supreme court has said there is no hierarchy of jurisdiction so a court can consider subject matter jurisdiction first or if those issues are thorny and a case needs to be dismissed for lack of personal jurisdiction the court can go there and avoid the subject matter question i'm going to probably argue them in the traditional way but i wanted to make that point because for personal jurisdiction argument is particularly strong here because the has raised the issue of this court's jurisdiction in other words is this appeal moot i feel like i should start there because the court has to start there in its own analysis in quite simply this case i everything that the appellee put in the record its argument for move miss demonstrates that the injunction that was imposed by the arbitrator has not been fully performed and there's really no authority for the notion that substantial reason for that is the question is whether the court can grant meaningful relief despite the fact that the name change might have been fully effectuated and the simple answer is yes because the relief that we are seeking  the judgment below we argue that the district court had no jurisdiction over this case and so if this court can undo that that is the most meaningful meaningful form of relief here the thing that we need re would like to be able to move to vacate the award and there is no motion to vacate in this minnesota district court i was only a motion to confirm with defensive arguments and other it's undisputed that we have not come fully complied with the a junction a year after the award was internet and the injunction itself said complete this within ninety days so we are in jeopardy of some sort of lawsuit from federated mutual if we don't succeed in getting this judgment vacated that's that's the meaningful relief that the court can grant to us and it doesn't have to be full really if the court if it can grant partial relief that's enough to defeat an argument of appellate movement so moving on to the district court's jurisdiction the conflict issue that briggs is here and that's interesting and the courts th disagree is whether the supreme court's decision involved in in nineteen i mean in scuse me in two thousand and eight changed the let the legal landscape on the question of how a court assesses its own jurisdiction  address sections nine ten or eleven of the federal arbitration act but ins majority was very careful to circumscribe its decision around the language of section four dealing with a petition to compel arbitration it said over and over that text of section four drives our decision here and the text of section four is decidedly different than the text of section nine ten and eleven there is no textual basis to to conclude that look through analysis applies in the context of this case we say i mean actually before and i think it's important to know because i've sort of suggested to the court that the majority rule posed biden is that is that the look through argument does prevail but i think it's important to look historically before vote in the second third six seventh ninth and d c circuits all head held that you don't you can't look through to the substance of the underlying controversy you noted term in federal jurisdiction when you move to two  law and scape into the third and the seventh have concluded that no it didn't it didn't do anything because the language of section four was so important to that decision i think that that is what are the aspects of the majority decision that gets overlooked in the post spotting cases to some extent is its emphasis that the well pleaded complaint rule is alive and well and if you look at the petition to confirm in this case it does not present any federal issue federated mutual only sought to confirm the favorable part of the arbitration award and the favorable part of the arbitration award was purely a contract based claim  in fact in the petition to confirm they assert diversity as the first basis for federal jurisdiction and only throw in federal question second saying that the underlying  dispute involved a federal question but not the dispute that was it in existence at the time the arbitration award was entered i'm going to address diversity separately but the fact the well pleaded complaint rule tells you you look at the petition which substitutes for a complaint in this instance and if there's no federal issue there it does dot a rise under the laws of the united states and federal question jurisdiction is absent that's what the third conclude that's what the seventh concludes and that's what the six and ninth indecency circuits all concluded prior to it and i think that is the majority rule and that's the rule we would like this court to adopt  submit now the key one key to the case is that section forward does not expand jurisdiction or create jurisdiction by itself right it does not right and so if you said that look through doesn't work then would you be saying that section four does create jurisdiction if you follow that i understand that it and it's kind of ever circuits of set that i was trying to elicit yeah i mean i think you have to say that the language it's you look to the controversy save for the fact of the arbitration clause because there's nothing else there's nothing else before the court at that point other than what the existing controversy is and somebody one of the parties doesn't want to file a lawsuit they want to arbitrate and the supreme court said they shouldn't have to file a lawsuit just so the district court can then send it to arbitration they can move to compel and if the dispute promotes the so action to federal policy in enforcing arbitration agreements where we are now in this case the arbitration agreement has already been in force there's been an arbitration the question is what court can then either confer or vacate that and you know as law goes in one thousand nine hundred eighty three it moses cone the supreme court dropped a footnote footnote thirty two which often gets quoted and it often gets quoted for the statement that it that the federal arbitration act is somewhat of an anomaly because it doesn't it's a federal law but it doesn't create federal jurisdiction but it also has a statement that state courts have an important role to play and that important role is so i started to mention that we filed supplemental authority a supreme court case which on its facts is very different and not helpful but it had laying ridge that i think is very important here and it says if courts felt free to pave over bumpy statutory tax in the name of more expects petition slee advance a gay policy goal basically we would not be giving effect to congressional intent because we don't know why congress may have allowed a look through in section four but not in the other sections maybe it was some sort of compromise but in this very recent case it came out in two thousand and eighteen they're saying policy is not what it's about you look at the text and the te to have some meat in the record and there is absolutely nothing there first argument was that they didn't have to put on any evidence because the court had to take their allegation is true and that that's true for it's not challenge but once it's challenge the court have the burden to demonstrate the seventy five thousand dollar amount in controversy and what argument did they make it they made the argument that their attorneys fees are to be taken into consideration and frankly i think both parties overlooked this in their briefing but the coexistence agreement had a waiver of attorney street fees if it doesn't have to appear to a legal certainty that the amount of controversy is lost and seventy five what that's true but there's no evidence  have no evidence that it meets it so i think how can you say that it's anything other than insufficient if they put on no evidence whatsoever that it's met you know i don't understand there's an inclination to  too large companies have a dispute must get must mean more than seventy five thousand dollars one is listed corporation that's in your corporate disclosure i'm sorry one is a listed corporation is on nasdaq right yes yes no or that it's a long way down the dentity versus miles it sounds like attorneys fees can be considered from your third case attorneys fees can be considered when they are at stake in the litigation they were at stake here the parties waived it tourney series in article six section b of the coexistence agreement and that's found at the a dent in page forty one attorney fees are off the table about the value of the injunction nobody knows what the value of the injunction is confusion i'd like to move on because time is running out i want to ask you quickly is this a clear standard yes or no yes it is a clear error because you don't know where your next argument ask clearly are not your own as i'd like to turn to personal jurisdiction because it's a very powerful argument here and the court came to surprise you didn't start with that well you know i just decided so starting isn't the choice of law provision and the fact that your client benefited in minnesota enough that your client should have anticipated being h into a court in minnesota let me tell you there is one affidavit of record on the subject of minimum contacts and the list is long that federated natural national had her fed now had no minimum contacts in  minnesota that's found at one fifty four of the record and there is no contrary evidence in the cases are clear that a mere choice of law provision on its own is not enough and the other two things that the district court relied on one is an error of law and one is an error of fact for example he said that the performance of the agreement would affect petitioner in minnesota and that is not the legal test the best example of that is the supreme court's recent case in walden versus fiore it was a begins action that there was an event that took place in georgia the plaintiffs were injured they lived in nevada they tried to bring their bivins action in nevada and the court was very clear that no it's not whether they are going to suffer some effect in nevada the question is whether the bids defendant ever purposefully availed himself of anything to do with nevada and the answer was no and that's what the record is here th this agreement was not negotiated in minnesota we'd ever went to minnesota we sell no policies there were no office there it's the regular laundry list of no minimum contacts no bank account no mailing address no service of process agent you name it there is no minimum contact with minnesota and so the three the factors that the district court relied on one is admitted li not enough under the law one is a legal error under waldron versus fiore and the other that there aren't that the agreement contemplated for seconds left seven years of communications is not borne out by the record because the agreement back to its old name then here there would be no consequences for this appeal but based on fed nat's reply it now appears that fred net is contemplating returning to the very same bad and unfair behavior that led to the breach of agreement and led to this arbitration for this reason we asked the court to confer to affirm the confirmation award by the district court counsel can i direct you to the personal jurisdiction issue absolutely because it appears to me that all the laws contact and in burger king they talk about the fact that now you know and this was back in one thousand nine hundred five it's gotten even worse i believe now is communication is by email communication is by telephone people generally don't even in the same city show up in the same office so i think that is why the courts have come come away from having to have this personal contact of visiting the state but they can't even sell policies in this state right they go to jail if they try to sell insurance in minnesota right that's correct federated mutual has policies nationwide and so that the companies interact this in mind but here we look at looking at burger king and looking at st paul fire him right neither of those had contacts the defendants did not your focus you the most recent cases walden versus fiore that the opposing counsel referred to and it says you can't have the plainly be the link burger king has a little bit of that flavor but part of the fun but  where we have war so we we have burger king and we have st paul ferry marine that says you look at the agreement and you look at the obligations that are created under that agreement and here we have sufficient obligations it's a long term fracturing versus department carbide and that when the contract was the go she did here you don't think this was the go she did you're right that's not alleged right again the defendant does not have to show up in the state for that to intended right and i think here too to to look also at the fact that this bad bad action the bad faith and unfair action that was found by the arbitrator which we pled in an arson statement of claims was directed towards a minnesota resident it was intentionally directed towards a minnesota resident a minnesota resident was harmed in minnesota and that together with the obligations under the agreement creates enough that fund that should not have been surprised at being called into court in minnesota if you have another case pending in illinois i'm confused by that totally yes so fed that brought after we brought the motion to confirm in minnesota they brought a motion to confirm vacate and modify i go ahead proceed yes so unless you have any other questions about personal jurisdiction now then i'd like to talk a little bit more about the vatican decision and even though it did not directly address the section nine  petition it did give us some guidance to go by and i think that in this case there is no controlling law for the eighth circuit but what is most persuasive are the three other district courts that have seen the or agreed to the to look back or look through approach and that would be the first second and fourth circuit and i would just direct this court to the mccormack decision which is the most recent fourth circuit decision it is very persuasive it is well reasoned and and very thoughtful and baden the van court has given us guidance in three ways they reiterate the fact that that the act itself does not extend jurisdiction and i think as you pointed out your honor if we were to allow section four to have a look through approach but no other section in the federal arbitration act then that in and of itself mean section four is extending the jurisdiction so this means of a party to get federal jurisdiction must file a motion to compel arbitration if this party with the same exact underlying cause does not go through that stop they lose that federal jurisdiction ability and so because of that it makes more sense if the federal arbitration act itself does not extend jurisdiction but that look through approach must apply to all of the sections and in addition that and tells us that to actually be righted the whole as a whole we don't look at the individual mechanisms by themselves bet we look at the act as a whole and since jurisdiction was already provided in section four with the look through approach then that means that congress did not have to repeat itself in the following  sections that was already addressed in council in the vaden case does chief justice roberts in his opinion have others with him yet other how many do you know so it was a five four decision i believe but roberts is concurring  didn't agree with what you look at and that that's what caused the dissent so the majority thought you looked just at the pleadings the plaintiff and then the remainder of the court that you should look at the big picture because the chief justice is is more should look at the the consequences and they talked quite a bit at justice ginsburg writing for the majority talked a lot about the curious consequences as practical consequences that would occur if we don't have the look back approach to the look approach in section nine then that ends up with those same serious consequences so we would have someone who could compel arbitration or start a federal litigation just to get federal jurisdiction the same issues by different parties who chose not to go in that path we chose not to involve the federal court or a court which is what the arbitration is for is just outside of court would then lose the ability to confirm those awards  in the end and i would just point out that they had two circuits that did not follow the look through approach did so because of the absence of the language and also because they said a motion to compel was was should give  it be given more weight than a motion to confirm however i mean i think we we show this here we compelled arbitration this case started out the infringement case started out in the southern district of florida as a declaratory judgment action at t time we had federal jurisdiction and we asked the court to stay and compile and the court just dismissed the case so this gives those curious consequences that we were in federal court we went to arbitration we can't come back to federal court to confirm it to the state complaint and i also want to respectfully disagree with person counsel that we did not include a federal question in our section one petition we don't think that matters here because we think the court can look back to our statement of claim however in our in our petition to confirm we attach the arbitration award and the arbitration award and all we ask was for the court to confirm the award we did not cherry pick which issues we wanted confirmed we just asked for trademark case is about you by the value of protecting the trademark owner's reputation and goodwill and granted there is no good way to put a value on that and so what we said in our briefing and what we still claim is that one of the values is how much attorney's fees is a registered trademark owner willing to expend and that gives you some count of what the value is of that of that bra jurisdictional such threshold is only seventy five thousand dollars and we only have to show that that there's not a legal certainty that we haven't met that and so i think here given the three courts that we've been in for counting this one in the amount of money that's been spent in protecting the trademarks through registration and maintenance it would be clear that we meet that threshold counsel how strong is our capital indemnity corporation case and i'm sorry i don't i'm not washing with that you know i'm sorry your honor that's also true if the defendant challenges the allegation about a controversy this is a paraphrase of the supreme court then you have to establish by preponderance of the evidence right sulfite there's got to be some evidence and we thin the evidence is what i just mentioned you and that's what we were referred to and that was in the record before the district court and then the last thing i'd like to touch on is what is the subject him dispute here and that's confirmation of the award and as this court is well aware although it's a dyno review of the district court confirmation this court like the district court must give the arbitration arbitrator's decision an extraordinary level of deference and here in fact as long  arguably considering the parties agreement then this court must confirm and indeed in case if there is a serious error of law or a serious error of fact and under those circumstances it still calls for confirmation of the award here the arbitrator clearly backs up each one of his decisions in each one of his remedies that he puts forward based on the parties agreement and the parties agreement gives him very broad authority he had authority to issue any equitable or rent or legal remedy and it was based on the dispute of the parties a with the contract and so this is well within his authority to basically  have federally fed not comply with with the agreement do a specific performance and just speed it up and that was well within him within his authority to do that and unless your owners have any other questions then we just order to confirm thank you thank you you know you did use it all if you really have something you'd like to get out i'll give you one one minute  wo thinks the look at the one minute look at the petition at appendix ten it says we want a judgment confirming the award issued in petitioners favor so that's what they were looking to do that's a contractual based claim the other thing i want to say because i hadn't mentioned at all the exceeding the powers argument the arbitrator exceeded his powers is that the young junction was contrary to the scope of the parties agreement them they must use federated national for the rest of the term of the agreement and what it the arbitrator do he said you can't use federated national was completely the opposite of what they asked for and he said that that's ok so i think it is pretty clear that what he did was not within the scope of the agreement thank you