why are we here and what relief is pending our seeking for now filed this lawsuit in the very district court actually moved to dismiss and wanted delaware for the district court grants the motion in favor of a delaware farm course the pandemic came on which caused some delays for everyone and particularly in the restaurant industry but the litigation is ongoing the temporary restraining order was entered the preliminary injunction was entered in the parties are now engaging  argument is that the reason we're still here asking for release and specifically asking the court to vacate the district court order is because here act three has argued that this repeal is meant but that is not the position  achree doesn't want to vacate and i would like to just comment that in the briefing in achree briefing before this court and us on page twenty actually argues that pinera want this court to advise the delaware court on how to interpret the settlement agreement and again on page twenty eight in act thirty three whether a court should ultimately conclude that the agreement substantive terms are a major or minor hurdle whether they are met in a particular case or not questions before this court now i could go on but it is not an era who is asking this court to make those decisions and there is simply asking the court to free the delaware court to make a decision d that is a court that is presiding that the only issue decided was venue venue is no longer at issue we do not agree that the district court was correct about venue but we're not asking the court to review that because that question is moot and that is why we believe that they cater is the appropriate lot of time this was a proceeding that was on an accelerated timeline for a temporary restraining order and the following day after the district court dismissed the day these employees were intended to start work march st so there had no choice record very clearly establishes that the equity favor pinera i also want to point out to the issue about what is going on in delaware is that the delaware court has been very focused on the district court's order and in particular on the one sentence that has created so much discussion which is that the bottom of page five where the district court the defendants argue that this settlement has modified or superseded the non computer the non computer are no longer enforceable on their own term for the purpose of this action defendants are correct in delaware there was a hearing on april rd of two thousand and nineteen and that's when the the additional material that we submitted the transcript of that proceeding paris motion to dismiss the delaware action pair withdrew the portions of its motion to dismiss based on lack of jurisdiction venue but still had an argument that act three lakh danding to seek a declaratory judgment to invalidate  be and during that hearing at three counsel put this language up in front of the just the delaware court highlighting all the words for purposes of this action and the doe report was very focused on those words and wanted to understand what does that mean we submit that what that means is that the district court adjudicated the question of venue and that's it but again that is not the position that achree has taken and that is not the position that act reached up in delaware where insisted that it meant more than that as to the equities and the basis for pinera requests for vacate or this was a calculated corporate rate it was directed from the highest level for example at three has said that pending our acted wrongly by not negotiating with these employees the employees were instructed not to negotiate and as a finding develop report preliminarily actually insist that ken arrow contractually litigate agreed to litigate and duller and y delaware why would those consent to jurisdiction have been necessary the answer is simple they wouldn't have an accurate coordinated with those former employees to execute the consent to support the argument they knew they were going to make when they raced to the courthouse to go to delaware this is not the right place you are at that point though the employees would already have started work they were already destroying evidence they were already taking the trade secrets with them and the nature the of the proceedings was such that it was an emergency and there was a forum available eight and on that basis the practical reality is that america had no other choice but to go to the delaware court the court that actually chose and ask for  mr buckley thank your honor may please the court i'd like to emphasize two distinct aspects of our argument they seem related but they're different one is waiver and one is  waiver doctrine and as to waiver which the principle i think is undisputed it's the intentional relinquishment of a known right pinera said to the delaware court and this is described  form selection cause in this case that is would can error wrote to the district to the poor in delaware and that's cited in our papers and so you run there is no reasonable dispute about waiver in a typical waiver case off so moved as would always come before waiver and i made a waiver is relevant as as to whether we vacate but i don't see how we ever get the waiver fair enough your honor and i certainly the case is moot it seems that an error issue is undisputed and should be undisputed i think that miss hadley just stated that her again as with waiver there would be pretty obvious conclusion of move even without that concession but that was conceded with the exact words being used your honor i don't feel so your your view of this creases we should conclude think any of this court's decisions are directly on point the grettir decision is probably the closest to being on point but a case a case cited in the papers u s bancorp the bonnet or mall to make my clients look bad by referring to also it's a preliminary findings and partial findings and so on i'm not going to debate those debate those points we have different points of view on that but but trying to say oh look at all these bad things that they did therefore there's this balance of equities the u s bancorp decision says there is no bouncing back but he's that's not how it works there are two issues and if they can or analysis one is fault too is the public interest as to fault  bouncing of fault it's not saying they're the bad guys and we're the good guys it's not looking at anything at all that the absolutely has done or is doing it is one hundred percent focused on what the and what the court said there is the apple want agreed to a settlement and therefore that's it it's their fault the reason this case is moot is because they agreed to something that mooted it maybe they had it rate reason to settle the case that might have been a business sense might have made legal sense might have made financial sense but it was their choice and the fact that the apple leave also agreed to settlement was completely irrelevant and what the court said it is quote back case and i think what it's saying it's there there was a there was a voluntary settlement i'm not sure this is like a voluntary soundman but to the extent you're using that reasoning here the other side would say look the nature of our claims we're not talking think that this court is not an ineffectual place and the process of appeal is not an ineffectual process which is really what can errors point treat kicked this case to delaware pinera made a tactical decision that it would go to delaware and get an injunction and and raises the agencies with you the fact is that this court has procedures that would have allowed for pinera to stay here if it chose to do so it made a tactical decision not to and so that's the focus on fault it's what kineret chose to do it didn't seek a stay from the district emergency appeal and i have no reason to think it wouldn't have gotten a decision as quickly as it got the tiro in delaware the hero in delaware came you know about a week or ten days after the employees that started work it's not as error achieved the t r o before they started work the same thing would have happened here moreover your honor there's also a question of timing pinera could have said look we're going to get it here on delaware and as soon as we have that in hand ok we're now going to come back to missouri because this is where the case belongs it's now two years later in fact almost exactly two years later the case is actively being litigated in delaware what happened is pinera got the tirol and thought ok we're doing pretty good with this judge let's keep it here and let's let's see what else happens and then what else happened was a preliminary injunction two months later and then discovery and various motions and various amended complaints and all the things you see in the record so this argument would be a lot more compelling if they came to use to at that time and said look we had to get this tomorrow but now we need to be back where we belong and pinera did not do that and that's really the essence of it your honor if i could just express the issue of the value with the of the decision this heavily focused on things that i said to the delaware were well there are a lot of things m hadley said if you go back and read the transcript we both argued about the meaning of judge autry's decision and we both argued about the procedural aspect of it and whether that procedural aspect drew from a substantive a substantive that specter and of course that's going to happen your honor any time there's a decision in place the parties are going to argue about what it means and if the ultimately we agree with it is going to be up to the delaware were to do so and the delaware court said so and in fact with the delaware court said in the hearing that miss hadley cited that has both of our arguments to the chancery court is that while this appeal is pending it can't do so and so the impediment to the delaware or ruling on the arguments that both counsel made to the delaware where was the pendency of this appeal with the courts it is look you can't ask me to make a definitive ruling about what decision it was the only thing at issue before the court and it's the only thing that the court did dismiss the case for lack of venue there are arguments about the reason the reasoning behind that and the which are very useful things i mean remember the other aspect of a theater is the public interest and the court has has traditionally said both the supreme court and bancorp and this who are in multiple decisions has said look there's value in having these decisions out there canary doesn't like the decision so it wants to say to the delaware court your honor forget that don't look at it don't read it don't be persuaded by it really means nothing the judge was in a rush could have the argument about what the reasoning is and that's a very useful thing because the court gave consideration to all those issues below in the delaware poor will do what it will with it but this is a decision that doesn't and we think there should be it was a well reasoned decision that pinera chose not to appeal court at least not to pursue seriously on appeal but instead to litigate in delaware and that's the practical consequence being a little unfair so i'm go bad i mean that's a lot of the case whatever but you're saying there's other collateral stoppel fact so really i think what you're saying if you like like the reasoning the district court's decision and you'd like to be able to use that for other purposes and our i mean is that fair is that a fair point well your honor i'd say this i think we can use the reasoning and don't work either way the case is not going to be you know soviet style expunged from the books right like we're still going to argue about what it means either way is going to argue that we're going to argue that it's a very complicated multifaceted dispute we're pinera has taken different positions at different times and i don't i don't know for sure your honor what exactly the effect would be but i certainly agree bonaire is as is an incomplete quote it sounded like an unconditional waiver and maybe you're not familiar with it but he quoted something that i think you heard co counsel may have said in delaware i think what he was quoting was we said that we waive the right to contest venue in delaware i do that's not the same thing in my mind as waiving the right to pursue this appeal and so we properly preserve the appeal and we properly explained to the delaware court exactly why and it was because of the position that x three is taking and is continuing to take in delaware we have submitted the transcript of the hearing that my colleague at the bar is referring  to and i would invite and welcome on the court to read the entire transcript because our argument there was the same as our argument here which is that this was a venue decision and therefore the only issue is venue we've consented to venue so it has no further effect but what x three has argued is that it was actually litigated and necessarily decided how do you interpret these agreements together and that is what they are trying to take from this lawsuit and bring with them to delaware and hold it over the delaware courts head and say you are not free to interpret these agreements as you see fit you have to follow this order and so that is the basis for why we are continuing to pursue this appeal coming back to the mood this doctrine is an equitable doctrine and not so argues i don't want to talk about the equities they're trying to make my clients look at your honour's i'm not trying to make their clients look bad they have done that for the sales and that is on the record and those are findings that have been made by that our court entering the  that would have delayed also those employees were due to start work on march st and pinera tried to get that deadline that date move that start date move act or did not want to do that now have no choice and so to the extent that the the  don't believe so your honor i and i'm the one that said that i certainly wasn't thinking of the appeal because later in that same hearing and in other submissions that to the court we submitted various letters to the delaware court explaining exactly why we filed the then absolutely we would have no reason to appeal but actually continues to say that this order issued on this venue decision has substantive implications and binds the hands of the delaware court which the dell report recognized in the order that w filed in that case on the motion to dismiss after we father opening brief in which the delmar court said there's a right this problem i need to wait and see what the th circuit does i don't want to have inconsistent rulings here and so that is why again we respectfully state that the equities favor