We will call our first case for the day or MF Global Inc. versus Catan at Alp. Good morning. I'm Robert Lampell, Council for Innovative Designs and Helmet in this case. This is an unusual argument. It is, Your Honor, since there's no opposition. But we needed to understand the case better and therefore appreciate your willingness to argue. I'm eager to help explain anything that's important with the questions about. Basically, the essence of the appeal is not to change law, not to reach for frontiers in the law, not to find even new answers
. It's to have the court review, the determinations and the lower court as Judge Schwab, the Western District, and may too, determinations that we think were clearly around you. Before we get to that, what about our jurisdiction? You had a five-count complaint before the district court and the district court as I recall, thought that two of them were arbitrable. Yes, sir. How about the other three that are still sitting there? They're stayed. In the case of the Army? They are stayed in the case of administratively clause. Yes, is that a final judgment then we have? Well, there's a final disposition of these two counts and issues with us, but how about the other three counts? The other three counts, first of all, Your Honor, believe that the determination to tell arbitration is an appealable, no-occuratory order. But in the second part of this, that has been determined. That has been determined, so the question of whether it was reputable to arbitration is not before us
. That was an interlocutor, your order entered on September by a Memorandle opinion dated September, 2104. Subsequently, the court administratively closed the case. How about you can't do that and make it a final judgment. You still have pending before the court a request for a declaratory judgment on the validity of the plan. Correct, but the court refused to open the case. The lower court refused to open the case and allow those to proceed. There was an order, there was an judgment entered May 9th. Actually, the arbitration, the deed of arbitration included all of the claim
. Did it not? It appears, although we don't think it's arbitration. Well, but I'm saying they all were considered by the Italian arbitration act. I can best back address that, Your Honor, to say, I know what I've read and it's the same when you've read. We did not participate in that arbitration. Right. They didn't resolve the validity of the plan. I think there's reference to that. I have to look at it
. I don't want to be glad. I don't think they talked about whether the plan was delivered or not. I just finished reading. There's an arbitration decision, arbitration decision, which we'll see in Italian and translated into English. I read the English. Well, I used to speak Italian and greenfield. I think you've got a 54 B problem here. There's not a final judgment
. I believe, Your Honor, and I could be wrong. The arbitration, the order to compel is an appealable, you know, office or order. And then we have, in fact, the order enforcing the arbitration, which occurred subsequently. But Judge Wyes' point is, if there are three counts still pending for Judge Schrogg, haven't been decided. But he refuses to open the document. Well, that's what, I mean, the May 9, 2006 order, here is to be, disview that it's final, that the case is closed. And I don't know what the differences between administratively closed or closed. I actually have a couple of decisions up here on that issue
. One is a WRS versus Plaza, and another one involving... To what effect? That administrative closure is not far... It's subsequent request to open the case and or does not.
.. The case is reopened, implicate that it's a new case or any statute of limitations as well. Did you request reopen the case? It was requested on an interim basis, yes. I have to find it for you if you wanted to take time for that. Well, I have a... I have a board
... The lie, 2006, saying that the court entered crime or the judgment against plaintiffs on May 9, 2006. Correct. I don't think we have access to the law or court at this point. I guess that's the issue. May I call your attention to Kate May Green versus Warren at 698, 5th, 2nd, 179. Where we had a 54-B problem, then we held that the
... If the parties straighten out the jurisdiction by getting a 54-B order, before we decide the case, we could go ahead and decide. So that perhaps we should... I think you should go to the district court and apply for a 54-B certification. Certainly, you'll call your attention immediately before we decide the case
. All right. Well, I think what we'll do is having made that suggestion after hearing argument, we'll all just confer on cases. So what we will do as a panel is confer, and perhaps make that recommendation. All right. So, but why don't you proceed with your argument? Well, the argument you're on is, as I said, I'm not trying to change the law or reach in the new areas. It's a review of the record in which the lower court made determinations of facts on which it first by Memorandum opinion of September, 2104, industrial, innovative designs, the appellant, bound by an arbitration clause and an agreement in which it was not a signatory. So what evidence did the district court have to submit innovative, your clients, the case to arbitration? Not in zero, not in. There's nothing there. There's allegations. If you look at this record, it's a little odd because most of what came into the court's dock, it came in through letters, attachments to briefs from the other council. There's no formalized process for determining the facts. There's no declarations. There's a couple of verification signed by Council on extraneous newspaper articles attached to briefs, things like that. The court makes findings, and we think we're wrong, from which it has no basis on the record or in front of it. The only appearances in front of the court that I'm aware of is that sometime in July or mid-04, there was a telephone case management call. And then subsequent to that, there was a call-acquain, which I appeared and the other council appeared for Judge Schwab, I think it was February 1906, in which we discussed the motion to compel the arbitration
. There's allegations. If you look at this record, it's a little odd because most of what came into the court's dock, it came in through letters, attachments to briefs from the other council. There's no formalized process for determining the facts. There's no declarations. There's a couple of verification signed by Council on extraneous newspaper articles attached to briefs, things like that. The court makes findings, and we think we're wrong, from which it has no basis on the record or in front of it. The only appearances in front of the court that I'm aware of is that sometime in July or mid-04, there was a telephone case management call. And then subsequent to that, there was a call-acquain, which I appeared and the other council appeared for Judge Schwab, I think it was February 1906, in which we discussed the motion to compel the arbitration. I know the award and our response to that. In that call-acquain, which occurred in Open Query, it probably lasted 40 minutes. There was a discussion of, we try to preserve the issues regarding, of course, earlier determination, binding innovative designs. And then we discussed the actual Italian arbitration process. And at that, there was a stipulation, you can at least refine it, it's clearly not disputed, but there were only four communications regarding this arbitration that resulted in a $4.5 million dollar judgment, and which bound innovative designs on its face, who was the non-signatory. Those were, and they're cited in that call-acquain, and I can give you citations to the appendix if you'd like. Extracted them
. I know the award and our response to that. In that call-acquain, which occurred in Open Query, it probably lasted 40 minutes. There was a discussion of, we try to preserve the issues regarding, of course, earlier determination, binding innovative designs. And then we discussed the actual Italian arbitration process. And at that, there was a stipulation, you can at least refine it, it's clearly not disputed, but there were only four communications regarding this arbitration that resulted in a $4.5 million dollar judgment, and which bound innovative designs on its face, who was the non-signatory. Those were, and they're cited in that call-acquain, and I can give you citations to the appendix if you'd like. Extracted them. I'm sorry, it was February 7th in the call-acquain. It's a deed of arbitrators appointment, which appears in the appendix at 189. It's a letter from Farr Council to the... Defendants, the Italian Council that appears in the appendix of 516. There is a letter from the Italian Council to prior Council that appears at 518. And then there is a letter from the Italian Council, no, from our Council to the Italian Council that appears at 523
. I'm sorry, it was February 7th in the call-acquain. It's a deed of arbitrators appointment, which appears in the appendix at 189. It's a letter from Farr Council to the... Defendants, the Italian Council that appears in the appendix of 516. There is a letter from the Italian Council to prior Council that appears at 518. And then there is a letter from the Italian Council, no, from our Council to the Italian Council that appears at 523. The upshot of it is it's a deed of arbitration, which is the form of what they implement this process. There's a letter saying that they have appointed an arbitrator for our benefit or our designate. There's the other two or letters coming from our Council who's in Cleveland saying that he's a plus and a 30-day continuous. And then a subsequent letter saying that he was no longer representing the respondents of my client in that all communications should go directly. Nothing else. Did you ever require a judge's robber file of motion requesting an indication as to his finding that it was incredible for you to claim you didn't have noticed in the face of overwhelming record evidence? Did he cite to record evidence that was there or have you defined exactly what he was talking about? If you were, if you read his two opinions, I would say I would compliment the drafting of them in a sense that they would still logistic decisions. Except those things he was talking about, and there's others, or he finds things incredible, there's no doubt he uses adjectives like this, have no basis on the record. There's you can't find it
. The upshot of it is it's a deed of arbitration, which is the form of what they implement this process. There's a letter saying that they have appointed an arbitrator for our benefit or our designate. There's the other two or letters coming from our Council who's in Cleveland saying that he's a plus and a 30-day continuous. And then a subsequent letter saying that he was no longer representing the respondents of my client in that all communications should go directly. Nothing else. Did you ever require a judge's robber file of motion requesting an indication as to his finding that it was incredible for you to claim you didn't have noticed in the face of overwhelming record evidence? Did he cite to record evidence that was there or have you defined exactly what he was talking about? If you were, if you read his two opinions, I would say I would compliment the drafting of them in a sense that they would still logistic decisions. Except those things he was talking about, and there's others, or he finds things incredible, there's no doubt he uses adjectives like this, have no basis on the record. There's you can't find it. What happens if we find that the legal conclusion that IDI was found by the arbitration agreement was flawed? That is before us. We find that he was wrong in saying that you were IDI was bound to arbitrate by the arbitration agreement. You would reverse that decision? Then it would come back that you would have even titled for trial on all counts presumably? Yes. Hopefully we would open the document and go forward on the patent infringement and trademark. What happens to the arbitration war against R&M Global? You don't represent them do you? I did, but we saw it chapter 7 because it destroyed the viability of the entity. That is lost. We would not, we would do the appeal for them. So am I correct that if the court below should decide that innovative designs does not take party to the arbitration agreement that the judgment against R&M Global would never have been still stand? It might be an academic exercise, it would be a brokerage
. What happens if we find that the legal conclusion that IDI was found by the arbitration agreement was flawed? That is before us. We find that he was wrong in saying that you were IDI was bound to arbitrate by the arbitration agreement. You would reverse that decision? Then it would come back that you would have even titled for trial on all counts presumably? Yes. Hopefully we would open the document and go forward on the patent infringement and trademark. What happens to the arbitration war against R&M Global? You don't represent them do you? I did, but we saw it chapter 7 because it destroyed the viability of the entity. That is lost. We would not, we would do the appeal for them. So am I correct that if the court below should decide that innovative designs does not take party to the arbitration agreement that the judgment against R&M Global would never have been still stand? It might be an academic exercise, it would be a brokerage. It would make... That appeal isn't before us. We would do it. We would simplify things. I would just like to point out one thing to your honest terms of case law. That is why I let off saying you don't have to make law here even on the search
. It would make... That appeal isn't before us. We would do it. We would simplify things. I would just like to point out one thing to your honest terms of case law. That is why I let off saying you don't have to make law here even on the search. Judge Nigert was on a panel for case of laborious which we cited on a brief. The Borees was a review of a judge who had a decision on a similar nature involving a investor that got involved in some kind of a project that is Carnegie Mellon University. He made similar findings, your honors, your panel, or a good nugget, reversed that saying he had to have evidence. He cited it in his decision in September, so forth, but it doesn't follow. Then, most recently, as I was obsessing through the argument I tracked down the law and I find that the agenda was on a panel for case of laborious rescindment. The rescindment involved the merger of, I think it was Mercedes and Chrysler and it was fight over whether a sub-bolter capitalist was used or not. In any event, the question there raises the same interface. The waiver of the 7th Amendment right to jury trial versus compiling arbitration
. Judge Nigert was on a panel for case of laborious which we cited on a brief. The Borees was a review of a judge who had a decision on a similar nature involving a investor that got involved in some kind of a project that is Carnegie Mellon University. He made similar findings, your honors, your panel, or a good nugget, reversed that saying he had to have evidence. He cited it in his decision in September, so forth, but it doesn't follow. Then, most recently, as I was obsessing through the argument I tracked down the law and I find that the agenda was on a panel for case of laborious rescindment. The rescindment involved the merger of, I think it was Mercedes and Chrysler and it was fight over whether a sub-bolter capitalist was used or not. In any event, the question there raises the same interface. The waiver of the 7th Amendment right to jury trial versus compiling arbitration. You do cite Borees, permanently, and go through a pretty erudite discussion of how the Federal Arbitration Act and its policy interacts with the 7th Amendment right. You never reach the issue of whether one dominates the other, but you clearly set forth a non-signatory to an arbitration clause. It must be bound on some legal theory and it has to be factually found that that legal theory holds water. I just point that out to you because it seems to be very well settled law in the 3rd Circuit. In the least few of you have sat on panels in recent years, one came out September 26th. Stating these concepts, I think no uncertainty at all. The problem in our case is there's no factual basis for the derived conclusion. He just says it and that's really the rub in the nub in the case
. You do cite Borees, permanently, and go through a pretty erudite discussion of how the Federal Arbitration Act and its policy interacts with the 7th Amendment right. You never reach the issue of whether one dominates the other, but you clearly set forth a non-signatory to an arbitration clause. It must be bound on some legal theory and it has to be factually found that that legal theory holds water. I just point that out to you because it seems to be very well settled law in the 3rd Circuit. In the least few of you have sat on panels in recent years, one came out September 26th. Stating these concepts, I think no uncertainty at all. The problem in our case is there's no factual basis for the derived conclusion. He just says it and that's really the rub in the nub in the case. It's for you to have more questions. I will follow through on the answer. Well, wait till we come first and then we would communicate further with you. Thank you for your time. Thank you very much. Bye.
We will call our first case for the day or MF Global Inc. versus Catan at Alp. Good morning. I'm Robert Lampell, Council for Innovative Designs and Helmet in this case. This is an unusual argument. It is, Your Honor, since there's no opposition. But we needed to understand the case better and therefore appreciate your willingness to argue. I'm eager to help explain anything that's important with the questions about. Basically, the essence of the appeal is not to change law, not to reach for frontiers in the law, not to find even new answers. It's to have the court review, the determinations and the lower court as Judge Schwab, the Western District, and may too, determinations that we think were clearly around you. Before we get to that, what about our jurisdiction? You had a five-count complaint before the district court and the district court as I recall, thought that two of them were arbitrable. Yes, sir. How about the other three that are still sitting there? They're stayed. In the case of the Army? They are stayed in the case of administratively clause. Yes, is that a final judgment then we have? Well, there's a final disposition of these two counts and issues with us, but how about the other three counts? The other three counts, first of all, Your Honor, believe that the determination to tell arbitration is an appealable, no-occuratory order. But in the second part of this, that has been determined. That has been determined, so the question of whether it was reputable to arbitration is not before us. That was an interlocutor, your order entered on September by a Memorandle opinion dated September, 2104. Subsequently, the court administratively closed the case. How about you can't do that and make it a final judgment. You still have pending before the court a request for a declaratory judgment on the validity of the plan. Correct, but the court refused to open the case. The lower court refused to open the case and allow those to proceed. There was an order, there was an judgment entered May 9th. Actually, the arbitration, the deed of arbitration included all of the claim. Did it not? It appears, although we don't think it's arbitration. Well, but I'm saying they all were considered by the Italian arbitration act. I can best back address that, Your Honor, to say, I know what I've read and it's the same when you've read. We did not participate in that arbitration. Right. They didn't resolve the validity of the plan. I think there's reference to that. I have to look at it. I don't want to be glad. I don't think they talked about whether the plan was delivered or not. I just finished reading. There's an arbitration decision, arbitration decision, which we'll see in Italian and translated into English. I read the English. Well, I used to speak Italian and greenfield. I think you've got a 54 B problem here. There's not a final judgment. I believe, Your Honor, and I could be wrong. The arbitration, the order to compel is an appealable, you know, office or order. And then we have, in fact, the order enforcing the arbitration, which occurred subsequently. But Judge Wyes' point is, if there are three counts still pending for Judge Schrogg, haven't been decided. But he refuses to open the document. Well, that's what, I mean, the May 9, 2006 order, here is to be, disview that it's final, that the case is closed. And I don't know what the differences between administratively closed or closed. I actually have a couple of decisions up here on that issue. One is a WRS versus Plaza, and another one involving... To what effect? That administrative closure is not far... It's subsequent request to open the case and or does not... The case is reopened, implicate that it's a new case or any statute of limitations as well. Did you request reopen the case? It was requested on an interim basis, yes. I have to find it for you if you wanted to take time for that. Well, I have a... I have a board... The lie, 2006, saying that the court entered crime or the judgment against plaintiffs on May 9, 2006. Correct. I don't think we have access to the law or court at this point. I guess that's the issue. May I call your attention to Kate May Green versus Warren at 698, 5th, 2nd, 179. Where we had a 54-B problem, then we held that the... If the parties straighten out the jurisdiction by getting a 54-B order, before we decide the case, we could go ahead and decide. So that perhaps we should... I think you should go to the district court and apply for a 54-B certification. Certainly, you'll call your attention immediately before we decide the case. All right. Well, I think what we'll do is having made that suggestion after hearing argument, we'll all just confer on cases. So what we will do as a panel is confer, and perhaps make that recommendation. All right. So, but why don't you proceed with your argument? Well, the argument you're on is, as I said, I'm not trying to change the law or reach in the new areas. It's a review of the record in which the lower court made determinations of facts on which it first by Memorandum opinion of September, 2104, industrial, innovative designs, the appellant, bound by an arbitration clause and an agreement in which it was not a signatory. So what evidence did the district court have to submit innovative, your clients, the case to arbitration? Not in zero, not in. There's nothing there. There's allegations. If you look at this record, it's a little odd because most of what came into the court's dock, it came in through letters, attachments to briefs from the other council. There's no formalized process for determining the facts. There's no declarations. There's a couple of verification signed by Council on extraneous newspaper articles attached to briefs, things like that. The court makes findings, and we think we're wrong, from which it has no basis on the record or in front of it. The only appearances in front of the court that I'm aware of is that sometime in July or mid-04, there was a telephone case management call. And then subsequent to that, there was a call-acquain, which I appeared and the other council appeared for Judge Schwab, I think it was February 1906, in which we discussed the motion to compel the arbitration. I know the award and our response to that. In that call-acquain, which occurred in Open Query, it probably lasted 40 minutes. There was a discussion of, we try to preserve the issues regarding, of course, earlier determination, binding innovative designs. And then we discussed the actual Italian arbitration process. And at that, there was a stipulation, you can at least refine it, it's clearly not disputed, but there were only four communications regarding this arbitration that resulted in a $4.5 million dollar judgment, and which bound innovative designs on its face, who was the non-signatory. Those were, and they're cited in that call-acquain, and I can give you citations to the appendix if you'd like. Extracted them. I'm sorry, it was February 7th in the call-acquain. It's a deed of arbitrators appointment, which appears in the appendix at 189. It's a letter from Farr Council to the... Defendants, the Italian Council that appears in the appendix of 516. There is a letter from the Italian Council to prior Council that appears at 518. And then there is a letter from the Italian Council, no, from our Council to the Italian Council that appears at 523. The upshot of it is it's a deed of arbitration, which is the form of what they implement this process. There's a letter saying that they have appointed an arbitrator for our benefit or our designate. There's the other two or letters coming from our Council who's in Cleveland saying that he's a plus and a 30-day continuous. And then a subsequent letter saying that he was no longer representing the respondents of my client in that all communications should go directly. Nothing else. Did you ever require a judge's robber file of motion requesting an indication as to his finding that it was incredible for you to claim you didn't have noticed in the face of overwhelming record evidence? Did he cite to record evidence that was there or have you defined exactly what he was talking about? If you were, if you read his two opinions, I would say I would compliment the drafting of them in a sense that they would still logistic decisions. Except those things he was talking about, and there's others, or he finds things incredible, there's no doubt he uses adjectives like this, have no basis on the record. There's you can't find it. What happens if we find that the legal conclusion that IDI was found by the arbitration agreement was flawed? That is before us. We find that he was wrong in saying that you were IDI was bound to arbitrate by the arbitration agreement. You would reverse that decision? Then it would come back that you would have even titled for trial on all counts presumably? Yes. Hopefully we would open the document and go forward on the patent infringement and trademark. What happens to the arbitration war against R&M Global? You don't represent them do you? I did, but we saw it chapter 7 because it destroyed the viability of the entity. That is lost. We would not, we would do the appeal for them. So am I correct that if the court below should decide that innovative designs does not take party to the arbitration agreement that the judgment against R&M Global would never have been still stand? It might be an academic exercise, it would be a brokerage. It would make... That appeal isn't before us. We would do it. We would simplify things. I would just like to point out one thing to your honest terms of case law. That is why I let off saying you don't have to make law here even on the search. Judge Nigert was on a panel for case of laborious which we cited on a brief. The Borees was a review of a judge who had a decision on a similar nature involving a investor that got involved in some kind of a project that is Carnegie Mellon University. He made similar findings, your honors, your panel, or a good nugget, reversed that saying he had to have evidence. He cited it in his decision in September, so forth, but it doesn't follow. Then, most recently, as I was obsessing through the argument I tracked down the law and I find that the agenda was on a panel for case of laborious rescindment. The rescindment involved the merger of, I think it was Mercedes and Chrysler and it was fight over whether a sub-bolter capitalist was used or not. In any event, the question there raises the same interface. The waiver of the 7th Amendment right to jury trial versus compiling arbitration. You do cite Borees, permanently, and go through a pretty erudite discussion of how the Federal Arbitration Act and its policy interacts with the 7th Amendment right. You never reach the issue of whether one dominates the other, but you clearly set forth a non-signatory to an arbitration clause. It must be bound on some legal theory and it has to be factually found that that legal theory holds water. I just point that out to you because it seems to be very well settled law in the 3rd Circuit. In the least few of you have sat on panels in recent years, one came out September 26th. Stating these concepts, I think no uncertainty at all. The problem in our case is there's no factual basis for the derived conclusion. He just says it and that's really the rub in the nub in the case. It's for you to have more questions. I will follow through on the answer. Well, wait till we come first and then we would communicate further with you. Thank you for your time. Thank you very much. Bye