and so under that covenant and want was not permitted to circumvent attempt to circumvent avoid or at bypass that relationship in any way and can want to seem to me circumvent a large chinese circuit printed circuit board manufacture i would like to focus on the liquidated damages issue and on the merits of a mr shirkers argument and rely on our papers for the lost profits and can walk through circuit tronics doesn't mean that the other customers cannot deal indirectly so that doesn't disprove the reality of what everyone concedes happens here with jim and nissan with respect to the fact kimball is listed separately in the settlement agreement cover not circumvent end of paragraph five it's important to keep in mind that that provision was created in two thousand and ten but in two thousand and thirteen the parties added revised schedule a and that's the document that specifically listed geminis are and if you compare the original schedule and that at the back of the two thousand and ten settlement agreement to the two thousand and thirteen revision you'll see that in the two thousand and thirteen revision the parties specifically listed end customers by name so those exclusive customers were name and there is evidence should for all evidence be necessary to clarify this point i don't think it is that it page sixty five but no twenty two there is evidence as to why kimball was specifically mentioned in the two thousand and ten settlement agreement because circa tried had caught them breaching the manufacturer's agreement w pointed out at length in the breeze is that if indirectly transmitted purchase orders indirectly from g m and use on don't count then what's the point of having listed them as exclusive customers in the settlement urge the court to affirm either on the grounds of timeliness the lack thereof or frankly the merits which is that the guts of it which is that the court was correct in determining that the contract does not limit whether the purchase order had to be directly from an customer but it could come in directly from so i'll turn to the liquidated damages issue if i may so circuit tronics as a court to where it went to trial with its hands tied behind its back in a damages sense because the district were prevented it from seeking its contractual remedy of liquidated damages which these sophisticated parties freely bargained for given the complex nature of the international printed circuit board manufacturing business it does seem to me they were and reasonably disproportionate and arguably a penalty well let me let me address that obviously and i think that the district court was seized with the superficial distinction between the value on its face of a breach and the potential damages that would flow from it and let me just go right to that grossly disproportionate point  euros the opinion says ten million dollars or ten million euro in the record and we're judging ours as well seven hundred and sixty four compared to ten million you know that doesn't matter because the liquidity damages provision was two million dollars to two million dollars to seventy four dollars grossly disproportionate the error here and summary judgment was ignoring the evidence about the nature of each project let me just pick through a few things and see if this address his testified to this in his deposition and in a an affidavit which were in the record some rejects to get a contract you need to go through circuit trying to go through two to three years of work with the prospective are massive requirements contracts that take place over nine year spans and involve millions upon millions of print circuit boards which get put into different subcomponents of various things for automakers and others to to to get to that point circuit tronics had to spend significant sums of money to take the prospective customers to can launch plants in china in the case of nissan it was twenty eight dollars separate trips over the course of three years before nissan approved and let a purchase order out there would require a prototype initial constructed printed circuit board made to the specifications of the end user very you know detailed specific things that was the seven hundred and sixty four dollars prototype or had the prototype is like the doorway to go to the hall if you don't convince them that the prototype is a good one they're not going to buy from that factory because this is a massive investment by the end customer so the comparison is the appropriate comparison is what was the breach and what was the damage that flowed from or would have flowed from the brakes reasonably under the circumstances given this relationship so it's not seven hundred and sixty four dollars it's the value the last is the business relationship it's not limited to the last the last profit from any individual piece of equipment is that right and the business relationship would include things like loss of goodwill loss of all the effort that you've been talking about winning into getting that customer is that right that's correct you are so just to recapitulate it's both the last profit from the deal plus other items that are not represented in that figure and basically there is i would point to several pieces of evidence here that i think are critical to focus on with respect to the profit component the evidence was that for example there were three projects that  it just profit was net profit ten percent so just taking the twenty million dollars number which d is in the record a ten percent that's two million dollars per ok then you look at things that are to judge parse question not represented in profit it's the last investment component you have to look no further than the manufacturers agreement itself which says and this is documentary forty eight ash want to paragraph six that it's incorporated into the  settlement agreement by reference of paragraph nine that king among quote acknowledges that sugar tronic has expended substantial monies on advertising marketing technology and in the development of potential customers and accounts and then you had to that the testimony about the extent to which over years long periods of time circuits when it had to cultivate and induce these major purchasers to convince them that this chinese factory was up to snuff it was a massive expenditure and then there's the relationship ended mr creators deposition documentary one hundred and forty one at one hundred and seventy eight he testified that damaged relationships with his customers are not accounted for lost profits and they could occur from acts like ken one quote refusing to accept purchase orders or changing agreed upon pricing and those are subject to the liquidated damages to another was a long answer but the point is that there was ample evidence in this record at summary judgment then would dispel judge on gross concern about the disproportionality and i want to turn injured let me turn your attention to something going to thank may be more productive interpreted the role as mandating exclusion without engaging in a harmless ness and query and terming whether determining whether an other appropriate sanction record should have made an inquiry armless notice and considered whether or not lesser sanction was appropriate well that's right and i this was a rather remarkable and unusual situation if you step back and look at it as you said we conceded i was not truck council was a different mr rosenthal but you know the defense rightly complained that we had not disclosed the calculation and lost profits but i'm not going to go back and waste time on excusing why that may not have been such a big deal because will concede that we have but in response we confessed to the court openly that we were using the simplest of calculations and we were happy we had to do so because there was no way to figure it out owens defend its own disclose revenue figure which they knew of course and provided in their in iraq a response times circa trying to just profit margin which we also disclosed in mr creators deposition the net profit margin was ten percent so while the simple calculation wasn't disclosed and that's a technical violation of rule twenty six dollars it was elementary multiplication so there was nothing the defense did not know and yet they sought the drastic sanction of barring the damages claim altogether understandably it's a good strategic move but the court cases say that that's you know not something that should be done that usually arises in the thirty seven b context rather than said matter whethe harmless the next senate says in addition to or instead of the sanction the district court on motion or and after giving an opportunity to be heard may impose other appropriate sanctions right so is is that the failure was substantially justified i think it is and i think that we did make the harmlessness argument and you know the court overlooked that argument in our papers and we put that in the brief course it says in addition to or or instead of  reasonable point on this record because we point out the homicides point and we think we can satisfy and it may not be necessary to reach that question the court's decision as to i realized time's up so i just answered this is your answer my question ok thank you your honor you know i would just point the court to the aztec steel decision from this court in one thousand nine hundred and two which said that you know consideration of whether a less drastic remedy that's equally effective could have fashion been fashion is a material vity agreement and the damages that we were able to obtain were simply out of pocket damages over a course of many years there orders of magnitude more damages that we are precluded from getting both because barring the lost profits at all and because of and i think it's fair to say that there's no possible scenario under which three million dollars of business is ever going to translate into hundreds of millions of dollars over one hundred million dollars in damage each one of the deal