side mr winter you may proceed through the appellant thank you my name is gus winter i represent back to shift felt and i have requested to reserve five minutes of my time for  this ace is subject to the six circuits published opinion in the case of audio technica versus united states which was decided last june and which reversed will stop all bars a party from asserting a contrary position under oath in a prior proceeding under circumstances where the st court accepted that inconsistent or contrary position such that would be fair to conclude that acceptance of a contrary position in the nd court would lead to the perception that one of the two courts as ben misled or deceived  potentially recover moneys that would help compensate the one million dollars you believe your own you've now recovered some amount of money from the company and you're seeking to recover from the law firm the amount that's one million dollars less whatever you've prior action a task you want related question you know one of the scenes of your argument is that the parties are kind of agreed this would be the scenario there was a stand down or tolling agreement signed where there was you know in essence an agreement that this is how things are operate but what in the rep occurred supports that notion you sort of see it in your brief but what in the record suggests the parties have agreed that you would sue the company st before potentially taking any action against a law firm both parties recognize that there is a benefit here and that from the standpoint of the law firm that depending on how things proceed in the st case they might not be sued at all but i don't think quite as that i mean it just it just says and what it just says mutual interest so that's pretty ambiguous and two degrees has a number provision saying you can sort of use the statements in there against the against the firm as anything outside of this agreement that sort of supports that view of the case which i might be sympathetic to but i haven't so you saying it may be the law firm or knowledge i'm not sure but is there anything else that would suggest that's what was going on here well i believe that the tolling agreement speaks to is that the distinct possibility that litigation could between the two parties could be avoided and that's that is part of the record what about the argument that the court the courts are not actually being statements this is true and said we can't make that determination yet so given the standards for judicial or stop one in the circuit the settlement precludes any finding  the statute of limitations has run as a matter of law such that there is no need for any type of fact finding on whether it has run well i think that if there were finding of fact made in the arizona proceeding then that would be something that would be a basically a collateral stopper type of argument but there was an absence but there was a finding that there is a jet but there was might be an inconsistency to extend your suit in this case it's craning as a matter of maw the statute of limitations has run and we don't even need to get it to fax and they were clearly d negligent on that basis is there i'm saying that t a minimum the delay of the defendant attorneys which is accepted as true for purposes of where we are right now at a minimum created a  potentially viable affirmative defense in the arizona proceeding that did not exist and would not have existed if they defended law firm had had exercise due diligence and complied with the standard of care would add before my st ten minutes are up is that there's also a problem with the nature of the subject matter of the claimed inconsistent statement it's a statute of limitations issue which in this it is a question of law not a question of fact and it's really not appropriate subject matter for a traditionalist apple argument and i've cited a couple cases in my brief to that that the district court got it exactly right i mean dr shu felt took the position in the arizona of litigation that his claims were timely file he defeated a motion to dismiss any garnered a two million dollars plus settlement and then he comes to described the case to mr yes is that you actually agree with that's what's going on here just in terms of how to frame the case well he has argued that he's not going for a double recovery  problem with that is the judicial stoffel is to protect the judicial system it's not to you know make sure that the plaintiff doesn't get a double recovery is to make sure that people don't go  facts of this case how there's an unfair advantage to the law firm and i don't think the answer can be that it's inconsistent position because that's the st problem so if there's an inconsistent position which i may or may not agree with that might satisfy the st problem but really struggling on the unfair advantage among others we can talk of the problems too you know well i mean i think you're right in the sense that i see this primarily as an abuse of the wiggles just not not really an abus stoppel yes several responses step st of all i could also do not want to be sued so anything that would hold off a lawsuit you know by giving tolling you know that's five but that's all the tolling agreement  it only whole time related offenses it was not an agreement to be sued it was not a waiver of that you just will stop the argument it was none of that and nd of all the the it really is for she felt torts as to who to go to for and whether to press one position into acceptance for suing the other party could have sued but want to do that as a matter of strategy so it's not an induce that issue and you could have avoided i think it's all the same question because i don't think you can say that you ran or didn't run and if it doesn't run there's no possible negligence and they didn't run there's no possible  resolve and in my mind that just suggest that there is a risk that the statute of limitations had run so there's the risk that a quarter and jury would find that it had run and that risk statue of limitations the sense and that is the risk that was created at the legit it is that the complaint stage by your counsel is negligence and i don't necessarily see how that's inconsistent wes basically saying there are facts questions on the statue of limitations on the case well i think the district court probably addressed that and it is there can be no practice if the statue didn't run this this risk of  statute you know this happens all the time i would submit to you that malpractise occurred only at the stats and it did that to the court in arizona make a finding on that issue well the court the court in arizona adopted tshuva took two belts representation that he couldn't have discovered his claim until he received corporate documents from next look at the synopsis decision there the party defeated the most the most of us and our claim is not based on our breach of contract so the court didn't make any finding as to what the actual crime was the part of the court it's the parties representation here here had sheep all not represented and he didn't discover its client until late then the court would have granted the motion so by making a representation which he is now directly contradicted he enacted machinery of the court and that that is acceptance under the case law stoppel doesn't apply because his proposition was not taken under oath that comes from the televised case which would d predated the new hampshire case from the supreme court that did not impose an under oath requirement and itself holdings that say that statements and may pursuant to rule eleven are the equivalent of an under oath statement to the extent that element still survives and that makes sense because we're talking about an equitable doctrine with no rigid form and when i say so that should not be a cause for concern and then you know dr shu the really can't address those cases so he basically says well i'm allowed to in particular type of argument so i think that holds any water and then the idea that these cases effectively over or over rule tell and we also think does not pass muster because again you have an intervening supreme court case and you have a statement that this is not subject to rigid warm relations so this is either a reasonable extension of teledyne or it's justified by the you know in supreme court injunction which requires a likelihood of success on the merits would not be considered a judicial acceptance and i'm in particular thinking of the line where the court's reasonable cause which was the of a preliminary injunction would not be enough to satisfy the judicial acceptance from which i think would be an easier case and that is now a motion to dismiss on the basis of  ya i really honestly don't recall that that paragraph but i do think that there is law about that i've seen all the case law indicates that anytime you take a position and the sometimes sport or other areas that are particularly concerning to your honor's that you'd like me i want to take all the time but i district court relied on an argument i think you're making and still today i want to ask that's a suspect up the fundamental unfairness point these are invoked the rd party interests of the will have to take significant discovery of next year and speed next year is not just moved in this case to today now we got in the to judge murphy's question about unfair advantage to the defendant in the arizona case next care next care was well represented a multitude of representation  afforded to that party in the arizona case and the settlement agreement does not include any provision that all parties or non parties were released in other words if the next care wanted to be sure that it was never going to have to be hit with a deposition request in the subsequent proceeding it could have bargained for a release that would have prevented dr shu thout from filing suit regard to this matter against anyone next cared to do that and next care has participated in this case at least collaterally it to the extent that it has been requested to give discovery out in california and that was initiated by baker donaldson behrman second to judge regulars question about findings of fact and in regard to the kind of that case i think there's a good point to be made there because  right there was a injunction prohibiting certain conduct of employees who were subsequently discharged by teledyne but for the six circuit the critical point was that there was no finding a fact that the discharged employees had actually done anything wrong similarly in this case and i would quote the district court in nashville and this case that the district court said essentially that the arizona judge said only that it could not yet determine whether claims were trying to bar that and thus could not dismiss them these cases when they talk about judicial acceptance at least in the th circuit speak to the court being deceived or misled or convinced there was absolutely none of that going on with the arizona court and finally i do want to address the down time johnson cannot override or necessitate the under oath requirement unless it was an on bank opinion which it was not so i would submit that the under oath requirement still this part of six circuit law and the supreme court in new hampshire versus maintenon intend or do that honored undertake to dictate to the circuit courts an dollars b it's simply persuasive authority but it can overrule prior decisions and really i would i would ask the court to take a look at the dissenting opinion and in watkins was basically said and i think this is consistent with the point your honor was making earlier that holding two different tortfeasor is liable for their share of damage to a plaintiff is that that case is is not binding on this court it's inconsistent with the published authorities and it should not be filed in this instance