kate one category of damages and that is the category of say development costs and i think what the court may be having some confusion is after i read the brain actually of my most of my confusion tho understand that an appeal from an arbitration award very narrow grounds for a federal court to not conform and confirm an arbitration award and i had to address that head on because this is one of those cases where however presidential or that it's binding it's that the other trace in agreement here acquired the arbiter to apply texas law that he if he went outside of texas law he would have exceeded his authority the parties brief texas law to the arbitrator and he identified the ceramics as being the bow of an authority right when he issued his damages award though he clearly did not apply the law that he chose and he said would apply to the case listed kerber sermons on its face it says here are three ways you can do it but it doesn't say these are the exclusive ways that suggest towards the end the good might be other measures in appropriate cases so it texas there is a and in the cases we cited there's a clear line of authority in the texas courts that although it's not exclusive there are certain ways in which the parties calculate damages  a federal court case so if circuit it applies texas law ok but that we all know one more sitting in diversity or something we're not making all the texas courts are free we're guessing what they're going to hold right so i think there are a couple of things that the judge did he said that the arbitrator did here that are clearly foreclosed by texas law so let's start with what the arbitra involving theft to trade secrets an employer may recover same development costs so he's awarding damages for say development costs problem as is he goes on to say there is no evidence of safe development costs  out and two separate paragraphs from the ratings yes because saber sought to prove damages to save development costs in two different ways they want two different legal theories there were two different approaches to trying to prove up the damages one they were using simpers development costs as a proxy for price solutions development costs and the arbitrator said no that's not acceptable to the head start argument depends on our accepting that these are not actually different theories but they're just kind of curious sticks ways of prove it ways of inference here and but your adversary makes some powerful sabers but they were still save development costs and so there are three this under any authority and any court texas or otherwise you will a plaintiff has to be able to prove their damages they cannot recover and in this case it was a discouragement theory they cannot discuss the scorch damages that it can prove and there are three uncontested facts in this case that i think compel reversal even on the narrow grounds of her of you know know what first no choir anywhere not in texas not anywhere has ever applied this theory of recovery that's not disputed save  told the district court this it has never been applied the facts of this case aren't novel it's a standard breach of an employment agreement right it's that an employee allegedly violated an agreement and went to work for a competitor i think you suddenly shifted the burden of proof you said they haven't shown a case that proved it but i think under the four different review you have to show a texas case that closes it and you keep retreating to a peddle court of appeals case but you don't have a texas supreme court case you don't have a texas court of appeals case you don't have a statute in mike and mike and i'm missing some authority that you have i think i'm not sure of the university university computing out that it is james standards are not withstanding anything else it's already been cited by the parties you have a square that away well i don't need to because the supreme court did it for i said vault and they're still in the else and for they said that what courts are the first primary primary obligation under the f a a is to enforce the parties agreement the parties agreement is crystal clear on the issue of attorneys from let's talk about the parties agreement thirty days is going to be subject to jim's policies we have this question about whether g m policy gets incorporated fifth sentence all rights and defenses apply in arbitration including the revision allowed unenforceable terms the six sentence final decision binding on the parties so far this is all been about how arbitration gets conducted then the seven sentences the parties shelby or their own attorneys fees and she'll be equally the expenses of the arbitral proceedings including without limitation the fees of the arbitrator now your argument is not implausible that taken on its own the phrase shall bear their own attorney's fees might apply to all attorneys fees but you have to show more than it's plausible you have to show that the only possible reading of this whole paragraph is this hellboy are all of their own attorney's fees here even if not just appeasing arbitration but the fees they'd be entitled to under new jersey law other provisions of so that this paragraph is rightly pointed out is organized in a certain way it first talks about the procedure of the procedure the parties all follow and that's where the jams the rules come and then it talks inside a park in the gym's rules don't the earlier sentences and paragraphs make clear this is about how the arbitration itself is going to be conducted who's paying for the arbitrator don't they create enough in begin with the that the arbitrator can resolve it i don't believe that that is true i think that the the language here when we're talking about and then particularly where it follows right we're talking about claims having all rights that would be available a lot and then immediately after talking about those claims it says oh there are exceptions neither party is going to get their attorney's fees so that's an exception to the claim are you familiar with between lowing piece of powers your adversary cited it will be it for a different  proposition i'm sure i've read it in the briefing so queer little in that contract had one in one sentence that said you in the company will be responsible for the fees and costs of your own respective legal counsel and any other expenses and costs it just costs associated with witnesses  read on its own looks like this is a foul you know you've got to pay your own fees but it's connected with and you've got to pay court reporters but there's also another sentences arbitrator has the authority toward any why is this case different i think this case is different because the i don't know who drafted the contract and that came spade here the contract was drafted by saber it was given to my client on a take it early but basis and so when we start under texas law which applies to this clause and is in our required great texas law would hold that any ambiguity here gets  applied against the draft or and then when you look at the way that this particular clause is structured the police are very careful to say rights and remedies and defenses in a court of law but then they go has said that the parties arbitration agreement controls i think it is a very difficult argument for sabr to say that jambs procedural rules can come in and trump an express provision of a arbitration agreement given how strongly the supreme court has banned about applying and and holding parties to their agreement the chance of procedural rules and those rules by also say that a party is f the argument is that there was an agreement to basically amend supersede what was in the original arbitration agreement through these other rules there's both a legal and a factual response to that legally still the olson says you can't do that yet just by volunteer by volunteering to participate in arbitration is not enough to way been expressed terms of an agreement and then i mean is this  that i don't know if you do any trial work but i was thinking of sort of the difference between your initial complaint and the final pretrial order which lays out what the our issues are and i think pretty there's a lot of authority i would say you go says that it can't be modified but for in a guiding by all agreements by all parties the chance of procedural rules no is no modification it wasn't given to machine and as a modification of the agreement she certainly didn't it we took the position that we it is open long the circuit and that it's is there's a circuit split however because the third circuit has not decided it it didn't matter in this case that and this particular economic theory is recognized within economics there's no reported case that we could find under texas law that specifically provides that headstart damage is an appropriate theory of recovery but there not a case that says it's not the cargoes ceramics case specifically talks about here's four reasons had here's the theories you could follow for damages in this type of case in addition the client in that case came up with a fifth and they said well this is ok but it's speculative under the facts of that case then they say you need to be able to establish your damages and a flexible approach in a way that's consistent with the facts of the case which is exactly what the expert did here and i think it's important to note that here this is not a speculative decision on what the equity was when he determined the headstock he determined percentage of the company what was it worth given the head start that they had admitted liability is admitted here so we're not on appeal on liability so given what happened what is the head start he utilized and the appellate would like to forget this but he utilized actual third party investment in the company and said ok a third party who obviously is not going to throw their money away for no good reason invest in the company this is how much the third party paid for the company because the company had the benefit of a head start which was more than development cost it was it was operational it was people they they raided and took other people these people who were all bound by none could be it's they were in china however they moved them to china and they all moved and took all their knowledge with them it wasn't just saved up was that nothing to do with saved vel there were two different there except one was saved all my costs the other was head start damages and that was based on what a third party paid after all of this intellectual property after the trade secrets the confidential the corporate veil because it was michelle han who did all these bad things she did it she wasn't hiding behind r y s saber and i asked to not have a transaction between them we were trying to get behind that dip in computing sixty eight percent of the are places on the record which he she says you know that's me or i owned it or i did this which he seems to confuse the two but didn't spell it out so shouldn't the arbitrator done more to justify piercing the veil it's pretty fundamentally i don't think the arbitrator has to spell out every specific finding or conclusion or decision that the arbitrator makes in this case the appellant was entitled to a reasoned decision and the arbitrator provided a sixteen page decision in his final order he specifically provided that if i didn't specifically reference a claim that was made here it is denied these issues were all before the arbitrator he was very familiar with it he made a decision that decision is entitled to great deference as we know and even if you made a factual or legal  as you suggest he may have under these circumstances even if you did that's not enough to change and to vacate the award in this case the other thing i'd like to just point out is that  consistent with what i said earlier there is no place no case that says that a company like saber under the factual circumstances presented here which was breached  under a misappropriation of trade secrets and company to information under these circumstances there is no case that says they cannot obtain headstart damages and it is the appellant spurred to come forth to show that this arbitrator w exceeded his powers by ignoring clear precedent there was no clear precedent here that he ignored he's a he was a former texas judge she made a decision as an arbitrator in this case and that decision is entitled to apologies in that case it's interesting it's also identical to what we're faced with here it has specific language in the contract that talks about you know each party is going to bury their own fees and then it says you're entitled to all remedies that you otherwise would be entitled to under law and then it talks about the trickle way rules now you determined in that case all of the panel determined in that case that that that created an ambiguity in the contract and it was for the arbitrator to decide so we don't know looking at the couillard case how the arbitrary would decide that because the arbitrator didn't have a chance yet to decide so what you did decide fact the court this court said you need to go to arbitration so there was arguments there that because that was drafted by the employer and she was forced to sign it there's case law including one which says no you go to arbitration so once you get to arbitration it is up to the arbitrator to decide the issue of ambiguity and but it's more then this is not a case where it's questionable as to whether the jambs rules will apply couple or not here you have specific arbitrator found a violation of the new jersey trade secret act and that machine and the appellant had engaged in willful behavior which would entitle siebert to attorneys fees so there's no dispute on those things there's no dispute that the minimum standards of jams under which we proceed provides that all remedies should be available under all political law as if you were in court there's no dispute that both parties were provided with the minimum standards consistent with the letter scares that you mentioned a minute ago there's no dispute that we proceeded through the entire operation consistent with the minimum standards including that saber had to pay the seventy five or eighty thousand dollars for the arbitration so despite the fact that the arbitration agreement itself  both sides are going to split the cost of the arbitration jam said oh no there's the minimum standards you save need to pay for the entire thing before you go on your adversary responds the supreme court case a stalled case says otherwise how do you respond to the well because there are the minimum standards or the rules or whatever it was that they wanted to do was not within the four corners of the contract in writing signed by the parties and it wasn't that's correct but i don't need i don't need that people letter for for the attorneys feel ward in this case to be vacated to be reversed and reinstated i don't need letter because the actual agreement on it's face the arbitration agreement on it's face set that the that the parties agree in writing in the agreement that they are going to arbitra subject to the minimum standards the minimum standards you know there's there are appellant wanted to argue that is not in incorporation by reference it certainly isn't a corporation that reference you not a layout every one of the minimum standards in the agreement in the agreement it says the arbitration is going to be subject she agreed to that up to be getting so what happened that it will was simply consistent with what the language of the agreement said originally judge martini below just wanted to ignore that part he says why don't find that the minimum standards trump the expressed terms of the agreement but the express terms of the remit speak directly to the arbitration being subject to the minimum standards so you can ignore that part of the agreement now i will confess that i could harmonize the two of them right and there is many different interpretations one can come to but under the case this court has said that's a pretty arbitrator to decide if it's up to the arbitrator to decide the ambiguity then it's up to this court to only they can if there's any if there's no plausible basis for the decision that the arbitrator made so for example one plausible explanation is that the arbitrator thought to himself well in a fee shifting case that's what you would otherwise get in a court of law and you're on the face of the agreement itself you're not waiving that so in a in a few shifts in case i get to shift the fees if at the end of the arbitration i find that attorneys fees are put out which standards that's what followed that was clearly an intent of the parties both parties follow it and no one said oh wait a minute wait a minute that's not what the agreement sat as that's not what happened here so i think under those circumstances the ambiguity does not get construed against the drafter because here it's not ambiguous in that sense the the language is there in the expressed language of the contract and the court was able to look at the course of have to be incredibly deferential to the arbitrator's decision here and if there's any plausible did it there's any plausible explanation for how the arbitrator was able to read this contract in harmony to conclude that attorney's fees were put the ball this court should reinstate the attorneys fees does it matter that the that the the that the arbitrator gives us no analysis as to why the any conflict at all between the two all the provisions i mean it seems that a person from james is going to apply james rules as a matter of course was there any discussion over you know i know there's a conflicting provision that in the employment agreement both parties post judge post post award where the arbitrator had cases before and had briefs before so it wasn't as if there was no analysis of the issue in addition i would like to point out the ario case which think the only thing i would say is that the standard or preview is very narrow here and the appellant has not met that standard with regard to be with regard to the damages issue and regards the attorney's views issues i believe the judge pontine should be reversed because he did not appropriately allow the arbitrary or to make the decision as to any possible and if you agree they may have existed in the contract and in addition he ignored the fact that you i'll start with the damages and then move on to the attorney's fees issue first i wanted to address judge people says question about texas law and whether or not occludes the damages in this case i just want to point the court to the internal citation and carbo ceramics pages seven twenty two and seven twenty three but there is an extensive discussion of the state of texas on quoting supreme court pieces and then also at page eleven of our reply brief cite to southwest energy production company texas supreme court case from two thousand and sixteen that held now when there's evidence from which damages can be calculated things like financial records and the like that that evidence you need to look at that evidence and you cannot base damag speculative speculative damages very i also wanted to address the judge by this is questions about the legal separateness issue in this case there's no dispute that what the judge did what the arbitrator did here was he used grace's shares as a substitute permission shares miche and doesn't own shares it is a separate legal entity and there is no dispute about that the arbitrator may not need that argument you never made that argument or betrayer we've we've looked at the record you cite me any where  and all of these employees went off to china and did these things but we have always maintained that machine and was the only defendant in this case she's not responsible for other people's activities or for pi solutions damages or her misconduct in terms of his loyalty to the to the employer so it's about her not anyone else i respectfully disagree the liability finding was about her conduct absolutely and we have not appeal to any of the liability finding it's a different story when you start asking the shan an individual of modest means to the school or jim paid to save the entirety of whatever pious solution and any of those other individuals what they gained from from starting a competing business right is a separate issue yes miss shannon is liable for her own conduct and she has she was a saver was awarded two hundred thousand dollars for discouragement of her salary those damages are tied to her and we have a contested those she cannot be made to pay for same development costs from an entirely third party entity who wasn't a defendant in a case and that's what happened here kalki he calculated damages spacetime an entirely separate entity the entirety of its value in conduct that happened by people who were never in the other tray sion that's where because we can assume that the arbitrator decided that there was he heard all of this evidence the problem with that argument is that issue was never submitted to the arbitrator for him to make a decision about at all it was never pleaded it was never put in front of the arbitrator nobody ever asked him to make an alter ego finding nor did he he just assumed these it all of these three separate entities were all one in the same and although the standard of you want to appeal is very narrow the idea of cooperate separateness is so ingrained in so enshrined in our law that it cannot be anything other than a manifest disregard to learn three companies together and treat him as the same were centering on whether or not the arbitration agreement is ambiguous and i will respectfully submit to the court that what the arbitration agreement says is that texas law is going to apply great and texas law has a series of doctrines that you go through to decide in the context of one of these causes whether or not what its meaning is so while the other trader might have of law provision isn't it well your honor i think what what the district court found and what i think is entirely correct is if you it is our position that it's not law in doing that and when you go through that analysis one of the things that texas law holds on its end of life is that any ambiguity is construed against the drafter of the contract so under texas law when he went to look at this there were many things that would have told him that on these particular facts in this case under texas law that attorney's fees could not be awarded you grew with your  the parties agreed to apply texas law say her should have pleaded and cite damages under texas law that's what they were required to do here they clearly didn't interpret the law there was a lot of back and forth what was extensively briefed was the amount of the attorney's fees award once the arbitrator found that saber was entitled to fees and we did a lot of briefing around how much those were going to be which was the first time these jams procedural rules were raised was after the arbitrator