clause it wasn't in ecuador it wasn't a judgment because it wasn't addressing the merits of the claim it was a nullity because that court didn't have jurisdiction and it was basically referring and deans of the courts in california to resolve the dispute that has significance for purposes of an appeal in ecuador did did the did the order itself stop right there or it didn't try to move the case to california we could not just just stated that it has no jurisdiction because of the for those are set forth in our request for judicial notice as exhibits the through j now an appeal was filed in ecuador of this august date ruling how the a few process works in ecuador is that the court of first instance the trial court court number two in this case has to certify the appeal then it goes up to the court of appeals that appeal was filed in august of two thousand five but it wasn't certified by by a court of first instance because of a variety of steps that india had taken until i believe was november or december of two thousand and five now what has happened in the properly that action gets heard before another judge judge number twenty nine at the same time before that action gets served and defiles an action before judge number two to revo the august eighth ruling and for clarification that motion gets denied he then after the revocation action the judge twenty nine action to revoke to to remove is served on judge number two and defiles another motion to revoke the aug eighth ruling this time before judge number twenty nine that motion gets not by judge number twenty nine now let's keep in mind that had judge twenty nine over here who is deciding whether that judge number two should be recused in the meantime the main action the action that was recently dismissed now gets reassigned to another judge because judge number two can't hear it that's judge number third motion to revoke the aug eighth ruling before judge number twenty four now that motion doesn't get ruled upon before the appeal get certified after the appeal get is that that's a reason not to vote for a district court such as this not to defer to the theory that is the reason why yes and also that that recognize the form selection clause and used to use that vehicle to dismiss the thing that's all we had standing alone it would be a different case you'd be a different case well it would be different case for the purposes of gallo and this particular instance it's not a different case with respect to the issues regarding the standards for and i sued injunctions when you have a form selection clause because that your honor is an issue that doesn't just affect gallo that affects virtually every company united states that has entered into a form selection clause let me go back for a second i thought that one of the points of your rendition was to show that in fact this is the life case and that's not moves that's what i was thinking variety of ripped through the court so far court number two dismissed the case but who knows what and then is going to do in the courts of appeal how many different motions they're going to file there the courts of appeal talked about the due process probably had in this particular case now one could argue well what so but but the but the problem is we're still up on appeal the court of appeals in this case could do a variety of things one it could declare  analogy is not an appealable order to you could you could affirm the district court and the court the court of first instance or three it could rule on the merits right then and there so that is a risk that we are still t is still exposed to and that is why injunction is not a dead issue at this point yes no i understand that argument but i gather you're not arguing at this point that there is something inherent within the court system which well if they if they have a nonfunctioning system you don't have to do that that's not your allegation here you're just saying the fact that there's a functioning system we still are exposed to risk and therefore to enforce the we would deprive the form selection clause of this five taliban if we don't have the injunctions that the essence of what you're saying the essence of it is one you have you have you technically do have a nonfunctioning system to the extent that it is going to apply if you decrease or ten thirty a day in the manner that it has there are issues that gal has concerns about we don't have a factual record for them about the functioning of the ecuador court in fact that we can't we don't have a record that is you might imagine it's very difficult evidence to obtain our position is that given the form selection clause and the reason people enter into form selection clauses it's kind of a problem so  actually knew where you were and swore they did not they knew they said they could not serve you when they knew that you had appointed attorney and in fact those flat findings were made focusing right now on inappropriate conduct and findings made by a trial court that in fact your opposition company apparently the trial court found was not telling the truth and was what we would call here perpetrating a fraud on the court was this raised in the district court and what i have in mind is that these are equitable cases involving equitable results and we have a long standing rule that people who want equitable results have to come in with clean hands if that finding convicts cept and in the trial court it would seem to me that it would be very difficult years the fact the matters letter to letters from indiana were sent to gallo in modesto the fact of the matter is that so they knew about it what they did with indiana said to the court down south to get the core of the or or guardian appointed was we don't know where gallo is located in ecuador that was a little twist they put into it that's the unclean hands because as the court in ecuador said you knew full well where they were located that the statute you're trying to invoke by saying in ecuador doesn't apply so clearly and dina was guilty of unclean hands in the district court what is a district  the district while the district court considered her ruin of her anything no the district basically the district court relied on issues of concerns of comedy is this i'm going to let the court next or resolve that shit that's part of the problem we have here is that a lot of the facts that we presented to the court it's said in light of equity in might of comedy i don't i'm not going to deal with all that the court next or deal with ok thank you now but it was in fact raised absolutely if you look at the declaration if you look at our our memorandum and if you also look at the declarations of mr scholes he talks about the letters that were referred to and we talk about and dr is that in the record well the court's june twenty fourth order is clearly in the record ok and where the statements that the due process argument they believe the court mates are where he address time and i'm trying to get an answer but i assume that from what i read that the trial court down south actually made findings as to what they knew and did not know and could reference refer the court to motion for an anti injunction suit before an action has been filed in violation of a form selection clause and also invite as prosecuted in a manner that's in violation of the due process rights of the party seeking the injunction and more specifically the issue i think focuses on is to what extent do notions of comedy outweigh this country's policies that either form selection clauses or due process rights the second issue it and that is an issue that if that relates not just to gallo but  with the time i have left drugs let me just say it was sort of summarized what this case is about and why these issues are important not just to gallo but other companies as well form selection clauses are important tools in they allocated the risk of how litigation was going to be they allocate risk one risk of which was how this litigation was going to how litigation between the parties would be handled and that is any cause of action would be felt solely in the courts of california and vienna blatantly and secondly the endianness of the world are rewarded basically for breaching those forms selection clauses merely by filing action first and breaching the agreement and if you fall the district court's rationale they are bring rewarded and i would suggest to the court that this result this consequence is in violent contradiction to what the supreme court has said in both the brennan and the carnival cruise cases done in our case or in the united states and so much of the record as you may glean is basically on allegations that were made in the initial complaint and a lot of back and forth we know a little bit more now since we've had an opportunity to do some discovery in this country and also the progress of the ecuadorian action and let me say this first about my understanding of the procedural status in ecuador i think mr gamelin was fairly close on how he described the procedural status and let  me preface my comments about ecuador is as your honour's may know i'm not a lawyer in ecuador so what i learned from attorneys in ecuador from my client much like mr gannon one is learning but i think he did a fairly good job a recitation of what the fact pattern is down there my understanding is that the the finding which was truly an gallo's favor it's called a nobody rather than a judgment there is on  appeal to what they call the superior court would be our court of appeals in ecuador and that is a review that's done without deposition testimony or further evidence of essentially goes up on the record like we do here pretty we would call a motion to recuse a judge here you can do that neck with your but you can make a monetary damage claim against him which is from my understanding has been denied but the appeal issue remains on appeal to the superior court there  we now have got more pleadings more evidence in the case in ecuador and certainly to this date all of galahs concerns about ecuador being a kangaroo court and not giving them justice have turned out to be your client they want to lose in this jurisdiction well i understand that your honor but there's also the ecuadorian protection act which and again it takes the position that it is not repealed retroactively such that the case cannot proceed down there there's also part of the protection act article five that says it's appropriate for and being that to file this type of case and its native country there's there are those issues district court he was a apparently that say that we have to defer and have a case and foreign law decided by a foreign judge that we can't make that decision what was the basis of the discourse decision that he couldn't make the decision on the foreign law but had to be made down in ecuador well my understanding your honor was at the time bear in mind we were under i think also i was drawing the impression that there was going to be a ruling in the ecuadorian action shortly when we were there in june or july in fact there was one of about a month later so i think what judges she was looking at number one was it seems like in the verbal summary trial proceeding in ecuador they're getting close to be in reason second the ecuador courts are more competent to decide the effect of the decree and then he went on to with a strong feeling of comedy which may or may not be consistent with the ninth circuit cases and then said it doesn't make any difference because he can move for a change of venue in ecuador and have it sent to the united states those were the reasons right now taking the first reason filed first is are a case that says that we  decide the choice of venue choice of law issues based upon who gets to the court which courthouse first you know the case i would not that i'm aware of judge the trend or the tendency is that most of the cases where there is a first file however may be the case that goes forward but it in specific answer your question no i can cite you know direct case that says you can't stop the first it's filed but i would point out that and you know file it there because under the protection act you have it's own country that's where it's says that it should be filed not in the united states of america and we would not be here but for the interplay between the protection act and the form selection clause about what would be the appropriate jurisdiction for us to be and i understand so the question has to do with the protection act which is now been no longer exists but your client's argument was it existed at the time we enter into the contract so therefore it's a part of the contract correct your honor so i don't quite understand the position that the district judge here could not have made that decision based upon testimony about the ecuadorian law and cetera as we do it frequently i i'm trying fine is there some help you can give us from a case that says it's appropriate under circumstances such as this just to allow it to be done in ecuador as distinguished from doing it himself as the contract and well your honor going kind of behind the the record if you will about what happened in vienna was making its initial appearance on jurisdictional grounds and then gallo also at the same time was having this injunction matter heard and it was all being thrown a judge issue initially with very little deposition testimony very little documentation completed which now we have a lot more of so he's looking at it as a  injunction application on day one and he learns that the ecuadorian action is supposedly near a conclusion and so i i believe that it was his perception as it's reference a little bit  his order well that they appear close how would i like it if somebody stopped my core if i was you know five days from entering a judgment or what have you and so what i think he thought was well you know we don't have any hard evidence yet here about contract court it was it was brief that i cited the jones case on a franchisee deal the pennsylvania versus california so those things were in the pleadings and the underlying action and the final thing he said was that gallo can go down to ecuador and move for a change of venue you know any law any law in ecuador that says that gallo could go down and get an ecuadorian court to enter an order transferring a case to a different country no judge and i think perhaps the use of the term venue may have then an inappropriate choice of words maybe should have been jurisdiction because at least as we know in our system we're talking venue we're talking something that's subject to our jurisdiction so i didn't feel i don't think mr gammon folly that i kind of agree with him on that i don't understand really what he was driving at when he's talking about motion for change of venue because we're not talking about moving it from one court in ecuador to quito for example in ecuador so i  didn't follow that myself and i'll be the first to admit that that's a good and now we've we've talked about you for reasons he used now one reason he didn't talk about and i'm not blaming you for this you're up here you're not down in ecuador yes or but the issue came up this is not going to be action and what how should we treat what happened in ecuador and the findings and the trial court down there and relationship to your client action there right and i'm happy to talk your honor of clean hands versus unclean hands and equity the first claim is as you know your honor is well you appointed a curate or where you should've served gallo in the dust bowl california or laws let's talk about gallo under the corporations code in ecuador for twenty years never appointing an agent to be somebody for service of process in the country think what are the brief indicates they didn't have an agent and well they have a lawyer your honor but the law in my understanding in ecuador requires that a designated agent be appointed in the country of ecuador to receive legal service a process gallow never have that if you're right that's true more in terms of what appeared to be findings in the trial court of misconduct on the part of your client do we have to those findings here well the matter is up on appeal your honor and to my knowledge i don't believe you're bound by it but to my knowledge no court in ecuador has ever ruled that the curator process per se should have never been used under the circumstance of no legal representative being in place by gallo in that country i not going to quibble with the court here but sure my client maybe should have mailed a copy to modesto no question about that that probably would have been beneficial to everybody because my client did mail two letters from ecuador to modesto before the lawsuit was ever file my understanding that the gordon law though is you're supposed to serve the legal representative in the country backward or now galil has five lawyers and three law firms in ecuador and isn't it coincidental that they've never in twenty years appointed a legal representative as required under the corporation law there recently right now you may be right my only question was the findings made by the trial court now is it your response that because that decision of the top courts on appeal that those findings really aren't finalized yet and that we should not look to them and to understand that you're arguing i think you can look at them here judge for the purpose of the equitable arguments about injunctive relief here because i think that's fair and it's on the table but what i'm really driving at is yes it's on appeal but to my knowledge no court there has overruled the curator issue and let me tell you the other end of that that gallo doesn't tell you about is that on september seventeenth two thousand and four they did send in one of their completed in that six day period they just have to request certain things to be done now read at penn is the curator also did attend and gallo did not after september seventeen a vote for or and inspection of my client's books and records by the judge in ecuador and in ecuador apparently one of the procedures to inspect documents is the court itself goes out and inspects the records and then the attorneys for either side have a right to participate and be that mr pierce the curator or was there but no representative of gallo bother to show up at discovery that my client initiated in ecuador and they could have also requested that i never did it i think you're moving your argument over to their bad guys to well that's right yes if you back the findings made in the trial court and i just don't know how they fit into our decision here well i don't know that they do your honor but i in all candor i think you're allowed to look at it because what's been done here is the allegations been made that my client has unclean hands my argument that this was a contract it would be you know to be honest your honor i can't recall off the top of my head i read the order about two days ago and maybe i shouldn't use that term i mean it was negotiated two times  the what's happened judge and we now have deposition testimony and i apologize i made the interplaying some deposition testimony i'm read this is your seven ninety poor line twenty two while the contract is a simple preprinted two page fill in the blanks by contract edina presents no compelling argument that a contract is in and he can contract simply because it's mine which is dictated by galland included in their standard printed distribution contract and i apologize judge in the last two weeks we've had depositions taken of my clients and i'm referring to something that's not in your record so i don't know if it's appropriate for me to state that but the state of the evidence was it was take it or leave  of i'm sorry of the repeal and then ten thirty a day itself gives jurisdiction to ecuador to hear claims of of the ecuadorian distributor so you know to say that there was no bases and gallo  way one reads and i will take the time pulled out it's in your record here but that these series of things can occur and that all claims arising under contracts from years before nine hundred ninety seven this wall would apply to it  lot of these things he didn't have the benefit or the the ability to deal with that we're talking about here but  didn't happen in this case and by the way the attorney appointed by gallo when he did appear on september seventeenth of zero four did raise the jurisdictional concerns that in many of these pleadings the state of their own able to raise and they have been raised down there and that was part of the basis for this and all of the decision i'd say this briefly about seattle totems that was a case that dealt with choice of was a factual distinction rather than a form attempt apparently just to stop a lawsuit and that's what gallows doing here because they want injunction to stop the lawsuit from going forward in ecuador and in closing i'd say this your honors  i know the remedies you're looking at here and let me throw one out and i don't know procedurally whether this is appropriate but to me this is not what my normal practice is every day to day on international law and conflicts of laws and form selection causes but let me see if i could just quickly touch on some points that was raised by counsel that and responding to questions that the panel may have in light of his comments first of all with respect to the finding effect of the findings made by the corn ecuador judge wallace i'm not so sure that there are binding on this court but i think i think the service of process only arises if gallo were to assume obligations in ecuador that didn't happen here secondly article five twelve which is also in the record of the ecuador code says that you cannot get a co district court can have broad implications as they said about any company that's doing international business in the form selection clause because it will basically make them meaningless and will encourage parties to to violate them forth the principles that are to guide the district court in ruling on form selection clauses as we set forth in the brief we believe the proper rule is that if there is a valve to form such a clause that constitutes a policy in important policy that outweighs interests of comedy and that that the form selection clause should be given proper weight and recognition in determining that if it thank you thank you both for your it was a very