to submit proposed awards which they did tellingly the at billy's proposed arbitral award specifically said that my clients could only use the s for example in his opinion this would not be an infringing use and it was because of that phraseology that my clients were left a little bit confused about what he was actually ruling and why both parties asked judge howard the arbitrator to clarify the scope of what he was intending in doing that he directed the parties to submit proposed rewards in the at the levy in this case so it had proposed awards that specifically said that my actually say that's not what my intention is i'm rejecting that or did he just come i mean he just issued an award that your opponent would say it's just a doesn't lee reject that narrow reading well they want to say or they do say that it was more of a summary or that it was a more general statement which is a bit in can grow us because the entire exercise was to clarify what he intended and what he intended and what it wrote in the clarifying order of the amended award is not that my clients were restricted to using the same name only in conjunction with their first names but instead said they can't use the same name unless it is associated with a distinguishing proper noun so when a youth the their first names you think that in their birth order that if he was he was phraseology for example is contained in that january seventeenth ward wasn't always clear that he was making a recommendation about what the actual equitable relief should be and that the district court retain the jurisdiction to do it yes that's true judge judge though didn't the district court could choose to do whatever i mean as long as it was consistent with the rest of the award he could fashion whatever relief he wanted to fashion right now not really i don't think that's the case judge this was this arbitration was conducted under the michigan uniform arbitration act and that act specifically says i'm so see that an arbitrator has jurisdiction to clarify an award now that gave him the authority to make the amendment to make the clarification the question of whether he had the ability whether the district court was bound by that statement of the injunctive relief the scope of  relief or not is answered with a couple of points number one the parties agreed to by their conduct the apple league participated in that process giving the arbitrator what  proper scope the arbitrator the apple even in their proposed order after the first awards acknowledged again that the district court retain jurisdiction over the scope of the and if it is i would say the answer is yes because first the arbitrator in that award specifically said i am entering this clarifying award to enable the parties to go back to the district court and we in conjunction with what i'm holding in the award right i mean he specifically says this is basically a recommendation and then now you're saying in the corner of flying award admittedly right it says  permanently enjoined it seems to have mandatory language although it also says this is for the use of the court right so with that seems to be kind of a recommendation in my mind but what is key to me is the original ward says i'm the arbitrator still recognizing that hey i'm i'm hoping you do something here and i'm making a very strong recommendation but it's still what it is well i don't think it is your honor i think after january seventeenth when that original org order came in in the parties both said arbitrator what we need some clarification on exactly what you mean and both participated in that process that's that's a tacit agreement to have the arbitrator court confirmed it he accepted it and he said in his opinion i am confirming both of the original or the january seventeenth award as clarified by the july thirteenth tw award quote precisely as written so the question of whether the district court was or wasn't bound by what the arbitrator found i think becomes a bit of a moot point given the district court's affirmative confirmation of both of those awards precisely as written but if that's right then what happened so you move to have the district court either confirm happened or how did you get to that point well i guess you tell us what you think what what you think the district court meant when he turned you away your honor i could only hazard a guess because i think it was with respect to the district court rank their business state i think he just did not appreciate the fact that the original award and the clarification or ward were in this very narrow aspect fundamentally incompatible that the form of judgment that he entered in intending to confirm the arbiter of the word quote precisely as written did not faithfully the morning may please the court i'm rick matthews here on behalf of saying management company the apple e in this case and this case is clearly one were the district court expressly reserved jurisdiction over all equitable claims of relief consistent with the agreements between the parties and those agreements governed that all i could release should be retained by the court and that's specifically what happened here and with regard right so can't you by conduct alter your agreement i mean the arbitration is just a matter of contradictory that's correct your honor however i don't believe that there was a waiver here between the january order and then the second the parties submitted not requests for clarification on both sides it was only the appellant's that sought clarification the order submitted by apple lees was actually in order written for judge friedman to sign so it was directed to the federal court for the federal court to energy or stiction this is not an order of the directed to the arbitrator judge perry howard and so at all times the appellate apple easier took the position that it was the district court that retained jurisdiction over all equitable claims and we never waived that argument and in fact this issue wasn't actually raised until appellants filed the reply brief in which case since it wasn't raised in their initial briefs it's their board therefore waived before this court and that's the marks of the new court credit group three forty two have third for forty four case six circuit two thousand and three so this waiver argument if you may were we submitted to the arbor turner's request to provide an order to the district court was pursuant to the arbitrator an order on that and you said ok here's what we propose is the scope of injunctive relief this court would construe consider that a waiver or a modification of the contractual provision defining the scope of arbitration right this was after the fact this was after the arbitrator had already issued the original warrant that right because it is the scope quite frankly of the jurisdiction well then why asked the arbitrator to do what the arbitrator your position is the initial order exceeded the scope of the jurisdiction that's the january order you didn't say hey arbitrator you don't have any business defining the scope of injunctive relief no because at that point there were there was a consolidated action one for the shareholder auction and then a separate action for the trademark portion and that portion the only reason we wanted that excised out is to avoid confidentiality issues in submitting that to the district court we ultimately had to go through the process of filing a motion to seal all the documents of the federal court so that the federal court had access to not just the second june quarter but also the primary january seventeenth the water so that so the parties both did not submit to the arbitrator a request for clarification only the pelts didn't we were heard through that process to participate and provide a more narrow warmer only relating to the trademark issues and that only those issues that went to the federal court would be addressed in that respect i guess i still don't understand why in that second round when the arbitrator orders you to submit an order concerning the scope of injunctive relief you didn't say ok we're going to do that but you don't really have authority and we object well that's why we framed the proposed order under signature for the district court the federal court  are if you look at our proposed orders they both in each instance were for judge friedman at the federal court decide and we work with who it is so you're saying to the arbitrator here's a proposed order that would be signed by the district court so aren't you saying he's we want him to be bound by what you do we're agreeing that the district court's going to be bound because we're giving you a proposed order for is signature right because there's underlying factual determinations within the scope of what is permitted and what's not permitted and it's our position that these two are not inconsistent and quite frankly if you read them together as judge friedman did you got initial  what they cannot do and that's using only their identifying name and then the second portion is permitted for only use of defendants name in conjunction with their full names but now you're talking about the substance of the order you're not talking about whether or not the arbitrator had the authority to define the scope of injunctive relief to issue to craft essentially injunctive relief that then judge friedman would embody into law through the force of a district court order now but there were underlying factual determination some what would infringe and what would not and for and you thought the district court should make those not the arbitrator you want submitting those to the arbitrator so i want to go back again to this question that just larsen post before if you thought that you're being asked to draft this these proposals but you have remained mute  regarding your concern that the arbitrator is exceeding the scope of authority in one situation so why doesn't that prejudice and what should that cut against you i believe it doesn't cut against us because that has to be one portion of determination of the fact of what in for engines and what does not infringe and that is a determination that was squarely within the scope of the arbitrator's rights and duties what to be determined once you have a finding of an ownership and then a finding of infringement the relief to be sought is then soley within the jurisdiction of the federal court to decide and that's why when asked by the arbitrator to submit separate award because these were these were bifurcated actions that ultimately ended up in a consolidated a war that was the january war the parties were concerned among other issues for the confidentiality of a number of financial terms  wanted to separate out the two words as they were going in different directions the shareholder suit was going to state court and then the trademark portion was going to federal court and that was the only position that we took with the arbitrator  recognize that this was for the district court to decide and it was recognized by the arbitrator's clerk in a direction to the parties where the arbitrator on may sixteenth twenty summit team and this is in record party the appellant's cannot do and that's the first portion of the order tried or the parties are enjoying from using words saying in any of their business names as the only identifying name that's what they cannot do in the second portion of that order reads what they can do is use the word seeing as a business name provided the name is used to surname given to defendants in conjunction with their full meaning what about the war an individual that the arbitrator shouldn't be going t the district court no longer had jurisdiction over this individual because he was dismissed by the arbitrator the arbitrator though did recognise that this it didn't and i'm sorry the district court recognized that in addition to mr carr the individual who was record mr carr was not of record at that time he's free to do whatever he wants except for the fact that the businesses and there were two businesses that he's was associated with that are remaining defendants say mortgage group in sing building company were defendants are could start another business and name it whatever he wants that's not true because that would be a new act in that new act would constitute infringement so if he did start a new business that stands on its own as i would be barred by the current injunction the court injunction wouldn't bar him so no he would not be in contempt that's correct however would force us to follow a new trademark action that's correct so and it would so i think this issue with regard to it so it so the district court's finding that all defendants be enjoined or only the remaining defendants in the action there were other parties that were settled out of this case and they want specifically dismissed from the district co action but they were included or excluded within the definition of defendant's once the final warrant from judge freeman was in or and that's what's up so they were on a number of defendants that were no longer a party to this action so too in addition topflight financial intimately bays were originally defendants they settled out of the case but they weren't specifically excluded from the judge's final award any more than the judge would exclude ray new to carr who is the defendant named by the arbiter as being dismissed and so for this point he stands in his individual capacity as a dismissed party but as far as he's wearing his hat representative of other defendants saying building company inc in saying mortgage group then he is bound to be enjoying through his activities associate with those entities that did remain defendants and so under the abuse of discretion standard both i'm reviewing a rule fifty nine and rule sixty stand it we believe that this case can be affirmed on appeal i haven't heard the question  larsen first of all with respect to the question of their participation in making that a tacit agreement you know we make that argument in our own lives but they participated in that arbitrary process and therefore agreed to be bound by the arbitrators order of the supplemental or clarifying award on arbitration the although not cited in our brief kamikaze music or versus robin music six eighty four fed second to twenty eight a second circuit case simply said it is hornbook law the parties by their conduct may agree to send issues outside an urban tradition clause to arbitration that's a simple proposition of they did what it's the conduct after the january award before the clarifying award the one filing the proposed order is that what the waiver is to filings judge they submitted proposed orders that had this language that talked about only being able to use the same name with your with the names in seeing associated with them they twice submitted that to the arbitrator just clarify war i believe that to be the case i reserve the right to be mistaken on my recollection but i think certainly they proposed that before the clarifying award in any event but i mean that seems to have to carry a lot of weight here we didn't the arbitrator say even in correspondence in may something like if you want relief you have to request it from the from the federal court that was in the email he said writer is here you're talking about the arbitrator judge that well he said i believe what you're referring to if we're talking about the same document i think he said that the district court would ultimately have to implement relief in a confer in order confirming the erbe attrition but certainly by the time they got the stipulated order with the arbitrator where he issued the july thirteenth clarifying order the order itself specifically said and i'm quoting from his from his a work the purpose of this order or the order is to permit the parties to present the rulings of the arbitrator on the trademark issues for use by the federal court in entry of a judgment in the trademark proceeding having reviewed and consider the proposed orders that is the proposed orders of the both parties supplied including the apple e in this case the arbitrators opinion and award and the arbitrator otherwise being fully advised in the premises and then he lists the scope of the injunction which is to the trademark defendants appellants in this case are permanently enjoined to enter and restrained from using the name  arena so in the award he says when you do this you i'm saying you should do this narrowly tailored to do this and then he issues the clarifying award that's for the use of the federal court i'm not sure the arbitrator here ever thought that the federal court was going to be bound by what he did it would skin sin tire we consistent with what everybody was saying which was the district court retains jurisdiction from the beginning which is what the parties had agreed and you're saying all of that is out the window because of the one thing that they put in the record where that looks like an order but i don't think i don't think it's out the window i  think all of those statements of that conduct are entirely consistent with what happened the parties were asked by the arbitrator to submit proposed orders essentially proposed findings of fact by analogy which they did the ones that the in this appeal submitted the arbitrator didn't accept and he implemented it as described in this july thirteenth order now the arbitrator pursuant to the stipulation of the parties expressly said i am doing this so you can go back to the district court with my late with this language to implement a judgment which obviously has to be done to make it effective the the underlying point though is the district court agreed and said in his order confirming the arbitration that i am going to enter confirm the awards precisely as written including in this these are his words including as clarified by the july thirteenth twenty seventeen awards so your argument is that the discord just didn't know what he was doing when he entered the judgment and not only that but he didn't know what he was doing when he rejected the fifty nine me in the rules  sixty mean at some point you go back to the judge and say hey look we think you made a mistake because you said precisely as written but this doesn't look like it's precisely as written and he says no so he speaks to his judgment right i mean that's and if he had the discretion and the jurisdiction to enter the relief then why isn't that just the end of the well i'm going to ask you to narrowly tailored your answer i will i did i will because it was simply her it was air that he left uncorrected we thought if we put it to him in the form of a motion to alter or amend we could point that out and we got a one sentence ordered on the motion without explanation or reason which is unfortunately why why we are here on appeal i don't know that needs to be remanded with instructions we have a proposed order at the end of our brief that or i'm sorry propose judgment that i think faithfully implements what the arbitrator awarded and we would ask offer of assistance and i think we got it ok thank you