Legal Case Summary

Call our last case Kongsburg on a mode of holding a essay versus teleplex incorporated a Good afternoon, your honors on Edward McNow I have represent the appellant consburg. I'd like to reserve five minutes for a bottle Please The key point that I want to start off with is that no federal court That we can find has ever issued a stay of proceedings before it under the circumstances involved in this case Never has that been done before Here the parties agreed by contract. It's a litigate their just contractual dispute in the district of Delaware The action was filed two years before the stay application was made after extensive discovery was taken If the discovery deadline had passed after a pre-trial order was issued in a trial scheduled They settled during that period of time they settled nine of the ten claims Correct correct your honksburg consented to an earlier stay Correct your honks Consented to stays in Quebec and I won't sure Don't tell us about it Quebec consent to the stay there, but here you're saying Why you want to move the Delaware action you don't want to move the Quebec We can't move the Quebec action you can send it to a stay in the Quebec to a stay until June of 14 and the motion papers that you provided for purposes of Us taking judicial notice Show that there have been substantial talks about settling the Remaining dispute singular in the Quebec action. I don't know whether that's true or not But you consented to the stay there and Here after you know settling nine of the ten claims and all you have left is a claim of a Dendritation which I grant you is important and having granted a pub We were consented to a priors day in this action Now you're saying that this is you know awful I think it is Pardon me, you're the final order for purposes of our jurisdiction

. There is no final order Disposing of the case if this case is appeal will be appealable whether the exceptions that we relied upon for a stay that is indefinite Northsteration The reason why we so indefinite I mean this is not you know some of the cases you cite Talk about where there's a bankruptcy proceeding and Lord knows when it's gonna be heard But you really have partial control over how long the stay is because you're involved in the Quebec action Aren't you very little control as the papers in the Quebec action show The plaintiff in that action who of course is going to be given deference when the plaintiff asked for a stay which we did an objective The plaintiff says I want to not proceed in Quebec until all of these other State court in in the United States cases are resolved so I know how much liability I face and therefore how much I intend to Shift to telephlex or consburg so the judge in that case we Sent to it but we consented to it because we didn't want to waive our right to To proceed in Delaware which we have a contractual right to do and indeed the district court has also want to proceed in Delaware because you want all of these other cases pending in the United States to You want this case to lead those you say the declaration of Rachel Baxter She says you know a ruling from this court regarding contractual liability with respect to the design would help facilitate settlement negotiations in all of those cases and you say you know ruling from this court is preferable to Receiving a ruling from each individual court. What does this have to do with whether there's a final order in this case or just what What comes for would like? We're dealing with a legal issue. Is there a final order here for purposes of a deal and if there is Did the district court abuse this discretion in granting a stay? I believe I believe thought that the Quebec action that that it could simplify issues Before this court and indeed reading the motion papers, you know, you're talking about very little that has to be settled in Quebec now Maybe it will or maybe it won't and maybe the motion papers exaggerate as they tend to do most of the thought in all courts, but but we have narrowly delicious before us Your honor you do under what I say we say that the stay here is indefinite because it ultimately Depends upon what happens in all these state court cases Because the case in Quebec will never be concluded until those cases They're even be wanting to be started again

. Quebec actually have to do with you know Joe blow Suing Converg at Al in Montana The Quebec case damage claim depends upon the resolution of the state court cases They can wait till every state action in the United States is decided before Quebec and Can rule is that your argument? That's not what I'm not arguing that the Quebec court must Wait until every case is decided. I'm arguing that the Quebec court will Wait until every such cases decide that's up to the Quebec court and the plaintiff the plaintiff in Quebec is Yes, I'm gonna say that I'm hearing that the first time I mean it's not in the order of the Quebec court I don't see any mention in the in the pleadings or at least the ones that are present as you presented to us The Quebec court order is premised on its recitals and those recitals say That there are other pending cases and we would prefer The plaintiff would prefer PRB would prefer to wait so Where is it in the record that that Quebec action likely will not move forward Until all these others are Or even though they would prefer it I see that in the in Rachel Baxter's declaration I see it in But I don't see that in the order of the Quebec court the Quebec court simply ordered granting the state That's all that's all it said that's the second time it said it And I think the only rational way to look at it is going to say it all over again Because of the recitals by Bump PRB that it wants to wait until the other cases are Resolved one way or the other as what it said where does PRB? Where's that said? You have to look at the recitals in the Quebec court's order that refer to the reasons why To wait Those reasons are as extent today Where is that where are the reasons of the Quebec court as to why it's granting the state? We have your attorney and your attorney and your Canadian attorney talking about consenting to the court the Quebec action and translating the order and And he says in he says in translating the order and considering the settlement talks for these reasons the tribunal grants the motion And stays the proceeding So it was really to send even some of the Those are attached to our motion for the court to take judicial notice and it's in the order attached to it My recollection is it which I'm trying to get to your second question judge Barry Yeah, well you said the reasons and you're you're to your Canadian attorney uh translates the relative excerpts and The representations made by the attorney and considering consent to the motion considering the settlement settlement talks grants a stay And if you say it about always other cases that that's the reason they're granting this day The court did you make that finding at least not at this record? The court did not make that finding but it's the only rational reason you can get from reading Why the plaintiff in that case would wait did you say did you propose to judge sleep that Essentially the Quebec actions just never gonna proceed. Yes

. That was our argument I mean we were recall that the time we made the original argument the act we provided an after David that said the case Can't proceed until at least 2016 and we pointed out that the case had been stayed notwithstanding Well, that's even longer earlier that's that's the earlier stay the second stay came in after judge sleep rule correct Okay, but before just read so after judge sleep rule you grant that you you another stay came in on your consent and put back Right, yes, right the thrust of that motion was settlement talks as to the remaining dispute. That's right Okay, so why even in retrospect Couldn't it have been reasonable that if that were the remaining dispute were to settle in Quebec that would have been a heck of a lot easier here It would have been a heck of a lot the remaining dispute that you're talking about being settled in Quebec would have been the disputes involving all the other Pending court cases that they have been settled in the Quebec actually would have had a dollar number Which they would have proceeded to deal with We don't know that I mean, I we don't know enough about your honest on that of time. I'm sorry

. Joe's barrack when you answer your second question I reserve five minutes. I'll try to pick it up at that time Thank Good afternoon and may please the court shone blue of bowards far on behalf of the defendant Teleflex your honor to Me head on the question here about the existence of a final order. It's clear that there is no final order And what that does it well except judge sleep just sent this up To Canada washed his hands of it

. I'm not you know, it's it's it's stayed until they decide it Isn't that effectively throw them out of court? No, your honor because on the first issue of whether we're even properly here On a final order They have to make an argument to get around the clear precedent and The obvious situation that find only final orders can be Appealed to this court right, but if they're effectively thrown out of court or if it's a stay of indefinite duration Both of which seem to apply then how does how do they not apply? All right Well, you're right. They they coin a phrase temporal determinative this and they say that they they are out of court because there's no time limits Well as judge Barry noted that that is that is a Effect that they agree to that they can send it to actually in footnote And five of our of our papers it talks about what the procedure is in Canada Uh, and procedure in Canada is actually very quick in the sense that they have to go to trial within 180 days Now they've agreed you know that's that's This is genuine We have to we should accept it could be It could be or he could settle the case next month and it could be no time at all Let me let me address this John they have to make this unique that this is a unique circumstance This is some anomaly and to do that they say that this was this stay was Granit at the end of the litigation when all the discoveries was completed now that's not true And judge league actually made that clear in his footnote opinion. He said look there there are issues as to whether there's additional discovery That needs to be done and from a temporal context if you look at the dates on which the pleadings were filed This issue this issue about these third-party claims your honor that Only arose When BRP filed an amended Complaint in Canada and that amended complaint was filed in October of 2011 and that's at a 750 We were already done discovery when BRP filed this amended complaint now what they tried to do is they tried to bootstrap that issue into the pre-trial order and we objected to that So when judge fleet was looking at the the the case that was before him and what was stayed and then what would they were asking to push forward with He noted which we thought was clear that the issue that they really are pressing forward on now was not even part of the litigation So we were actually we're not at the end of the litigation

. We're actually at the very beginning Let's get let's assume there's jurisdiction here. Maybe there isn't let's assume there is and there's a Case in Delaware involving two parties to an agreement To determine what the agreement means what the excluded liabilities are and that agreement contains an agreement within itself That the parties agree it should be brought in Delaware and litigated in Delaware and it's pretty extensive provision It is Delaware law applied and you know transferred and I mean the clear agreement of the parties was This should be heard in Delaware and it's that agreement that's at issue Why should the court be able to basically duck that and go against the wishes of the parties and even here argument that that That shouldn't happen when there is an agreement Did that affect the The court will hear that Ultimately this case will be back in front of the judge in Delaware. Well, that's okay

. That's an issue Will it be back and when will it be back and how will it be back and will it have been decided based on well Issues have been cited based on Delaware law. It sounds like the judge think he's gonna be residue to cut it and come back Your honor that that really speaks to the prudence of what The chief's done judge did and The language in the purchase agreement states that they're entitled to indemnification for quote any liability arising out of the excluded assets They they look to that language and say hey this 2006 contract was an excluded asset The problem with that argument is if you look at the Canadian complaint They're being sued under an entirely separate contract a 2007 contract So what is going to happen here is Ultimately in Quebec somebody's gonna have to make a decision on What the liability is was it a design defect? Was it the way that it was manufactured? Was it the way that um The materials were put together was it was there no liability at all was this BRP's fault and how they did it was driver error So why but why should the Delaware action await anything that goes on in Quebec because that Though the the Canadian action will ultimately determine what the liability is and if the liability if there's no liability If if the court finds that this is BRP peace problem then we're gonna file a motion to dismiss based on the fact that this is not a liability Arising out of an excluded contract now they may I you know, I think creatively that's very broad language And we don't we don't really know the way that Quebec actions gonna proceed Do we we have no idea what what will be the litigation strategy what will happen and why should they be held hostage for this? Well, they're they're a hostage in their own prisoner honor they agree to it So to now come back and say Let's be fair they agreed to a stay till June 14 2014 in the in the Quebec action not not on in scenario You know right your honor and I think Look if we're looking at this from abuse of discretion standard assuming that there's if there's a final order here I think there's some things that that we can point to that that show this is actually a fair result Your honor made a comment about they want this case to sort of push the resolution And we believe that's put in the car before the horse because What they're going to if we have to litigate this case in Delaware I'm gonna have to litigate every issue that would have been litigated in Canada without one of the parties who's refused to participate I am gonna have to take to get evidence The agreement is asked between the two of you and the language of the agreement is between the two of you has nothing to do with beer But your honor we can't I cannot establish That this is not a liability Rising out of an excluded asset without Litigating the underlying case. I have to go and I would have to go and prove that whatever defect Or whatever problem BRP alleges occur with this I'd have to go and prove that it was not something that was under the 2006 contract So this is actually the prudent way to go because That court has all three of the parties that court Will determine whether this is if there is liability and what the source of the liability is now We will be back in Delaware

. There's there's there's possibly possibly four outcomes out of out of Canada The first would be one where Both Kongsburg and telephlex prove that neither of them had any liability All right, well now the cases are going to go forward in Delaware at that point because They don't have an excluded asset the court on the other extreme The court in in Canada could say that this was all Kongsburg's fault under this two-celled and seven contract they manufactured it in proclamation in which case It's not residue to cut it, but I you know they're not going to have a very strong argument to go back there now there there's also the possibility that the court finds that we're totally alive and then I think there will be some discussions at that point and that would be something that would be very favorable for them Now here's the outcome that may occur You know, I'm not a Canadian products liability expert, but there may be some finding In Canada that we're both on the hook and then that is when we're back in front of the judge and is an issue of allocation It's an issue of yeah contract interpretation has to whatever that liability was whatever that finding is is that A liability arising out of the excluded asset now. I think that they that's very broad language. So You know the point of it that you're on are under some certain certain circumstances It's clear that that Delaware case would be resolved just by virtue of what the factual finding would be But that's not restue to cotta they they could still come in and argue that under some You know compromise finding that that this is actually the type of exposure that they were negotiating for indemnification on So that that's the right outcome and that's that's where mr McGalley said he wants to wait until All of these state cases get decided Uh And I don't know what the statute of limitations would be whether they'll keep being filed or I don't know but this one is your response to that this is not All entirely on the record and we objected in the pretrial order to them Bootstrapping in evidence of these these third party claims But I can represent that I we we are defending third party claims bowards far as defending well We have we have it in our appendix

. We have we have the affid we have This backstories affidavit We have the accompanying I think on which side of the appendix the other of following it or proceeding at Talking about these other actions. So they they've been presented to you Your honor So I think this is speaking to a notion of fairness whether it's fair for them to be in the position. They're in And the reality of it is if we went back to judge Fleet today And we's and you you you were or went back and said look you cannot stay it

. They have to have their day in court All right There's no telling that this case in Delaware would get to trial and raise a halt before What was pending in in Canada would and I can I can tell you based on what I know of the products liability cases They are almost certainly all to be wrapped up most of them are wrapped up But they would certainly be wrapped up before this case made its way back to trial And and there could be more because the products in the industry of the country This seems to be if we if we were It could go on on an item here waiting of judge And you all would have to wait until finally one other Plaintiff there no more plaintiffs in these data correct correct Your honor The answer to that question is so so even if we went back and and judge Fleet was was presented the narrow issue here Is this a liability that arises out of an excluded asset? I mean, I don't know how he can even he can even determine that yet Because if you look at the BRP complaint now Our friends say that we were we were on the hook for design That's the basis of their argument and they say this was a design defect and because this is design was under the Sixth contract were on the hook that's their argument the problem with that is That's not what BRP is arguing if you look at the Canadian complaint I won't quote it, but they basically say they had designed Responsibility they had manufacturing responsibility. I mean, I think based on strict liability issues They're on the hook they they were the company that gave the product over so in terms of fairness uh The other part of your honors we are at an extreme disadvantage In defending the case Based on the mechanics of what issues need to be done plus the fact that BRP and and the judge noted this Uh Refused to cooperate now to give you a sense of that if you look at the confidentiality order in this case Not in this case in the Canadian case they wrote it specifically to preclude us From using the documents that they produced in Canada in the Delaware case so I don't know of what reason that would be for that other than gamesmanship But if BRP wants to come down the Delaware We're happy to educate the entire dispute uh in front of uh the chief judge If these cases were to proceed along parallel tracks Um talk to the issue of is inconsistent Results or inconsistent verdict you're on our so the the because the facts here it's tough to get your arms around Let's come flex the way you're all would work. Yeah. Well the way that it would work is I would I would have to litigate the entire dispute that's now currently pending in Canada all right because I'd have to prove the negative that this is not a design defect of our making and thus is not a liability arising out of the evidence excluded asset so it's it's It is a circumstance where somebody will have to this you have that's the preliminary issue that needs to be decided So he's gonna have to decide this the issue is why shouldn't have proceed before judge fleet when the party's agreed that that's what you have because The party driving the proverbial busher honors is a French Canadian company Who would prefer to litigate their lead dispute in a French Canadian corer and For whatever reason that may be That's why we're in that that's why they're in the position they're in well They're also they are the plaintiff from this action and a defendant in the Canadian action So Maybe that's another reason for wanting to go forward You know, you know, I you I think you hit the nail in that. I mean what they're what they're trying to do Is push this case forward and get it settled so that they can avoid the meteor issues up in Canada because if you look at their in my time is up So I'll conclude the essence of this I believe is the BRP and Kongsburg have a continuing business relationship So it bodes better for them Just focus their sites on us that it would be to defend the case against their business partner So I think that's you know, I'd like to be conspiracy theory, but that's what I think is driving this Thank you, and this was an honor so my first time in front of your court. All right

. Well the way that it would work is I would I would have to litigate the entire dispute that's now currently pending in Canada all right because I'd have to prove the negative that this is not a design defect of our making and thus is not a liability arising out of the evidence excluded asset so it's it's It is a circumstance where somebody will have to this you have that's the preliminary issue that needs to be decided So he's gonna have to decide this the issue is why shouldn't have proceed before judge fleet when the party's agreed that that's what you have because The party driving the proverbial busher honors is a French Canadian company Who would prefer to litigate their lead dispute in a French Canadian corer and For whatever reason that may be That's why we're in that that's why they're in the position they're in well They're also they are the plaintiff from this action and a defendant in the Canadian action So Maybe that's another reason for wanting to go forward You know, you know, I you I think you hit the nail in that. I mean what they're what they're trying to do Is push this case forward and get it settled so that they can avoid the meteor issues up in Canada because if you look at their in my time is up So I'll conclude the essence of this I believe is the BRP and Kongsburg have a continuing business relationship So it bodes better for them Just focus their sites on us that it would be to defend the case against their business partner So I think that's you know, I'd like to be conspiracy theory, but that's what I think is driving this Thank you, and this was an honor so my first time in front of your court. All right. Thank you I want to focus on why there's a Delaware case and what we're trying to get out of the Delaware case I don't care what happens in any of the other cases in the state courts judge Barry in Delaware. We ask for something very simple As page a 6169 we request that the court enter a declaratory judgment That the BRP claim is an excluded liability as a fine in the purchase agreement What does that mean the excluded liability idea is that If Tauaflex did something under a contract such as this is undisputed design this part We don't want to have that liability So that if an awaited case Kongsburg as the manufacturer is deemed to be liable And it's because the part was defectively designed Tauaflex is supposed to identify us. It's just that simple So that in Canada if the Canadian court comes back and says Kongsburg You are liable because the you sold us a defectively designed part Then it will be the problem of Tauaflex because that goes all the way back to what Tauaflex did And that's an excluded liability that they agreed to pay All we are asking for is that the district court in Delaware decide What the two that the purchase agreement means in that respect does it mean that Because we signed an agreement in 2007 to manufacture these parts That that means that we are now no longer entitled to the protection of the purchase agreement That's all we seek It's just a question

. Thank you I want to focus on why there's a Delaware case and what we're trying to get out of the Delaware case I don't care what happens in any of the other cases in the state courts judge Barry in Delaware. We ask for something very simple As page a 6169 we request that the court enter a declaratory judgment That the BRP claim is an excluded liability as a fine in the purchase agreement What does that mean the excluded liability idea is that If Tauaflex did something under a contract such as this is undisputed design this part We don't want to have that liability So that if an awaited case Kongsburg as the manufacturer is deemed to be liable And it's because the part was defectively designed Tauaflex is supposed to identify us. It's just that simple So that in Canada if the Canadian court comes back and says Kongsburg You are liable because the you sold us a defectively designed part Then it will be the problem of Tauaflex because that goes all the way back to what Tauaflex did And that's an excluded liability that they agreed to pay All we are asking for is that the district court in Delaware decide What the two that the purchase agreement means in that respect does it mean that Because we signed an agreement in 2007 to manufacture these parts That that means that we are now no longer entitled to the protection of the purchase agreement That's all we seek It's just a question. What does the purchase agreement mean? The damage claims that my friend says I'll have to be adjudicated I completely agree with him What's we get to say is he's going to have to prove everything that is happening in Canada as part of the Delaware action It's completely wrong. It's completely wrong Once we get that declaratory judgment in Delaware that they are responsible under the purchase agreement Then the Canadian can court can do whatever the Canadian court's going to do And if it ends up And that's where the damage claim is going to be what it gated In Delaware, we're not litigating any of these damage claims. It's not a damage case You just said you don't care about the other cases pending in the in the throughout the United You said to me earlier you you want them to move first before this That you fact you fall judge sleep or not dealing with that issue Judge Marry if I said that I'm I misspoke but I said was the plaintiff PRB once those cases to be resolved So that it determines how much money it owes in the state court cases so that I can sue for that amount in the Canadian case I did not you said in your appellate briefs You know you're a briefs to us One of the reasons you're you you want us to reverse start sleep is that you would present at the argument That those cases is this case will have an impact on those you want those you want this this to be decided first Sure, you don't care about those Well, I don't care about how but the speed they litigate on what's going to happen to state Okay, what's going to happen is the jury comes back and says Okay, here's liability because the part was either a Manufacturing correctly or b

. What does the purchase agreement mean? The damage claims that my friend says I'll have to be adjudicated I completely agree with him What's we get to say is he's going to have to prove everything that is happening in Canada as part of the Delaware action It's completely wrong. It's completely wrong Once we get that declaratory judgment in Delaware that they are responsible under the purchase agreement Then the Canadian can court can do whatever the Canadian court's going to do And if it ends up And that's where the damage claim is going to be what it gated In Delaware, we're not litigating any of these damage claims. It's not a damage case You just said you don't care about the other cases pending in the in the throughout the United You said to me earlier you you want them to move first before this That you fact you fall judge sleep or not dealing with that issue Judge Marry if I said that I'm I misspoke but I said was the plaintiff PRB once those cases to be resolved So that it determines how much money it owes in the state court cases so that I can sue for that amount in the Canadian case I did not you said in your appellate briefs You know you're a briefs to us One of the reasons you're you you want us to reverse start sleep is that you would present at the argument That those cases is this case will have an impact on those you want those you want this this to be decided first Sure, you don't care about those Well, I don't care about how but the speed they litigate on what's going to happen to state Okay, what's going to happen is the jury comes back and says Okay, here's liability because the part was either a Manufacturing correctly or b. There's a defect in the design What can arian law be applied in the combat action? Yes I cannot answer that because I'm not an expert. I do know that the Canadian complaint makes allegations such as the warranty of fitness for intended purpose to strike me as similar to American law But the point I'm trying to make is that If it is now clear because of what judge the district court decided that the purchase agreement provides us for protection from claims Asserting a design defect Then that's all we need that's all we seek Canadian case can go forward whatever the Canadian case decides it decides if it decides that we are responsible because of a manufacturing defect We're stuck with that if it decides we're responsible because we sold an improperly designed product Then we immediately we have a judge admit that that's teleflexus problem Whatever the numbers are and if my friend wants to defend and claiming for example that all of these tort cases are really Driver irresponsibility or driver error. There's nothing wrong with the park

. There's a defect in the design What can arian law be applied in the combat action? Yes I cannot answer that because I'm not an expert. I do know that the Canadian complaint makes allegations such as the warranty of fitness for intended purpose to strike me as similar to American law But the point I'm trying to make is that If it is now clear because of what judge the district court decided that the purchase agreement provides us for protection from claims Asserting a design defect Then that's all we need that's all we seek Canadian case can go forward whatever the Canadian case decides it decides if it decides that we are responsible because of a manufacturing defect We're stuck with that if it decides we're responsible because we sold an improperly designed product Then we immediately we have a judge admit that that's teleflexus problem Whatever the numbers are and if my friend wants to defend and claiming for example that all of these tort cases are really Driver irresponsibility or driver error. There's nothing wrong with the park. He can defend that all we want That's not even involved in Delaware so the door has really no Need to prove why the vehicles failed. We're not asking the court to decide that we're asking the court simply to decide what the purchase agreement means That's it The time is up. I thank the court

. He can defend that all we want That's not even involved in Delaware so the door has really no Need to prove why the vehicles failed. We're not asking the court to decide that we're asking the court simply to decide what the purchase agreement means That's it The time is up. I thank the court. Right. Thank you very much. Face as well

. Right. Thank you very much. Face as well. Or you take it under advisement as the

. Or you take it under advisement as the

Call our last case Kongsburg on a mode of holding a essay versus teleplex incorporated a Good afternoon, your honors on Edward McNow I have represent the appellant consburg. I'd like to reserve five minutes for a bottle Please The key point that I want to start off with is that no federal court That we can find has ever issued a stay of proceedings before it under the circumstances involved in this case Never has that been done before Here the parties agreed by contract. It's a litigate their just contractual dispute in the district of Delaware The action was filed two years before the stay application was made after extensive discovery was taken If the discovery deadline had passed after a pre-trial order was issued in a trial scheduled They settled during that period of time they settled nine of the ten claims Correct correct your honksburg consented to an earlier stay Correct your honks Consented to stays in Quebec and I won't sure Don't tell us about it Quebec consent to the stay there, but here you're saying Why you want to move the Delaware action you don't want to move the Quebec We can't move the Quebec action you can send it to a stay in the Quebec to a stay until June of 14 and the motion papers that you provided for purposes of Us taking judicial notice Show that there have been substantial talks about settling the Remaining dispute singular in the Quebec action. I don't know whether that's true or not But you consented to the stay there and Here after you know settling nine of the ten claims and all you have left is a claim of a Dendritation which I grant you is important and having granted a pub We were consented to a priors day in this action Now you're saying that this is you know awful I think it is Pardon me, you're the final order for purposes of our jurisdiction. There is no final order Disposing of the case if this case is appeal will be appealable whether the exceptions that we relied upon for a stay that is indefinite Northsteration The reason why we so indefinite I mean this is not you know some of the cases you cite Talk about where there's a bankruptcy proceeding and Lord knows when it's gonna be heard But you really have partial control over how long the stay is because you're involved in the Quebec action Aren't you very little control as the papers in the Quebec action show The plaintiff in that action who of course is going to be given deference when the plaintiff asked for a stay which we did an objective The plaintiff says I want to not proceed in Quebec until all of these other State court in in the United States cases are resolved so I know how much liability I face and therefore how much I intend to Shift to telephlex or consburg so the judge in that case we Sent to it but we consented to it because we didn't want to waive our right to To proceed in Delaware which we have a contractual right to do and indeed the district court has also want to proceed in Delaware because you want all of these other cases pending in the United States to You want this case to lead those you say the declaration of Rachel Baxter She says you know a ruling from this court regarding contractual liability with respect to the design would help facilitate settlement negotiations in all of those cases and you say you know ruling from this court is preferable to Receiving a ruling from each individual court. What does this have to do with whether there's a final order in this case or just what What comes for would like? We're dealing with a legal issue. Is there a final order here for purposes of a deal and if there is Did the district court abuse this discretion in granting a stay? I believe I believe thought that the Quebec action that that it could simplify issues Before this court and indeed reading the motion papers, you know, you're talking about very little that has to be settled in Quebec now Maybe it will or maybe it won't and maybe the motion papers exaggerate as they tend to do most of the thought in all courts, but but we have narrowly delicious before us Your honor you do under what I say we say that the stay here is indefinite because it ultimately Depends upon what happens in all these state court cases Because the case in Quebec will never be concluded until those cases They're even be wanting to be started again. Quebec actually have to do with you know Joe blow Suing Converg at Al in Montana The Quebec case damage claim depends upon the resolution of the state court cases They can wait till every state action in the United States is decided before Quebec and Can rule is that your argument? That's not what I'm not arguing that the Quebec court must Wait until every case is decided. I'm arguing that the Quebec court will Wait until every such cases decide that's up to the Quebec court and the plaintiff the plaintiff in Quebec is Yes, I'm gonna say that I'm hearing that the first time I mean it's not in the order of the Quebec court I don't see any mention in the in the pleadings or at least the ones that are present as you presented to us The Quebec court order is premised on its recitals and those recitals say That there are other pending cases and we would prefer The plaintiff would prefer PRB would prefer to wait so Where is it in the record that that Quebec action likely will not move forward Until all these others are Or even though they would prefer it I see that in the in Rachel Baxter's declaration I see it in But I don't see that in the order of the Quebec court the Quebec court simply ordered granting the state That's all that's all it said that's the second time it said it And I think the only rational way to look at it is going to say it all over again Because of the recitals by Bump PRB that it wants to wait until the other cases are Resolved one way or the other as what it said where does PRB? Where's that said? You have to look at the recitals in the Quebec court's order that refer to the reasons why To wait Those reasons are as extent today Where is that where are the reasons of the Quebec court as to why it's granting the state? We have your attorney and your attorney and your Canadian attorney talking about consenting to the court the Quebec action and translating the order and And he says in he says in translating the order and considering the settlement talks for these reasons the tribunal grants the motion And stays the proceeding So it was really to send even some of the Those are attached to our motion for the court to take judicial notice and it's in the order attached to it My recollection is it which I'm trying to get to your second question judge Barry Yeah, well you said the reasons and you're you're to your Canadian attorney uh translates the relative excerpts and The representations made by the attorney and considering consent to the motion considering the settlement settlement talks grants a stay And if you say it about always other cases that that's the reason they're granting this day The court did you make that finding at least not at this record? The court did not make that finding but it's the only rational reason you can get from reading Why the plaintiff in that case would wait did you say did you propose to judge sleep that Essentially the Quebec actions just never gonna proceed. Yes. That was our argument I mean we were recall that the time we made the original argument the act we provided an after David that said the case Can't proceed until at least 2016 and we pointed out that the case had been stayed notwithstanding Well, that's even longer earlier that's that's the earlier stay the second stay came in after judge sleep rule correct Okay, but before just read so after judge sleep rule you grant that you you another stay came in on your consent and put back Right, yes, right the thrust of that motion was settlement talks as to the remaining dispute. That's right Okay, so why even in retrospect Couldn't it have been reasonable that if that were the remaining dispute were to settle in Quebec that would have been a heck of a lot easier here It would have been a heck of a lot the remaining dispute that you're talking about being settled in Quebec would have been the disputes involving all the other Pending court cases that they have been settled in the Quebec actually would have had a dollar number Which they would have proceeded to deal with We don't know that I mean, I we don't know enough about your honest on that of time. I'm sorry. Joe's barrack when you answer your second question I reserve five minutes. I'll try to pick it up at that time Thank Good afternoon and may please the court shone blue of bowards far on behalf of the defendant Teleflex your honor to Me head on the question here about the existence of a final order. It's clear that there is no final order And what that does it well except judge sleep just sent this up To Canada washed his hands of it. I'm not you know, it's it's it's stayed until they decide it Isn't that effectively throw them out of court? No, your honor because on the first issue of whether we're even properly here On a final order They have to make an argument to get around the clear precedent and The obvious situation that find only final orders can be Appealed to this court right, but if they're effectively thrown out of court or if it's a stay of indefinite duration Both of which seem to apply then how does how do they not apply? All right Well, you're right. They they coin a phrase temporal determinative this and they say that they they are out of court because there's no time limits Well as judge Barry noted that that is that is a Effect that they agree to that they can send it to actually in footnote And five of our of our papers it talks about what the procedure is in Canada Uh, and procedure in Canada is actually very quick in the sense that they have to go to trial within 180 days Now they've agreed you know that's that's This is genuine We have to we should accept it could be It could be or he could settle the case next month and it could be no time at all Let me let me address this John they have to make this unique that this is a unique circumstance This is some anomaly and to do that they say that this was this stay was Granit at the end of the litigation when all the discoveries was completed now that's not true And judge league actually made that clear in his footnote opinion. He said look there there are issues as to whether there's additional discovery That needs to be done and from a temporal context if you look at the dates on which the pleadings were filed This issue this issue about these third-party claims your honor that Only arose When BRP filed an amended Complaint in Canada and that amended complaint was filed in October of 2011 and that's at a 750 We were already done discovery when BRP filed this amended complaint now what they tried to do is they tried to bootstrap that issue into the pre-trial order and we objected to that So when judge fleet was looking at the the the case that was before him and what was stayed and then what would they were asking to push forward with He noted which we thought was clear that the issue that they really are pressing forward on now was not even part of the litigation So we were actually we're not at the end of the litigation. We're actually at the very beginning Let's get let's assume there's jurisdiction here. Maybe there isn't let's assume there is and there's a Case in Delaware involving two parties to an agreement To determine what the agreement means what the excluded liabilities are and that agreement contains an agreement within itself That the parties agree it should be brought in Delaware and litigated in Delaware and it's pretty extensive provision It is Delaware law applied and you know transferred and I mean the clear agreement of the parties was This should be heard in Delaware and it's that agreement that's at issue Why should the court be able to basically duck that and go against the wishes of the parties and even here argument that that That shouldn't happen when there is an agreement Did that affect the The court will hear that Ultimately this case will be back in front of the judge in Delaware. Well, that's okay. That's an issue Will it be back and when will it be back and how will it be back and will it have been decided based on well Issues have been cited based on Delaware law. It sounds like the judge think he's gonna be residue to cut it and come back Your honor that that really speaks to the prudence of what The chief's done judge did and The language in the purchase agreement states that they're entitled to indemnification for quote any liability arising out of the excluded assets They they look to that language and say hey this 2006 contract was an excluded asset The problem with that argument is if you look at the Canadian complaint They're being sued under an entirely separate contract a 2007 contract So what is going to happen here is Ultimately in Quebec somebody's gonna have to make a decision on What the liability is was it a design defect? Was it the way that it was manufactured? Was it the way that um The materials were put together was it was there no liability at all was this BRP's fault and how they did it was driver error So why but why should the Delaware action await anything that goes on in Quebec because that Though the the Canadian action will ultimately determine what the liability is and if the liability if there's no liability If if the court finds that this is BRP peace problem then we're gonna file a motion to dismiss based on the fact that this is not a liability Arising out of an excluded contract now they may I you know, I think creatively that's very broad language And we don't we don't really know the way that Quebec actions gonna proceed Do we we have no idea what what will be the litigation strategy what will happen and why should they be held hostage for this? Well, they're they're a hostage in their own prisoner honor they agree to it So to now come back and say Let's be fair they agreed to a stay till June 14 2014 in the in the Quebec action not not on in scenario You know right your honor and I think Look if we're looking at this from abuse of discretion standard assuming that there's if there's a final order here I think there's some things that that we can point to that that show this is actually a fair result Your honor made a comment about they want this case to sort of push the resolution And we believe that's put in the car before the horse because What they're going to if we have to litigate this case in Delaware I'm gonna have to litigate every issue that would have been litigated in Canada without one of the parties who's refused to participate I am gonna have to take to get evidence The agreement is asked between the two of you and the language of the agreement is between the two of you has nothing to do with beer But your honor we can't I cannot establish That this is not a liability Rising out of an excluded asset without Litigating the underlying case. I have to go and I would have to go and prove that whatever defect Or whatever problem BRP alleges occur with this I'd have to go and prove that it was not something that was under the 2006 contract So this is actually the prudent way to go because That court has all three of the parties that court Will determine whether this is if there is liability and what the source of the liability is now We will be back in Delaware. There's there's there's possibly possibly four outcomes out of out of Canada The first would be one where Both Kongsburg and telephlex prove that neither of them had any liability All right, well now the cases are going to go forward in Delaware at that point because They don't have an excluded asset the court on the other extreme The court in in Canada could say that this was all Kongsburg's fault under this two-celled and seven contract they manufactured it in proclamation in which case It's not residue to cut it, but I you know they're not going to have a very strong argument to go back there now there there's also the possibility that the court finds that we're totally alive and then I think there will be some discussions at that point and that would be something that would be very favorable for them Now here's the outcome that may occur You know, I'm not a Canadian products liability expert, but there may be some finding In Canada that we're both on the hook and then that is when we're back in front of the judge and is an issue of allocation It's an issue of yeah contract interpretation has to whatever that liability was whatever that finding is is that A liability arising out of the excluded asset now. I think that they that's very broad language. So You know the point of it that you're on are under some certain certain circumstances It's clear that that Delaware case would be resolved just by virtue of what the factual finding would be But that's not restue to cotta they they could still come in and argue that under some You know compromise finding that that this is actually the type of exposure that they were negotiating for indemnification on So that that's the right outcome and that's that's where mr McGalley said he wants to wait until All of these state cases get decided Uh And I don't know what the statute of limitations would be whether they'll keep being filed or I don't know but this one is your response to that this is not All entirely on the record and we objected in the pretrial order to them Bootstrapping in evidence of these these third party claims But I can represent that I we we are defending third party claims bowards far as defending well We have we have it in our appendix. We have we have the affid we have This backstories affidavit We have the accompanying I think on which side of the appendix the other of following it or proceeding at Talking about these other actions. So they they've been presented to you Your honor So I think this is speaking to a notion of fairness whether it's fair for them to be in the position. They're in And the reality of it is if we went back to judge Fleet today And we's and you you you were or went back and said look you cannot stay it. They have to have their day in court All right There's no telling that this case in Delaware would get to trial and raise a halt before What was pending in in Canada would and I can I can tell you based on what I know of the products liability cases They are almost certainly all to be wrapped up most of them are wrapped up But they would certainly be wrapped up before this case made its way back to trial And and there could be more because the products in the industry of the country This seems to be if we if we were It could go on on an item here waiting of judge And you all would have to wait until finally one other Plaintiff there no more plaintiffs in these data correct correct Your honor The answer to that question is so so even if we went back and and judge Fleet was was presented the narrow issue here Is this a liability that arises out of an excluded asset? I mean, I don't know how he can even he can even determine that yet Because if you look at the BRP complaint now Our friends say that we were we were on the hook for design That's the basis of their argument and they say this was a design defect and because this is design was under the Sixth contract were on the hook that's their argument the problem with that is That's not what BRP is arguing if you look at the Canadian complaint I won't quote it, but they basically say they had designed Responsibility they had manufacturing responsibility. I mean, I think based on strict liability issues They're on the hook they they were the company that gave the product over so in terms of fairness uh The other part of your honors we are at an extreme disadvantage In defending the case Based on the mechanics of what issues need to be done plus the fact that BRP and and the judge noted this Uh Refused to cooperate now to give you a sense of that if you look at the confidentiality order in this case Not in this case in the Canadian case they wrote it specifically to preclude us From using the documents that they produced in Canada in the Delaware case so I don't know of what reason that would be for that other than gamesmanship But if BRP wants to come down the Delaware We're happy to educate the entire dispute uh in front of uh the chief judge If these cases were to proceed along parallel tracks Um talk to the issue of is inconsistent Results or inconsistent verdict you're on our so the the because the facts here it's tough to get your arms around Let's come flex the way you're all would work. Yeah. Well the way that it would work is I would I would have to litigate the entire dispute that's now currently pending in Canada all right because I'd have to prove the negative that this is not a design defect of our making and thus is not a liability arising out of the evidence excluded asset so it's it's It is a circumstance where somebody will have to this you have that's the preliminary issue that needs to be decided So he's gonna have to decide this the issue is why shouldn't have proceed before judge fleet when the party's agreed that that's what you have because The party driving the proverbial busher honors is a French Canadian company Who would prefer to litigate their lead dispute in a French Canadian corer and For whatever reason that may be That's why we're in that that's why they're in the position they're in well They're also they are the plaintiff from this action and a defendant in the Canadian action So Maybe that's another reason for wanting to go forward You know, you know, I you I think you hit the nail in that. I mean what they're what they're trying to do Is push this case forward and get it settled so that they can avoid the meteor issues up in Canada because if you look at their in my time is up So I'll conclude the essence of this I believe is the BRP and Kongsburg have a continuing business relationship So it bodes better for them Just focus their sites on us that it would be to defend the case against their business partner So I think that's you know, I'd like to be conspiracy theory, but that's what I think is driving this Thank you, and this was an honor so my first time in front of your court. All right. Thank you I want to focus on why there's a Delaware case and what we're trying to get out of the Delaware case I don't care what happens in any of the other cases in the state courts judge Barry in Delaware. We ask for something very simple As page a 6169 we request that the court enter a declaratory judgment That the BRP claim is an excluded liability as a fine in the purchase agreement What does that mean the excluded liability idea is that If Tauaflex did something under a contract such as this is undisputed design this part We don't want to have that liability So that if an awaited case Kongsburg as the manufacturer is deemed to be liable And it's because the part was defectively designed Tauaflex is supposed to identify us. It's just that simple So that in Canada if the Canadian court comes back and says Kongsburg You are liable because the you sold us a defectively designed part Then it will be the problem of Tauaflex because that goes all the way back to what Tauaflex did And that's an excluded liability that they agreed to pay All we are asking for is that the district court in Delaware decide What the two that the purchase agreement means in that respect does it mean that Because we signed an agreement in 2007 to manufacture these parts That that means that we are now no longer entitled to the protection of the purchase agreement That's all we seek It's just a question. What does the purchase agreement mean? The damage claims that my friend says I'll have to be adjudicated I completely agree with him What's we get to say is he's going to have to prove everything that is happening in Canada as part of the Delaware action It's completely wrong. It's completely wrong Once we get that declaratory judgment in Delaware that they are responsible under the purchase agreement Then the Canadian can court can do whatever the Canadian court's going to do And if it ends up And that's where the damage claim is going to be what it gated In Delaware, we're not litigating any of these damage claims. It's not a damage case You just said you don't care about the other cases pending in the in the throughout the United You said to me earlier you you want them to move first before this That you fact you fall judge sleep or not dealing with that issue Judge Marry if I said that I'm I misspoke but I said was the plaintiff PRB once those cases to be resolved So that it determines how much money it owes in the state court cases so that I can sue for that amount in the Canadian case I did not you said in your appellate briefs You know you're a briefs to us One of the reasons you're you you want us to reverse start sleep is that you would present at the argument That those cases is this case will have an impact on those you want those you want this this to be decided first Sure, you don't care about those Well, I don't care about how but the speed they litigate on what's going to happen to state Okay, what's going to happen is the jury comes back and says Okay, here's liability because the part was either a Manufacturing correctly or b. There's a defect in the design What can arian law be applied in the combat action? Yes I cannot answer that because I'm not an expert. I do know that the Canadian complaint makes allegations such as the warranty of fitness for intended purpose to strike me as similar to American law But the point I'm trying to make is that If it is now clear because of what judge the district court decided that the purchase agreement provides us for protection from claims Asserting a design defect Then that's all we need that's all we seek Canadian case can go forward whatever the Canadian case decides it decides if it decides that we are responsible because of a manufacturing defect We're stuck with that if it decides we're responsible because we sold an improperly designed product Then we immediately we have a judge admit that that's teleflexus problem Whatever the numbers are and if my friend wants to defend and claiming for example that all of these tort cases are really Driver irresponsibility or driver error. There's nothing wrong with the park. He can defend that all we want That's not even involved in Delaware so the door has really no Need to prove why the vehicles failed. We're not asking the court to decide that we're asking the court simply to decide what the purchase agreement means That's it The time is up. I thank the court. Right. Thank you very much. Face as well. Or you take it under advisement as the

Call our last case Kongsburg on a mode of holding a essay versus teleplex incorporated a Good afternoon, your honors on Edward McNow I have represent the appellant consburg. I'd like to reserve five minutes for a bottle Please The key point that I want to start off with is that no federal court That we can find has ever issued a stay of proceedings before it under the circumstances involved in this case Never has that been done before Here the parties agreed by contract. It's a litigate their just contractual dispute in the district of Delaware The action was filed two years before the stay application was made after extensive discovery was taken If the discovery deadline had passed after a pre-trial order was issued in a trial scheduled They settled during that period of time they settled nine of the ten claims Correct correct your honksburg consented to an earlier stay Correct your honks Consented to stays in Quebec and I won't sure Don't tell us about it Quebec consent to the stay there, but here you're saying Why you want to move the Delaware action you don't want to move the Quebec We can't move the Quebec action you can send it to a stay in the Quebec to a stay until June of 14 and the motion papers that you provided for purposes of Us taking judicial notice Show that there have been substantial talks about settling the Remaining dispute singular in the Quebec action. I don't know whether that's true or not But you consented to the stay there and Here after you know settling nine of the ten claims and all you have left is a claim of a Dendritation which I grant you is important and having granted a pub We were consented to a priors day in this action Now you're saying that this is you know awful I think it is Pardon me, you're the final order for purposes of our jurisdiction. There is no final order Disposing of the case if this case is appeal will be appealable whether the exceptions that we relied upon for a stay that is indefinite Northsteration The reason why we so indefinite I mean this is not you know some of the cases you cite Talk about where there's a bankruptcy proceeding and Lord knows when it's gonna be heard But you really have partial control over how long the stay is because you're involved in the Quebec action Aren't you very little control as the papers in the Quebec action show The plaintiff in that action who of course is going to be given deference when the plaintiff asked for a stay which we did an objective The plaintiff says I want to not proceed in Quebec until all of these other State court in in the United States cases are resolved so I know how much liability I face and therefore how much I intend to Shift to telephlex or consburg so the judge in that case we Sent to it but we consented to it because we didn't want to waive our right to To proceed in Delaware which we have a contractual right to do and indeed the district court has also want to proceed in Delaware because you want all of these other cases pending in the United States to You want this case to lead those you say the declaration of Rachel Baxter She says you know a ruling from this court regarding contractual liability with respect to the design would help facilitate settlement negotiations in all of those cases and you say you know ruling from this court is preferable to Receiving a ruling from each individual court. What does this have to do with whether there's a final order in this case or just what What comes for would like? We're dealing with a legal issue. Is there a final order here for purposes of a deal and if there is Did the district court abuse this discretion in granting a stay? I believe I believe thought that the Quebec action that that it could simplify issues Before this court and indeed reading the motion papers, you know, you're talking about very little that has to be settled in Quebec now Maybe it will or maybe it won't and maybe the motion papers exaggerate as they tend to do most of the thought in all courts, but but we have narrowly delicious before us Your honor you do under what I say we say that the stay here is indefinite because it ultimately Depends upon what happens in all these state court cases Because the case in Quebec will never be concluded until those cases They're even be wanting to be started again. Quebec actually have to do with you know Joe blow Suing Converg at Al in Montana The Quebec case damage claim depends upon the resolution of the state court cases They can wait till every state action in the United States is decided before Quebec and Can rule is that your argument? That's not what I'm not arguing that the Quebec court must Wait until every case is decided. I'm arguing that the Quebec court will Wait until every such cases decide that's up to the Quebec court and the plaintiff the plaintiff in Quebec is Yes, I'm gonna say that I'm hearing that the first time I mean it's not in the order of the Quebec court I don't see any mention in the in the pleadings or at least the ones that are present as you presented to us The Quebec court order is premised on its recitals and those recitals say That there are other pending cases and we would prefer The plaintiff would prefer PRB would prefer to wait so Where is it in the record that that Quebec action likely will not move forward Until all these others are Or even though they would prefer it I see that in the in Rachel Baxter's declaration I see it in But I don't see that in the order of the Quebec court the Quebec court simply ordered granting the state That's all that's all it said that's the second time it said it And I think the only rational way to look at it is going to say it all over again Because of the recitals by Bump PRB that it wants to wait until the other cases are Resolved one way or the other as what it said where does PRB? Where's that said? You have to look at the recitals in the Quebec court's order that refer to the reasons why To wait Those reasons are as extent today Where is that where are the reasons of the Quebec court as to why it's granting the state? We have your attorney and your attorney and your Canadian attorney talking about consenting to the court the Quebec action and translating the order and And he says in he says in translating the order and considering the settlement talks for these reasons the tribunal grants the motion And stays the proceeding So it was really to send even some of the Those are attached to our motion for the court to take judicial notice and it's in the order attached to it My recollection is it which I'm trying to get to your second question judge Barry Yeah, well you said the reasons and you're you're to your Canadian attorney uh translates the relative excerpts and The representations made by the attorney and considering consent to the motion considering the settlement settlement talks grants a stay And if you say it about always other cases that that's the reason they're granting this day The court did you make that finding at least not at this record? The court did not make that finding but it's the only rational reason you can get from reading Why the plaintiff in that case would wait did you say did you propose to judge sleep that Essentially the Quebec actions just never gonna proceed. Yes. That was our argument I mean we were recall that the time we made the original argument the act we provided an after David that said the case Can't proceed until at least 2016 and we pointed out that the case had been stayed notwithstanding Well, that's even longer earlier that's that's the earlier stay the second stay came in after judge sleep rule correct Okay, but before just read so after judge sleep rule you grant that you you another stay came in on your consent and put back Right, yes, right the thrust of that motion was settlement talks as to the remaining dispute. That's right Okay, so why even in retrospect Couldn't it have been reasonable that if that were the remaining dispute were to settle in Quebec that would have been a heck of a lot easier here It would have been a heck of a lot the remaining dispute that you're talking about being settled in Quebec would have been the disputes involving all the other Pending court cases that they have been settled in the Quebec actually would have had a dollar number Which they would have proceeded to deal with We don't know that I mean, I we don't know enough about your honest on that of time. I'm sorry. Joe's barrack when you answer your second question I reserve five minutes. I'll try to pick it up at that time Thank Good afternoon and may please the court shone blue of bowards far on behalf of the defendant Teleflex your honor to Me head on the question here about the existence of a final order. It's clear that there is no final order And what that does it well except judge sleep just sent this up To Canada washed his hands of it. I'm not you know, it's it's it's stayed until they decide it Isn't that effectively throw them out of court? No, your honor because on the first issue of whether we're even properly here On a final order They have to make an argument to get around the clear precedent and The obvious situation that find only final orders can be Appealed to this court right, but if they're effectively thrown out of court or if it's a stay of indefinite duration Both of which seem to apply then how does how do they not apply? All right Well, you're right. They they coin a phrase temporal determinative this and they say that they they are out of court because there's no time limits Well as judge Barry noted that that is that is a Effect that they agree to that they can send it to actually in footnote And five of our of our papers it talks about what the procedure is in Canada Uh, and procedure in Canada is actually very quick in the sense that they have to go to trial within 180 days Now they've agreed you know that's that's This is genuine We have to we should accept it could be It could be or he could settle the case next month and it could be no time at all Let me let me address this John they have to make this unique that this is a unique circumstance This is some anomaly and to do that they say that this was this stay was Granit at the end of the litigation when all the discoveries was completed now that's not true And judge league actually made that clear in his footnote opinion. He said look there there are issues as to whether there's additional discovery That needs to be done and from a temporal context if you look at the dates on which the pleadings were filed This issue this issue about these third-party claims your honor that Only arose When BRP filed an amended Complaint in Canada and that amended complaint was filed in October of 2011 and that's at a 750 We were already done discovery when BRP filed this amended complaint now what they tried to do is they tried to bootstrap that issue into the pre-trial order and we objected to that So when judge fleet was looking at the the the case that was before him and what was stayed and then what would they were asking to push forward with He noted which we thought was clear that the issue that they really are pressing forward on now was not even part of the litigation So we were actually we're not at the end of the litigation. We're actually at the very beginning Let's get let's assume there's jurisdiction here. Maybe there isn't let's assume there is and there's a Case in Delaware involving two parties to an agreement To determine what the agreement means what the excluded liabilities are and that agreement contains an agreement within itself That the parties agree it should be brought in Delaware and litigated in Delaware and it's pretty extensive provision It is Delaware law applied and you know transferred and I mean the clear agreement of the parties was This should be heard in Delaware and it's that agreement that's at issue Why should the court be able to basically duck that and go against the wishes of the parties and even here argument that that That shouldn't happen when there is an agreement Did that affect the The court will hear that Ultimately this case will be back in front of the judge in Delaware. Well, that's okay. That's an issue Will it be back and when will it be back and how will it be back and will it have been decided based on well Issues have been cited based on Delaware law. It sounds like the judge think he's gonna be residue to cut it and come back Your honor that that really speaks to the prudence of what The chief's done judge did and The language in the purchase agreement states that they're entitled to indemnification for quote any liability arising out of the excluded assets They they look to that language and say hey this 2006 contract was an excluded asset The problem with that argument is if you look at the Canadian complaint They're being sued under an entirely separate contract a 2007 contract So what is going to happen here is Ultimately in Quebec somebody's gonna have to make a decision on What the liability is was it a design defect? Was it the way that it was manufactured? Was it the way that um The materials were put together was it was there no liability at all was this BRP's fault and how they did it was driver error So why but why should the Delaware action await anything that goes on in Quebec because that Though the the Canadian action will ultimately determine what the liability is and if the liability if there's no liability If if the court finds that this is BRP peace problem then we're gonna file a motion to dismiss based on the fact that this is not a liability Arising out of an excluded contract now they may I you know, I think creatively that's very broad language And we don't we don't really know the way that Quebec actions gonna proceed Do we we have no idea what what will be the litigation strategy what will happen and why should they be held hostage for this? Well, they're they're a hostage in their own prisoner honor they agree to it So to now come back and say Let's be fair they agreed to a stay till June 14 2014 in the in the Quebec action not not on in scenario You know right your honor and I think Look if we're looking at this from abuse of discretion standard assuming that there's if there's a final order here I think there's some things that that we can point to that that show this is actually a fair result Your honor made a comment about they want this case to sort of push the resolution And we believe that's put in the car before the horse because What they're going to if we have to litigate this case in Delaware I'm gonna have to litigate every issue that would have been litigated in Canada without one of the parties who's refused to participate I am gonna have to take to get evidence The agreement is asked between the two of you and the language of the agreement is between the two of you has nothing to do with beer But your honor we can't I cannot establish That this is not a liability Rising out of an excluded asset without Litigating the underlying case. I have to go and I would have to go and prove that whatever defect Or whatever problem BRP alleges occur with this I'd have to go and prove that it was not something that was under the 2006 contract So this is actually the prudent way to go because That court has all three of the parties that court Will determine whether this is if there is liability and what the source of the liability is now We will be back in Delaware. There's there's there's possibly possibly four outcomes out of out of Canada The first would be one where Both Kongsburg and telephlex prove that neither of them had any liability All right, well now the cases are going to go forward in Delaware at that point because They don't have an excluded asset the court on the other extreme The court in in Canada could say that this was all Kongsburg's fault under this two-celled and seven contract they manufactured it in proclamation in which case It's not residue to cut it, but I you know they're not going to have a very strong argument to go back there now there there's also the possibility that the court finds that we're totally alive and then I think there will be some discussions at that point and that would be something that would be very favorable for them Now here's the outcome that may occur You know, I'm not a Canadian products liability expert, but there may be some finding In Canada that we're both on the hook and then that is when we're back in front of the judge and is an issue of allocation It's an issue of yeah contract interpretation has to whatever that liability was whatever that finding is is that A liability arising out of the excluded asset now. I think that they that's very broad language. So You know the point of it that you're on are under some certain certain circumstances It's clear that that Delaware case would be resolved just by virtue of what the factual finding would be But that's not restue to cotta they they could still come in and argue that under some You know compromise finding that that this is actually the type of exposure that they were negotiating for indemnification on So that that's the right outcome and that's that's where mr McGalley said he wants to wait until All of these state cases get decided Uh And I don't know what the statute of limitations would be whether they'll keep being filed or I don't know but this one is your response to that this is not All entirely on the record and we objected in the pretrial order to them Bootstrapping in evidence of these these third party claims But I can represent that I we we are defending third party claims bowards far as defending well We have we have it in our appendix. We have we have the affid we have This backstories affidavit We have the accompanying I think on which side of the appendix the other of following it or proceeding at Talking about these other actions. So they they've been presented to you Your honor So I think this is speaking to a notion of fairness whether it's fair for them to be in the position. They're in And the reality of it is if we went back to judge Fleet today And we's and you you you were or went back and said look you cannot stay it. They have to have their day in court All right There's no telling that this case in Delaware would get to trial and raise a halt before What was pending in in Canada would and I can I can tell you based on what I know of the products liability cases They are almost certainly all to be wrapped up most of them are wrapped up But they would certainly be wrapped up before this case made its way back to trial And and there could be more because the products in the industry of the country This seems to be if we if we were It could go on on an item here waiting of judge And you all would have to wait until finally one other Plaintiff there no more plaintiffs in these data correct correct Your honor The answer to that question is so so even if we went back and and judge Fleet was was presented the narrow issue here Is this a liability that arises out of an excluded asset? I mean, I don't know how he can even he can even determine that yet Because if you look at the BRP complaint now Our friends say that we were we were on the hook for design That's the basis of their argument and they say this was a design defect and because this is design was under the Sixth contract were on the hook that's their argument the problem with that is That's not what BRP is arguing if you look at the Canadian complaint I won't quote it, but they basically say they had designed Responsibility they had manufacturing responsibility. I mean, I think based on strict liability issues They're on the hook they they were the company that gave the product over so in terms of fairness uh The other part of your honors we are at an extreme disadvantage In defending the case Based on the mechanics of what issues need to be done plus the fact that BRP and and the judge noted this Uh Refused to cooperate now to give you a sense of that if you look at the confidentiality order in this case Not in this case in the Canadian case they wrote it specifically to preclude us From using the documents that they produced in Canada in the Delaware case so I don't know of what reason that would be for that other than gamesmanship But if BRP wants to come down the Delaware We're happy to educate the entire dispute uh in front of uh the chief judge If these cases were to proceed along parallel tracks Um talk to the issue of is inconsistent Results or inconsistent verdict you're on our so the the because the facts here it's tough to get your arms around Let's come flex the way you're all would work. Yeah. Well the way that it would work is I would I would have to litigate the entire dispute that's now currently pending in Canada all right because I'd have to prove the negative that this is not a design defect of our making and thus is not a liability arising out of the evidence excluded asset so it's it's It is a circumstance where somebody will have to this you have that's the preliminary issue that needs to be decided So he's gonna have to decide this the issue is why shouldn't have proceed before judge fleet when the party's agreed that that's what you have because The party driving the proverbial busher honors is a French Canadian company Who would prefer to litigate their lead dispute in a French Canadian corer and For whatever reason that may be That's why we're in that that's why they're in the position they're in well They're also they are the plaintiff from this action and a defendant in the Canadian action So Maybe that's another reason for wanting to go forward You know, you know, I you I think you hit the nail in that. I mean what they're what they're trying to do Is push this case forward and get it settled so that they can avoid the meteor issues up in Canada because if you look at their in my time is up So I'll conclude the essence of this I believe is the BRP and Kongsburg have a continuing business relationship So it bodes better for them Just focus their sites on us that it would be to defend the case against their business partner So I think that's you know, I'd like to be conspiracy theory, but that's what I think is driving this Thank you, and this was an honor so my first time in front of your court. All right. Thank you I want to focus on why there's a Delaware case and what we're trying to get out of the Delaware case I don't care what happens in any of the other cases in the state courts judge Barry in Delaware. We ask for something very simple As page a 6169 we request that the court enter a declaratory judgment That the BRP claim is an excluded liability as a fine in the purchase agreement What does that mean the excluded liability idea is that If Tauaflex did something under a contract such as this is undisputed design this part We don't want to have that liability So that if an awaited case Kongsburg as the manufacturer is deemed to be liable And it's because the part was defectively designed Tauaflex is supposed to identify us. It's just that simple So that in Canada if the Canadian court comes back and says Kongsburg You are liable because the you sold us a defectively designed part Then it will be the problem of Tauaflex because that goes all the way back to what Tauaflex did And that's an excluded liability that they agreed to pay All we are asking for is that the district court in Delaware decide What the two that the purchase agreement means in that respect does it mean that Because we signed an agreement in 2007 to manufacture these parts That that means that we are now no longer entitled to the protection of the purchase agreement That's all we seek It's just a question. What does the purchase agreement mean? The damage claims that my friend says I'll have to be adjudicated I completely agree with him What's we get to say is he's going to have to prove everything that is happening in Canada as part of the Delaware action It's completely wrong. It's completely wrong Once we get that declaratory judgment in Delaware that they are responsible under the purchase agreement Then the Canadian can court can do whatever the Canadian court's going to do And if it ends up And that's where the damage claim is going to be what it gated In Delaware, we're not litigating any of these damage claims. It's not a damage case You just said you don't care about the other cases pending in the in the throughout the United You said to me earlier you you want them to move first before this That you fact you fall judge sleep or not dealing with that issue Judge Marry if I said that I'm I misspoke but I said was the plaintiff PRB once those cases to be resolved So that it determines how much money it owes in the state court cases so that I can sue for that amount in the Canadian case I did not you said in your appellate briefs You know you're a briefs to us One of the reasons you're you you want us to reverse start sleep is that you would present at the argument That those cases is this case will have an impact on those you want those you want this this to be decided first Sure, you don't care about those Well, I don't care about how but the speed they litigate on what's going to happen to state Okay, what's going to happen is the jury comes back and says Okay, here's liability because the part was either a Manufacturing correctly or b. There's a defect in the design What can arian law be applied in the combat action? Yes I cannot answer that because I'm not an expert. I do know that the Canadian complaint makes allegations such as the warranty of fitness for intended purpose to strike me as similar to American law But the point I'm trying to make is that If it is now clear because of what judge the district court decided that the purchase agreement provides us for protection from claims Asserting a design defect Then that's all we need that's all we seek Canadian case can go forward whatever the Canadian case decides it decides if it decides that we are responsible because of a manufacturing defect We're stuck with that if it decides we're responsible because we sold an improperly designed product Then we immediately we have a judge admit that that's teleflexus problem Whatever the numbers are and if my friend wants to defend and claiming for example that all of these tort cases are really Driver irresponsibility or driver error. There's nothing wrong with the park. He can defend that all we want That's not even involved in Delaware so the door has really no Need to prove why the vehicles failed. We're not asking the court to decide that we're asking the court simply to decide what the purchase agreement means That's it The time is up. I thank the court. Right. Thank you very much. Face as well. Or you take it under advisement as th