soley on a record of past royalty payments with no other evidence whatsoever including for example expert testimony as to what future role these would be and it was no expert or no nobody  testified about a projection of future none whatsoever your honor the only evidence that was presented to the district court was the was the past history of royalty so are you arguing that that has to be that projection forward is a factual question and the court does not have the authority to make that extrapolation himself or itself rather there has to be evidence on that before the court can make that extrapolation yes your honor that there has to be eviden extrapolate don't think that the court could by the basis of past royalties make say that that is the evidence that i can use now to make a reasonable likes drop elation of what that will be in the future no i  there under this court's as this court recently reiterated nathi v fry under the legal certainty standard one of the things that the defendant can point out is that the plaintiffs calculation of the not in controversies in firm as a as a as a damages metric and what we've done as i and i can't think of anything that is more proof of the amount the controversies is legally certain to be less than seventy five thousand assistant is to show that the pla f has not come forward with any evidence and in fact is speculating in terms of what our burden is again under under nafi fry is to point out that what the plaintiff has done is speculating our position is that any evidence would be speculative as to what the future role to it would be and it's difficult to your your position is that this that the contract in the future is just not worth very much that's correct ron i make sure seems like a lot of fighting between sophisticated lawyers and firms over a contract that isn't going to be worth even seventy five thousand dollars and it seems to me that your client was fighting pretty hard to keep this out of out of federal court in order to preserve a contract that he's now alleging isn't worth anything that that i was a little bit of an irony counsel it is and i will say i mean this is not in the record your honor but my client has this contract it's a country that's entered into with many many other clients so it's not just this contract that for from its perspective is at issue in this case and i i agree there was quite we went through a trial where here on appeal we think that's an important principle that's at stake here to procedure stiction in terms of and your honor they could have come for with for example what is the market value the present value of the future right well you can say what it is doing that they would look at the penny you know they would look at the past royalties potentially well i guess would you do it i agree ron if there was no guaranteed royalty right so they would need to do so someone would need to give opinion testimony base it on a certain amount of periods they would testify as to in their experience how reliable it is to measure that how far for into the future they can reliably measure and i'm not sure that a district court judge and under the test that we've set i'm not sure that the district court judge needs or the you know expert opinion on  discussing because federal jurisdiction cannot be based on contingent future events that there would need to be a present value of stablish as to the royalties and so therefore there would need to be some foundation for that therefore the need to be some expert if you think you think that in order to meet the seventy five thousand you have to take a future projections then you have to discount you can't you can't take absolute dollar figures that is if they say well we anticipate that in the in the year twenty eight thousand we're going to get ten thousand dollars and you're going to say well yes but the present value of ten thousand dollars is not it's not ten thousand dollars or something less than that i think if we were discussing to the extent that we jurisdictions be being based on contingent future amounts and we're discussing an amount that is future payments are uncertain i don't i don't believe the any case to discuss present value no you are ok but is there any is there any case i don't know i didn't see i didn't see any case in which a court said we're going to have to discount the future value in order to get present value and i don't believe there is your honor but i don't think that is i don't think the court even needs to reach that particular issue because we haven't we don't even have evidence of any projection by it when and what other what other what other measure could somebody use in a case like this where you're getting royalties off of off of you know play lists for for what they would get in the future well in addition to  who's an arbiter of musical taste to say yes this is going to continue to be of interest to the public no but they could but they could come forward with as what is present market value for the sale of  see a hint of that issue having been raised below or are or decided by the district court it was so it did i missed something or was that simply nobody really even addressed the president value we didn't your honor we didn't even hear dare not we did not because we did we didn't get there because any court didn't decide to end even on the briefing now nobody address it all three of us have been curious about that but apparently nobody else was curious about it in this record that's contract and the court's herminator it on the basis of a dispute over the fiesta a single payment for single royalty period and that's as you're on a pointed out the twenty five percent rate that was going to be perpetual in the contract under stablish is no record evidence of a substantial or total failure of consideration here in fact the record evidence and the findings of the district court were to the contrary the findings were the artist's rights provided the considerations join in the contract to perform its services rendered and it up lifted  result in not just just by its reasoning are also mean the anytime there is a dispute with royalties it would could lead to the terminations of a contract and so for example in the just relative to this case the underlying dispute with sony over royalties between the trust and sony could have led to a terminations the underlying artist contract the trust in argue that and then argue that for good reason if there's a  another twenty five percent royalty as a payback for royalties previously waived and there is nothing in the contract that supports them right they're not even arguing they had that contractual right yeah that's correct ron and these were events that took place you know that was so here your client is doing something that is utterly un justified by the contract and so then the only question is was that sufficiently serious to constitute a substantial breach is that is that where we are well the twenty five percent fee was ours rights wasn't title to the twenty five percent fee not fifty percent that's that's correct but the additional twenty five percent between twenty five and fifty was an attempt to recoup but twenty five years ago in those earlier years they said we're not claiming the twenty five percent i saw and the you know after those were calculated they're saying now we want to go back in and have a grab back and  and yet they're not arguing the contractor gives them that right the their argument was that the contract gave them the right to the twenty five percent fee and the district court finding was that there was no agreement between the parties as to a later recruitment when artists rights didn't collect that fee for certain periods that history or it's not just a matter of they didn't collect it because they actually sent a letter and said no at no charge that is that is th and irreparably damaged the trust they are you see what's wrong with them what's wrong with that your honor is that you could say that in every royalty dispute and every with every record company or with any movie studio in which there's a role to dispute this court regularly he'll hears appeals from royalty disputes with movie series or record companies in which hundreds of thousands or millions of dollars are in dispute with respect to contract is interpreted and what the what royalties are or not have been paid over many years and every time you could say the same thing the district court here said where there's been some breach of faith in the well in the context of this contract that wasn't disputing the finding that it was important to them to maximize their and then you know i think the district court could come out the other way and i suppose we might say that would be defensible too but are you saying it's not but the court came out saying it was material you know and you're saying we should say that was clearly erroneous finding you're honor the question is whether or not i see substantial or total failure consideration as our position that the dispute over what the fees were or and should have been paid are just right after it already completed all of the work that i was called on to do is not grounds for termination of the contract i'd like to reserve ok that's what you can say than the right hand yes thank you that's very we'll hear from the other side including supreme court case law is very clear that so long as there is a right to payment the fact that the plaintiffs can establish the amount of each payment is not significant and in this case the right to pay is clear sony has an obligation to pay roll to make royalty payments to the trust for ever the apple e g the appellant is contending that it has a right to fifty percent of that forever and the amounts are not the minimal as the court will know these are we have pointed out the last year before the litigation began the royalties from sony were over sixteen thousand dollars the a r e c in this case is claim in damages of forty eight thousand and the trust on the one year basis was claiming around four thousand so there is plenty of money stake it will go on forever the trust over the previous eighteen years had one hundred eighty three thousand from sony in regular pay in the previous five years there was  a set out on page twenty four of our brief in the previous five years two thousand and six to two thousand and ten and the annual payments a regular annual payments were thirty seven thousand eight hundred eighty three dollars plus there was one hundred twenty thousand dollars in an audit so one hundred twenty and thirty seven minutes one hundred fifty thousand clearly breach that the just the district court was warranted in concluding that the contract should be reset the district court listened to day huge full long days of intense evidence of basically two people mr stand back represented who is a trustee of the trust and the president of the a r e c and from that it seemed very very clear me didn't do it sneakily or under the table it it was quite open about it wasn't like they were stealing the money or cooking the books they were really quite open and just a difference of opinion about what rights they had did they have a right to claw back or not i don't think so your honor it's the going into the high end of the here in a r u so you exclaim in that it was entitle to fifty percent because there was a six thousand dollars base it changed its position at the litigation developed and said well actually the reason it took that fifty percent was because halves of callback there is absolutely no evidence in the record  the testimony in the documents to support an agreement on a call back not in the court found so explicitly that's why it was deliberately and wrongful it wasn't a matter of somebody say and pushing a button and getting twenty five percent rather than fifty or is there a request just give us just return the fifteen hundred dollars that the excess fifteen hundred dollars that you kept and you were entitled to give it you know your honor that by that point the relationship between the parties was so bad the trust had no confidence and a r e c because of what a r e z had done and a number of other things that had happened that were presented in the testimony in the bench trial it wasn't a situation where fifteen hundred dollars  g returned would have been remotely adequate that trust confidence in a already see was shattered which is what the court found explicit other things that the record will support that they did just this one one of the other things that i beg your found after that a new letter came out saying that a r e c was not taken a very small amount of money because it was less than the six thousand so they already so you were still insist that it was entitle to fifty percent of everything over six thousand dollars and there was absolutely no basis but that the president acknowledged that there is cross examination that i conducted in which he acknowledged that it was important and there was no war grima ok that's enough thank you that answers my question the question of materiality is a question of fact the district court found as a matter of fact that the breach was material and it doesn't have there's nothing that says it has to be really material or seriously material or substantial material the case law is that as a matter of fact if the court finds that the breach was material then the contract can be court made so had to defeat the purpose did not paint withholding fifteen hundred dollars how did that defeat the purpose of the contract the purpose of the contract as the as all  that it was entitle to do that forever and response to those two events the trust terminated the contract it wasn't a matter of fifteen hundred that's what a r e c presents it but as the district court found after a two day trial there were significant issues involved and the way that a r e c conducted itself and overreached and overcharged its testimony at trial about what it did and didn't do and why was such that the court found that a r e c had breached the confidence of the crust and that was a finding of fact that breach was predicated not just on the extra fifteen hundred dollars taken for that payment but specifically was also other things that the e c did or yes just briefly the purpose of the contract was to maximize royalties to the trust and that's what artist rights did it performed it services it increased the royalty rates that were being paid by sony to the trust the issue here is now the collect the the amount that is due to artist rights for those services rendered as its fee that is the dispute here and the quote at the trust to be clear continues to enjoy the fruits of the efforts that artist rights performed and before the complaint was filed here the trust had sony direct the statements and payments to itself and before the complaint was filed recover for itself more than the fifteen hundred dollars that artist rights had paid to itself in recruitment and that extend it already had engaged herself up before the complaint was filed more than the amount that was at issue here and with that unless the panel has any questions for me i'll submit thank you thank you