and with the court's permission i'd like to reserve two of those minutes for rebuttal that's fine the way we're going to probably won't we use that as sort of a very rough guideline on understood and i will address as many issues i can in the court's questions and otherwise leave that to my to my brief the first issue i'd like to address is one that covers the injunction in its entirety and that's the failure of the district court to require a bond rule sixty because if we even get to the should why should richard revisit the eight hundred thousand which if we revisit the eight hundred thousand really was a hero bought that's that was issued too and was part of the t r o how was that calculated it dealt with the  all the evidence here is undisputed they got being junction claiming they would lose million dollars because we would take it away if we weren't enjoying so necessarily they conceded that without the injunction we were going to get monies they put in evidence what the projected additional revenues would be in both arizona and nevada of three million dollars a year and when we look at the analysis of the  temporary restraining order for a limited period of time and extrapolate that even for just a year it would require that it be at least six million and the serious problem with this issue is it's not just a function of securing  amount that we can look to for found to be unlawfully in joint if the limit so this has serious due process ramifications that a party is precluded from getting any more should we fix the maunder or  just send it back and have the district court do that your honor i think it would be obliged as we really weren't even allowed to argue when not when there was no bond granted i was even allowed to put in all the evidence judge says mr kenworthy i don't want to talk about that now so i don't think there's a complete record on the amount of bond at all because that's going to remand yes so i think on that issue it would be to remain and we have other issues obviously that we have concerns about substantively that go beyond that the first of those is with respect to messrs evil house and gravel and not one finding of fact whatsoever as to either of them and or mention until someone asked what about them   but with respect to that issue not only we believe that's an untenable to issue an injunction without finding to which they're entitled and say come back later the reality is when we came back later the court said and this is the court can take notice of this even though it's not a record goes it came later just i'm not going to entertain the request even though you've presented evidence showing they had no involvement because you have a motion to dismiss which is never been ruled on by these defendants as t whether there's a jurisdictionally sufficient amount and you're going to be before the third circuit so i'm not even going to hear you so she denied our ability to even come before her so he is i understand that argument you're saying that before the injunction could even be entered even assuming argument it was proper there needs to be a determination that the district court had jurisdiction over these yes and there was no record is devoid of a jurisdictional devoid and the problem is that these two individuals to the extent they did anything it related to arguably looking at best attempting to solicit somebody to come who didn't come at all in chicago so and with mr grubman all it was was a chance comment when he was walking through the office that was that was gravel but that wasn't that was a problem give the house there is evidence that he did if leave violate his obligation not to solicit a colleague but they didn't come so there's no damage and that's over the essence of the motion to dismiss is that there's not a jurisdictionally sufficient amount as to those defendants the third some sort of issue i'd like to address is paragraph paragraph f related to the injunction against any solicitation of any employees at will employees of strike and it's too broad and also is a subset of f e is a subset of and we aren't specifically challenging easy because other than the general but it does have an improper and there's no question that the solicitation of at will employees is not inappropriate there's never been any evidence no evidence of record so with respect to paragraph sure i don't i i read your brief is saying you're not disputing any facts here so it's really our standard reviews here is b s of discretion as to this right well the no analysis and with respect to facts there was absolutely no facts to suggest that there was any intent to improperly so let's it there was no doubt the fact that there was the potential that we would be soliciting out at will we didn't dispute that that was something that we might do because we're absolutely entitled to do it it's like taking one of the players and saying you can't participate in free agen and let everybody else out there participate in free agency and you can't and if you look at paragraph e at least that one prohibits you doing it by using employees who have a contractual obligation so it fits exactly what testing was of it being way broader than in any way necessary but our standard review would be the use of discretion as to your argument right i think what it is it's discretion is an abuse of discretion but i think it's an error of law would not to have made any findings or analysis under the four prongs with respect to that type of relief she essentially what happened is the entire order was adopting what was submitted the day they filed the lawsuit with some modifications to paragraph a and rearrange him so it was just a document wholesale and in many regards there was never any analysis of any of the issues whatsoever argument but first this court has the discretion to consider issues of law not considered by the district court absolutely but you've got to bring it up to the district court now even as issues not raised in the district court this court has since cash to be miscarriage years mean we'll get into in a moment whether the there in our district court decisions in the district of new jersey that may go further than what the new jersey  state courts have done but my first point is you need to bring it up i mean the point being your honor this is a contract we think that new jersey law requires preemption of any tor claims when you have a contract similar to what you see for example just just to give an example in my own state delaware when you have limited liability companies the contract prevails that's the default rather than the amps short we did not say in those words ok and then so now why is this the quote extraordinary circumstance close quote or or even more than that that's necessary for us to consider because this injunction a motion to dismiss to raise it and we tried in an amended motion to dismiss theresa and as recently as november thirtieth those motions to dismiss were terminated by the magistrate judge and now we have to raise the economic loss doctrine i suppose in a motion for summary judgment so on may twenty fifth and a motion to dismiss we raise the economic l we have raised it in the district court did we raise of before may thirteenth no did we strenuously argue that this conference is this thing this or this thing was hot and heavy back at the end of april beginning of may i guess it was  look at our way it looks like what the new jersey state courts are really talking about is the economic loss doctrine being possibly applicable in products liability cases  certainly in spring motors and then it was later extended to non commercial buyers in our correct so ok no supreme court decision of new jersey then you look at what appears to be some conflicting district court opinions yet try co which seems to think well maybe it's conditional test whether the tort claim can be asserted alongside a breach of contract claim depends on whether the tortious conduct is extrinsic to the contract between the parties a strict liability in negligence unfair competition like fraud is an intentional toward every person as under do not to commit intentional tort so there's some tension and then you've got our case in gleason from two thousand and one in which we said the new jersey district court still hold that tort claims not extend sick to underlying contract claims are not maintainable as separate causes of action new jersey state courts have not agreed with the district court's interpretation of spring motors new jersey supreme court still has not decided the issue we will avoid predicting new jersey law by deciding the tort issue on its merits sounds like gleason is what we ought to follow i said i would submit you should follow or wincey in where whiskey this court did definitive analysis done by pennsylvania courts than there was by new jersey state courts here because new jersey state courts of the find it to a small niche so far perhaps but but i don't believe pennsylvania law is any more clear than what new jersey laws and i also believe that all of the district court decisions can be harmonized if one looks to whether the torts were extrinsic to the contract or not and i have a chart here anticipating precisely this question and i believe that when you look for that concept was the tort extrinsic or not that all of the district of new jersey cases with the possible rubric and here we lay out in our brief why the tort claims against my clients are embedded squarely within the contract this this case falls on all fours with trike of to which we would submit is the correct analysis all of the tort claims are based on the same conduct that's alleged to be a breach of contract there isn't struggle sort of by its lonesome based on what i read to you a law would support the tri co reading of what the prediction would be of new jersey law it depends your honor frankly whether you're talking about interpretation and application or the analytic convention right the analytic convention being is that extrinsic to the contract or not and a case that  your clients might not be eligible to work for zimmer and in and pull the rug out from under strikers las vegas and arizona operation the claim the injunction against my clients needs to stand on the claims against my clients and then just an injunction against eight individuals based on zimmer's conduct was zimmer can be precluded from employing these folks i mean that's not you saying the district judge doesn't have the power to do that district judge may have the power to do that it did that was not asked for in this case but but if only in your client's benefit that was not asked for you for  injunction i would go i think i'm with you on that i mean row income honest aren't they situated differently than your other six clients i'm addressed that i was very glad the us a question because there were no findings whatsoever about roland and pull the models and the findings against the others when you read them carefully as we did in our brief what did it prove that they talked to doctors and said they were leaving that's it well they have with respect it has a little more than that know they had they had a flip flop that wasn't a complete flip flop because you've got someone visiting i think it was dr theodore you know wink you know not a i'm not covering anymore me course my friend here is going to cover you and you'll be taken care of i mean that was a finding that his precourt was in a lot of the fights or i don't believe the funding was quite that strong with respect to dr theater i think that the picture was a bit more modeled with respect to dr theodore i think a tray was delivered right in the left so right one of your clients been doing and where are they going to do in the two months they've been servicing people who they're permitted to serve and then when the when that's over then what i will say i think of i don't know what zimmer's plans are with respect to my clients that may depend on the final hearing on the merits in front of this record i said it may i think you'll be premature for me to comment on on what their business plans are when the injunction expires assuming there's no competition made to extend the injunction which is another possibility this injunction what was not tied as it needed to be to the contract language with respect to my clients it is far broader than that so you'd like a ruling on this but it leased by april first optimally yes ok because if it's a it can go beyond april first right in theory yes and that's the that's the injustice that's been committed here against against my client's right a ate an injunction that's completely  from the contract that bars activities that we would vehemently argue are for a minute by the contract it's based on tort claims that we would submit are barred by the economic losses but the argument of mr wexler would be that the decision of the court came down on may thirteenth may twenty five you decide to see what else we can do to argue the economic loss doctrine perhaps too late you're relying on new jersey law one new jersey record case that may be helpful and another case that appears not to be helpful in a case mark or to says you know let's let's not really enter that thicket and it's pretty tough and pretty tough one to make him you add the facts here i mean the facts here got this district judge pretty concerned that there was there was predatory activities taking place at least with regard to the eight individual defendants and you know maybe the other two were lumped in but it looks on the facts that she found pretty significant in terms of the activities that were done here it's a real it's a real strike at striker's arizona and  vegas operations i would submit that a waiver argument is very hard to swallow here when we raise the issue in a motion to dismiss we try to go back whether you saw the motion to dismiss may twenty fifth twelve days after the decision came correct we tried to go what's the what's the word i don't have but they were rendered moot right terminated was the work terminated i don't know what that means so now we have to raise the issue in a motion for summary judgment at which point the injunction likely at least a paragraph a will have been expired so as we see it we've been enjoying for twelve months and you know and have had no adequate opportunity to fight as we should have been able to fight let me let me just ask you question about the equities as we are in equity here your clients that say the one years it's not extended beyond one year provided that they they work for someone other than zimmer is that acceptable my clients have no desire to work for anybody other than so i'm not sure i follow the question right so your clients are tied to zimmer's zimmer by clients if the district court determines in a final hearing on the merits that zimmer can't be allowed to court room that new jersey will apply is that you said it appears to be waived but you have a position on that the only choice of larg you meant that we made was with respect to the economic loss doctrine that's in a footnote of our opening brief and a and you will house the what did the district court cite as the irreparable harm with regard to them i don't know that the judge specifically used the words grab cite irreparable injury with regard to those two individuals but what was presented in the record your honor and i say to the record to pages sixty two to sixty three of the injunction transcript as well  d six a three eighty nine and four seventy some of the four seventy eight there was testimony and evidence that mr grabbling for example was a participant in e mail traffic regarding this scheme additionally when  there were attempts made that turned out to be to fail no people came over so there were no last personnel there were no lost sales what were the irreparable harm is with regard to these two individuals sure with regard to mr gable house and if you note the way he was enjoyed he was not proof he was not prevented from continuing to sell the way he has been selling  house the testimony at the hearing was that mr give a house specifically asked mr miller and mr williams to come and join him in zimmer the testimony was that mr given house admitted that he had met with his doctors ahead of time and asked them to join zimmer that he told them that he would get other reps to cover them when he went over to zimmer that was all testified to with regard to that then the judge didn't find it as persuasive i suppose as other testimony and did not prohibit mr give a house from soliciting customers as you note are you really is concerned with these two folks as you are the other the eight individual defendants we are your honor because mr gable house admittedly the one successfully tried to take customers with them and specifically tried to get mr miller we're seeing perhaps is a lack of findings or balancing the things that would bind a person to an injunction done by the district court wouldn't it be appropriate to send it back as opposed to individuals as to these two individuals then send it back to if to make some equities irreparable harm likelihood of success on the merits i think what the judge did was the judge may have a group the individuals together in their conduct but clearly when the judge said for example that paragraph a didn't apply to mr defendants in describing the conduct but in the actual transcript of pages three forty five three fifty one through three sixty two thirty nine to two forty two forty two three fifty two to three fifty four and also i believe one ninety one ninety one there is testimony with regard to conduct where the individuals had met together had talked about this flip flopping plan i had discussed going to their doctors ahead of time and talking to these doctors about moving them over to  again while there may not be the specific names of roland implemented as mentioned by the district court there may be some that the judge i think group them together in looking at the tali of the evidence that was presented to her and talked about them as individual defendants because the conduct was was basically identical with all these folks with regard to meeting ahead of time planning participating in this scheme to move strikers entire business in arizona las vegas over to  tortious interference claims there may be some similarities your honor but when when the specific act of focusing on a number of individuals with the intent to improperly move them and more importantly to cause semantics or no your honor i think there's a slight distinction in the case law between what's required in tortious interference and and what's described as corporate raiding in these other cases in my correct in understanding that under new jersey law person a handsome contract they could they could do that right as long as they didn't intend to decimate the business and want to help approvals didn't violate his or her non compete and that's the way they should compete that's that's your position today was a prince fielder pick and choose the stars that are going to help your business you can't do it in a wholesale fashion you mention of decimating the competition is that that's correct and that's what the case law says your honor and i think to pick up on a point you mentioned earlier the fact is that zimmer hired mr broken mr breaux thing was given a limited budget to go and take every single representative from arizona las vegas and he admitted at the hearing and the district court found that he intended to quote cripple stryker that extrin tort if you want to call it that is really the grab men of this case and it's after that we get these other issues about whether contracts are violated but understood that when you look at for example paragraph i can understand that it applies to former striker employees but why should it applied to zimmer sales people who never worked at struggle your honor the what the court was trying to do and she went to great lengths to describe this is that she focused in on what was the a peaceful time or what happened at the time prior to zimmer improperly entering into this marketplace and what the court did was the court tried to fashion relief that would put everyone back to where century they were on the morning of march twenty first two thousand and eleven which is where stryker had a full sales force and zimmer had a minuscule existence in these territories and the court said it was improper to wholesale target all these folks tried to cripple your compatible i having no one to serve its customers how do i address that and the court said i'm addressing by entering this injunction so that stryker could rebuild this sales force and repair it reputation and its goodwill which was damaged by zimmer taking every single bit isn't the way that is not the next case in not the one before you made the claim is that there are there was the taking or having striker former striker people aid zimmer in the attempts to get doctors and sales that previously belonged to struggle but where is there that people who never worked at striker were actually part of this zimmer and they need to be enjoying because your honor what the court was focused in on was if zimmer scheme was to decimate the stryker sales force meaning there was no one of virtually no i think one employee was left at the time that there's virtually no one to service the doctors and you have to remember here that it's not an issue that these represent district court make with regard to paragraph eight with respect to making the injunction as broad as we just talked about because that the court went through made numerous findings where the court specifically said that if the intent was fair competition i mean if he is zimmer can't get work in phoenix and vegas why posting on monster dot com or anywhere else and get people to serve stocks in those areas that's fine isn't it well first of all that's that's not what happened but no yeah but if if you simply an issue of posting a monster dot com ad and then people apply that would be fine the situation in the injunctions overall i think we're trying to throw you on is isn't isn't there some let's assume for a minute you're entitled to your injunction i'm just talking about what shape it needs to take isn't it over in part no not at all your honor because because remember on march twenty second when stryker is left with virtually no employees and no one to service it's doctors those doctors are going to go elsewhere whether it's one of the named individuals or it's another zimmer employ that can walk in the door and service that doctor then zimmer is completing its team it may not have these individual defendants walking into that surgery so it's may have it's other employees walking by going out in the marketplace legitimately and hiring new people it's still having an unfair competitive able to walk into that surgery to gain the doctor's trust to know what to do so you can't just advertising get someone those people have to be trained and the court focused in on that and made that finding because you needed what the court said was stryker needs time to put a sales had virtually no business in these areas as a striker we were left in the position of trying to fly in employees from around the country and you make clear that that's only working so well it's not exactly right it's not perfect there are crisis care and i think crisis there's other companies that also supply so i mean what we've seen is after march twenty first customers left in droves because of what zimmer did because the testimony bear it out doctors didn't trust that you know stryker would have the employees and the and the trained employees to cover these issues if you could address two other issues before it was or have you said the paragraph e n f isn't he doesn't that cover you and they agree that covers you that's quite a bit much isn't it no your honor is the evidence in this case is is born out of zimmer hatched a plan that didn't just consist of viva and sunday of all it was a plan across the country to actually try and gain twenty nine representatives any way they could to increase their market share and because of this conduct that they engaged in i think the court looked at this and said we're not going let zimmer try to carry out this is just speaking for myself f looks like it's piling on i'm sorry or f look like looks like it's  piling on and you had a you know had you know a judge that was sympathetic to it but i mean it looks like it went quite far further than further than he by obviously by the language but also further than it needed to do the circumstances i think of the evidence presented that this was a greater scheme than just arizona las vegas and i think the court made a proper finding actually met briefly address economic last doctor in the of the court they then asked about the bond and number one the court specifically found that the bond was not for five months it was not for a set period of time it's right in the judge's findings of page forty four lines forty twenty five the judge clearly senate agreed importantly they filed an opposition brief as well and again they didn't present evidence or argue that the bond should be more than a hundred thousand point is they who said they were not allowed to come up to the plate to do that they were at the hearing your honor i remember the hearing was earlier the week monday and tuesday the judge then made her findings i believe friday may thirteenth so at the hearing itself a monday and tuesday they didn't put on a witness they didn't point testimony regarding the bond at all and now they complain about something that they actually didn't address with regard to the hearing itself i quickly that's done after you lose on the merits of the injunction and yes on the white why waste the court's time talking about it on that might not even be necessary to deal with that when you have to let me give you one minute on the on the economic loss doctrine cut you off but want to tell us what your thoughts were on that first rather in the economic loss doctrine was waived in the trial court i think as crystal clear it was never brought up second your honor it has  you brought it up on may twenty fifth and i think connection even though it's after the p r it's well before the hearing on the merits sure number one economic loss doctrine is only pluggable to proc liability cases case a district court in new jersey in the one case where it came up the court granted summary judgment on breach of contract in favor of the plaintiff and then went through the other counts of the complaint looking at damages and then dismissed those because they said that the that the actual extreme were in a related and so the court was going to war damages has nothing to do with polygamy injunction whether you granted or not it's also not a barge or bringing a claim it's not of our to present evidence a trial on a claim and it i think you're the only one that has was in charge of supply and we're getting new people who are going to be starting on april first are able fourth in las vegas and arizona we need to have supplies there that's what he was involved with he had nothing and these e mails do not involve him in a greeing to anything whatsoever with respect to the evidence of the amount of the bond we most assuredly put in evidence we put him through both their witnesses and mr breaux than what the amount of anticipated profits were going to it's in the record and it's over three hundred thousand dollars and what three hundred scuse me over three million dollars for location all of that evidence of how we would be harmed if enjoying was absolutely in the record and we tried to argue what was in the record on the thirteenth and she cut us off with respect to the duration of the only bond of the day was the date she actually entered the that's the day she entered the opinion from the with respect to the duration of the bond that bond is a punt temporary restraining order bond the only thing it does is protect us if we are found to be improperly joined by the t r o obviously that was only for five weeks the court that's the only bond the court ever entered and with respect to the issue of the scope of paragraph f one of the things that is completely ignore throughout here by stryker is that the purpose of a poem in aerion junction is not to be punitive if you're if there damages that flow from this that is down at the end it's to prevent future unlawful conduct and that's not what this does at all it doesn't even purport to be geared tour to a paragraph now yes words cross the border be honest with you your honor that's the same problem with paragraph eg and one of the problems with paragraph  is the four criteria and just very briefly the damage to straker that they claim is all compensable and none monetary damages they talk generally about loss but there's no specific this court has held the lack of specifics in sufficient and there's no way this claimed loss of good will is remedied by the injunction that's what the injunction has to do if it's not going to remedy it it's what irreparable harm they will suffer if not in joint this injunction doesn't help any of what they claim generally to be irreparable harm with respect to the balance of harm however zimmer not only because of the bond problem but because they are expanding and the suggestion that they didn't have any business there before the record also shows that in arizona the year before this they had two and a half million dollars  they were only doubling their business and they had a half a million dollars of business in las vegas so this the sense that they had no business is not accurate it's not supported by the record but they were adding to the business and a lot of this business would be new and whereas stryker probably can recover their damages if they're found to be liable zimmer on the other hand because it's new business is going to have a much more difficult time totally aside side from the bond and finally the public interest factor clearly weighs against the injunction because this precludes doctors who may not have had any involvement with stryker for years in the past from themselves unsolicited coming to try and purchase zimmer products they can purchase their products not from zimmerman because they're going to be held to be in definition of what moving the business is if we accept if they say he's presently a or because the judge says defendants and all parties an act of concert or participation with them and now when we accept his business and they contend because they've made that argument throughout the trial that that is moving the business and we weren't limited to soliciting and the definition of current customer was such that it's anybody and that's part of