Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. Everyone in this case, because Ron Polonk, if we step back just another step, Ron Polonk was the chemical company and pharmaceutical company that then sold the pharmaceutical business to and became a Ventus and then spun off the chemical side of the company and that became Rodea, Rodea SA. And Rodea SA then is structured with Rodea Operations as the company that has the employees, that does the work. Then in this case, we'll be working with any technology that the arbitrage, Tribunal says they can work with. Rodea Nille is a holding company in between them that owns Rodea Operations. Okay, it was so unclear. As to the joint venture agreement between the partners, I won't try to pronounce it. I think it will. I hope so. Boudachimi. Boudachimi. Boudachimi. Well, the Boudachimi joint venture that is basically a combination of DuPont, France, as I'll call it, the simplicity. And as you see, RRP, that document was not signed, directly signed, penned by the parties to this suit. You mentioned earlier, they signed it because they stepped into the shoes or the success were signed it, but the parties didn't sign it. Well, to be accurate, Nye their party here today, even by successor and interest that has signed that document. There's a network of agreements that I'd like to explain to the court, which I think are critical because Estopolis fact-based. I mean, all the courts have said that you need to look at the facts and circumstances. They're all different and every case is different. And this case is not the traditional case. There are two key facts that I think are important for the court to keep in mind as it evaluates the Estopolis-based argument. First is when the joint venture was formed back in 1974 between the DuPont family of companies and the Roan-Polong family of companies, they understood, right from the get-go, that there was going to be a sharing of the technical information that's in dispute in this case, the so-called Gen1 information that was used to build this ADN plant in Chalampe, France in 1974. It's understood there was going to be a sharing of information because the parties were making different contributions. DuPont was contributing the technology Roan-Polong through the various entities. I understand that. I'm not sure it helps you because I understand that the flow of information and the flow of technology was done not in the joint venture agreement, but by way of the primarily, by way of licensing agreement. I know there are other exhibits attached to an venture agreement, but it's a licensing agreement, isn't it? They really conveyed the technology. That's actually what I would like to address because I think that ignores the way the information actually flowed. I understand why you might think that. That's been in this this theory of the case. That theory, by the way, was completely rejected by the Arbolts were tribunal in phase one. But let me explain why. You have to look at this as a flow chart almost from left to right of the way the information moves. We all have flow charts. Right. Okay. So I'll probably help you visualize. So it goes from it went from DuPont to the joint venture that was formed between these parties, but it doesn't stay in the joint venture. Article 9 of the joint venture recognizes that information will then flow from the joint venture to various on the one hand rodeo parties, formerly wrong plonk, and on the other hand, various DuPont parties. And every time knowing that, when you read the language of Article 9, neither party will. And it's specific to the parties of the DuPont venture agreement, even though other places in the DuPont venture agreement, you specifically talk about affiliates and subsidiaries

. If you prevail here, why aren't we basically rewriting Article 9 to include the language of affiliates and subsidiaries where it doesn't exist because it's specific to two parties in Article 9? Why would you do that? I think it was drafted that way between the parties because it was understood that there was going to be this flow. So the first two parties are the joint, I think the first two parties are the joint venture partners. Okay. They are the ones who are going to be working on it. And remember, the first joint venture partner on the rodeo side was a company called Sukrip. Sukrip was the chemical operating company of Rome Polonk. So, there was not going to ever be a flow of information designed to get to rodeo or to Sukrip. It's not that they wouldn't necessarily see it or work with it, but they weren't going to be the principal parties who were going to be there. But all the more recent draft, Article 9, as well as the arbitration clause in a way in what I was reading, obviously, was in the arbitration clause. That's Article 23. But why wouldn't you draft them so that it anticipates this flow you're talking about? Article 23 is as narrow, not more narrow. It says the parties here too, or could say the parties here too, they should see your easy to fill you. Well, I think the way they got it, that was through the other ancillary agreements that were all part of the same network as you watched the flow of information. In other words, it goes into the joint venture pursuant to the license. It then is recognized under Article 9 that it will come out of the joint venture to the joint venture partners. And those joint venture partners are governed, they're conduct, the ability to use and disclose the information is governed by Article 9. There's also other ways that information flows to Rome, Polonc, or the Rodea and other entities. And that's through the other ancillary agreements because it was contemplated right from the beginning that various Rodea entities were going to provide services, engineering services, et cetera. That's why I was explaining at the beginning, all the personnel to run this plant came from the Rodea side. The technology came from the DuPont side. The parties understood. I should have done that. It doesn't answer a question. All you're saying seems to me all the more reason to draft Article 23 in a way that it's different than the way the language actually appears. Everything you said so far suggests that Article 23 was drafted intentionally for some reason to be operative between the two parties to that agreement. The reason I think not, Your Honor, is because remember the rights, in other words, what that party can then do with the information is that after 15 years it can share it with third parties or the world. So to the extent that the parties to the joint venture can share it, then obviously any other Rodea entity can also use it, including the defendant in this case. But in fact, anticipates a situation where one of those other parties gets into this feud about whether or not the 15-year clock is running, I guess that's what's going on in the friends now. If some dispute arises out of the limitations of the confidence geological agreement, then it seems like you draft Article 23 in a way that would anticipate that and include an obligation to arbitrary more broadly than just that. I guess at the time Article 23 was drafted, you did not have the PSA or the PTIA, they come later. Clearly, those are in connection with DuPont's sale to invest. To invest. But not an unforeseeable event. I mean, I'm sure it wasn't on the book's end or planned then, but it's certainly possible, especially with these corporate entities and some company like DuPont functions. You could foresee that in the future DuPont might sell some of its technology that would implicate this joint venture and that if you want an arbitration clause that's going to include the subsequent purchase of that technology, again, you include affiliates, successments, something like that. Well, I think by operation of no one's really contested in this case that the successors and interests step in the shoes of the various parties. That's not really. I don't know how big, you might be disagreeing about how that should be as sure as to the extent that the successor interests steps into the 15-year issue maybe, but the extent that successor interests steps into the Article 23 issue. I'm not sure that parties are doing that. That's your assumption in the U

.S. top of argument. Well, it gets to a stopper, which I'll get to in a minute, but both parties, I think, accept that the successors and interests to the original signatories have the right to arbitrate. In other words, there's been no contest under the JVA. There's been no contest in the arbitration that Rodean Nill and that in Vista's, now it's called Koso front, are proper parties and proper signatories. That's not an issue. The question is, what can the parties who had access to the information, pursuant to these agreements, do with it? The Rodean parties did was start at the arbitration order to determine their rights to build the plant. That arbitration is ongoing and it is determining those rights. Our argument is that Rodean S.A.'s rights are completely derivative of the rights that are going to be determined in the arbitration. The Tribunal went one step further and then held that certain other parties, are proper parties because of their participation in the JV, which would really overlap with a benefit from the JVA concept for purposes of this case and in a stopple context. But in case there's any misunderstanding, I do want to clear it up. There's no dispute that as between the two signatories to the JVA, that there is a dispute going on and that is being arbitrated as to what they can use. The dispute was whether Rodean S.A.'s a proper party to that proceeding and our argument is the absence of Rodean S.A. from that proceeding does not end the inquiry here because the alternative to stopple doctrine that we're basing our argument on always presumes, it's always commenced by a non-signatory against a signatory to an arbitration agreement. The reason I think the network... Again, that gets grabbing the head. You don't know of any case to you where you have two non-signatories involved in an arbitration, one trying, one non-signatory trying to compel the other one to proceed to arbitration. You're on it. There's no case either way. There's no case saying you can't do that. There's no case saying you can. The stopple doctrines are, as I said, fact in case specific. That's why I think it's important to visualize the entire network of agreements because, in vista here, as the successor to Dupont, signed the first agreement that put the technology in motion, if you will. That was the license agreement that put it into the joint venture agreement. That agreement has an arbitration clause, and that agreement has a 15-year confidentiality and use clause prohibition. Then it moves from the joint venture to the different joint venture partners, originally Sookript, the top chemical company on the roadiest side, and Dupont-France, and they work with it. They have to work with it. That's by definition. They're going to be working with it all the time. Then it moves out again through various other ancillary agreements, which the tribunal said may fall under the umbrella of Article 9, because Article 9 of the JVA is the master agreement, if you will. So if you track the information as it moves from left to right, there's a common denominator as it moves along every time. Of course, the parties change hands because it moves. So in vista gives it to the, as the license or a within arbitration clause

. So the reason I'm explaining this is this is different from any case. You need to move to arbitrate under the license agreement. Right. I understand. It's not an arbitration under that agreement because the way it was all conceived was there was a network of agreements, all of which have arbitration clauses, and the signatories on both sides are going to change as it moves from donor to recipient along the way. So it's been resolved that that magic language successors or affiliates been included in Article 23? I don't think the, I think the affiliate point I understand, I think the successor points not so much in contest. I don't think people are arguing that the, the successors to the signatories don't have the right to arbitrate. The argument is can an affiliate invoke the right to arbitrate. And that's where we say the alternative, a stop-old doctrine. I realize I've exceeded my time. I'm in five or a minute. We haven't even tested jurisdiction yet, which is an even more of a mess than probably going to talk in the last 15 minutes. But I do think it's important with the court's permission to understand that the flow does move as the parties change. We are invoking the alternative a stop-old doctrine, and where argument is, our argument is that we fit the test for two reasons. First of all, we are a non-signatory who's closely aligned with a signatory. We wholly own Rhodian Nell and Rhodia Operations, the signatories to the various agreements that talk about what can be used after 15 years, and the parties will be building any plant that will ultimately be built based on what the arbitration tribunal awards. It's really not arguing the person of your own corporate veil. No, we're arguing that by virtue of clauses, signatories, by virtue of the fact that we're closely related to signatories to arbitration agreements, that we can invoke the arbitration clause if the plaintiffs' claims are inextricably intertwined with the issues that arise under the agreements that have arbitration clauses in them. And in this case, they do. Because- I'm sorry. I mean, you were lying in the licensing agreement here, right? It's only to get the ball started. I'm making the point that this is not- Is it easier for you to arbitrate though, contained within the licensing agreement? We don't think so, Your Honor, because we think that that is sort of asking the court to turn a blind eye to the rest of the flow of information. Goes into the JV pursuant to the license agreement, but it doesn't stop there. It moves out to the parties, and there's a continuum of agreements that cover that. And there's- Even if we agree with that, isn't it true that you argued something different to the district court than you're arguing here? Your emphasis in the district court seemed to be on the joint venture agreement conferring the right to arbitrate. There is an appeal that appears to be through the licensing agreement. No, no, if I've given you that impression, I don't mean to say that. I'm using the license only to show that- that invistas a signatory to the first agreement in the chain- You didn't give me that as an arbitration. I got to be a question from the brief. It's nothing you said here. I mean, I'm talking about what was in the- Argument- I'm sorry. Argument was they said in their papers that their claims arise under the license agreement. And our point was if that so, the claims arise under the license agreement, then they arise under an agreement with an arbitration clause in it. They are not- And who signed? The joint venture and- Invista by successor and interest status. Okay, so that clause and the vice successor and interest- Well, because they- I know they get to you too, it's topple in your assumption argument. Yeah, and the reason I do that, Your Honor, is because invistas position, they've made these allegations in the complaint continuously, is that they own the technology now, and they have the rights in the technology, and in their brief, they invoked the confidentiality expectation in the license agreement. So that's why I believe they are stepping in the shoes of Dupont as the party and interest under the license agreement. But you can step- It seems to me that the deal like this, or these, there are two separate issues. One is that the licensing agreement suggests that they kind of proprietary information that would go with this kind of a manufacturing process. The arbitration clause is very different

. That's just the way it's resolving disputes. And one would necessarily assume that if they get this kind of proprietary information that bound their arbitration, they may well assume that we have a bound to confidentiality. Let me- Well, if you're bound to confidentiality, and if you're going to invoke the confidentiality, the Estoppelt doctrine says you can't embrace the contract for purposes of imposing a duty and walk away from the arbitration clause in the doctrine. That's what a number of courts have said, including the Dupont case decided by this court. It said it will plaintiff embraces the agreement and then seeks to turn its back on the arbitration clause, they should be stopped from doing it. Argument is that their misappropriation-based claims are dependent on the joint venture contract and the other insularia agreements, all of which have these confidentiality and use clauses. Why do I say that? For two reasons. First of all, they have to establish that when they shared the information, it's still a trade secret. They're complaint recognizes this. Why are they- Well, doesn't- The PSA and the PTIA also have the confidentiality agreements? The PSA and PTIA were the claims they added after they came from Texas and then- and then when they went to New York. Those are claims that alleged that Dupont has breached various relationships, various obligations under those agreements with them, in Vista, and the argument in this case is that we have essentially induced that breach. Those are separate from- I understand that, but they did sign that. I'm trying to- I asked that because it seems to me that you're a stockable argument. You're saying correctly that law says you can't embrace certain parts of the agreement and then walk away from other parts and that gets you to the stockable. But that only works in a situation where a party is actually abilling themselves of the goodies and rejecting- taking the fruits and rejecting the vegetables if you will. Understood. We don't really have that here. Do we- If they have an obligation that arises from an agreement that they themselves- or party to, is it fair to say because you signed this agreement with to contain the confidentiality provision, you're enjoying the benefits of another agreement which also contains the confidentiality- the allied agreement. Well, you didn't sign, but you guys take the arbitration provision in that other agreement you didn't sign, because you're relying upon confidentiality. Let me tell you why I do think it's correct. I think that, again, it's because the information goes into the license- licensee and then it comes out and everybody understands that. If we don't violate those agreements, then the other agreements, not the license agreement, the arbitral tribunal considered whether they're argument that it stays in the licensee and it never comes out, whether that was correct. And the arbitral tribunal said that's not correct that the joint venture agreement contemplated it could be used, would be used, and to the extent the rodeo entities got the information more than 15 years ago through these channels that it can use it. So my point is they do need the whole network and the complaint makes this clear and I would take it- Well, when I say clear, clear if you understand the facts. I mean, they've done everything they can to make it money, but in paragraphs four and 54 of the complaint, just as examples. In both places, vaguely, they allude to the confidentiality agreements that were signed by the joint venture partners, which were critical to their letting go of the technology in the first place. Those agreements are not by name in the complaint because they're studiously avoiding naming them, the joint venture agreement and ancillary agreements. How do we know that? They say the joint venture partners signed various agreements. Those are the agreements that joint venture partners signed. The joint venture partners aren't a party to the license. The joint venture is a party to the license. Because it was understood the information would be shared and would move, they needed to be sure that as it moved each time, it was protected and that it had the same 15-year confidentiality clause in it, and they all had arbitration clauses, every agreement. The parties change when it goes from a different donor to a different recipient in these affiliated company chain. But what they've done is, instead of suing under their own theory of the case, their theory is that Rodea SA, the ultimate parent company, has essentially conspired with its subsidiaries to misuse the information, to misappropriate the trade secrets. They didn't sue any signatory along the way that signed any of these agreements, obviously to avoid having a signatory on the defense side of the case. They opt over the entire chain of parties to sue the ultimate parent, Rodea SA, who didn't sign an agreement because it doesn't have, it doesn't work with the technology. Its liability is completely derivative to what Rodea operations, Rodea Nill, the signatories to the agreements, can actually do. So by an essence, picking a defendant who didn't sign an agreement, they skipped over the whole series of them who had signed both confidentiality agreements and arbitration agreements. And so it's not a typical case. You're right about that

. What doc can, I mean, it sounds like a stopper, but that's not the stopper that we haven't do pont or. It's different. It's different. But if you take a look, there's two concepts, Your Honor, that the courts have recognized in the stopper that this violates, in the stopper setting that this violates. Smith then run in the second circuit as a good case to look at, because it describes two principles that they violate. One is, if you pick and choose defendants to avoid naming signatories, when they're part of the same chain of liability, and it's obvious that you're leaving them out in order to do that, courts will stop the plaintiff from denying the duty to arbitrate, because had they signed, had they sued a signatory, you'd have a signatory on the defense side. I think those cases have at least one signatory. You'd have at least one signatory on the defense side. That's right. The second thing they've done is they've pled inconsistent theories of both liability and arbitrability. They're arguing we're a group that is controlled by RodeoSA, that is dominated by RodeoSA, that works in concert. If you read the complaint carefully, they mix and match Rodeo when they want it to be an individual company. It's an individual one that they want it to be the group of companies. It's a group. You case log again, not just the Smith Enron case. By the way, the Smith Enron case was relying on a case called the IDC case in the seventh circuit that Judge Posner decided. There's some district courts in this circuit that have also adopted the same principle when you pick and choose the ban at case in the Eastern District of New York also says the same thing. But then when you also plead inconsistent theories and say, we're going to group you for purposes of liability, but we're going to be punctilious about your individual corporate status for purposes of arbitrability, you're stopped from doing that. And it makes sense. You shouldn't be able to have it both ways. And that's what they've done that also emerges from the Smith Enron case, but other courts have adopted the same thing, including courts in this circuit. So you just take a few minutes because it's going over quite a bit. Yeah. Try to hit jurisdiction. Why do we have jurisdiction? A public jurisdiction? Two reasons, Your Honor, I think. First of all, I think under the courts analysis actually in CTF, this is a final order. And let me explain why. The question that CTF was wrong. No, no, I'm not actually. I'm saying actually under the same analysis that CTF applied, you do have jurisdiction as a final order. And I would also suggest that CTF lens support for why a pen-dent-appellate jurisdiction exists over. And you're talking about the discretionary state because there's clearly. I think I understand you're arguing. You're saying that basically if you're out of court because of the court district courts ruling, it's 10 amount to the granting of the stay in CTF. Correct. Because this case was removed under section 205, if this court doesn't review the discretionary state now, it never gets reviewed because it'll be remanded and it never gets reviewed. So the only time it can be reviewed is now. And that is, I think, quite similar to the CTF analysis in reverse, which was when a granting of a stay effectively puts you out of federal court, then the court has a pellet jurisdiction. Second thing is pen and jurisdiction, which when the issues are intertwined, as the court said in CTF, and in CTF, the court found pen and jurisdiction again on the reverse scenario, but for the same, with the same factors. These are the same issues

. These are the same remedy, same facts go into it. And so... All of your questions of action are once you get past the FAA. All of your questions of action are state law and cost of action, okay? I'm sorry. All of your questions of action, you're something to theories, the state law, cost of action, once you get past the issue of the New York Convention. I'm sorry, you're saying the plaintiffs' causes of action or... That's right. The plaintiffs' claims are state law claims. There's no question. I agree with that. But my only point is number one, there's no other time to review it as a matter, so it's the final order. And the second thing is, it doesn't... If you just step back, it makes eminent sense that if you're considering the section three issue and stay, that the same issues, it's the same relief under a different legal theory, but it's the same relief that you're seeing the same facts justify the relief. And therefore, as the court said, it's, I think, infused with special circumstances, rife with special circumstances in the CTF case. This is that for both reasons, because we'll be out of court. We won't have a chance to have the discretionary stay ruled on and because the same facts and remedy are in place in both respective section three stay and the discretionary stay. Okay, it pains me to remind you, but these are some time for rebuttal. I apologize. Thank you again. Yeah, well thank you for your indulgence. Thank you. Thank you. Any solid? Good afternoon, Your Honours. Kathleen Sullivan for the Invisita appellies. I don't think I heard an answer to Judge McKee's first question. I'm not sure I did either, but I was so confused after a while, I wasn't... Just to take us back there. I think you asked, since Rodea SA, who is the only party that we're suing here, is not any longer a party to the Paris arbitration, per the Paris arbitration tribunal, what possible relief could Rodea gain by a reversal here? And the answer is absolutely none. That is, Rodea came into this case. And as Your Honour mentioned earlier, it made the extraordinary argument that for the first time in the history of U.S. law, there should be a compulsion of arbitration at the behest of one non-signatory to an arbitration agreement in order to compel another non-signatory to an arbitration agreement into the case

. So Rodea came into this case as a non-signatory to the JVA paragraph 23, which is the only arbitration agreement that's an issue in Paris. It came in as a non-signatory, and it said, it tried to insert itself as a non-signatory into the Paris arbitration. It came in and said, we're not a party, but we want to parachute into Paris, and we're going to abide by the Paris Tribunal's decision about arbitrability, and then smack. The Paris Tribunal said, no arbitrability over Rodea SA. And in this great long Paris Tribunal opinion that was sent to you as an attachment to the 28J letters, the most crucial paragraph is paragraph 210. And in paragraph 210, the Paris Tribunal on whom Rodea placed its reliance in paragraph 210, the Paris Tribunal says in no uncertain words, the arbitral tribunal has no jurisdiction over Rodea SA. So Rodea now comes to you, not only as a non-signatory to the arbitration agreement, trying to compel another non-signatory, none of the Invispa, Appalais or signatories. It's now a non-party to the Paris arbitration, and it still persists in trying to argue to you that you should compel Invispa into arbitration with a non-signatory to the Paris arbitration who's been deferred by the Paris Tribunal to be a non-party to the Paris Tribunal. I'm sorry, good. We're not the claims in the New York client suit in Delaware. The same claims that are being reviewed by the Paris Tribunal. The torsious interference and the misuse of information. They're absolutely not the same claims, Your Honor. And that's, I think, the key to the argument here about a stop-old prejudice and all, it's really the key to the case. So let's try to parse these. And I think it would help to maybe look at some of the claims that are in the complaint. Let me just back up and say what's in the Paris Tribunal is a dispute over, as Your Honor mentioned, paragraph 9, article 9 of the JVA. That's a dispute between signatories to the Bhutishamy joint venture. That's a dispute between them about whether the signatories to the JVA, whether because certain material is old enough, it's been disclosed more than 15 years ago, there's now a contractual right to use it. That is nothing to do really with their complaint here. Remember how this came about? We're trying to build an ADN plant in China. We're ready to do it in 2006. We have proprietary information that we bought from DuPont through the PTA, PSA and PTA. Suddenly, Rodea says, we're going to build a plant in China, too. So our view is that they have misappropriated information. And what we've alleged in our complaint, Your Honor, which is quite different from Paris, is really two kinds of claims. First of all, we've said, we believe Rodea, torsiously interfered with, in Vista's, contracts with DuPont. The contracts we have with DuPont are the PSA and the PTA. And what we say is, we bought the Gen1 technology from DuPont. Rodea now has torsiously interfered with our contracts with DuPont. Paris has nothing to say about the PSA, the PTA, or in Vista's contracts with DuPont. That has nothing to say about it. The dispute in Paris has nothing to do with DuPont. I thought that Rodea asked the Paris Tribunal to establish DuClair. It's an expense of ability to act in a certain way using such information that may have been confidential, may still be confidential. But Your Honor, the dispute in Paris is over contract rights. We're alleging an air complaint. If you look at paragraphs 112 to 119 of the complaint, if you look at those, those are the torsious interference claims. They're at the Joint Appendix at pages 138 to 139. And what we say there is that there we are in Vista

. We have a contract with DuPont along comes Rodea and tries to get DuPont in violation of its contracts with us to help it build a plant in China. That has nothing to do with the question of whether certain material owned by the joint venture has gone into the public domain after 15 years. It has to do with current attempt to get more recent information from DuPont. But Your Honor, I think the second key way we differ from Paris is we've alleged, and here I would refer Your Honor to paragraphs 7 and 90 to 98 of the complaint. Paragraph 7 is at Joint Appendix 110 to 111 and paragraphs 90 to 98 are at Joint Appendix 134 to 135. And if you read those paragraphs, you'll see that what we're alleging is, we don't know how Rodea got the information that suddenly enables it to build a plant and say it's going to build a plant in China with proprietary information. But we sure want discovery in an American forum to find out how it misappropriated that information by improper means. By the way, back in. You just put that in there. Yeah, you just put a couple of rabbits in there. You don't know how they got it, but there's misappropriation of its volume problem. Well, Your Honor, exactly right, but under the Delaware Uniform Trade Secret Act, we all need to alleges that it was obtained by improper means. We're not making a contract claim in Delaware. Paris is about a contract claim. Paris is about a very narrow, closed set of documents. Paris is about 11,600 documents, who the Rodea parties say, hey, we get to use these now because they were disclosed more than 15 years ago. So we have a contract right under JVA paragraph 9. But that's just a prelude, isn't it not, to the real nub of the matter, which is do they get to build the plant or not? Isn't that really the key issue in both four? Well, Your Honor, ultimately, we care about our proprietary rights in both four. But we're making entirely different claims. And that's why I think you've got to see. One is the contract, the one's the toward. But that's exactly why our claims in Delaware are not duplicated about, well, not resultant inconsistent judgments with Paris. The Paris Tribunal. Why shouldn't we just send this back? I mean, there's substantial water under the bridge as evidence, I think, both sides 28J letters. Why shouldn't we send this back to Judge Kugler and ask him to take another look at it in light of that water that's flown under the bridge since his first decision? Your Honor, the only question before you is legal. And the legal question is when this court can resolve without remand. First options makes clear that arbitrability is a question of U.S. law. It's a purely legal question. Unless the parties have unmistakably agreed to let arbitrability be a decision for the arbitraries. As your Honor pointed out, of course we didn't agree to that here. How could we? We didn't sign paragraph 23. We didn't sign the JVA. Nobody here ever agreed to let a Paris Tribunal decide our arbitrability. We're under the FAA. Rodeo parties removed and invoked FAA sections three and four. They invoked U.S. law

. You can decide as a matter of law that they have no ground as a non-signatory to compel or force a stay on another non-signatory. You don't need any more facts. You've got all the information you need. Let's go back to the fundamental point here. Rodeo is not a party to the Paris arbitration anymore. That moves their appeal under FAA sections three and four. Your Honor asked at the end of that jurisdiction. You have a pellet jurisdiction from a final appealable order under FAA section 16 in so far. As Judge Kugler rejected, Rodeo is section three and section four claims. Those are appealable. You had a pellet jurisdiction when there was a FAA section three or section four claim. But there is no FAA section three or four claim anymore because Rodeo has been kicked out of the Paris arbitration. Why isn't it kind of like CTF holding the, why isn't it tantamount in order to put them out of court? Other way around your honor. And I'm glad to see they've stopped fighting your decision at CTF holdings for this court. And they've now accepted the ruling about discretionary stays. But let's go back and CTF there was no question that there was an appealable order. And then the question was, could you also have a pellet jurisdiction over the denial of a discretionary stay? Because we've got two kinds of appeals here. One is an appeal under the FAA from the denial of a mandatory stay or dismissal to compel arbitration. And then they append to that and appeal saying, well, if we're not entitled to a mandatory stay under the FAA, Kugler abused his discretion by denying us a discretionary stay under his inherent authority. We say that second branch of the appeal now has to go away to the first branch's moot. And the second branch was pendant. The discretionary stay appeal was pendant to the appeal of the denial of the mandatory stay. Once the FAA claims are out of this appeal, we say they're moot. There is no panting to pellet jurisdiction over the discretionary stay. Just to go back to first principle. I'm sorry, you're going a little fast for my brain. He's from Pittsburgh. So it down a little bit. Midwestern town. It's moot because why? Because they are not parties to the arbitration. Exactly, Your Honor. After all, there's here. It's hard to say, Judge, make them arbitrate in a forum that we've since been ejected from. Judge, exactly, right. How can a US... That's a great way to say what you said in the past. Your Honor, from Pittsburgh to Paris, no court in Pennsylvania can tell a Paris Tribunal. It's got to ingest a party. It just spat out. They just said, Rodia, you are not a party here. A US court can't compel arbitration with a party that the Paris arbitral tribunal won't even entertain. All right. Then why did the Southern District of New York stay that case? Well, your Honor, we... They just say it's true. Did they just not buy your argument? Well, a couple of things on New York that we've just filed a motion for reconsideration in New York. We think that the New York decision, which of course is not binding on this court, is frequently granted up in New York as they are in Pennsylvania. Well, this is a complicated case, but as Your Honor pointed out in CTF, judicial economy, judicial efficiency is not a reason to deny litigants like Envista, their place in a federal forum. And Your Honor, in New York, we think to just boil it down. There's two mistakes. So we move for reconsideration to reinstate our contract claims against DuPont in New York. And the two mistakes was the judge in Southern District of New York forgot to notice that Rodia is not a party in Paris. So when the district court said we should wait for Rodia to get its things resolved in Paris, they kind of forgot a key fact. Rodia isn't in Paris anymore. Rodia essay. And the second thing is we think that the district court just fundamentally misread the contract. Just to go back, Your Honor, what Envista is aggrieved by is that we bought Gen 1 technology from DuPont. We bought it under the PSA and the PTIA, which created duties on DuPont's part of confidentiality. That's PSA 5.20 and PTIA 717.6. We had privilege obligations. That we claim that DuPont's breached its attorney client and work product privileges with us. And we had non-compete agreement with DuPont. Our agreement with DuPont says we bought your technology. Don't go out and help somebody else like Rodia compete with us. In New York, we're suing DuPont saying there's been a breach of all those contracts with between Envista and DuPont. And we think that the court in New York fundamentally got confused. It got the JVA mixed up with the PTIA and the PTIA. And it just looked at the wrong contract. Paris is never going to resolve anything about a breach of the PSA or the PTIA. That's between Envista and DuPont. But anyway, even if New York were right, we think it's terribly wrong, but it can't bind your decision. It shouldn't even influence your decision, because our case is about different parties. New York's about DuPont. This case is about Rodia. In New York is about a different set of agreements

. It just spat out. They just said, Rodia, you are not a party here. A US court can't compel arbitration with a party that the Paris arbitral tribunal won't even entertain. All right. Then why did the Southern District of New York stay that case? Well, your Honor, we... They just say it's true. Did they just not buy your argument? Well, a couple of things on New York that we've just filed a motion for reconsideration in New York. We think that the New York decision, which of course is not binding on this court, is frequently granted up in New York as they are in Pennsylvania. Well, this is a complicated case, but as Your Honor pointed out in CTF, judicial economy, judicial efficiency is not a reason to deny litigants like Envista, their place in a federal forum. And Your Honor, in New York, we think to just boil it down. There's two mistakes. So we move for reconsideration to reinstate our contract claims against DuPont in New York. And the two mistakes was the judge in Southern District of New York forgot to notice that Rodia is not a party in Paris. So when the district court said we should wait for Rodia to get its things resolved in Paris, they kind of forgot a key fact. Rodia isn't in Paris anymore. Rodia essay. And the second thing is we think that the district court just fundamentally misread the contract. Just to go back, Your Honor, what Envista is aggrieved by is that we bought Gen 1 technology from DuPont. We bought it under the PSA and the PTIA, which created duties on DuPont's part of confidentiality. That's PSA 5.20 and PTIA 717.6. We had privilege obligations. That we claim that DuPont's breached its attorney client and work product privileges with us. And we had non-compete agreement with DuPont. Our agreement with DuPont says we bought your technology. Don't go out and help somebody else like Rodia compete with us. In New York, we're suing DuPont saying there's been a breach of all those contracts with between Envista and DuPont. And we think that the court in New York fundamentally got confused. It got the JVA mixed up with the PTIA and the PTIA. And it just looked at the wrong contract. Paris is never going to resolve anything about a breach of the PSA or the PTIA. That's between Envista and DuPont. But anyway, even if New York were right, we think it's terribly wrong, but it can't bind your decision. It shouldn't even influence your decision, because our case is about different parties. New York's about DuPont. This case is about Rodia. In New York is about a different set of agreements. It's about, you know, a different set of that's fair to say that. I don't know how I could quarrel with that different parties and different technical legal issues, but I'm still troubled by the notion that the parties in this case and the parties in the arbitration and the parties in New York seem to have gotten themselves in this web to which there's no exit strategy. And what if the arbitral panel in Paris says that Rodia can build the plan? And what if Judge Kougler says they can't build the plan? And what if New York says, I don't know, something halfway in between. I mean, you know, the purpose of our system is to get to the finish line and resolve disputes, not result in this gordian knot that can never be. Fair enough, Your Honor. But we think it's very simple. I think that probably at least half of what my colleague, Mr. my friend on the other side, but half of what he was saying talked about defenses on the merits. He can make all the defenses on the merits he'd like about whether in fact Rodia, parent has some right to access to information from Rodi, where he should make that is on the merits back in front of Vice Chancellor's Drying, which should happen here is you should move the appeal, dismiss the appeal as moot. You should dismiss the discretionary, the part of the appeal from the denial of the discretionary stay is lacking pendant jurisdiction. It should go back to Judge Kougler. He'll properly divest himself with jurisdiction, send the case back to Vice Chancellor's Drying in the Delaware Court. And if Rodia has something to say about how it has a right to any of this confidential information, they can tell it to Vice Chancellor's Drying. Now, the key fact I want to focus on. I'm sorry, I have to interrupt you because I'm not sure you. So it's not a gordian knot, Your Honor. I'm sorry? It's not a gordian knot. That the defenses on the merits can be interposed in Delaware. And if there's any question about whether the Delaware case ought to defer to the Paris case, if there's any sub-portion of the Delaware case, that's about that old 15-year-old information that now there's a contract right to, Vice Chancellor's Drying can carve that out of the case. But the risk of- Isn't there a risk of inconsistent results between Delaware and Paris? Not at all, Your Honor. And if I could go back to Your Honor's remark about Paris, Paris isn't going to- I think I give Mr. King about two five minutes, Your Honor. We had 10 minutes. Thank you very much, Your Honor. You're being very indulgent with both sides and we appreciate it. Thank you. I'm in a real massacre. Judge Harderman, I just want to go back to what you said earlier. Paris is not going to decide. The Paris Tribunal is not going to decide whether the plant can be built in China. The Paris Tribunal has an extremely limited role. First of all, the partial award is not final. If you look at paragraph 255, it makes clear that there are many issues that remain. And your interest in the licensing agreement may come back in Paris if they look at it later, but that's not before them now. In paragraph 274 of the Paris Tribunal, the Tribunal reminds us, at this stage, it is not a question of establishing which information is legally in the claimant's possession. That is reserved for the second phase of the proceeding. So we don't even know yet whether that close set of 11,600 documents, who the other side says, is more than 15 years old, we don't even know if they're going to get a contract right to that. Frankly, we don't think that they're going to build a plant in China with ancient information. The reason we're suing them is that we fear, and let's go back to the information. Sometimes the ancient information is the best for when it comes to buildings

. It's about, you know, a different set of that's fair to say that. I don't know how I could quarrel with that different parties and different technical legal issues, but I'm still troubled by the notion that the parties in this case and the parties in the arbitration and the parties in New York seem to have gotten themselves in this web to which there's no exit strategy. And what if the arbitral panel in Paris says that Rodia can build the plan? And what if Judge Kougler says they can't build the plan? And what if New York says, I don't know, something halfway in between. I mean, you know, the purpose of our system is to get to the finish line and resolve disputes, not result in this gordian knot that can never be. Fair enough, Your Honor. But we think it's very simple. I think that probably at least half of what my colleague, Mr. my friend on the other side, but half of what he was saying talked about defenses on the merits. He can make all the defenses on the merits he'd like about whether in fact Rodia, parent has some right to access to information from Rodi, where he should make that is on the merits back in front of Vice Chancellor's Drying, which should happen here is you should move the appeal, dismiss the appeal as moot. You should dismiss the discretionary, the part of the appeal from the denial of the discretionary stay is lacking pendant jurisdiction. It should go back to Judge Kougler. He'll properly divest himself with jurisdiction, send the case back to Vice Chancellor's Drying in the Delaware Court. And if Rodia has something to say about how it has a right to any of this confidential information, they can tell it to Vice Chancellor's Drying. Now, the key fact I want to focus on. I'm sorry, I have to interrupt you because I'm not sure you. So it's not a gordian knot, Your Honor. I'm sorry? It's not a gordian knot. That the defenses on the merits can be interposed in Delaware. And if there's any question about whether the Delaware case ought to defer to the Paris case, if there's any sub-portion of the Delaware case, that's about that old 15-year-old information that now there's a contract right to, Vice Chancellor's Drying can carve that out of the case. But the risk of- Isn't there a risk of inconsistent results between Delaware and Paris? Not at all, Your Honor. And if I could go back to Your Honor's remark about Paris, Paris isn't going to- I think I give Mr. King about two five minutes, Your Honor. We had 10 minutes. Thank you very much, Your Honor. You're being very indulgent with both sides and we appreciate it. Thank you. I'm in a real massacre. Judge Harderman, I just want to go back to what you said earlier. Paris is not going to decide. The Paris Tribunal is not going to decide whether the plant can be built in China. The Paris Tribunal has an extremely limited role. First of all, the partial award is not final. If you look at paragraph 255, it makes clear that there are many issues that remain. And your interest in the licensing agreement may come back in Paris if they look at it later, but that's not before them now. In paragraph 274 of the Paris Tribunal, the Tribunal reminds us, at this stage, it is not a question of establishing which information is legally in the claimant's possession. That is reserved for the second phase of the proceeding. So we don't even know yet whether that close set of 11,600 documents, who the other side says, is more than 15 years old, we don't even know if they're going to get a contract right to that. Frankly, we don't think that they're going to build a plant in China with ancient information. The reason we're suing them is that we fear, and let's go back to the information. Sometimes the ancient information is the best for when it comes to buildings. But to go back to Judge Ruth's question, our claims are fundamentally different because what we're claiming here is there's been torsious interference by Rodea with Invis't's relationship with DuPont. That Rodea induced DuPont to team up with Rodea in violation of its agreements to us, non-competing agreement, confidentiality agreement, privilege agreements. That isn't- Team up with it to build a plant. But Paris, Judge Hardeman, the key thing is the cause of action in Paris that the Rodea entities brought is not about, we have a right to build a plant. It's about we had a right to just use 1100- 11,600 documents. The information contained therein is which is so useful that it may result in the ability to build a plant. No, Your Honor. There won't be an inconsistent judgment just to go back to your point of any consistent judgments. The Gordian not gets untied in the great state of Delaware. It gets untied there because as the District Court in New York said, DuPont is subject to a suit in Delaware. So if you do the right thing, dismiss this case as moot or a firm, we're perfectly happy to defend it on the merits as well. But send it back to the District Court. District Court, Divesca goes back to Delaware. The DuPont suit can be moved to Delaware and there won't be any inconsistent judgments. There won't be any inconsistent judgments between New York and Delaware because the New York suit can be moved to Delaware. Remember, we can sue DuPont in Delaware. There's obviously jurisdiction there. We contracted to sue in New York, but DuPont is consented to be sued in Delaware. So it goes to Delaware. And to answer Judge Ruse, question, there won't be any inconsistent judgment with Paris because Paris is only adjudicating contractual rights to 11,600 old documents. We're now the only way we win in Delaware apart from a ruling on those documents is by finding that there's other sources of misappropriation by improper means. And that's not fanciful, Your Honor, in Texas. When we were in Texas and we didn't know this, we found out through the limited discovery that an American forum finally gave us in this case. We found out that rodeo entities had basically pulled up a station wagon to a loading dock in the middle of the night, loaded 30 boxes of documents into the car and driven away with it. And nobody disputes that's by improper means. And the discovery and computers, they did it with boxes. It's text boxes. Well, the loading dock was in France, Your Honor. But the point we're making here is that having found that out, we don't know whether there are other improper means by which more recent information was obtained from Dupont or from the joint venture that has nothing to do with what proprietary information is more than 15 years old. And that's why there won't be any duplication. If any part of their information really came from those old documents that Paris is going to decide about, Price Chancellor Strine can carve that out of Delaware, leave that to one side and decide whether we have torque claims on the remaining case. The indirect or direct relationship between the Paris ruling on the information, the documents, even that limited amount of documents, doesn't it possible that there would be some conflict in ruins? No, Your Honor. We think that to the extent there's any defense on the merits that say the Paris Tribunal says, ah, you've got a right to 10,968 documents. Then rodeo entities. I mean, some of this happened to contain the formulas and then rodeo comes into Delaware and they have a defense on the merits. They say, you can't sue us in tort. We have a contract right to the property. It wasn't misappropriate because it wasn't secret. But the way to resolve. And that would have a stop-all effect

. But to go back to Judge Ruth's question, our claims are fundamentally different because what we're claiming here is there's been torsious interference by Rodea with Invis't's relationship with DuPont. That Rodea induced DuPont to team up with Rodea in violation of its agreements to us, non-competing agreement, confidentiality agreement, privilege agreements. That isn't- Team up with it to build a plant. But Paris, Judge Hardeman, the key thing is the cause of action in Paris that the Rodea entities brought is not about, we have a right to build a plant. It's about we had a right to just use 1100- 11,600 documents. The information contained therein is which is so useful that it may result in the ability to build a plant. No, Your Honor. There won't be an inconsistent judgment just to go back to your point of any consistent judgments. The Gordian not gets untied in the great state of Delaware. It gets untied there because as the District Court in New York said, DuPont is subject to a suit in Delaware. So if you do the right thing, dismiss this case as moot or a firm, we're perfectly happy to defend it on the merits as well. But send it back to the District Court. District Court, Divesca goes back to Delaware. The DuPont suit can be moved to Delaware and there won't be any inconsistent judgments. There won't be any inconsistent judgments between New York and Delaware because the New York suit can be moved to Delaware. Remember, we can sue DuPont in Delaware. There's obviously jurisdiction there. We contracted to sue in New York, but DuPont is consented to be sued in Delaware. So it goes to Delaware. And to answer Judge Ruse, question, there won't be any inconsistent judgment with Paris because Paris is only adjudicating contractual rights to 11,600 old documents. We're now the only way we win in Delaware apart from a ruling on those documents is by finding that there's other sources of misappropriation by improper means. And that's not fanciful, Your Honor, in Texas. When we were in Texas and we didn't know this, we found out through the limited discovery that an American forum finally gave us in this case. We found out that rodeo entities had basically pulled up a station wagon to a loading dock in the middle of the night, loaded 30 boxes of documents into the car and driven away with it. And nobody disputes that's by improper means. And the discovery and computers, they did it with boxes. It's text boxes. Well, the loading dock was in France, Your Honor. But the point we're making here is that having found that out, we don't know whether there are other improper means by which more recent information was obtained from Dupont or from the joint venture that has nothing to do with what proprietary information is more than 15 years old. And that's why there won't be any duplication. If any part of their information really came from those old documents that Paris is going to decide about, Price Chancellor Strine can carve that out of Delaware, leave that to one side and decide whether we have torque claims on the remaining case. The indirect or direct relationship between the Paris ruling on the information, the documents, even that limited amount of documents, doesn't it possible that there would be some conflict in ruins? No, Your Honor. We think that to the extent there's any defense on the merits that say the Paris Tribunal says, ah, you've got a right to 10,968 documents. Then rodeo entities. I mean, some of this happened to contain the formulas and then rodeo comes into Delaware and they have a defense on the merits. They say, you can't sue us in tort. We have a contract right to the property. It wasn't misappropriate because it wasn't secret. But the way to resolve. And that would have a stop-all effect. Well, it might, it depends on which parties it's used against, Your Honor. But the point I'm trying to answer is that there is an efficient solution to this. That is for you to dismiss the appeal as moved or alternatively just affirm Judge Cougar, send this case back to District Court in Delaware, which we'll send it back to State Court in Delaware. New York may move to Delaware. That's certainly what the judge in New York suggested and what DuPont has exceeded to. And to the extent there's any ruling from Paris, let them raise it on the merits in Delaware. But we shouldn't be deprived. Your Honor, in CTF, as you emphasized, a party that's properly in a federal litigation forum should not be sent off to an alternate forum, at least not on a discretionary basis, absent exceptional circumstances. And there aren't any here because there's no risk of prejudice to the other side. There's no risk of inconsistent judgments. If I could just take a few minutes on the Estoppel theories, Your Honor, because I think you established in your long colloquy with my friend on the other side that there is no contract right to arbitrate here. They can't rewrite paragraph 23. Paragraph 23 of the JVA couldn't have been clearer. Arbitration agreements in other contracts have nothing to do with the arbitration agreement under 23. So there's no contract right to arbitrate here. This is a non-signatory trying to force another non-signatory into arbitration based on Estoppel principles. Now first back in the District Court, Rodeo said, oh, we're entitled to equitable Estoppel. Under equitable Estoppel they said that's when a signatory to an arbitration agreement can force a resisting non-signatory to arbitrate with us. But we know now the answer to that question and my friend didn't even raise it today. Rodeo is not a signatory. Paragraph said it's not even a party. And so equitable Estoppel is out of the case. It's just moved. It's gone. There's no case out there that says that the equitable situation is giving rise to that couldable Estoppel. Could not also come into play and control we have two non-signatory. Your Honor, you were absolutely right when you said earlier that there has never been a case in which there are two non-signatories. There's never been a case saying a non-signatory can compel another non-signatory. And the reason is obvious arbitration is a creature of contract. And if you have two non-signatories there's going to, there's no contractual basis for it. The Estoppel cases throughout U.S. law have only existed where there's a signatory on one side or a signatory on the other side. Here you do not have a signatory on the other side. That's not true in the contract case. I mean the typical contract Estoppel situation arises precisely because there's no contract. And isn't the, you know, you think a promissory Estoppel for example. So, I mean, why aren't they right that a party should be a stop from seeking all the benefits of an agreement while trying to deny it's purported detriment at the same time? Well, Your Honor, we're not relying on the agreement. The key to that argument is that Invista's not relying on the JVA. Invista doesn't benefit from the JVA directly

. Well, it might, it depends on which parties it's used against, Your Honor. But the point I'm trying to answer is that there is an efficient solution to this. That is for you to dismiss the appeal as moved or alternatively just affirm Judge Cougar, send this case back to District Court in Delaware, which we'll send it back to State Court in Delaware. New York may move to Delaware. That's certainly what the judge in New York suggested and what DuPont has exceeded to. And to the extent there's any ruling from Paris, let them raise it on the merits in Delaware. But we shouldn't be deprived. Your Honor, in CTF, as you emphasized, a party that's properly in a federal litigation forum should not be sent off to an alternate forum, at least not on a discretionary basis, absent exceptional circumstances. And there aren't any here because there's no risk of prejudice to the other side. There's no risk of inconsistent judgments. If I could just take a few minutes on the Estoppel theories, Your Honor, because I think you established in your long colloquy with my friend on the other side that there is no contract right to arbitrate here. They can't rewrite paragraph 23. Paragraph 23 of the JVA couldn't have been clearer. Arbitration agreements in other contracts have nothing to do with the arbitration agreement under 23. So there's no contract right to arbitrate here. This is a non-signatory trying to force another non-signatory into arbitration based on Estoppel principles. Now first back in the District Court, Rodeo said, oh, we're entitled to equitable Estoppel. Under equitable Estoppel they said that's when a signatory to an arbitration agreement can force a resisting non-signatory to arbitrate with us. But we know now the answer to that question and my friend didn't even raise it today. Rodeo is not a signatory. Paragraph said it's not even a party. And so equitable Estoppel is out of the case. It's just moved. It's gone. There's no case out there that says that the equitable situation is giving rise to that couldable Estoppel. Could not also come into play and control we have two non-signatory. Your Honor, you were absolutely right when you said earlier that there has never been a case in which there are two non-signatories. There's never been a case saying a non-signatory can compel another non-signatory. And the reason is obvious arbitration is a creature of contract. And if you have two non-signatories there's going to, there's no contractual basis for it. The Estoppel cases throughout U.S. law have only existed where there's a signatory on one side or a signatory on the other side. Here you do not have a signatory on the other side. That's not true in the contract case. I mean the typical contract Estoppel situation arises precisely because there's no contract. And isn't the, you know, you think a promissory Estoppel for example. So, I mean, why aren't they right that a party should be a stop from seeking all the benefits of an agreement while trying to deny it's purported detriment at the same time? Well, Your Honor, we're not relying on the agreement. The key to that argument is that Invista's not relying on the JVA. Invista doesn't benefit from the JVA directly. The test for equitable Estoppel under your decision, you alluded to it earlier, Judge McKee, Dupont versus Ron Pellank says, no accurate will Estoppel unless there is a direct benefit from the contract which contains the arbitration agreement. Invista doesn't benefit from the JVA to which it's not a party. We benefit from the PSA and the PTIA, which are agreements with Dupont. That's how we came to own the information. So, there's no direct benefit. We flip it. Now, Invista finally takes one last, sorry, now Rodea takes one last bite at the Estoppel apple. And now they say, oh, well, forget about equitable Estoppel. They know they're not a signatory. No court is ever allowed a non-signatory to invoke equitable. They say, let us invoke what they call alternative Estoppel. And that's the notion that sometimes a non-signatory and Rodea says, okay, so maybe now we're a non-signatory. We can now invoke a stopper against a signatory. Now, we're not a signatory. Paris can't turn us into a signatory. We never signed the JVA. None of the invista entities did. By the way, Your Honor, just go back to Paris. If you look at what Paris did, the Paris Tribunal said, invista Saul is in the arbitration. But it said that invista North America is not. And then there's another investor party who's before you invested technologies, who's not even in the arbitration. So even if you bought their alternative a stopper argument, you're still stuck with two plaintiffs here who have nothing to do with Paris. One that was denied jurisdiction in Paris and one that was never in the Paris arbitration to begin with. But put that aside, the key to the alternative Estoppel argument, Your Honor, even if you thought somehow one of the three invista parties was now suddenly transformed into a signatory in Paris, which we weren't. Of course, we think the Paris decision is wrong. We've moved to set it aside. We objected to jurisdiction in Paris. We objected at every stage and under this court's decision in first options affirmed by the Supreme Court in China Min medals. We don't waive our objections to the jurisdiction of the arbitrable panel just because we participated there under protest. But put that aside, imagine Paris was right. There's still no alternative Estoppel here. And the reason is what we discussed earlier. The issues are not inextricably intertwined. Case here is about torsious interference between Rodea on the one hand and DuPont's and Invis't his contractual relationship on the other. And it's about misappropriation by improper means. We have a right to a federal forum. We've been trying to get a federal forum. We've been trying to get discovery to find out who stole our secrets when we're how and why. If there's ever a contractual right that comes out of the Paris arbitration, they can raise it as a merits defense in Delaware. So with respect, we think you should just hold the original appeal moot and dismiss the appeal from the discretionary stay as lacking jurisdiction, lacking pendant jurisdiction

. The test for equitable Estoppel under your decision, you alluded to it earlier, Judge McKee, Dupont versus Ron Pellank says, no accurate will Estoppel unless there is a direct benefit from the contract which contains the arbitration agreement. Invista doesn't benefit from the JVA to which it's not a party. We benefit from the PSA and the PTIA, which are agreements with Dupont. That's how we came to own the information. So, there's no direct benefit. We flip it. Now, Invista finally takes one last, sorry, now Rodea takes one last bite at the Estoppel apple. And now they say, oh, well, forget about equitable Estoppel. They know they're not a signatory. No court is ever allowed a non-signatory to invoke equitable. They say, let us invoke what they call alternative Estoppel. And that's the notion that sometimes a non-signatory and Rodea says, okay, so maybe now we're a non-signatory. We can now invoke a stopper against a signatory. Now, we're not a signatory. Paris can't turn us into a signatory. We never signed the JVA. None of the invista entities did. By the way, Your Honor, just go back to Paris. If you look at what Paris did, the Paris Tribunal said, invista Saul is in the arbitration. But it said that invista North America is not. And then there's another investor party who's before you invested technologies, who's not even in the arbitration. So even if you bought their alternative a stopper argument, you're still stuck with two plaintiffs here who have nothing to do with Paris. One that was denied jurisdiction in Paris and one that was never in the Paris arbitration to begin with. But put that aside, the key to the alternative Estoppel argument, Your Honor, even if you thought somehow one of the three invista parties was now suddenly transformed into a signatory in Paris, which we weren't. Of course, we think the Paris decision is wrong. We've moved to set it aside. We objected to jurisdiction in Paris. We objected at every stage and under this court's decision in first options affirmed by the Supreme Court in China Min medals. We don't waive our objections to the jurisdiction of the arbitrable panel just because we participated there under protest. But put that aside, imagine Paris was right. There's still no alternative Estoppel here. And the reason is what we discussed earlier. The issues are not inextricably intertwined. Case here is about torsious interference between Rodea on the one hand and DuPont's and Invis't his contractual relationship on the other. And it's about misappropriation by improper means. We have a right to a federal forum. We've been trying to get a federal forum. We've been trying to get discovery to find out who stole our secrets when we're how and why. If there's ever a contractual right that comes out of the Paris arbitration, they can raise it as a merits defense in Delaware. So with respect, we think you should just hold the original appeal moot and dismiss the appeal from the discretionary stay as lacking jurisdiction, lacking pendant jurisdiction. Whole case goes away. That's Occam's racer here. They wanted Paris to rule. Paris ruled. They lost. They got kicked out. They really have no standing to come to a U.S. court and say, send us over to arbitration and an arbitration panel where we're not a party. If you don't agree with that, judge Kugler's decision was absolutely correct and you should affirm it. There's no basis for equitable a stop. That's confirmed by Paris because Paris said Rodea is not a party there. And there's no basis for alternative a stop. Because we got two entirely different sets of issues, not intertwined issues, but totally different sets of issues. And you're honored with all respect, we suggest that this court should not be the first to ever produce the bizarre result that a non-signatory can compel arbitration with another non-signatory, especially not when the party seeking arbitration has been kicked out of the very arbitral tribunal it's trying to invoke. Thank you very much. Thank you. A few things, Your Honor, and I'll try to make it brief. The first is, I think the notion that the arbitral tribunal is not going to decide the fundamental issue in this case is simply wrong. This case started over the first issue in the case was public announcements that went out that said that each side was going to build an ADN plan. They immediately said if you want to build an ADN plan, you can't use any technology, any Gen 1 technology. The Rodea entity started an arbitration to determine that question. The idea that this case isn't about the same thing that the Paris arbitration is about is a post-toc rationale that's been developed after the Paris arbitration assumed jurisdiction over that. You are blending a result with an issue. The issue that the arbitration in Paris first was instigated by your client was who has a right to these documents and information. What you do with it leads to the rest of this legal contest in three states. What we've asked the arbitral tribunal for in the tribe in the- What you asked doesn't matter anymore because you're out of it. But what are affiliate, our rights are completely- the Rodea entities are continuing to participate in it. Rodea operations, Rodea, and no. The rights are going to be determined. That's why there is a risk of inconsistent adjudications for sure because they are going to determine whether the Rodea companies can build an ADN plant using the documents that the Rodea entities have said is all the documents they need to build. That's my problem because right to the documents does not necessarily give a right to build a plant. It does, Your Honor, because the contracts say, I think just to clarify that, the contracts say that if you have the right to access, you have the right to use and disclose. That's the whole point that we put to the Tribunal is, do the Rodea entities have the right to use and disclose to the world, obviously including Rodea SA, but it's not important whether it includes Rodea SA. The point is the Rodea entities are going to get a ruling that the documents they need to build that plant are or are not free to be used and disclosed to build the plant. That's what that's about. That's what that case is about. All right, so if you get that ruling then you just bring that into Delaware State Court and you win. I don't know, Your Honor. I mean, I doubt they'll be taking the position at that time that it has a percussive effect

. Whole case goes away. That's Occam's racer here. They wanted Paris to rule. Paris ruled. They lost. They got kicked out. They really have no standing to come to a U.S. court and say, send us over to arbitration and an arbitration panel where we're not a party. If you don't agree with that, judge Kugler's decision was absolutely correct and you should affirm it. There's no basis for equitable a stop. That's confirmed by Paris because Paris said Rodea is not a party there. And there's no basis for alternative a stop. Because we got two entirely different sets of issues, not intertwined issues, but totally different sets of issues. And you're honored with all respect, we suggest that this court should not be the first to ever produce the bizarre result that a non-signatory can compel arbitration with another non-signatory, especially not when the party seeking arbitration has been kicked out of the very arbitral tribunal it's trying to invoke. Thank you very much. Thank you. A few things, Your Honor, and I'll try to make it brief. The first is, I think the notion that the arbitral tribunal is not going to decide the fundamental issue in this case is simply wrong. This case started over the first issue in the case was public announcements that went out that said that each side was going to build an ADN plan. They immediately said if you want to build an ADN plan, you can't use any technology, any Gen 1 technology. The Rodea entity started an arbitration to determine that question. The idea that this case isn't about the same thing that the Paris arbitration is about is a post-toc rationale that's been developed after the Paris arbitration assumed jurisdiction over that. You are blending a result with an issue. The issue that the arbitration in Paris first was instigated by your client was who has a right to these documents and information. What you do with it leads to the rest of this legal contest in three states. What we've asked the arbitral tribunal for in the tribe in the- What you asked doesn't matter anymore because you're out of it. But what are affiliate, our rights are completely- the Rodea entities are continuing to participate in it. Rodea operations, Rodea, and no. The rights are going to be determined. That's why there is a risk of inconsistent adjudications for sure because they are going to determine whether the Rodea companies can build an ADN plant using the documents that the Rodea entities have said is all the documents they need to build. That's my problem because right to the documents does not necessarily give a right to build a plant. It does, Your Honor, because the contracts say, I think just to clarify that, the contracts say that if you have the right to access, you have the right to use and disclose. That's the whole point that we put to the Tribunal is, do the Rodea entities have the right to use and disclose to the world, obviously including Rodea SA, but it's not important whether it includes Rodea SA. The point is the Rodea entities are going to get a ruling that the documents they need to build that plant are or are not free to be used and disclosed to build the plant. That's what that's about. That's what that case is about. All right, so if you get that ruling then you just bring that into Delaware State Court and you win. I don't know, Your Honor. I mean, I doubt they'll be taking the position at that time that it has a percussive effect. I don't even have a stop on that. Maybe a judicial stop on that point. I agree. I don't think they'll throw the towel on that in light of the dogged way that all sides of thought in this case, but that seemed to be suggested by your able Opposite Counselor's argument. I think the other thing is that their claims in this case, which are misappropriation based, let's hold the PTIAPSA claim aside. That's only one claim. All the other claims are misappropriation based. In order to establish a misappropriation, it is not, it is part of their claim. And I would just read paragraph four because of the complaint. The technology was licensed to the joint venture and the parties to the joint venture signed strict confidentiality agreements. That's the JBA that the parties to restricting the use of the trade secrets from there on. Paragraph 54 from the outset of the joint venture, the joint venture partners agreed to maintain the confidentiality of DuPont's proprietary information. The whole point of that is that their misappropriation claims are completely wrapped up in the contracts. They have to be. They shared the information with the competitor. You're saying de-contract to the exclusion of the PSA? I'm putting the PSA and PTIAPSA. Those claims are different. I'm sorry. Why couldn't their claims arise solely from the PSA and the PTIAP? Because the confidentiality agreements that would restrict ROTIA and our ability to use them have to be in the connection with the JBA, the PSPTIAPSA. Why would it have to be in connection with the JBA? Because we don't get any information pursuant to the PTIAPSA. That's between DuPont. We've never even seen it. That's between DuPont and ROTIA. I'm sorry, DuPont, and in Vista, whereby in Vista got purchased the assets, it has nothing to do with the flow of information that went into the joint venture. We didn't sign it. We didn't sign it. It's got nothing to do with us. That was a tact on claim, Your Honor. That was a tact on claim in order to create some non-arbitrable issues in this case. But what Judge Jones says was, it's all wrapped up in the same question. It's all part of the scheme to misappropriate. And the misappropriation is being decided in the Paris arbitration, in the ICC arbitration. Court's have said, many, many courts have said, you don't look at the label, the plaintiff puts on the case. The fact that it's a tort case doesn't matter. You have the court said in the DuPont-Rome-Polong case. The court said, you look at, we don't care what the plaintiff says about the case. The question is, what's the court issue in the case? The court issue in this case has been from the time they started in Texas a complaint that we cannot use any information to build the ADN plan. That's what this case started as. That's what it's about. If there's any collateral issues after that, believe me, they are the tail wagging the dog

. I don't even have a stop on that. Maybe a judicial stop on that point. I agree. I don't think they'll throw the towel on that in light of the dogged way that all sides of thought in this case, but that seemed to be suggested by your able Opposite Counselor's argument. I think the other thing is that their claims in this case, which are misappropriation based, let's hold the PTIAPSA claim aside. That's only one claim. All the other claims are misappropriation based. In order to establish a misappropriation, it is not, it is part of their claim. And I would just read paragraph four because of the complaint. The technology was licensed to the joint venture and the parties to the joint venture signed strict confidentiality agreements. That's the JBA that the parties to restricting the use of the trade secrets from there on. Paragraph 54 from the outset of the joint venture, the joint venture partners agreed to maintain the confidentiality of DuPont's proprietary information. The whole point of that is that their misappropriation claims are completely wrapped up in the contracts. They have to be. They shared the information with the competitor. You're saying de-contract to the exclusion of the PSA? I'm putting the PSA and PTIAPSA. Those claims are different. I'm sorry. Why couldn't their claims arise solely from the PSA and the PTIAP? Because the confidentiality agreements that would restrict ROTIA and our ability to use them have to be in the connection with the JBA, the PSPTIAPSA. Why would it have to be in connection with the JBA? Because we don't get any information pursuant to the PTIAPSA. That's between DuPont. We've never even seen it. That's between DuPont and ROTIA. I'm sorry, DuPont, and in Vista, whereby in Vista got purchased the assets, it has nothing to do with the flow of information that went into the joint venture. We didn't sign it. We didn't sign it. It's got nothing to do with us. That was a tact on claim, Your Honor. That was a tact on claim in order to create some non-arbitrable issues in this case. But what Judge Jones says was, it's all wrapped up in the same question. It's all part of the scheme to misappropriate. And the misappropriation is being decided in the Paris arbitration, in the ICC arbitration. Court's have said, many, many courts have said, you don't look at the label, the plaintiff puts on the case. The fact that it's a tort case doesn't matter. You have the court said in the DuPont-Rome-Polong case. The court said, you look at, we don't care what the plaintiff says about the case. The question is, what's the court issue in the case? The court issue in this case has been from the time they started in Texas a complaint that we cannot use any information to build the ADN plan. That's what this case started as. That's what it's about. If there's any collateral issues after that, believe me, they are the tail wagging the dog. It's all about whether or not we can build the plant. That issue is going to be decided. Whether or without Rodea SA's specific presence, Rodea operations and Rodea Nill are participating in that. The same tribunal that they trump it as having thrown Rodea out of the case also held that it is the sole of the property in that case. That they want to walk away from it, but they want to bind Rodea to the holding that they are not a property. We're willing to live with it because it doesn't change the status here. We were a non-signatory to the JVA before. We admit that. We can't make ourselves a signatory. We were a non-signatory to the JVA before. It doesn't matter. But the difference is they've been held. In this the sole has been held to be akin to a signatory. Now we're in the very classic alternative of a stop-hold situation. We're a non-signatory. Rodea SA is invoking the stop-hold principles because A, it's closely aligned with signatories, which in this case are their wholly-owned subs. It's a classic situation because in this the sole is only in because of the participation in the meetings, they're not a signatory, which is the classic. Correct. They've been deemed in effect to be a proper participant of beneficiary. I'm sorry? It's an assumption, kind of one step. Understood. But I also think it's not fair to say like they would have the court take the take away as not that they had, you know, they were foreign to the notion of arbitration. They signed by, again, Dupont signed and they now owned the document that signed an arbitration clause that started with the license. So every agreement that tracked the flow of information always had an arbitration clause. It would be unfathomable to the founders of this JV that any dispute over the use of Gen 1 information, which was covered in every agreement when it moved and had an arbitration clause that that dispute was an arbitrable. This dispute was an argument that if we accept what you've said recently that that only helps you with respect to one of the three plaintiffs here. They, you're out of, they lumped themselves as one, number one. The complaints defines them. They basically say they all own the technology together and they are one plaintiff. Once they define themselves, the rest of the complaint is in vista. That's number one. And number two, a stay protects all of the parties because the right, if under their own theory, invists the sorrow, will be participating in the arbitration. Under protest, they're participating in the arbitration. That arbitration is going to make determinations and it doesn't matter, just like it doesn't matter whether Rodea, SA is a party or whether, if this, the SA is, a SA is objecting to be a party. There are two signatories to the contract who aren't objecting to the personal jurisdiction of the tribunal over them. The rights are going to be determined in that arbitration. That's where the inconsistent adjudication risk comes in and it's very real. And I want to explain just for one second, the harm is extremely real because what Rodea needs and is trying to get out of that arbitration is certainty that it can use the documents, it believes it's entitled to use to build the plan. That's what this dispute has always been about. That's what they've started declaration from the tribunal to do

. It's all about whether or not we can build the plant. That issue is going to be decided. Whether or without Rodea SA's specific presence, Rodea operations and Rodea Nill are participating in that. The same tribunal that they trump it as having thrown Rodea out of the case also held that it is the sole of the property in that case. That they want to walk away from it, but they want to bind Rodea to the holding that they are not a property. We're willing to live with it because it doesn't change the status here. We were a non-signatory to the JVA before. We admit that. We can't make ourselves a signatory. We were a non-signatory to the JVA before. It doesn't matter. But the difference is they've been held. In this the sole has been held to be akin to a signatory. Now we're in the very classic alternative of a stop-hold situation. We're a non-signatory. Rodea SA is invoking the stop-hold principles because A, it's closely aligned with signatories, which in this case are their wholly-owned subs. It's a classic situation because in this the sole is only in because of the participation in the meetings, they're not a signatory, which is the classic. Correct. They've been deemed in effect to be a proper participant of beneficiary. I'm sorry? It's an assumption, kind of one step. Understood. But I also think it's not fair to say like they would have the court take the take away as not that they had, you know, they were foreign to the notion of arbitration. They signed by, again, Dupont signed and they now owned the document that signed an arbitration clause that started with the license. So every agreement that tracked the flow of information always had an arbitration clause. It would be unfathomable to the founders of this JV that any dispute over the use of Gen 1 information, which was covered in every agreement when it moved and had an arbitration clause that that dispute was an arbitrable. This dispute was an argument that if we accept what you've said recently that that only helps you with respect to one of the three plaintiffs here. They, you're out of, they lumped themselves as one, number one. The complaints defines them. They basically say they all own the technology together and they are one plaintiff. Once they define themselves, the rest of the complaint is in vista. That's number one. And number two, a stay protects all of the parties because the right, if under their own theory, invists the sorrow, will be participating in the arbitration. Under protest, they're participating in the arbitration. That arbitration is going to make determinations and it doesn't matter, just like it doesn't matter whether Rodea, SA is a party or whether, if this, the SA is, a SA is objecting to be a party. There are two signatories to the contract who aren't objecting to the personal jurisdiction of the tribunal over them. The rights are going to be determined in that arbitration. That's where the inconsistent adjudication risk comes in and it's very real. And I want to explain just for one second, the harm is extremely real because what Rodea needs and is trying to get out of that arbitration is certainty that it can use the documents, it believes it's entitled to use to build the plan. That's what this dispute has always been about. That's what they've started declaration from the tribunal to do. That's what the tribunal has said. It seized the jurisdiction to do under the JVA. That's what it's going to do in phase two. What invista would like to do is have a cloud hangover Rodea's head in the marketplace so that that question's never resolved. So that that question, we never get certainty. The more forer that there are that are open, the more opportunities they have to create the question and say there's still issues to be decided, there's still issues to be decided. That's why the risk of inconsistent adjudications in this case is real harm. It wasn't present in the CTF case. It is present here. It does meet the discretionary stay clear hardship test. And getting to your point Judge Hardiman, we do think a stay protects everybody's interests because the fundamental issues are going to be decided in the arbitration. That's number one. Maybe. Maybe. Maybe. Well, the arbitrators have said they were. Is arbitrators? They've done unpredictable things in the past. There's no reason to believe that they won't. Their rulings have said to date that they have taken jurisdiction over the issue. They've set a briefing schedule. We have a hearing date set, which is what a March of 2011. That's a full three week merit-space hearing that's going to consider whether or not Rodea can build the plant using the documents that it has said it needs to use in order to build the plant. If we can't build the plant with those documents, then I guess will have been wrong that we can't build the plant. We believe we can, but that's what the arbitral tribunal will determine. And just to get to Judge McKee's question about two non-signatories. We did cover that. It's not really going to work. Okay. Thank you very much. Exceptional rule I get on both sides. This complicated is this case. When both be Mr. Greenbotton and Mr. Schrauberne, extraordinary compliment counselor did a wonderful job. I tend to think, especially when I was listening to this between New York, Texas, France, and then back to Delaware, I can only think that John Dosey-Journeyes would make the rocket docket compared to this case. We've put on a lot of miles, Your Honor. And Beaumont in the summer at a 10-hour hearing on George Dixon as well. Thank you. Thank you.

Morning, everyone. We want to thank everyone for indulging us with the late start with some businesses morning that spill over to the afternoon. We're just not able to free ourselves to hear this. Before we start, I want to take just a second to thank Donald Wilson here, Ruth, who's a very distinguished district court judge who we're interested in considering to sit with us for this sitting. After this case, she may never, ever come back to her district. As you know, not all like this. I cannot contradict my value. I mean, it's not seen here again. I also want to win this, obviously, by no means a way of wrestling, I have not seen Dean Solven in how many years? Seven or eight, I guess? It's good to see you, Jess. It's a lie question. It's the days of Nicole Carr, so it's been a while. Have you ever ridden a scene? Mr. Murrath? May it please the court. My name is Jonathan Greenblatt. I represent the appellant Rodea SA, and I've reserved two minutes for a rebuttal. Two minutes. Two minutes. Okay. You're confident, man. Your Honor's Rodea's request for dismissal or for a stay in favor of arbitration is based on a stop-alist court. Let me ask, there's so many questions. One of the many things that boggles my mind about this case. What after the temporary award, the partial award, by the panel in France, what's left if you win, what does your victory look like? When did victory here, and then you go back to a forum which has said that you're not before it? I understand the question, Your Honor. The Rodea's rights, Rodea SA's rights, and I think we have to step back and just look at the relationship of the parties for a second to answer your question. Rodea SA is the ultimate holding company on the Rodea site. It's not an operating company. It has very few employees. The employees are in the room. Not a lawyer, though. The lawyers have been dragged in. It's got Rodea Operations is the operating company on the business and Rodea Nille owes Rodea Operations. The reason I'm raising this is that Rodea Operations and Rodea Nille are participating in the arbitration and they are signatories of the various agreements that I'm going to try to describe to the court. The joint venture they signed? The JV? Rodea Nille is a signatory to the joint venture agreement. Rodea Operations, these are all by successor and interest status because of the change in ownership over the years. Okay, now that puts a wrap in the hat. You say JV was signed by Rodea Nille. Yes. They didn't actually sign it. You were saying that the section is used as a signatory? Correct. That's different. Right. Everyone in this case, because Ron Polonk, if we step back just another step, Ron Polonk was the chemical company and pharmaceutical company that then sold the pharmaceutical business to and became a Ventus and then spun off the chemical side of the company and that became Rodea, Rodea SA. And Rodea SA then is structured with Rodea Operations as the company that has the employees, that does the work. Then in this case, we'll be working with any technology that the arbitrage, Tribunal says they can work with. Rodea Nille is a holding company in between them that owns Rodea Operations. Okay, it was so unclear. As to the joint venture agreement between the partners, I won't try to pronounce it. I think it will. I hope so. Boudachimi. Boudachimi. Boudachimi. Well, the Boudachimi joint venture that is basically a combination of DuPont, France, as I'll call it, the simplicity. And as you see, RRP, that document was not signed, directly signed, penned by the parties to this suit. You mentioned earlier, they signed it because they stepped into the shoes or the success were signed it, but the parties didn't sign it. Well, to be accurate, Nye their party here today, even by successor and interest that has signed that document. There's a network of agreements that I'd like to explain to the court, which I think are critical because Estopolis fact-based. I mean, all the courts have said that you need to look at the facts and circumstances. They're all different and every case is different. And this case is not the traditional case. There are two key facts that I think are important for the court to keep in mind as it evaluates the Estopolis-based argument. First is when the joint venture was formed back in 1974 between the DuPont family of companies and the Roan-Polong family of companies, they understood, right from the get-go, that there was going to be a sharing of the technical information that's in dispute in this case, the so-called Gen1 information that was used to build this ADN plant in Chalampe, France in 1974. It's understood there was going to be a sharing of information because the parties were making different contributions. DuPont was contributing the technology Roan-Polong through the various entities. I understand that. I'm not sure it helps you because I understand that the flow of information and the flow of technology was done not in the joint venture agreement, but by way of the primarily, by way of licensing agreement. I know there are other exhibits attached to an venture agreement, but it's a licensing agreement, isn't it? They really conveyed the technology. That's actually what I would like to address because I think that ignores the way the information actually flowed. I understand why you might think that. That's been in this this theory of the case. That theory, by the way, was completely rejected by the Arbolts were tribunal in phase one. But let me explain why. You have to look at this as a flow chart almost from left to right of the way the information moves. We all have flow charts. Right. Okay. So I'll probably help you visualize. So it goes from it went from DuPont to the joint venture that was formed between these parties, but it doesn't stay in the joint venture. Article 9 of the joint venture recognizes that information will then flow from the joint venture to various on the one hand rodeo parties, formerly wrong plonk, and on the other hand, various DuPont parties. And every time knowing that, when you read the language of Article 9, neither party will. And it's specific to the parties of the DuPont venture agreement, even though other places in the DuPont venture agreement, you specifically talk about affiliates and subsidiaries. If you prevail here, why aren't we basically rewriting Article 9 to include the language of affiliates and subsidiaries where it doesn't exist because it's specific to two parties in Article 9? Why would you do that? I think it was drafted that way between the parties because it was understood that there was going to be this flow. So the first two parties are the joint, I think the first two parties are the joint venture partners. Okay. They are the ones who are going to be working on it. And remember, the first joint venture partner on the rodeo side was a company called Sukrip. Sukrip was the chemical operating company of Rome Polonk. So, there was not going to ever be a flow of information designed to get to rodeo or to Sukrip. It's not that they wouldn't necessarily see it or work with it, but they weren't going to be the principal parties who were going to be there. But all the more recent draft, Article 9, as well as the arbitration clause in a way in what I was reading, obviously, was in the arbitration clause. That's Article 23. But why wouldn't you draft them so that it anticipates this flow you're talking about? Article 23 is as narrow, not more narrow. It says the parties here too, or could say the parties here too, they should see your easy to fill you. Well, I think the way they got it, that was through the other ancillary agreements that were all part of the same network as you watched the flow of information. In other words, it goes into the joint venture pursuant to the license. It then is recognized under Article 9 that it will come out of the joint venture to the joint venture partners. And those joint venture partners are governed, they're conduct, the ability to use and disclose the information is governed by Article 9. There's also other ways that information flows to Rome, Polonc, or the Rodea and other entities. And that's through the other ancillary agreements because it was contemplated right from the beginning that various Rodea entities were going to provide services, engineering services, et cetera. That's why I was explaining at the beginning, all the personnel to run this plant came from the Rodea side. The technology came from the DuPont side. The parties understood. I should have done that. It doesn't answer a question. All you're saying seems to me all the more reason to draft Article 23 in a way that it's different than the way the language actually appears. Everything you said so far suggests that Article 23 was drafted intentionally for some reason to be operative between the two parties to that agreement. The reason I think not, Your Honor, is because remember the rights, in other words, what that party can then do with the information is that after 15 years it can share it with third parties or the world. So to the extent that the parties to the joint venture can share it, then obviously any other Rodea entity can also use it, including the defendant in this case. But in fact, anticipates a situation where one of those other parties gets into this feud about whether or not the 15-year clock is running, I guess that's what's going on in the friends now. If some dispute arises out of the limitations of the confidence geological agreement, then it seems like you draft Article 23 in a way that would anticipate that and include an obligation to arbitrary more broadly than just that. I guess at the time Article 23 was drafted, you did not have the PSA or the PTIA, they come later. Clearly, those are in connection with DuPont's sale to invest. To invest. But not an unforeseeable event. I mean, I'm sure it wasn't on the book's end or planned then, but it's certainly possible, especially with these corporate entities and some company like DuPont functions. You could foresee that in the future DuPont might sell some of its technology that would implicate this joint venture and that if you want an arbitration clause that's going to include the subsequent purchase of that technology, again, you include affiliates, successments, something like that. Well, I think by operation of no one's really contested in this case that the successors and interests step in the shoes of the various parties. That's not really. I don't know how big, you might be disagreeing about how that should be as sure as to the extent that the successor interests steps into the 15-year issue maybe, but the extent that successor interests steps into the Article 23 issue. I'm not sure that parties are doing that. That's your assumption in the U.S. top of argument. Well, it gets to a stopper, which I'll get to in a minute, but both parties, I think, accept that the successors and interests to the original signatories have the right to arbitrate. In other words, there's been no contest under the JVA. There's been no contest in the arbitration that Rodean Nill and that in Vista's, now it's called Koso front, are proper parties and proper signatories. That's not an issue. The question is, what can the parties who had access to the information, pursuant to these agreements, do with it? The Rodean parties did was start at the arbitration order to determine their rights to build the plant. That arbitration is ongoing and it is determining those rights. Our argument is that Rodean S.A.'s rights are completely derivative of the rights that are going to be determined in the arbitration. The Tribunal went one step further and then held that certain other parties, are proper parties because of their participation in the JV, which would really overlap with a benefit from the JVA concept for purposes of this case and in a stopple context. But in case there's any misunderstanding, I do want to clear it up. There's no dispute that as between the two signatories to the JVA, that there is a dispute going on and that is being arbitrated as to what they can use. The dispute was whether Rodean S.A.'s a proper party to that proceeding and our argument is the absence of Rodean S.A. from that proceeding does not end the inquiry here because the alternative to stopple doctrine that we're basing our argument on always presumes, it's always commenced by a non-signatory against a signatory to an arbitration agreement. The reason I think the network... Again, that gets grabbing the head. You don't know of any case to you where you have two non-signatories involved in an arbitration, one trying, one non-signatory trying to compel the other one to proceed to arbitration. You're on it. There's no case either way. There's no case saying you can't do that. There's no case saying you can. The stopple doctrines are, as I said, fact in case specific. That's why I think it's important to visualize the entire network of agreements because, in vista here, as the successor to Dupont, signed the first agreement that put the technology in motion, if you will. That was the license agreement that put it into the joint venture agreement. That agreement has an arbitration clause, and that agreement has a 15-year confidentiality and use clause prohibition. Then it moves from the joint venture to the different joint venture partners, originally Sookript, the top chemical company on the roadiest side, and Dupont-France, and they work with it. They have to work with it. That's by definition. They're going to be working with it all the time. Then it moves out again through various other ancillary agreements, which the tribunal said may fall under the umbrella of Article 9, because Article 9 of the JVA is the master agreement, if you will. So if you track the information as it moves from left to right, there's a common denominator as it moves along every time. Of course, the parties change hands because it moves. So in vista gives it to the, as the license or a within arbitration clause. So the reason I'm explaining this is this is different from any case. You need to move to arbitrate under the license agreement. Right. I understand. It's not an arbitration under that agreement because the way it was all conceived was there was a network of agreements, all of which have arbitration clauses, and the signatories on both sides are going to change as it moves from donor to recipient along the way. So it's been resolved that that magic language successors or affiliates been included in Article 23? I don't think the, I think the affiliate point I understand, I think the successor points not so much in contest. I don't think people are arguing that the, the successors to the signatories don't have the right to arbitrate. The argument is can an affiliate invoke the right to arbitrate. And that's where we say the alternative, a stop-old doctrine. I realize I've exceeded my time. I'm in five or a minute. We haven't even tested jurisdiction yet, which is an even more of a mess than probably going to talk in the last 15 minutes. But I do think it's important with the court's permission to understand that the flow does move as the parties change. We are invoking the alternative a stop-old doctrine, and where argument is, our argument is that we fit the test for two reasons. First of all, we are a non-signatory who's closely aligned with a signatory. We wholly own Rhodian Nell and Rhodia Operations, the signatories to the various agreements that talk about what can be used after 15 years, and the parties will be building any plant that will ultimately be built based on what the arbitration tribunal awards. It's really not arguing the person of your own corporate veil. No, we're arguing that by virtue of clauses, signatories, by virtue of the fact that we're closely related to signatories to arbitration agreements, that we can invoke the arbitration clause if the plaintiffs' claims are inextricably intertwined with the issues that arise under the agreements that have arbitration clauses in them. And in this case, they do. Because- I'm sorry. I mean, you were lying in the licensing agreement here, right? It's only to get the ball started. I'm making the point that this is not- Is it easier for you to arbitrate though, contained within the licensing agreement? We don't think so, Your Honor, because we think that that is sort of asking the court to turn a blind eye to the rest of the flow of information. Goes into the JV pursuant to the license agreement, but it doesn't stop there. It moves out to the parties, and there's a continuum of agreements that cover that. And there's- Even if we agree with that, isn't it true that you argued something different to the district court than you're arguing here? Your emphasis in the district court seemed to be on the joint venture agreement conferring the right to arbitrate. There is an appeal that appears to be through the licensing agreement. No, no, if I've given you that impression, I don't mean to say that. I'm using the license only to show that- that invistas a signatory to the first agreement in the chain- You didn't give me that as an arbitration. I got to be a question from the brief. It's nothing you said here. I mean, I'm talking about what was in the- Argument- I'm sorry. Argument was they said in their papers that their claims arise under the license agreement. And our point was if that so, the claims arise under the license agreement, then they arise under an agreement with an arbitration clause in it. They are not- And who signed? The joint venture and- Invista by successor and interest status. Okay, so that clause and the vice successor and interest- Well, because they- I know they get to you too, it's topple in your assumption argument. Yeah, and the reason I do that, Your Honor, is because invistas position, they've made these allegations in the complaint continuously, is that they own the technology now, and they have the rights in the technology, and in their brief, they invoked the confidentiality expectation in the license agreement. So that's why I believe they are stepping in the shoes of Dupont as the party and interest under the license agreement. But you can step- It seems to me that the deal like this, or these, there are two separate issues. One is that the licensing agreement suggests that they kind of proprietary information that would go with this kind of a manufacturing process. The arbitration clause is very different. That's just the way it's resolving disputes. And one would necessarily assume that if they get this kind of proprietary information that bound their arbitration, they may well assume that we have a bound to confidentiality. Let me- Well, if you're bound to confidentiality, and if you're going to invoke the confidentiality, the Estoppelt doctrine says you can't embrace the contract for purposes of imposing a duty and walk away from the arbitration clause in the doctrine. That's what a number of courts have said, including the Dupont case decided by this court. It said it will plaintiff embraces the agreement and then seeks to turn its back on the arbitration clause, they should be stopped from doing it. Argument is that their misappropriation-based claims are dependent on the joint venture contract and the other insularia agreements, all of which have these confidentiality and use clauses. Why do I say that? For two reasons. First of all, they have to establish that when they shared the information, it's still a trade secret. They're complaint recognizes this. Why are they- Well, doesn't- The PSA and the PTIA also have the confidentiality agreements? The PSA and PTIA were the claims they added after they came from Texas and then- and then when they went to New York. Those are claims that alleged that Dupont has breached various relationships, various obligations under those agreements with them, in Vista, and the argument in this case is that we have essentially induced that breach. Those are separate from- I understand that, but they did sign that. I'm trying to- I asked that because it seems to me that you're a stockable argument. You're saying correctly that law says you can't embrace certain parts of the agreement and then walk away from other parts and that gets you to the stockable. But that only works in a situation where a party is actually abilling themselves of the goodies and rejecting- taking the fruits and rejecting the vegetables if you will. Understood. We don't really have that here. Do we- If they have an obligation that arises from an agreement that they themselves- or party to, is it fair to say because you signed this agreement with to contain the confidentiality provision, you're enjoying the benefits of another agreement which also contains the confidentiality- the allied agreement. Well, you didn't sign, but you guys take the arbitration provision in that other agreement you didn't sign, because you're relying upon confidentiality. Let me tell you why I do think it's correct. I think that, again, it's because the information goes into the license- licensee and then it comes out and everybody understands that. If we don't violate those agreements, then the other agreements, not the license agreement, the arbitral tribunal considered whether they're argument that it stays in the licensee and it never comes out, whether that was correct. And the arbitral tribunal said that's not correct that the joint venture agreement contemplated it could be used, would be used, and to the extent the rodeo entities got the information more than 15 years ago through these channels that it can use it. So my point is they do need the whole network and the complaint makes this clear and I would take it- Well, when I say clear, clear if you understand the facts. I mean, they've done everything they can to make it money, but in paragraphs four and 54 of the complaint, just as examples. In both places, vaguely, they allude to the confidentiality agreements that were signed by the joint venture partners, which were critical to their letting go of the technology in the first place. Those agreements are not by name in the complaint because they're studiously avoiding naming them, the joint venture agreement and ancillary agreements. How do we know that? They say the joint venture partners signed various agreements. Those are the agreements that joint venture partners signed. The joint venture partners aren't a party to the license. The joint venture is a party to the license. Because it was understood the information would be shared and would move, they needed to be sure that as it moved each time, it was protected and that it had the same 15-year confidentiality clause in it, and they all had arbitration clauses, every agreement. The parties change when it goes from a different donor to a different recipient in these affiliated company chain. But what they've done is, instead of suing under their own theory of the case, their theory is that Rodea SA, the ultimate parent company, has essentially conspired with its subsidiaries to misuse the information, to misappropriate the trade secrets. They didn't sue any signatory along the way that signed any of these agreements, obviously to avoid having a signatory on the defense side of the case. They opt over the entire chain of parties to sue the ultimate parent, Rodea SA, who didn't sign an agreement because it doesn't have, it doesn't work with the technology. Its liability is completely derivative to what Rodea operations, Rodea Nill, the signatories to the agreements, can actually do. So by an essence, picking a defendant who didn't sign an agreement, they skipped over the whole series of them who had signed both confidentiality agreements and arbitration agreements. And so it's not a typical case. You're right about that. What doc can, I mean, it sounds like a stopper, but that's not the stopper that we haven't do pont or. It's different. It's different. But if you take a look, there's two concepts, Your Honor, that the courts have recognized in the stopper that this violates, in the stopper setting that this violates. Smith then run in the second circuit as a good case to look at, because it describes two principles that they violate. One is, if you pick and choose defendants to avoid naming signatories, when they're part of the same chain of liability, and it's obvious that you're leaving them out in order to do that, courts will stop the plaintiff from denying the duty to arbitrate, because had they signed, had they sued a signatory, you'd have a signatory on the defense side. I think those cases have at least one signatory. You'd have at least one signatory on the defense side. That's right. The second thing they've done is they've pled inconsistent theories of both liability and arbitrability. They're arguing we're a group that is controlled by RodeoSA, that is dominated by RodeoSA, that works in concert. If you read the complaint carefully, they mix and match Rodeo when they want it to be an individual company. It's an individual one that they want it to be the group of companies. It's a group. You case log again, not just the Smith Enron case. By the way, the Smith Enron case was relying on a case called the IDC case in the seventh circuit that Judge Posner decided. There's some district courts in this circuit that have also adopted the same principle when you pick and choose the ban at case in the Eastern District of New York also says the same thing. But then when you also plead inconsistent theories and say, we're going to group you for purposes of liability, but we're going to be punctilious about your individual corporate status for purposes of arbitrability, you're stopped from doing that. And it makes sense. You shouldn't be able to have it both ways. And that's what they've done that also emerges from the Smith Enron case, but other courts have adopted the same thing, including courts in this circuit. So you just take a few minutes because it's going over quite a bit. Yeah. Try to hit jurisdiction. Why do we have jurisdiction? A public jurisdiction? Two reasons, Your Honor, I think. First of all, I think under the courts analysis actually in CTF, this is a final order. And let me explain why. The question that CTF was wrong. No, no, I'm not actually. I'm saying actually under the same analysis that CTF applied, you do have jurisdiction as a final order. And I would also suggest that CTF lens support for why a pen-dent-appellate jurisdiction exists over. And you're talking about the discretionary state because there's clearly. I think I understand you're arguing. You're saying that basically if you're out of court because of the court district courts ruling, it's 10 amount to the granting of the stay in CTF. Correct. Because this case was removed under section 205, if this court doesn't review the discretionary state now, it never gets reviewed because it'll be remanded and it never gets reviewed. So the only time it can be reviewed is now. And that is, I think, quite similar to the CTF analysis in reverse, which was when a granting of a stay effectively puts you out of federal court, then the court has a pellet jurisdiction. Second thing is pen and jurisdiction, which when the issues are intertwined, as the court said in CTF, and in CTF, the court found pen and jurisdiction again on the reverse scenario, but for the same, with the same factors. These are the same issues. These are the same remedy, same facts go into it. And so... All of your questions of action are once you get past the FAA. All of your questions of action are state law and cost of action, okay? I'm sorry. All of your questions of action, you're something to theories, the state law, cost of action, once you get past the issue of the New York Convention. I'm sorry, you're saying the plaintiffs' causes of action or... That's right. The plaintiffs' claims are state law claims. There's no question. I agree with that. But my only point is number one, there's no other time to review it as a matter, so it's the final order. And the second thing is, it doesn't... If you just step back, it makes eminent sense that if you're considering the section three issue and stay, that the same issues, it's the same relief under a different legal theory, but it's the same relief that you're seeing the same facts justify the relief. And therefore, as the court said, it's, I think, infused with special circumstances, rife with special circumstances in the CTF case. This is that for both reasons, because we'll be out of court. We won't have a chance to have the discretionary stay ruled on and because the same facts and remedy are in place in both respective section three stay and the discretionary stay. Okay, it pains me to remind you, but these are some time for rebuttal. I apologize. Thank you again. Yeah, well thank you for your indulgence. Thank you. Thank you. Any solid? Good afternoon, Your Honours. Kathleen Sullivan for the Invisita appellies. I don't think I heard an answer to Judge McKee's first question. I'm not sure I did either, but I was so confused after a while, I wasn't... Just to take us back there. I think you asked, since Rodea SA, who is the only party that we're suing here, is not any longer a party to the Paris arbitration, per the Paris arbitration tribunal, what possible relief could Rodea gain by a reversal here? And the answer is absolutely none. That is, Rodea came into this case. And as Your Honour mentioned earlier, it made the extraordinary argument that for the first time in the history of U.S. law, there should be a compulsion of arbitration at the behest of one non-signatory to an arbitration agreement in order to compel another non-signatory to an arbitration agreement into the case. So Rodea came into this case as a non-signatory to the JVA paragraph 23, which is the only arbitration agreement that's an issue in Paris. It came in as a non-signatory, and it said, it tried to insert itself as a non-signatory into the Paris arbitration. It came in and said, we're not a party, but we want to parachute into Paris, and we're going to abide by the Paris Tribunal's decision about arbitrability, and then smack. The Paris Tribunal said, no arbitrability over Rodea SA. And in this great long Paris Tribunal opinion that was sent to you as an attachment to the 28J letters, the most crucial paragraph is paragraph 210. And in paragraph 210, the Paris Tribunal on whom Rodea placed its reliance in paragraph 210, the Paris Tribunal says in no uncertain words, the arbitral tribunal has no jurisdiction over Rodea SA. So Rodea now comes to you, not only as a non-signatory to the arbitration agreement, trying to compel another non-signatory, none of the Invispa, Appalais or signatories. It's now a non-party to the Paris arbitration, and it still persists in trying to argue to you that you should compel Invispa into arbitration with a non-signatory to the Paris arbitration who's been deferred by the Paris Tribunal to be a non-party to the Paris Tribunal. I'm sorry, good. We're not the claims in the New York client suit in Delaware. The same claims that are being reviewed by the Paris Tribunal. The torsious interference and the misuse of information. They're absolutely not the same claims, Your Honor. And that's, I think, the key to the argument here about a stop-old prejudice and all, it's really the key to the case. So let's try to parse these. And I think it would help to maybe look at some of the claims that are in the complaint. Let me just back up and say what's in the Paris Tribunal is a dispute over, as Your Honor mentioned, paragraph 9, article 9 of the JVA. That's a dispute between signatories to the Bhutishamy joint venture. That's a dispute between them about whether the signatories to the JVA, whether because certain material is old enough, it's been disclosed more than 15 years ago, there's now a contractual right to use it. That is nothing to do really with their complaint here. Remember how this came about? We're trying to build an ADN plant in China. We're ready to do it in 2006. We have proprietary information that we bought from DuPont through the PTA, PSA and PTA. Suddenly, Rodea says, we're going to build a plant in China, too. So our view is that they have misappropriated information. And what we've alleged in our complaint, Your Honor, which is quite different from Paris, is really two kinds of claims. First of all, we've said, we believe Rodea, torsiously interfered with, in Vista's, contracts with DuPont. The contracts we have with DuPont are the PSA and the PTA. And what we say is, we bought the Gen1 technology from DuPont. Rodea now has torsiously interfered with our contracts with DuPont. Paris has nothing to say about the PSA, the PTA, or in Vista's contracts with DuPont. That has nothing to say about it. The dispute in Paris has nothing to do with DuPont. I thought that Rodea asked the Paris Tribunal to establish DuClair. It's an expense of ability to act in a certain way using such information that may have been confidential, may still be confidential. But Your Honor, the dispute in Paris is over contract rights. We're alleging an air complaint. If you look at paragraphs 112 to 119 of the complaint, if you look at those, those are the torsious interference claims. They're at the Joint Appendix at pages 138 to 139. And what we say there is that there we are in Vista. We have a contract with DuPont along comes Rodea and tries to get DuPont in violation of its contracts with us to help it build a plant in China. That has nothing to do with the question of whether certain material owned by the joint venture has gone into the public domain after 15 years. It has to do with current attempt to get more recent information from DuPont. But Your Honor, I think the second key way we differ from Paris is we've alleged, and here I would refer Your Honor to paragraphs 7 and 90 to 98 of the complaint. Paragraph 7 is at Joint Appendix 110 to 111 and paragraphs 90 to 98 are at Joint Appendix 134 to 135. And if you read those paragraphs, you'll see that what we're alleging is, we don't know how Rodea got the information that suddenly enables it to build a plant and say it's going to build a plant in China with proprietary information. But we sure want discovery in an American forum to find out how it misappropriated that information by improper means. By the way, back in. You just put that in there. Yeah, you just put a couple of rabbits in there. You don't know how they got it, but there's misappropriation of its volume problem. Well, Your Honor, exactly right, but under the Delaware Uniform Trade Secret Act, we all need to alleges that it was obtained by improper means. We're not making a contract claim in Delaware. Paris is about a contract claim. Paris is about a very narrow, closed set of documents. Paris is about 11,600 documents, who the Rodea parties say, hey, we get to use these now because they were disclosed more than 15 years ago. So we have a contract right under JVA paragraph 9. But that's just a prelude, isn't it not, to the real nub of the matter, which is do they get to build the plant or not? Isn't that really the key issue in both four? Well, Your Honor, ultimately, we care about our proprietary rights in both four. But we're making entirely different claims. And that's why I think you've got to see. One is the contract, the one's the toward. But that's exactly why our claims in Delaware are not duplicated about, well, not resultant inconsistent judgments with Paris. The Paris Tribunal. Why shouldn't we just send this back? I mean, there's substantial water under the bridge as evidence, I think, both sides 28J letters. Why shouldn't we send this back to Judge Kugler and ask him to take another look at it in light of that water that's flown under the bridge since his first decision? Your Honor, the only question before you is legal. And the legal question is when this court can resolve without remand. First options makes clear that arbitrability is a question of U.S. law. It's a purely legal question. Unless the parties have unmistakably agreed to let arbitrability be a decision for the arbitraries. As your Honor pointed out, of course we didn't agree to that here. How could we? We didn't sign paragraph 23. We didn't sign the JVA. Nobody here ever agreed to let a Paris Tribunal decide our arbitrability. We're under the FAA. Rodeo parties removed and invoked FAA sections three and four. They invoked U.S. law. You can decide as a matter of law that they have no ground as a non-signatory to compel or force a stay on another non-signatory. You don't need any more facts. You've got all the information you need. Let's go back to the fundamental point here. Rodeo is not a party to the Paris arbitration anymore. That moves their appeal under FAA sections three and four. Your Honor asked at the end of that jurisdiction. You have a pellet jurisdiction from a final appealable order under FAA section 16 in so far. As Judge Kugler rejected, Rodeo is section three and section four claims. Those are appealable. You had a pellet jurisdiction when there was a FAA section three or section four claim. But there is no FAA section three or four claim anymore because Rodeo has been kicked out of the Paris arbitration. Why isn't it kind of like CTF holding the, why isn't it tantamount in order to put them out of court? Other way around your honor. And I'm glad to see they've stopped fighting your decision at CTF holdings for this court. And they've now accepted the ruling about discretionary stays. But let's go back and CTF there was no question that there was an appealable order. And then the question was, could you also have a pellet jurisdiction over the denial of a discretionary stay? Because we've got two kinds of appeals here. One is an appeal under the FAA from the denial of a mandatory stay or dismissal to compel arbitration. And then they append to that and appeal saying, well, if we're not entitled to a mandatory stay under the FAA, Kugler abused his discretion by denying us a discretionary stay under his inherent authority. We say that second branch of the appeal now has to go away to the first branch's moot. And the second branch was pendant. The discretionary stay appeal was pendant to the appeal of the denial of the mandatory stay. Once the FAA claims are out of this appeal, we say they're moot. There is no panting to pellet jurisdiction over the discretionary stay. Just to go back to first principle. I'm sorry, you're going a little fast for my brain. He's from Pittsburgh. So it down a little bit. Midwestern town. It's moot because why? Because they are not parties to the arbitration. Exactly, Your Honor. After all, there's here. It's hard to say, Judge, make them arbitrate in a forum that we've since been ejected from. Judge, exactly, right. How can a US... That's a great way to say what you said in the past. Your Honor, from Pittsburgh to Paris, no court in Pennsylvania can tell a Paris Tribunal. It's got to ingest a party. It just spat out. They just said, Rodia, you are not a party here. A US court can't compel arbitration with a party that the Paris arbitral tribunal won't even entertain. All right. Then why did the Southern District of New York stay that case? Well, your Honor, we... They just say it's true. Did they just not buy your argument? Well, a couple of things on New York that we've just filed a motion for reconsideration in New York. We think that the New York decision, which of course is not binding on this court, is frequently granted up in New York as they are in Pennsylvania. Well, this is a complicated case, but as Your Honor pointed out in CTF, judicial economy, judicial efficiency is not a reason to deny litigants like Envista, their place in a federal forum. And Your Honor, in New York, we think to just boil it down. There's two mistakes. So we move for reconsideration to reinstate our contract claims against DuPont in New York. And the two mistakes was the judge in Southern District of New York forgot to notice that Rodia is not a party in Paris. So when the district court said we should wait for Rodia to get its things resolved in Paris, they kind of forgot a key fact. Rodia isn't in Paris anymore. Rodia essay. And the second thing is we think that the district court just fundamentally misread the contract. Just to go back, Your Honor, what Envista is aggrieved by is that we bought Gen 1 technology from DuPont. We bought it under the PSA and the PTIA, which created duties on DuPont's part of confidentiality. That's PSA 5.20 and PTIA 717.6. We had privilege obligations. That we claim that DuPont's breached its attorney client and work product privileges with us. And we had non-compete agreement with DuPont. Our agreement with DuPont says we bought your technology. Don't go out and help somebody else like Rodia compete with us. In New York, we're suing DuPont saying there's been a breach of all those contracts with between Envista and DuPont. And we think that the court in New York fundamentally got confused. It got the JVA mixed up with the PTIA and the PTIA. And it just looked at the wrong contract. Paris is never going to resolve anything about a breach of the PSA or the PTIA. That's between Envista and DuPont. But anyway, even if New York were right, we think it's terribly wrong, but it can't bind your decision. It shouldn't even influence your decision, because our case is about different parties. New York's about DuPont. This case is about Rodia. In New York is about a different set of agreements. It's about, you know, a different set of that's fair to say that. I don't know how I could quarrel with that different parties and different technical legal issues, but I'm still troubled by the notion that the parties in this case and the parties in the arbitration and the parties in New York seem to have gotten themselves in this web to which there's no exit strategy. And what if the arbitral panel in Paris says that Rodia can build the plan? And what if Judge Kougler says they can't build the plan? And what if New York says, I don't know, something halfway in between. I mean, you know, the purpose of our system is to get to the finish line and resolve disputes, not result in this gordian knot that can never be. Fair enough, Your Honor. But we think it's very simple. I think that probably at least half of what my colleague, Mr. my friend on the other side, but half of what he was saying talked about defenses on the merits. He can make all the defenses on the merits he'd like about whether in fact Rodia, parent has some right to access to information from Rodi, where he should make that is on the merits back in front of Vice Chancellor's Drying, which should happen here is you should move the appeal, dismiss the appeal as moot. You should dismiss the discretionary, the part of the appeal from the denial of the discretionary stay is lacking pendant jurisdiction. It should go back to Judge Kougler. He'll properly divest himself with jurisdiction, send the case back to Vice Chancellor's Drying in the Delaware Court. And if Rodia has something to say about how it has a right to any of this confidential information, they can tell it to Vice Chancellor's Drying. Now, the key fact I want to focus on. I'm sorry, I have to interrupt you because I'm not sure you. So it's not a gordian knot, Your Honor. I'm sorry? It's not a gordian knot. That the defenses on the merits can be interposed in Delaware. And if there's any question about whether the Delaware case ought to defer to the Paris case, if there's any sub-portion of the Delaware case, that's about that old 15-year-old information that now there's a contract right to, Vice Chancellor's Drying can carve that out of the case. But the risk of- Isn't there a risk of inconsistent results between Delaware and Paris? Not at all, Your Honor. And if I could go back to Your Honor's remark about Paris, Paris isn't going to- I think I give Mr. King about two five minutes, Your Honor. We had 10 minutes. Thank you very much, Your Honor. You're being very indulgent with both sides and we appreciate it. Thank you. I'm in a real massacre. Judge Harderman, I just want to go back to what you said earlier. Paris is not going to decide. The Paris Tribunal is not going to decide whether the plant can be built in China. The Paris Tribunal has an extremely limited role. First of all, the partial award is not final. If you look at paragraph 255, it makes clear that there are many issues that remain. And your interest in the licensing agreement may come back in Paris if they look at it later, but that's not before them now. In paragraph 274 of the Paris Tribunal, the Tribunal reminds us, at this stage, it is not a question of establishing which information is legally in the claimant's possession. That is reserved for the second phase of the proceeding. So we don't even know yet whether that close set of 11,600 documents, who the other side says, is more than 15 years old, we don't even know if they're going to get a contract right to that. Frankly, we don't think that they're going to build a plant in China with ancient information. The reason we're suing them is that we fear, and let's go back to the information. Sometimes the ancient information is the best for when it comes to buildings. But to go back to Judge Ruth's question, our claims are fundamentally different because what we're claiming here is there's been torsious interference by Rodea with Invis't's relationship with DuPont. That Rodea induced DuPont to team up with Rodea in violation of its agreements to us, non-competing agreement, confidentiality agreement, privilege agreements. That isn't- Team up with it to build a plant. But Paris, Judge Hardeman, the key thing is the cause of action in Paris that the Rodea entities brought is not about, we have a right to build a plant. It's about we had a right to just use 1100- 11,600 documents. The information contained therein is which is so useful that it may result in the ability to build a plant. No, Your Honor. There won't be an inconsistent judgment just to go back to your point of any consistent judgments. The Gordian not gets untied in the great state of Delaware. It gets untied there because as the District Court in New York said, DuPont is subject to a suit in Delaware. So if you do the right thing, dismiss this case as moot or a firm, we're perfectly happy to defend it on the merits as well. But send it back to the District Court. District Court, Divesca goes back to Delaware. The DuPont suit can be moved to Delaware and there won't be any inconsistent judgments. There won't be any inconsistent judgments between New York and Delaware because the New York suit can be moved to Delaware. Remember, we can sue DuPont in Delaware. There's obviously jurisdiction there. We contracted to sue in New York, but DuPont is consented to be sued in Delaware. So it goes to Delaware. And to answer Judge Ruse, question, there won't be any inconsistent judgment with Paris because Paris is only adjudicating contractual rights to 11,600 old documents. We're now the only way we win in Delaware apart from a ruling on those documents is by finding that there's other sources of misappropriation by improper means. And that's not fanciful, Your Honor, in Texas. When we were in Texas and we didn't know this, we found out through the limited discovery that an American forum finally gave us in this case. We found out that rodeo entities had basically pulled up a station wagon to a loading dock in the middle of the night, loaded 30 boxes of documents into the car and driven away with it. And nobody disputes that's by improper means. And the discovery and computers, they did it with boxes. It's text boxes. Well, the loading dock was in France, Your Honor. But the point we're making here is that having found that out, we don't know whether there are other improper means by which more recent information was obtained from Dupont or from the joint venture that has nothing to do with what proprietary information is more than 15 years old. And that's why there won't be any duplication. If any part of their information really came from those old documents that Paris is going to decide about, Price Chancellor Strine can carve that out of Delaware, leave that to one side and decide whether we have torque claims on the remaining case. The indirect or direct relationship between the Paris ruling on the information, the documents, even that limited amount of documents, doesn't it possible that there would be some conflict in ruins? No, Your Honor. We think that to the extent there's any defense on the merits that say the Paris Tribunal says, ah, you've got a right to 10,968 documents. Then rodeo entities. I mean, some of this happened to contain the formulas and then rodeo comes into Delaware and they have a defense on the merits. They say, you can't sue us in tort. We have a contract right to the property. It wasn't misappropriate because it wasn't secret. But the way to resolve. And that would have a stop-all effect. Well, it might, it depends on which parties it's used against, Your Honor. But the point I'm trying to answer is that there is an efficient solution to this. That is for you to dismiss the appeal as moved or alternatively just affirm Judge Cougar, send this case back to District Court in Delaware, which we'll send it back to State Court in Delaware. New York may move to Delaware. That's certainly what the judge in New York suggested and what DuPont has exceeded to. And to the extent there's any ruling from Paris, let them raise it on the merits in Delaware. But we shouldn't be deprived. Your Honor, in CTF, as you emphasized, a party that's properly in a federal litigation forum should not be sent off to an alternate forum, at least not on a discretionary basis, absent exceptional circumstances. And there aren't any here because there's no risk of prejudice to the other side. There's no risk of inconsistent judgments. If I could just take a few minutes on the Estoppel theories, Your Honor, because I think you established in your long colloquy with my friend on the other side that there is no contract right to arbitrate here. They can't rewrite paragraph 23. Paragraph 23 of the JVA couldn't have been clearer. Arbitration agreements in other contracts have nothing to do with the arbitration agreement under 23. So there's no contract right to arbitrate here. This is a non-signatory trying to force another non-signatory into arbitration based on Estoppel principles. Now first back in the District Court, Rodeo said, oh, we're entitled to equitable Estoppel. Under equitable Estoppel they said that's when a signatory to an arbitration agreement can force a resisting non-signatory to arbitrate with us. But we know now the answer to that question and my friend didn't even raise it today. Rodeo is not a signatory. Paragraph said it's not even a party. And so equitable Estoppel is out of the case. It's just moved. It's gone. There's no case out there that says that the equitable situation is giving rise to that couldable Estoppel. Could not also come into play and control we have two non-signatory. Your Honor, you were absolutely right when you said earlier that there has never been a case in which there are two non-signatories. There's never been a case saying a non-signatory can compel another non-signatory. And the reason is obvious arbitration is a creature of contract. And if you have two non-signatories there's going to, there's no contractual basis for it. The Estoppel cases throughout U.S. law have only existed where there's a signatory on one side or a signatory on the other side. Here you do not have a signatory on the other side. That's not true in the contract case. I mean the typical contract Estoppel situation arises precisely because there's no contract. And isn't the, you know, you think a promissory Estoppel for example. So, I mean, why aren't they right that a party should be a stop from seeking all the benefits of an agreement while trying to deny it's purported detriment at the same time? Well, Your Honor, we're not relying on the agreement. The key to that argument is that Invista's not relying on the JVA. Invista doesn't benefit from the JVA directly. The test for equitable Estoppel under your decision, you alluded to it earlier, Judge McKee, Dupont versus Ron Pellank says, no accurate will Estoppel unless there is a direct benefit from the contract which contains the arbitration agreement. Invista doesn't benefit from the JVA to which it's not a party. We benefit from the PSA and the PTIA, which are agreements with Dupont. That's how we came to own the information. So, there's no direct benefit. We flip it. Now, Invista finally takes one last, sorry, now Rodea takes one last bite at the Estoppel apple. And now they say, oh, well, forget about equitable Estoppel. They know they're not a signatory. No court is ever allowed a non-signatory to invoke equitable. They say, let us invoke what they call alternative Estoppel. And that's the notion that sometimes a non-signatory and Rodea says, okay, so maybe now we're a non-signatory. We can now invoke a stopper against a signatory. Now, we're not a signatory. Paris can't turn us into a signatory. We never signed the JVA. None of the invista entities did. By the way, Your Honor, just go back to Paris. If you look at what Paris did, the Paris Tribunal said, invista Saul is in the arbitration. But it said that invista North America is not. And then there's another investor party who's before you invested technologies, who's not even in the arbitration. So even if you bought their alternative a stopper argument, you're still stuck with two plaintiffs here who have nothing to do with Paris. One that was denied jurisdiction in Paris and one that was never in the Paris arbitration to begin with. But put that aside, the key to the alternative Estoppel argument, Your Honor, even if you thought somehow one of the three invista parties was now suddenly transformed into a signatory in Paris, which we weren't. Of course, we think the Paris decision is wrong. We've moved to set it aside. We objected to jurisdiction in Paris. We objected at every stage and under this court's decision in first options affirmed by the Supreme Court in China Min medals. We don't waive our objections to the jurisdiction of the arbitrable panel just because we participated there under protest. But put that aside, imagine Paris was right. There's still no alternative Estoppel here. And the reason is what we discussed earlier. The issues are not inextricably intertwined. Case here is about torsious interference between Rodea on the one hand and DuPont's and Invis't his contractual relationship on the other. And it's about misappropriation by improper means. We have a right to a federal forum. We've been trying to get a federal forum. We've been trying to get discovery to find out who stole our secrets when we're how and why. If there's ever a contractual right that comes out of the Paris arbitration, they can raise it as a merits defense in Delaware. So with respect, we think you should just hold the original appeal moot and dismiss the appeal from the discretionary stay as lacking jurisdiction, lacking pendant jurisdiction. Whole case goes away. That's Occam's racer here. They wanted Paris to rule. Paris ruled. They lost. They got kicked out. They really have no standing to come to a U.S. court and say, send us over to arbitration and an arbitration panel where we're not a party. If you don't agree with that, judge Kugler's decision was absolutely correct and you should affirm it. There's no basis for equitable a stop. That's confirmed by Paris because Paris said Rodea is not a party there. And there's no basis for alternative a stop. Because we got two entirely different sets of issues, not intertwined issues, but totally different sets of issues. And you're honored with all respect, we suggest that this court should not be the first to ever produce the bizarre result that a non-signatory can compel arbitration with another non-signatory, especially not when the party seeking arbitration has been kicked out of the very arbitral tribunal it's trying to invoke. Thank you very much. Thank you. A few things, Your Honor, and I'll try to make it brief. The first is, I think the notion that the arbitral tribunal is not going to decide the fundamental issue in this case is simply wrong. This case started over the first issue in the case was public announcements that went out that said that each side was going to build an ADN plan. They immediately said if you want to build an ADN plan, you can't use any technology, any Gen 1 technology. The Rodea entity started an arbitration to determine that question. The idea that this case isn't about the same thing that the Paris arbitration is about is a post-toc rationale that's been developed after the Paris arbitration assumed jurisdiction over that. You are blending a result with an issue. The issue that the arbitration in Paris first was instigated by your client was who has a right to these documents and information. What you do with it leads to the rest of this legal contest in three states. What we've asked the arbitral tribunal for in the tribe in the- What you asked doesn't matter anymore because you're out of it. But what are affiliate, our rights are completely- the Rodea entities are continuing to participate in it. Rodea operations, Rodea, and no. The rights are going to be determined. That's why there is a risk of inconsistent adjudications for sure because they are going to determine whether the Rodea companies can build an ADN plant using the documents that the Rodea entities have said is all the documents they need to build. That's my problem because right to the documents does not necessarily give a right to build a plant. It does, Your Honor, because the contracts say, I think just to clarify that, the contracts say that if you have the right to access, you have the right to use and disclose. That's the whole point that we put to the Tribunal is, do the Rodea entities have the right to use and disclose to the world, obviously including Rodea SA, but it's not important whether it includes Rodea SA. The point is the Rodea entities are going to get a ruling that the documents they need to build that plant are or are not free to be used and disclosed to build the plant. That's what that's about. That's what that case is about. All right, so if you get that ruling then you just bring that into Delaware State Court and you win. I don't know, Your Honor. I mean, I doubt they'll be taking the position at that time that it has a percussive effect. I don't even have a stop on that. Maybe a judicial stop on that point. I agree. I don't think they'll throw the towel on that in light of the dogged way that all sides of thought in this case, but that seemed to be suggested by your able Opposite Counselor's argument. I think the other thing is that their claims in this case, which are misappropriation based, let's hold the PTIAPSA claim aside. That's only one claim. All the other claims are misappropriation based. In order to establish a misappropriation, it is not, it is part of their claim. And I would just read paragraph four because of the complaint. The technology was licensed to the joint venture and the parties to the joint venture signed strict confidentiality agreements. That's the JBA that the parties to restricting the use of the trade secrets from there on. Paragraph 54 from the outset of the joint venture, the joint venture partners agreed to maintain the confidentiality of DuPont's proprietary information. The whole point of that is that their misappropriation claims are completely wrapped up in the contracts. They have to be. They shared the information with the competitor. You're saying de-contract to the exclusion of the PSA? I'm putting the PSA and PTIAPSA. Those claims are different. I'm sorry. Why couldn't their claims arise solely from the PSA and the PTIAP? Because the confidentiality agreements that would restrict ROTIA and our ability to use them have to be in the connection with the JBA, the PSPTIAPSA. Why would it have to be in connection with the JBA? Because we don't get any information pursuant to the PTIAPSA. That's between DuPont. We've never even seen it. That's between DuPont and ROTIA. I'm sorry, DuPont, and in Vista, whereby in Vista got purchased the assets, it has nothing to do with the flow of information that went into the joint venture. We didn't sign it. We didn't sign it. It's got nothing to do with us. That was a tact on claim, Your Honor. That was a tact on claim in order to create some non-arbitrable issues in this case. But what Judge Jones says was, it's all wrapped up in the same question. It's all part of the scheme to misappropriate. And the misappropriation is being decided in the Paris arbitration, in the ICC arbitration. Court's have said, many, many courts have said, you don't look at the label, the plaintiff puts on the case. The fact that it's a tort case doesn't matter. You have the court said in the DuPont-Rome-Polong case. The court said, you look at, we don't care what the plaintiff says about the case. The question is, what's the court issue in the case? The court issue in this case has been from the time they started in Texas a complaint that we cannot use any information to build the ADN plan. That's what this case started as. That's what it's about. If there's any collateral issues after that, believe me, they are the tail wagging the dog. It's all about whether or not we can build the plant. That issue is going to be decided. Whether or without Rodea SA's specific presence, Rodea operations and Rodea Nill are participating in that. The same tribunal that they trump it as having thrown Rodea out of the case also held that it is the sole of the property in that case. That they want to walk away from it, but they want to bind Rodea to the holding that they are not a property. We're willing to live with it because it doesn't change the status here. We were a non-signatory to the JVA before. We admit that. We can't make ourselves a signatory. We were a non-signatory to the JVA before. It doesn't matter. But the difference is they've been held. In this the sole has been held to be akin to a signatory. Now we're in the very classic alternative of a stop-hold situation. We're a non-signatory. Rodea SA is invoking the stop-hold principles because A, it's closely aligned with signatories, which in this case are their wholly-owned subs. It's a classic situation because in this the sole is only in because of the participation in the meetings, they're not a signatory, which is the classic. Correct. They've been deemed in effect to be a proper participant of beneficiary. I'm sorry? It's an assumption, kind of one step. Understood. But I also think it's not fair to say like they would have the court take the take away as not that they had, you know, they were foreign to the notion of arbitration. They signed by, again, Dupont signed and they now owned the document that signed an arbitration clause that started with the license. So every agreement that tracked the flow of information always had an arbitration clause. It would be unfathomable to the founders of this JV that any dispute over the use of Gen 1 information, which was covered in every agreement when it moved and had an arbitration clause that that dispute was an arbitrable. This dispute was an argument that if we accept what you've said recently that that only helps you with respect to one of the three plaintiffs here. They, you're out of, they lumped themselves as one, number one. The complaints defines them. They basically say they all own the technology together and they are one plaintiff. Once they define themselves, the rest of the complaint is in vista. That's number one. And number two, a stay protects all of the parties because the right, if under their own theory, invists the sorrow, will be participating in the arbitration. Under protest, they're participating in the arbitration. That arbitration is going to make determinations and it doesn't matter, just like it doesn't matter whether Rodea, SA is a party or whether, if this, the SA is, a SA is objecting to be a party. There are two signatories to the contract who aren't objecting to the personal jurisdiction of the tribunal over them. The rights are going to be determined in that arbitration. That's where the inconsistent adjudication risk comes in and it's very real. And I want to explain just for one second, the harm is extremely real because what Rodea needs and is trying to get out of that arbitration is certainty that it can use the documents, it believes it's entitled to use to build the plan. That's what this dispute has always been about. That's what they've started declaration from the tribunal to do. That's what the tribunal has said. It seized the jurisdiction to do under the JVA. That's what it's going to do in phase two. What invista would like to do is have a cloud hangover Rodea's head in the marketplace so that that question's never resolved. So that that question, we never get certainty. The more forer that there are that are open, the more opportunities they have to create the question and say there's still issues to be decided, there's still issues to be decided. That's why the risk of inconsistent adjudications in this case is real harm. It wasn't present in the CTF case. It is present here. It does meet the discretionary stay clear hardship test. And getting to your point Judge Hardiman, we do think a stay protects everybody's interests because the fundamental issues are going to be decided in the arbitration. That's number one. Maybe. Maybe. Maybe. Well, the arbitrators have said they were. Is arbitrators? They've done unpredictable things in the past. There's no reason to believe that they won't. Their rulings have said to date that they have taken jurisdiction over the issue. They've set a briefing schedule. We have a hearing date set, which is what a March of 2011. That's a full three week merit-space hearing that's going to consider whether or not Rodea can build the plant using the documents that it has said it needs to use in order to build the plant. If we can't build the plant with those documents, then I guess will have been wrong that we can't build the plant. We believe we can, but that's what the arbitral tribunal will determine. And just to get to Judge McKee's question about two non-signatories. We did cover that. It's not really going to work. Okay. Thank you very much. Exceptional rule I get on both sides. This complicated is this case. When both be Mr. Greenbotton and Mr. Schrauberne, extraordinary compliment counselor did a wonderful job. I tend to think, especially when I was listening to this between New York, Texas, France, and then back to Delaware, I can only think that John Dosey-Journeyes would make the rocket docket compared to this case. We've put on a lot of miles, Your Honor. And Beaumont in the summer at a 10-hour hearing on George Dixon as well. Thank you. Thank you

Legal Case Summary

Invista v. Rhodia

Date Argued: Fri Apr 23 2010

Case Number:

Docket Number: 2598856

Judges:Not available

Duration: 69 minutes

Court Name:

Case Summary

Invista v. Rhodia

Oral Audio Transcript(Beta version)