ok thank you miss trice and welcome counsel just remind her that although we are on video you should not be photographing this or videoing it or recording it in any way and the other thing is to please  international energy versus united energy grid and we will begin with mr bennett for united energy a place may please the court could morning my name is michael bennett i represent the appellant united energy group limited kemah court hear me just fine excellent thank you this appeal asks the corps to overturn an order of the district court which vacated to arbitration awards that dismissed claims brought by the international energy ventures management m litigation conduct wave worker i will i will refer to my client united energy group as you g and to the f l e s i e v m that's the way the parties have most commonly  course of this litigation refer to the parties the case has as you know if you've seen the briefs a very long procedural history which is covered in detail in our brief and i just want to touch on it briefly history began court and of his dismissal of i b m s claims brought in court for lack of personal jurisdiction this appeal the st appeal of judge hoyt's rulings was exclusively for the purpose of trying to explicitly says that you all understood that the suit could have been brought up properly with personal jurisdiction to force arbitration did you all can see that in that specifies arbitration will occur any particular one the court has limited jurisdiction to come out all that arbitration even if it lacks jurisdiction to the merits of the claims and in their opening the pellet brief on his st appeal based cited snow's cases that stood for that proposition the problem is the bait argued the base good or a much broader proposition that that such an arbitration clause amounted to consent to personal jurisdiction court so i don't know clear if he you say i consent to arbitration in texas then you are consenting is that i can consent to your personal jurisdiction in at nebraska where i've never been but that doesn't mean for ex that that doesn't mean i'm now subject to jurisdiction to press them for everything under the sun well that's detriment and prejudice in other words if i did assume for the sake of argument that i agree with the just court about the who decides question so was up to the core when i read that august hearing which is the only hearing in front of the district court the only case focused on is the one i think in his put the perry holmes decision as mr you know it you know well yes i think is is that isn't the difficulty for your position to us what then justice will it went out in his dissent which is if what was decided here was no prejudice that would be reviewed for clear error by an appellate court and i think i remember his dissent making the point that we may think there was waiver we may disagree in terms of what's necessary to get into court but once the district court says no prejudice what's our standard of review you remember justice will it's dissent i have to confess that i  the court should take into account well let me back up and give your records i know that but the records like i want to hear is the discussion in the appeal in the st appeal of the fact that that appeal and this is totally unaddressed by the district court that appeal was only for the purpose of preserving the rights and pursu way of doing that was the benny against this appeal which was michoud by i knew that appeal was not necessary pursuing their claims in arbitration as they have proved multiple times by initiating arbitrations vanishing into macallan arbitration after the denial of their appeal danish e a to the davis arbitration showed the older cases case law and i guess there is a state federal two questions here too what w we you you think is a state or federal law that controls here because it when i look at that texas is two thousand eight hundred cash biz case they don't seem to be very enthusiastic about our k b r case they say because i think we're now in the discussion of whether judge hughes was clearly erroneous and finding would again in failing to find litigation conduct waiver i think very important is that the court look at macgowan arbitration and the gallon arbitration was and i think there are three reasons that there's no way that this opinion can stand and it's because of the mcgowan arbitration number one i e critically you will not find in this brief anywhere that they objected to mcgowan deciding the question of what a patient what do you do with the fact the date is otherwise they asked him to cite it part of the any arbitrary decision in this case that helps them and then they dismiss everything else i'm not sure we can really do that so how do you deal with the fact that davis said maybe alan didn't have the authority well i mean do you have to make this decision because this is a decision about how we whether someone has properly pursue her an objection to an arbitration award there's no doubt that  mcgowan entered an arbitration award in the question is is that binding that's now that's now before that causing all this down by davis's determination on that that's my question well because because as a matter of law under the federal arbitration act i v m cannot challenge an arbitration award in fact they haven't they've never even challenged award the only way they can challenge that award is through a timely motion to vacate on grounds that he that mcgowan exceeded his powers by addressing the issue of litigation conduct waiver and the gallon and his award in fact said he said the parties haven't raised with me whether i have the authority to decide it the question and i conclude that i do and here's why the parties disagree they can take this arbitration act it wends finality to arbitrarily wards and bars challenging are entered arbitration awards collateral attack on arbitration awards without properly challenging them pursuant to the procedures of the federal arbitration sorry that was in my introduction i just didn't get there before being interrupted and i'd like to point the court to a quote in the introduction of their brief which i think is very telling it's kind of how they open their proof they say since two thousand and thirteen international wanted only one thing a fair opportunity to litigate this case in court or an arbitrarily tribunal somewhere number one this indicates that one of their goals was to litigate their claims that court it's an open admission in the st opening paragraph of their brief to it it is fundamentally misleading because the only places they've ever tried to pursue their claims are in court in texas or arbitration in texas my client is a hong kong based oil and gas company that has no u s contacts the undisputed facts are that i reached out to my client in china because it was your time i had a very specific question  and that their appearance is only for the limited matter of challenging personal jurisdiction not for the purposes of being or really nami motion to compel that is why they asked for a judge boomer what i'm trying to say it there man i'm trying to take a different position in saying what there is jurisdiction or there could have been jurisdiction for the purposes of just arbitration but that's not a position where that's not a concession or that's not the position that they were taking so it seems that anyway our prior man all was not challenging the very limited jurisdiction of the federal courts to say go to arbitration here in texas they were challenging the broader you know let's go to state court to have a jury trial it may not have been going to actually reach the level of the appeal i was just wanting to one up to the court that was and now is their position which is why they stopped for the stay and the suspension of the deadlines conference that we were going initiate arbitration possibly and they were going to oppose it so they had then cozy in arbitration and they have been challenging personal jurisdiction and so we haven't been able to litigate anywhere i think that they're going to have to make most of the courts to define the prices they have to show that there has been a specific thirteen to the time of actually demanding initiating the arbitration alex within four months and it's oh it then the time frame if you know most of the cases that say you know even right to arbitrate well here nothing was happening i mean they they saw this day with judge point and they saw several orders saying suspend the deadlines rule on our person different federal district judge is in federal court two panels of the th circuit and one petition for rehearing over the course of seven years is not a delay or an expense the triggers litigation conduct we will all of it your best i get it they've been opposing  obviously you would expect them to consent the question is all of those proceedings were brought by your client both of the lawsuits and speak or both of the fights in federal district court both of the the proceedings in the circuit i suppose you're which state then moved very very quickly to you know at that time my gal and as for litigation conduct way or so for looking at that time period if we back to there or even if we're looking at you know th arbitrations i think you know we've been fighting we've been and we initiated our tradition fairly quickly after they started challenging the personal jurisdiction and i think that if you look at the prejudice most of everything else we were doing used by i mean it's jurisdictional battle or responding and i think this court's how can you where they found no prejudice or they found there was no prejudice over a jurisdictional on a long hot say claims and i think that it's pretty that here we don't we don't have those we don't have those facts here there was not been happening discovery risqu a lot of  reduced it doesn't address the relevant th circuit case law and when i read the hearing it seemed like that was on purpose but but i guess i have a three part question one is do you agree that the ruling doesn't present us with the question of substantial invocation of the court's when i think of is the k b r for be issue that instead it was based on a finding of no prejudice offered that to opposing counsel here is reaction but but it may not be correct is that is that what's your best authority that the prejudice finding because when i hear you discussing with judge oldham you seem to be articulating a rule of law that sounds more legal which is there was no litigation as to discovery or merits and even if litigation over jurisdiction is extensive it sounded to me like you were saying delay there are wouldn't count us then you have a big difficulty because you know he doesn't he just says he uses a metaphor cottonmouths he doesn't address either of the arbitrators extensive discussion of the facts judge old i'm just i like it which is we're talking years there's clearly a delay in and related to that when i looked at mr mr bennett's comments in the hearing in august of two thousand and seventeen mr bennett was saying loud and clear right there we don't want to be in court there is evidence supporting it reviewing court on the entire evidence is life with a definite and firm conviction and a mistake has been committed and then immediately the judge doesn't really address the evidence that just seems to of arbitration that sounds like a legal ruling not a determination doesn't talk about the cost as a set out whether the cost was caused by challenges to our tray shed or challenges to just overall it occasion and so discussion of what the cost was there's no discussion of what the delay was whether it's the four months you're citing where the several years by the time he does this ruling sixty seven years there's no discussion of that so we don't know i mean it almost sounds like he's he's saying you have to have an outcome that would be other way and that is not the ruling in these other cases it is certainly a waiver if you did lose and then try to go to arbitra right i mean i think that there are cases out there that also say that just because there is a substantial cost that doesn't necessarily mean that it was unfair to their position were unfair to that and when they were the bit whether it's well i know argument is you know should be a challenge back then you know within three months and they're saying look you should have challenged it if you didn't challenge it you waved i reasons it wasn't it wasn't being litigated or full you vision on on the issue where the merits and it was dismissed without prejudice and i i think that when when davis says well there is a specific thing as to whether litigation conduct waiver or can be decided by the courts or the arbitrators and all of the authorities including mine case and the theory holmes case say there has to be at the beginning maybe it may be international said that it was an issue for the arbitrator although that was never conceded if you look at internationals briefly in the st arbitration there it was just kind of a very parties are arguing both to the far different parts of the arbitrators decisions what i would say my argument i think is a little less about deference rather than the persuasive value of the very specific findings of the two arbitrators and contrast those with what china shoes did the court has noted the absence of any apparent analysis of the facts of prejudice of the way a any discussion of those although those were all extensively briefed and that stands in stark contrast to two arbitrators who've address this and on the basis of the facts presented made two specific very specific findings of prejudice as for record evidence of the prejudice that we suffered enough for not being quick enough on my feet in the argument in chief i really would cite the court to pages forty eight and forty nine of our brief where we cite the facts of the actions that we were required to take in response to i e v m which had nothing to do with pursuing their claims in arbitration they filed a lawsuit seeking a jury trial they opposed three mand of the case they sought to remain on the case to state court what did that have to do with pursuing their claims in arbitration we had to respond to that we had to prepare a number of filings in federal court that were completely unnecessary because remember i am is the claim and they have the unilateral power to bring in arbitration and they've done it three times and we've participated in their arbitrations that they initiated so they didn't need to bring these court actions and it's very clear that these court actions were for the sole purpose of playing the game here of batting off  the arbitration clause but nothing stopped them from initiating the arbitration which in fact they did but only after judge hoyt deny their motion to remain and we fully briefed a motion to dismiss for lack of personal jurisdiction now what substantive activity in the case would be put on hold pending his ruling on the motion to dismiss and obviously you know how personal jurisdiction works there's all kinds of arguments and opposing party can make that we have consented to personal jurisdiction  to conduct and we're not constantly maintaining that objection we thought our constitutional right he was to have this jurisdictional question determined that we could not be able to a jury trial and excess and we wanted that issue decided not this not to have this case put on the back burner pending arbitration and that's and so we did fight we didn't fight arbitration as a matter of fact eventually when they determined they might not have a court avenue for their claims i've yemen initiated arbitration and we participated we asserted our rights an arbitration and we have participated in every arbitration that they have initiated i think you know looking at that the ruling again trying to  tealeaves it does seem to me that he didn't look at any of the arbitrators evidence as to prejudice which are pretty obvious but implicit in that is a legal determination that i don't need to count cost  thankfully we are aware of that argument i appreciate both of your arguments and the cases submitted i will say that we will decide the case of the issues presented straight out been fairly but i am hopeful river seven years and maybe now after you hang up this is you meeting ya'll will talk to each other about zoe this case that seems to be something that got lost along the path but thank you both and the case is under submission and you