the disgorgement remedy was improper because income never provided reasonably certain evidence of profits to ensure that the one billion eight hundred million dollars award was not  district court cannot be justified based on three press releases and that's all it was based on those three press releases reflects potential projects on construction requires the plaintiffs in this case it come to establish some form of revenues before the burden shifts to the defendant to do anything in this situation and the district court found ask you from reading the district court orders both on the motion for summary judgment and a motion for reconsideration i guess my i do understand the difficult position the district court found itself in and let me put it to this way the court said listen you guys have come forward now on the motion for reconsideration stage with some good arguments about these press releases they don't speak to actual revenues put in put into the fund that's pockets but when you all were here on the original motion for summary judgment you never contested the one billion eight hundred million dollars amount he never made any argument to suggest that somehow the press releases weren't liable indicators of revenues or that the revenues were never received you all are coming in too late in the district court's view complaining about that now and basically i just went with the uncontested figure that the plan is put forward so how do you respond to that in terms of the the damages on the grounds that they weren't disclosed initial disclosures now the district court overruled that issue but they did make some effort to oppose it they just did challenge the specific calculation  have to make some kind of dispute for at least statement of undisputed facts to prevent the court from taking it as given the local rules require you to do that for the local rules th circuit law or still has to come forward with evidence and here there's no a lot of players came forward with some evidence i mean i understand that you think the press releases are not very good evidence or not very persuasive evidence but it is some evidence that there would have been these revenues and once the plaintiffs put that forward and made a statement of undisputed fact as i understand local rules it was your obligation to whoever was counsel before you to contest that they're there at most evidence that a project may be started in the future but that's not a statement that they made revenues that they made money that's what has to be submitted and they're found the rules the local rules the rules the players and dollar figures i mean what are the have been a better course of action that is definitely true but in this situation where we have the record that we have there are still not enough to shift the burden there's no evidence of any revenue and that's what's required under the lanham act there has to be some evidence they can't just submit let's say they've submitted three blank pieces of paper that wouldn't be evidence you could say are defendants of earned one billion eight hundred million dollars of revenue and it's an undisputed fact because we say it that's not how it works there has to be some evidence to support what the finding is and here there's not and when we why isn't a statement that purports to be from the defendant that one these projects that are going to have are this much money some evidence that that money was going to come because it's not evidence that there was revenue paid there may be an expectation in the future of revenue but that's not revenue that's received and that's what the this is a very extreme award it needs to be analyzed and scrutinized and that's the district court's job is to look at the evidence and make sure it's supported to say that one billion eight hundred million dollars especially given given the conduct in the for e of the defendants practice you don't know if these press releases are real there with their the plaintiff could have done more than just report recognized that ordinarily i would expect expect the plaintiff to do more but then it shifted the burden because the defendant improper under the under the lanham so for that reason alone this would be remanded and that the plaintiffs are without a remedy here i think that all of the cases make the point that you may have situations where damages are that number i think the district court with with further briefing could do something like that your honor i think that there has to be a reasonably certain amount so what is particularly troubling here is that the district court recognized on the original summ judgment motion order that the press releases were troubling and then on the motion to reconsider again recognize that if it had been troubled by these releases it could have done further analysis at that point for r that is correct your honor i think that there is a reference to citibank as a holder of some of the records and the corporate defendants could not get the evidence from citibank themselves but could have been subpoenaed there's other things that could have been done before there's just an award of one billion eight hundred million dollars based on on three repro press releases that don't describe revenue that was actually earned or profits that were made that's the difficulty here and again i think that this may be a situation where there are statutory damages  but it would give the district court something to look at as opposed to these press releases which again in our view just are not evidence of brevity and with that your i'd like to reserve the remainder of my time as i might ok very good thank you for your honour's good afternoon or good morning to pending on where you sit they think the court that there are two issues before the court one is standing and the other one st of all is whether or not the district court  and that's on them work these weren't getting contracts why do they need to have different cooperation sorry to interrupt can you just speak to this question is there evidence in the record that these corporate entities were able to perform more hard evidence in the record that shows d that these corporations were actually as george bennett was suggesting they were in a position to go to indonesia or wherever this project was going to be built and actually construct something worth one point two billion dollars is the evidence that they had the capacity to do that because my impression from the record is that these entities were kind of one planning operations that were and anywhere close to being able to get on the ground and do that kind of work and you know i will tell you i thought that was the case at the beginning and so you know obviously we can't we can't know because they didn't turn over anything but what we can know and what we do know is that they we believe it was in indonesia but getting on a plane and going to indonesia and trying to find or somehow trying to find out from the indonesian government i don't know how we would find the sound but i do know that this was a press release they had all of you  weight that didn't happen now mister mr gibson said he you know he doesn't think that these were anything other than blank pieces of paper well there they are for more than  our video operator to let me back in the meeting perhaps if that's possible because i can't see the clock now so i apologize the stories i don't know if you are within your time or over your time at this hour i have a minute left it looks like a little over a minute where they made a mockery of the district court thank you ok thank you counsel have a little bit of time left for a bottle thank you briefly in terms of the universe compensatory did submit it to ration counsel reference that he was the one who would have the capability to do this work is declaration which was before the district court on summary judgment stated that he wasn't aware of any and aware of any work and never got any contractors licenses for this company that's the evidence in the record you know in short your honour's that the press releases are not reasonably certain evidence they have to be under th circuit law before the burden  shifts the district court shifted the burden by saying normally the plaintiffs would have done enough but in this situation because the defendants frustrated discovery i'm going to shift the burden that was not the correct analysis the correct analysis was to look to see if the