please the court bryan sutherland on behalf of liberal partners like to reserve two minutes please for rebuttal on may nd of two thousand and nineteen u s holdings raced into court to prevent what it perceived to be wrongful competition with the partnership in connection with an imminent may fifteen registration deadline in monterey in a way of all the own and the emergency that it perceived was that the barrel partners was about to divert an irreplaceable business opportunity to a rd party competitor and that's why the petition and the order to show cause asked for two things and two things only don't compete with us and don't steal our trade secrets we responded to those two theories of irreparable harm we defeated both of them and after we did that we learned for the st time when the district court issued its opinion that there would be a different theory of irreparable harm which was the deprivation of management rights and the district court said so itself saying  that in her extensive discussion of the breaches of the partnership agreement and the course of the parties dealings she was resting her characterization on those very same items that had been subject to the parties dispute and competitive activities and to misappropriation of trade secrets and the court rejected both of those theories of harm those are the ones that we responded to but those but those theories of harm are still related to loss of management control and she interchange what's wrong with that irreparable harm relates to a loss of management control the loss of management control is a breach of the partner's agreement if there's a likelihood of success on that issue and then after identifying the breach which is the deprivation of management rights the next task for the court is to identify the irreparable harm that flows from that breach they identified two there's going to be a registration deadline in monterey and there's going to be an unauthorized rd party competitor entering the scene that was the emergency that prompted them to go into court and it's essential to identify what the harm is that flows from loss of management control i have a somewhat different what  state of the arbitration panel now is it in place arbitrators have been named but arbitration proceedings have not begun your honor but then are all of these issues really ones which should be dealt with arbitrator i mean the whole idea of what was going on was that you had gone into mexico and it brought criminal charges well i agree with you completely your honor all of these issues are contested all of them belong in arbitration we look forward to the arbitration we have nothing to hide and the answer you know that well that you you say you look forward to the arbitration but you went to mexico to block it arbitration i can only answer that question yes the suit relating to blocking their frustration in mexico has been withdrawn and the facts are running the criminal charges in mexico are hotly disputed and will also be the subject of the arbitration proceeding so that the question that i went i would like this court to ask is what is it that the arbitrator's cannot do to restore us holdings to a position that it previously occupied and the answer is nothing because they will not suffer any irreparable harm if this court vacate the injunction orthodonture court had denied the injunction that i would like the court if it wanted to focus on what the management decision would have then that they would have challenged that they would have made differently and it's essential you have any district court for consideration of this situation in the light of arbitration beginning now well yes i think the the injunction and with an international arbitration i don't know that i can represent that arbitration proceedings have quote unquote begun what i know is that there has been three arbitrator selected i believe your honor that solution would only exacerbate the very problem we have which is this case belongs in arbitration as your honor previously said would it be exacerbated because what we have here is parties who have requested arbitration but are in fact litigating the case in the district court they've brought two motions for contempt sanctions they're sending over numerous document requests and making numerous demands outside of the arbitration because of the injunction and there's no irreparable harm to sustain it they haven't identified any management decision that cannot be remedied by money damages and that's the reason why they should be an arbitration instead of the district court fighting this out and what your honor is just suggested is that we have still more proceedings in the district court when really everything does belong and they are you know what why isn't it just a best for the parties to get on with the arbitration the district court said the injunction dissolves when the arbitration is done what harm is there to leaving this in place and just urging you both to go forward everyone seems to acknowledge that arbitration is the way that this gets resolved and that's what was agreed to in the partner's agreement that's just not what has happened arbitration hasn't commenced and we would like the court to vacate why has it not be done well arbitration that they had demanded that you but saying you're saying as well that arbitration is the form that you ought to be an arbitration is the form that we ought to be in for a number of reasons it's taken us a while to get there in the meantime we have a parallel litigation going on in the district court when there never should have been one the rule that this court should recognize what exactly is happening in the district court right now you said there have been a couple of motions for sanctions multiple motions for sanctions against my client on the basis that it allegedly violated the injunction the district court has in place not and that is that is to quote scheduled hearings on those are those active the dischord seem to me to feel like she was done with this well pending arbitration the court did say that the parties namely s holdings wouldn't let the  injunction doesn't do anything for i understand your point your honor that's right but my point remains that unless there is an irreparable harm and there is none sending this case back to the district court for further proceedings does it make sense as a sorry ron i need to shortness may please the court i'm david dunn i'm with hogan lovells and i represent the appellee the respondent the pretention or in the district court let me address the issues that we just discussed in the claim for relief section i don't know what section could be clearer and i asked the court to look at section forty nine dollars fifty cents which saying an injunction is warranted here pursuant to nine u s c two hundred and six in order to restore the status quo prevented in irreparable injury and to prevent an award from being rendered ineffectual paragraph fifty then talks about the likelihood of success and talks about the need for us holdings and we borrow partners dollars shareholders with joint control of us yes technologies and that such composition and structure would be replicated in all of the affiliates and subsidiaries this is in the claim for relief in the petition they can't say they didn't have notice of the breath it in but with respect i mean that the district court seemed to think that she was presenting a new theory of irreparable harm i understand that she said that she was doing that but she did that on the basis of what was in the petition on the basis of what was in the affidavits on the basis of what was specifically before the court she wrote a fifty four page decision in which she made specific findings of fact and said those findings of fact demonstrated irreparable aren't and they didn't come out of the ether they didn't come out of the air they came from the petition they came from the affidavits they came from the exhibits to the affidavits and they came from the hearing although this wasn't the injunction that she entered substantially broader than what had been requested but it was based as i think your own interest said on the same theories the fundamental issue which was obviously before the court was the question of whether there had been a systematic deprivation as she said step by step and assuming that this does not violate due process for reasons you with zen that mean between junction is it stands now is justified it's a mighty all the fundamental issues we are the petitioners in the arbitration proceeding we are anxious for this matter to be arbitrated and it is very clear this is a somewhat anomalous position drugs calibrate but the d is clear if you look at the last paragraph of drugs mcmahon's order she says this injunction shall continue in place until such time as the international trainer of commerce shall enter any proof visual or final award in connection with a certain arbitration commenced by the petitioner against the respondent on may want that's the arbitration proceeding that if they believe that this injunction is overbroad and we don't believe it is overbroad given the nature of the business and the circumstances they can go to the i c c they can go to the arbitration tribunal any time they want and it is very clear that the arbitration tribunal right now without any further water of this court or tried to mcmahon has the authority to modify or  reflect exactly what drugs mcmahon said not in her opinion but in the actual injunction itself which was entered after the respondents were given an opportunity to comment that is the last paragraph of her order and we would have no direction whatsoever if this court order emphasized and reflected the fact that the and drunks unlike drugs mcmahon ordered in aid of arbitration is subject to modification or consideration by the arbitration tribunals  before the arbitration tribunals reaches its final result she said specifically any provisional or final award that is absolutely correct and i believe it is clear that it any time since the arbitration has been commenced if the respondents believed they were aggrieved and by the way they also haven't sought any modification or limitation based on these circumstances from drugs mcmahon and it's a little bit ironic your honor because they claim there no ongoing business here now we dispute that there are critical issues going on but clearly there is no day to day ongoing business and drugs mcmahon found and the facts are clear and they do not dispute any of the fact not one of them that do not dispute that they systematically bit by bit took away what had been a contractual right to participate in the control of the business not just to be a partner but to control the business and the business is doing a whole bunch of things right now and was doing a whole bunch of things at the time that were critical let's understand what happened here your honor what happened here is they went into a mexican court and they got an injunction to oust our clients from being directors and then they turned around and just acquired the district court refused all of that and we were to different states now and i would like to know what your client has done to pursue the arbitration in a prompt way that's what needs to be happening here your adversary has just alleged that your client was slow in paying fees or what have you when you've been tracking your feet is that correct we have not been dragging our feet the parties were unable to agree on a share of the arbitration tribunal the arbitration tribunal was con and they have not happened because he has holdings requested in germany because of the death of would you have any additional flores their general counsel i so it's they are action that is delayed t she already considered that maybe she has i think i'm i'm asking you whether you would have any objection to our saying that if she already considered it then she will be perfectly happy judge ma can no knows perfectly well what she's done i would i would have any objection to that but i would think at this point in fact if there were changed circumstances or if the circumstances of the orbits ration justify a modification or tailoring of the injunction to actually be addressed to the arbitrator's might but i won't object to remain to drugs mcmahon i just think my problem is that each of you says oh we want to go to arbitration we want to go  arbitration arbitration is just fine and i'm not altogether sure if one of you has an interest in some point in delaying be arbitration or v other one does and i think the district court and perfectly will use its injunction to make sure of it is happens and happens quickly when it does vets were docked to go we would like this to proceed as quickly as possible we are not the party who went to a mexican court and asked for an injunction against arbitration drugs calibrates and they did that we are not the ones who tried to oust the district court of clear jurisdiction when we on may st when i gave notice of this proceeding i was met by the sending to me of an export the water that had been obtained a week earlier from a mexican court that purported to oust drugs macmahon of her tourist stiction it's extraordinary so we're not the ones who've been delaying here and we would be happy to see that the average ration proceeds you did go to court on may st which is a holiday in mexico i mean you know there's a lot going on and visit casement makes one a little bit  on may nd not on may st we gave the notice on may st and it was responded to and was to call rubeus who lives in houston not mexico within ninety minutes so there's no question that they had notice on may st they didn't show up on  the arbitration is the one that is receiving the benefits from the district court and that would be s holdings but i'm i'm told that my client would accept a remained for reconsideration if that court if this court thinks that is the reconsideration issue whether the injunction should remain in place in light of it do you agree that the terms of the injunction anticipate that it stays in place until the track you know enters any provisional or final award so you could apply to the tribunals we could apply to or provisional relief if you needed it isn't that right that's right i just don't know when that will happen and in the meantime what more would need to happen if the do try penal is now  consummated i gather you need to decide on some rules but you can all make that happen and apply for provisional relief isn't that right at some point in time but i don't know how move it if it is at what keeps you rather than coming to us and asking that there be changes or going to the district court and asking to be changes from going to be arbitron panel and saying  would be changes what what keeps you from doing that tomorrow well mr dunne mentioned that our general counsel mr flores passed away and that has interrupted things which are and which you have just said you could see then we could ask the district court to give you but if that is so what keeps you now from going to be arbitration panel and gaskin for  same relief that you are asking now or when and whether counsel florence or whoever isn't there doesn't make any difference in that i don't know what the procedure is with the arbitration panel and what the next steps will be or what the schedule for that will be i understand that will happen in the near future rather than the distant future but i can't i'm sorry judge calories i can't give you a date or say what our next filing will be i just don't know the answer to that question and if a court in a situation like this identifies an irreparable harm that the parties didn't it has an option it didn't have to do what it did it could have issued a t r o then the parties could have back come back and presented the the legal argument and he did have an opportunity to respond to the proposed injunction right you had several days in may at that point the court had already decided to grant the motion for an injunction and it said in no uncertain terms do not come back to me go to the nd circuit if you have any problems with my ruling and that's exactly what we've done thank you very much we have the arguments and we will reserve decision