Chair of the Development, versus TriZero, Mr. DiPoma. You're on the made, please, the court. I'm Russell DiPoma. I represent software development technologies. This is an appeal from a temporary junction or preliminary junction to not in the district court. And some time context is probably relevant. In May 2013, the beginning of May, software development technologies filed its lawsuit in Texas State Court. It was removed at the end of the month by TriZero. About June 7, 2013, software development technologies filed its motion for preliminary junction. On June 19, the sitting judge, judge means, recuse themselves, and Judge McBride was assigned. On July 1, TriZero Corporation filed its response to our motion. On July 2, I received the phone call from Judge McBride's clerk asking for a teleconference later that afternoon. We coordinated teleconference with Council for TriZero. And about 235 teleconference began. About 245 teleconference ended. The preliminary junction had been denied without hearing, without submission of evidence, and all other motions that had been before the judge, which were about six to seven in total, had been disposed. The decision. I asked a question
. That'd be a dumb question. Can an arbitrator issue a preliminary junction? To our knowledge, yes. And we have pursued arbitration. That is not in the record. So nothing other than the pleadings had occurred prior to Judge McBride's recuse of no words. Nothing had happened. No meetings, no nothing. Just the filings. And then his recuse of no words transferred to Judge McBride. Right. There was some, there was the petition and answer, the removal and some motion practice. All right. But if you've been ordered arbitration and the arbitrator can issue a preliminary in junction, why are you here? The arbitrator, OK, we were ordered to arbitration by the district judge. Technically, the motion to compel arbitration would be to compel it in Denver. And there's a jurisdictional question as to whether or not he could compel it, but he can dismiss the case because we have an arbitration clause. We have filed the arbitration, and it is ongoing in Denver. The reason we're here is because at this point, the preliminary in junction rolling acts as a race to you to caught against a seeking and injunctive relief, preliminary to the final hearing in Denver. And the arbitration is not proceeding at a swift pace
. We had hoped it would be, it would proceed so swift that we wouldn't have to bother the court with the appeal. But there was an initial hearing set for the end of this month. It is in a bance, and there's nothing rescheduled. And the parties have taken about one half of one of the eight deposition that each is allowed. There's a great deal of discovery fights occurring within the arbitration that her first all. Do you ask the arbitrator to issue a preliminary junction because it's going to slow and you need interim relief? We have not, because of this rolling from the district court. It's effectively raised to you to caught it. The first thing that TriZetto is going to say to the arbitrator is that this was decided by the district court. In fact, they said that at the hearing, at the initial party, the party's initial hearing, when we were sending the initial schedule on the arbitration. And that's really why we're here. We're seeking a vacator of the district court's decision. The district court's decision doesn't comply with Rule 65. There was no notice under Rule 6 that it would be holding a hearing. There was no evidentiary hearing held. This Court's KEPA decision, I think I'm pronouncing that right, KEPA, talks about the need to have a meaningful opportunity to be heard when there are factual issues and factual disputes that are going to advise a court what it should do in the injunction hearing. In this case, there are numerous factual disputes, not least of which are the core questions of the software development technologies have trade secrets that are at issue. Have they been misappropriated? Are it to lead secrets entitled to trade secret protection? These are all these facts have been challenged by TriZeta. In addition, there's questions of which contracts will control
. They have a master agreement that was entered in late January 2012 that had a couple of subsequent contracts as part of it. And then there was a separate contract that the parties entered in August, effective as of April 2012, regarding licensing of the software development technologies information. It's intellectual property. We sued only on that in the district court. Software development technologies only pursued a claim for the breach of that methodology license. There was no hearing on any of this. The court basically got on the phone, asked for a reply. We had no indication from the clerk or the court that it was going to be a hearing, even the court's first statements to the parties, which is on page 836 of the record, include indicates that it's a conference. And essentially it was the court's holding a discussion on telephone with the parties, giving them a chance to reply and support their motions that they had raised, but it was going to rule. All the disconversation occurred roughly. Well, the court's discussion started on page 836 and ended on page 841. So at the normal rate of transcription, probably about 9 to 11 minutes. That's just the usual court reporter rate is probably about 40 pages an hour. It's probably about 9 to 11 minutes. And the court did not issue findings of factor conclusions of law. It made four observations during the course of its discussion and made those observations on page 840 of the record. The only thing that was substantive was a conclusion that SDT was not entitled to injunct your relief. It made an observation that nobody had pled or stated in any way, shape, or form that Trisetto couldn't respond in monetary damages, which is not the standard for irreparable harm anyway in the case of this nature
. There's a length of Texas law that goes the length of this courtroom saying that irreparable harm is presumed in the case of misappropriation of trade secrets. This court 32 years ago in the FNC Varco case said that irreparable harm than an injunction is available to forestall the dissipation of trade secrets which we could institute in irreparable harm. And this court last year in the Hile trucking Cula case discussed the same thing that there was a very long Texas list of precedent regarding how the party who loses its trade secrets will suffer irreparable harm as an injunction. The court failure to conduct a hearing, lack of notice, these are all mandatory under Rule 65. Rule 52 states that the court in ruling on an injunction has to find the facts especially and issued conclusions of law separately. At minimum, this should mean as this court indicated in the Dennis Lonson, I think, or Mines Cone Incorporated Construction Case, Lonson, yeah, I figured it might be. That such an order from the District Court in order to, for this Court to engage a meaningful review should talk about all the elements. What do you want us to do? Just vacate the noncompliance with Rule 65 and send you back to Square 1. Vacate noncompliance with Rule 65 and order a hearing per the rule. What's the relief? What's the narrow relief? You have a plan. narrow relief we would seek. Now in our papers, we saw a vacator and a remand. At this point, considering that judicial efficiencies probably best served by just letting everybody proceed in the arbitration, we would just want it vacated. I don't know if the court can dismiss the remainder of it as moot because all causes of action, both SDTs against Tricado and Tricado against STT. STT. So if we just vacate, I'm not sure, saying that we are, I'm just trying to understand this all out of my head. So if we vacated the District Court's order, noncompliance with Rule 65 or whatever, without commenting on the merits or anything else, the parties are back to status quo in terms of the question Judge Owen asked you as far as you're posthed before, I guess potentially to get the injunction in the arbitrator or what? That would remove what would be the Rastriutacada bar that we currently have, that's probably preventing us from doing this and from the arbitrator. The arbitrator is an honest arbitrator, so he's actually following the law
. I know. If there's a vacator of the existing order, and nothing more, what triggers the parties to do anything, any of what you say, and either go back to the arbitrator or back to State Court, I mean, what's the trigger mechanism for whatever the next step would be? Is it the documents themselves, the agreements? What? Yeah, there's a document, there's the, there has been a good portion of discovery taken in the arbitration, there hasn't been a whole lot of testimony and there's a lot of ongoing discovery disputes, unfortunately, but the arbitration was invoked under what they call the master agreement, what we call the MCSA, the master contractor services agreement. And it does not carve out an injunctive relief against the arbitrator, it says the arbitrator cannot award punitive damages, but it doesn't say that the arbitrator cannot enjoy the parties, either way. It reserved for the parties the right to seek injunctive relief in court, but it said nothing in terms of preventing them from also seeking injunctive relief before the arbitrator. That was section 16 of the master agreement. Y'all by agreement, it submits the arbitrator, they know about. The injunction, question, no. Could you? Oh, could we, I think we could. Have we, we have not, because. Oh, I obviously can't have it, I'll show you. Yeah, the posture that we're in now is we're kind of in a limbo state because we're hoping for. We had hoped that the arbitration would be concluded. I mean, Tricedo said in its brief, you know, one thing that, if, you know, if SDT had pushed ahead with arbitration as of the time that they filed, their brief could be done. Okay, we pushed ahead with arbitration because the process was getting slow, we were getting worried. We filed for arbitration the day after we filed our reply brief and hoped that we could have everything done at that point and that would obviate the need for this appeal. But that has not happened. And the information that we found in the arbitration raises other concerns. I think that as far as I can go without breaching confidentiality the arbitration
. Okay. Now, obviously based on the record below, SDT doesn't feel that the court really needs to reach the merits. The court we're going to reach the merits. We think that SDT believes that it proved the Pramafesha case, which is what it needs to prove for its entowment to preliminary and junct of relief. That's under the Jan V for versus Al-Guede case from like 2011. And then Dennis Molanson construction case kind of quoted that as well. But there are so many factual disputes that go to the core of whether or not in junct of relief is proper in this case. We're not dealing with a situation where there's a first amendment violation like a Millennium Restaurant's case that tries as Edo cited, which itself would presume harm. We're not as illegal matter. We're not dealing with a case where there are no factual disputes like the Anderson Jackson case, which again, TriZeto mentioned in its briefing. And I think we've talked about in ours as well because that's again a case where no factual dispute was apparent between the parties. So the court didn't have to hold the hearing. Here, we had serious factual disputes that went to the court and the questions. They went to the court, the issues that we were dealing with. And from the district court, the day after it received TriZeto's response to our preliminary junct shan application, it ruled that really should not comport with Rule 65, which this court has held as compliance with that as mandatory. And this court has held that Rule 65 effectively incorporates the Rule 6 notice requirements. Even if there were exigent circumstances, there's no indication of that from the district court's ruling. So for those reasons, we asked the court to vacate the denial of the injunction
. All right, I think we have the argument. Thank you, Aaron. I have pleased the court. I wanted to first address a couple of issues. Mr. DiPolma mentioned the timeline, in this case, what was not clear at the time that judgment bright did rule on this matter. There were affidavits from not only the appellant, but also the apolite that set forth a variety of issues. Appellant did their best. Obviously, the court has been in the process of the implementation of the policy and their preliminary injunction here, application to present evidence that would support the application of a preliminary injunction. By the same token, apolite did the same thing. There was the records this thick, and it's double-sided, and this is mainly the preliminary injunction record. So the court, I'm not sure, just as Joe was asked about whether the arbitrator has jurisdiction to render a preliminary injunction, and my reading of the arbitration agreement carves out preliminary injunctions from the scope of the arbitrator's authority. I do not know whether the parties would agree to a preliminary injunction in the arbitration. I am not representing Trizato in the arbitration because it's pending in Denver. However, I think, yes, Joe. If we vacated this, should the preliminary injunction matter go to the Denver Court? Your Honor, Judgement Bride indicated that because we removed the case, we did move to transfer venue, his ruling was because we removed the case, we chose that jurisdiction so it was staying in the Northern District of Texas. And I believe he's correct on that issue. But the Court can just affirm the ruling of the trial court if it makes, answers a few simple questions
. The first is whether the trial court had to make findings on each element of a preliminary injunction. I believe the how case that Pellance cited in their brief indicates that if any one of the four factors required for preliminary injunction are not met, that is sufficient if the record reflects that findings were made on that. But you don't argue that this is poshed anywhere close to what we normally would see. I mean, it's a telephone call. I mean, Judgement Bride makes some comments about, you know, what arguably could be about the merits, et cetera. I mean, you know, we were reviewing court. I mean, I'm not asking you to give up your argument, but I mean, do you acknowledge it's certainly not the best poshed for an appellate court review, whatever it is, in that we don't have a record. I mean, as such, of all these matters which seemingly are contested, and I'm assuming and that they ask, I assume there are a lot of dollars at stake here. Is that a fair assumption? I think that's a fair assumption, Your Honor. The SDT estimated its damages prior to the beginning of this lawsuit they said we could buy our rights for 3.5 million. So there is some money at stake, I agree. So for, you know, I'm not saying that money is everything, but it's a lot. Okay. But I mean, with 3.5 million at stake and this, you know, dicey question about misappropriation of trade secrets. I mean, let's, it's a sophisticated area of the law. It's nuanced
. I mean, there's a lot at stake by both sides, as to whose right, et cetera. It's sophisticated parties, good counsel on both sides. I mean, why should we be put to having to determine Belnon, the correctness of a preliminary injunction that, let's just say it might be a stretch to say complies rule 65. I mean, what, I mean, where's the benefit today? Well, I believe your honor that it does comply with rule 65, and here's why. As Judge Owens has said in Garner versus Kennedy, findings of fact will not be remanded as long as they give the necessary court a clear understanding of the factual basis for the decision. Here's the factual basis for decisions. One of the elements for preliminary injunction could not be met. And that is that there was a reputable harm. SDT did not put on any evidence to support a claim of a reputable harm. Well, as he put that on in a phone call. I don't know your honor. There was no hearing. Well, because if you're honor, I disagree. I've had numerous telephone hearings with courts from the Southern District of Texas. I understand you probably have, but I will bet you that you had some notice beforehand that that's what the purpose of the call was going to be, that there was going to be a hearing. Counsel, this is what we're going to do. Be prepared to do X, be prepared to do Y, et cetera, et cetera. Right? I respectfully disagree with Mr
. DiPolma's version of what happened. We received a telephone call about hearing all of the issues were going to be present. It happens with the courts call. And more importantly, they had requested expedited consideration of this. And as Judge McBride said, in the very opening of this, we, they got that exactly. And they had an opportunity to object, as a matter of fact, you yourself had said you need to put into the record what you plan to prove as well as object to the fact that you are not receiving a hearing. They did neither in this case. It's fundamental law that you got to give Judge McBride hate, Judge Mann. We got to have an oral hearing on this and you're committing error. A lot of courts code of procedure is not clear. A rule 65 linked out, chapter and verse, what's supposed to happen. And everybody's been around the block a few times. You noted injunctive proceedings. They're extraordinary proceedings. They're particularly what you've got to prove up. They are matters that are on a short time. But I mean, the rule spells it out. And it says it in sort of mandatory terms. So I'm trying to understand this 11 minutes as compliance with rules. And I'm not trying to criticize the trial code. I'm just, that's what the rules say is. The rule does say that and Judge McBride did say exactly what he said was there are a lot of issues, just like you said, your honor. A breach contract would be found to exist such as whether or not there's a possibility for some relief besides injunctive relief, such as the recovery of damages. I haven't found anything in the papers to indicate to me that the defendant couldn't respond to a judgment and damages if required to do so. I don't think a preliminary injunction is necessary appropriate in this case on it. So I'm not going to deny the request. All right, so that if council office is correct, all that was present were the pleadings. Is that correct? There were, where there were preliminary injunctions, there were affidavits and support of the preliminary injunction request as well as affidavits in response. There was evidence present. There were tons of documents that were added. There were three separate agreements. All right, back up. All right, because maybe I misunderstood the answer to the question. You know, the petition is filed and all of that. But you're saying in connection with the request for preliminary injunction attached to the filing where all these affidavits is that what you're saying? That is correct. On the majority of what we have in the record
. So I'm trying to understand this 11 minutes as compliance with rules. And I'm not trying to criticize the trial code. I'm just, that's what the rules say is. The rule does say that and Judge McBride did say exactly what he said was there are a lot of issues, just like you said, your honor. A breach contract would be found to exist such as whether or not there's a possibility for some relief besides injunctive relief, such as the recovery of damages. I haven't found anything in the papers to indicate to me that the defendant couldn't respond to a judgment and damages if required to do so. I don't think a preliminary injunction is necessary appropriate in this case on it. So I'm not going to deny the request. All right, so that if council office is correct, all that was present were the pleadings. Is that correct? There were, where there were preliminary injunctions, there were affidavits and support of the preliminary injunction request as well as affidavits in response. There was evidence present. There were tons of documents that were added. There were three separate agreements. All right, back up. All right, because maybe I misunderstood the answer to the question. You know, the petition is filed and all of that. But you're saying in connection with the request for preliminary injunction attached to the filing where all these affidavits is that what you're saying? That is correct. On the majority of what we have in the record. Is a most two to three hundred pages of documents. We should glean from Judge McBride's ruling without any fines of fact, without any conclusions of law. But just what you just said, that he read all of that and he came to some appreciation of its meaning. And we should conclude that it was in a form judgment based on that. I mean, that's what we ought to get out of it. Your Honor, I believe it provides a clear understanding of the factual basis for the course decision. No. And that just doesn't advert to any of that. He doesn't refer to any of it. If you hadn't told me that that was there, I would not have known that based on what I read up to this point. But it gives the court an understanding of what's in, what the judge's decision was made. And that will give the court the opportunity to look into the record. The whole trial judge is to tell us what they say, what they mean, and lay it out. That's why we give them such great deference. But them to tell us unequivocally what it's based on. And we give great deference to that because we know what it's anchor to, what it's based on, the rationale, it's it. I mean, that's the whole point. But I mean, why are we going to scurry through that to figure out that it supports the real, whether it's correct or not? I don't know
. Is a most two to three hundred pages of documents. We should glean from Judge McBride's ruling without any fines of fact, without any conclusions of law. But just what you just said, that he read all of that and he came to some appreciation of its meaning. And we should conclude that it was in a form judgment based on that. I mean, that's what we ought to get out of it. Your Honor, I believe it provides a clear understanding of the factual basis for the course decision. No. And that just doesn't advert to any of that. He doesn't refer to any of it. If you hadn't told me that that was there, I would not have known that based on what I read up to this point. But it gives the court an understanding of what's in, what the judge's decision was made. And that will give the court the opportunity to look into the record. The whole trial judge is to tell us what they say, what they mean, and lay it out. That's why we give them such great deference. But them to tell us unequivocally what it's based on. And we give great deference to that because we know what it's anchor to, what it's based on, the rationale, it's it. I mean, that's the whole point. But I mean, why are we going to scurry through that to figure out that it supports the real, whether it's correct or not? I don't know. But I mean, it just seems like it's kind of flipping the script, isn't it? Your Honor, it could have been much more detailed. I agree with you. Absolutely. But there are certain circumstances even when the findings of fact are not necessary. And that is when the record is exceptionally clear. So even if these weren't here, these findings that I think are findings and apparently you don't, I believe it shows. Don't give it wrong. I haven't passed judgment. I don't mean to tell the graph that I'm just taking advantage of this forum to ask the questions that the judge has. I don't believe that these are out, but I haven't jumped to a conclusion about it. I believe that number one, he made a finding that there was no ropeable harm because money damages were adequate. Secondly, if the court goes in and looks at the record, it will demonstrate that it is exceptionally clear as required by Cura Club versus FDIC that we cited. And in there, what we have is a situation where TriZero is a wealthy company according to plaintiff's own, some own affidavits and an argument that TriZero can answer in money damages because it is a large company, that they have put forth a price for the harm. Not only in a 3.5 million will allow you to do everything you want for 3.5 million, but they also routinely license their clamed intellectual property. And that further than that, they also price the support for that. There is nothing in the record that says that there is a harm that can't be compensated in money damages in this situation
. But I mean, it just seems like it's kind of flipping the script, isn't it? Your Honor, it could have been much more detailed. I agree with you. Absolutely. But there are certain circumstances even when the findings of fact are not necessary. And that is when the record is exceptionally clear. So even if these weren't here, these findings that I think are findings and apparently you don't, I believe it shows. Don't give it wrong. I haven't passed judgment. I don't mean to tell the graph that I'm just taking advantage of this forum to ask the questions that the judge has. I don't believe that these are out, but I haven't jumped to a conclusion about it. I believe that number one, he made a finding that there was no ropeable harm because money damages were adequate. Secondly, if the court goes in and looks at the record, it will demonstrate that it is exceptionally clear as required by Cura Club versus FDIC that we cited. And in there, what we have is a situation where TriZero is a wealthy company according to plaintiff's own, some own affidavits and an argument that TriZero can answer in money damages because it is a large company, that they have put forth a price for the harm. Not only in a 3.5 million will allow you to do everything you want for 3.5 million, but they also routinely license their clamed intellectual property. And that further than that, they also price the support for that. There is nothing in the record that says that there is a harm that can't be compensated in money damages in this situation. But you're correct, and he does say that it appears that money damages might satisfy the ultimately. I mean, it's said there. I mean, I guess the difficulty is just me understanding. So he may be correct. The trial court may be correct on the ultimate determination. The problem I have is just the reviewing process is not optimum when contrary to rule 65, we don't have it laid out to where we can look at it and determine the trial court is immediately correct. Money damages that satisfy it. And the main argument council office is making, I think, is the non-compliance would rule 65, and I take it, you're saying close enough. It was close enough, is what you're saying. I think the court's interpretation of rule 65 is that this would be nice. If it wouldn't, the record is exceptionally clear that shows that there is no irreparable harm in this case. That's one of the four elements, and the court need only make a decision as to one of the four elements, and its inability of the plaintiff SDT to meet the burden of proof and order for the court, this court to affirm the trial court's ruling. Now, the second issue is which court's law applies, and that's important in this case, and we believe Colorado Law applies because it's set forth in the contract, the first agreement between the parties that Colorado Law applies. Why is that important? Because in Colorado, the presumption of irreparable harm in a trade secret case is not present as it is in Texas Law. We've cited the Bishop case that hasn't been responded to by the appellant in its briefing. Well, the Judge's right didn't say, okay, I've gone through it, I look at the update of Acts, and I think that SDT can clearly prove up its damages under Colorado Law, and there's not going to be a tracing problem. We don't have any of that. I agree with that, Your Honor, but this court has the duty to apply the law of that's applicable in this case
. But you're correct, and he does say that it appears that money damages might satisfy the ultimately. I mean, it's said there. I mean, I guess the difficulty is just me understanding. So he may be correct. The trial court may be correct on the ultimate determination. The problem I have is just the reviewing process is not optimum when contrary to rule 65, we don't have it laid out to where we can look at it and determine the trial court is immediately correct. Money damages that satisfy it. And the main argument council office is making, I think, is the non-compliance would rule 65, and I take it, you're saying close enough. It was close enough, is what you're saying. I think the court's interpretation of rule 65 is that this would be nice. If it wouldn't, the record is exceptionally clear that shows that there is no irreparable harm in this case. That's one of the four elements, and the court need only make a decision as to one of the four elements, and its inability of the plaintiff SDT to meet the burden of proof and order for the court, this court to affirm the trial court's ruling. Now, the second issue is which court's law applies, and that's important in this case, and we believe Colorado Law applies because it's set forth in the contract, the first agreement between the parties that Colorado Law applies. Why is that important? Because in Colorado, the presumption of irreparable harm in a trade secret case is not present as it is in Texas Law. We've cited the Bishop case that hasn't been responded to by the appellant in its briefing. Well, the Judge's right didn't say, okay, I've gone through it, I look at the update of Acts, and I think that SDT can clearly prove up its damages under Colorado Law, and there's not going to be a tracing problem. We don't have any of that. I agree with that, Your Honor, but this court has the duty to apply the law of that's applicable in this case. We apply, say we apply, Colorado Law. Not a law gives you an injunction if you have irreparable injury. But you have to prove a right. And we don't have any findings by Judge McWire that there are no tracing issues here at all. It's easily traceable if this proprietary information is widely disseminated, and he just got a very brief statement. It's compensable by damages. Your Honor, I agree with you that in the likelihood of success on the mayor's prong, there are fact issues. If this goes back, it does have those determinations have to be made, and the trial court did not do its job in findings of fact as to that issue. But as to the sole issue of irreparable harm, I believe the trial court made its findings. Whether it applied Texas Law incorrectly or Colorado Law correctly, this court, that's the job of this court is to say this is what the law is. So, I just want to skip through all the affidavits and say he made a good bad judgment call or be his discretion on whether damages are adequate. To note, I mean, yes, but he made the determination that damages were adequate in the situation in his finding. And so, the court does get a reference to that, so it doesn't have to go back and check the record. But we have to see if there's evidence to support that finding. And there is. And there is. But it's not our normal course to go sifting through things. I mean, you know, we've got a summary judgment on the no vote, that's different
. We apply, say we apply, Colorado Law. Not a law gives you an injunction if you have irreparable injury. But you have to prove a right. And we don't have any findings by Judge McWire that there are no tracing issues here at all. It's easily traceable if this proprietary information is widely disseminated, and he just got a very brief statement. It's compensable by damages. Your Honor, I agree with you that in the likelihood of success on the mayor's prong, there are fact issues. If this goes back, it does have those determinations have to be made, and the trial court did not do its job in findings of fact as to that issue. But as to the sole issue of irreparable harm, I believe the trial court made its findings. Whether it applied Texas Law incorrectly or Colorado Law correctly, this court, that's the job of this court is to say this is what the law is. So, I just want to skip through all the affidavits and say he made a good bad judgment call or be his discretion on whether damages are adequate. To note, I mean, yes, but he made the determination that damages were adequate in the situation in his finding. And so, the court does get a reference to that, so it doesn't have to go back and check the record. But we have to see if there's evidence to support that finding. And there is. And there is. But it's not our normal course to go sifting through things. I mean, you know, we've got a summary judgment on the no vote, that's different. But, you know, the two divine has said, you know what I'm saying? You may be ultimately correct. The problem is just process wise, it leaves something to be exact. Given that I certainly don't mean to suggest that a lot of money makes it more important, less money doesn't, I'm not saying it at all. If no money was involved, but clearly where there are high stakes on both sides, it just seems even your client or whatever is benefited by, you know, a full fair determination. I know he would want to hang on to status quo. I get you. But it is murky here, not only on that, but just this question you just raised about applying Colorado law or not. I'm not sure. I mean, you're in the Northern District of Texas. I don't know. Well, let's ask you the question we asked. Assuming we don't agree with your position and we just want to do the least amount of harm here, and we just vacate the non-compliance, you know, with rule 65 or something to that effect. Where does that put the parties in so far as what's played and where you are and this whole question of what the arbitrator can do? Again, I think the party's agreement would send this back down to the trial court and we would start at square one as it was on July 2nd of last year. Whether the parties would agree to arbitrate the matter with the arbitrator, I'm not at liberty to say because I'm not representing Trizato in that matter. Okay, at minimum, I mean, you've answered me. You just you'd be back down in the Northern District of Texas to tackle whatever issues might be. It may just be the court needs to make further findings on likelihood of success. I think he still think he's done an adequate job on irreparable harm
. But, you know, the two divine has said, you know what I'm saying? You may be ultimately correct. The problem is just process wise, it leaves something to be exact. Given that I certainly don't mean to suggest that a lot of money makes it more important, less money doesn't, I'm not saying it at all. If no money was involved, but clearly where there are high stakes on both sides, it just seems even your client or whatever is benefited by, you know, a full fair determination. I know he would want to hang on to status quo. I get you. But it is murky here, not only on that, but just this question you just raised about applying Colorado law or not. I'm not sure. I mean, you're in the Northern District of Texas. I don't know. Well, let's ask you the question we asked. Assuming we don't agree with your position and we just want to do the least amount of harm here, and we just vacate the non-compliance, you know, with rule 65 or something to that effect. Where does that put the parties in so far as what's played and where you are and this whole question of what the arbitrator can do? Again, I think the party's agreement would send this back down to the trial court and we would start at square one as it was on July 2nd of last year. Whether the parties would agree to arbitrate the matter with the arbitrator, I'm not at liberty to say because I'm not representing Trizato in that matter. Okay, at minimum, I mean, you've answered me. You just you'd be back down in the Northern District of Texas to tackle whatever issues might be. It may just be the court needs to make further findings on likelihood of success. I think he still think he's done an adequate job on irreparable harm. So the Colorado proceedings that are arbitrary is just pending until all of this is unravel one way or the other? My understanding until today was that the arbitration was started after we filed our Apple East brief and mentioned that they had taken six to nine months and so where was the harm? And now it's pending and it's like I said, I'm not involved with that and it is I understand that it is confidential under the James rules. So I don't know how much I'm prepared to his counsel here. So I've hit the highlights. If the court has any other questions, I'll be happy to answer them. No, I appreciate it. I mean, and I think we understand your argument. And you've helped us with understanding what is in the filings, et cetera, because I was under misapprehension that just completing just the complainant and answer and you've helped and explaining that. So all right. Thank you. I don't want to have to create more work for the court, but I still believe that under the CERA club versus FDIC, if this viewing, if this finding the court determines his inadequate. It still has a duty to go back and look at the record to see if the it's if there's exceptionally clear evidence of lack of a reverberable harm, which I believe is applicable here. Okay. All right. Thank you. We have your argument. All right. Any rebuttal, Mr. DiPolo? Your honor is very briefly on the conflict of law issue
. So the Colorado proceedings that are arbitrary is just pending until all of this is unravel one way or the other? My understanding until today was that the arbitration was started after we filed our Apple East brief and mentioned that they had taken six to nine months and so where was the harm? And now it's pending and it's like I said, I'm not involved with that and it is I understand that it is confidential under the James rules. So I don't know how much I'm prepared to his counsel here. So I've hit the highlights. If the court has any other questions, I'll be happy to answer them. No, I appreciate it. I mean, and I think we understand your argument. And you've helped us with understanding what is in the filings, et cetera, because I was under misapprehension that just completing just the complainant and answer and you've helped and explaining that. So all right. Thank you. I don't want to have to create more work for the court, but I still believe that under the CERA club versus FDIC, if this viewing, if this finding the court determines his inadequate. It still has a duty to go back and look at the record to see if the it's if there's exceptionally clear evidence of lack of a reverberable harm, which I believe is applicable here. Okay. All right. Thank you. We have your argument. All right. Any rebuttal, Mr. DiPolo? Your honor is very briefly on the conflict of law issue. The district court initially applies the forms choice of law rules because it's sitting as an eerie court. So it applies Texas law on conflicts of laws. Texas requires you to clean and prove the conflict and the most significant relationship or a choice of law provision. The methodology license doesn't have a choice of law provision. So there's no default to Colorado law under the methodology license, which is what we claimed under, which is what STT sued from reach up in the trial court. The trizetto briefing in the trial court did not indicate how Colorado law differs from Texas law. They did not plead and prove. Mr. Jenkins just mentioned the bishop case. The bishop case is one in which the plaintiff said essentially, I have pled from misappropriation of trade secrets. Therefore, I get preliminary injunction. The Colorado court of appeals said, no, you still have to show a reverberable harm, which means that you have to make some showing that there was a misappropriation of trade secrets because that would be the reverberable harm. A few years after that bishop case, the Colorado court of appeals, same court, although it might be a different branch, so I apologize if that makes a difference. But I don't know the Colorado divisions. The same court in the Gold Messenger Inc. versus the Magay and C. Capitol, GUY case. This is 937 p
. The district court initially applies the forms choice of law rules because it's sitting as an eerie court. So it applies Texas law on conflicts of laws. Texas requires you to clean and prove the conflict and the most significant relationship or a choice of law provision. The methodology license doesn't have a choice of law provision. So there's no default to Colorado law under the methodology license, which is what we claimed under, which is what STT sued from reach up in the trial court. The trizetto briefing in the trial court did not indicate how Colorado law differs from Texas law. They did not plead and prove. Mr. Jenkins just mentioned the bishop case. The bishop case is one in which the plaintiff said essentially, I have pled from misappropriation of trade secrets. Therefore, I get preliminary injunction. The Colorado court of appeals said, no, you still have to show a reverberable harm, which means that you have to make some showing that there was a misappropriation of trade secrets because that would be the reverberable harm. A few years after that bishop case, the Colorado court of appeals, same court, although it might be a different branch, so I apologize if that makes a difference. But I don't know the Colorado divisions. The same court in the Gold Messenger Inc. versus the Magay and C. Capitol, GUY case. This is 937 p. 2907. This is after the bishop case. And this is in our brief and our reply brief, it pays 17. Okay. That court said unequivocally that Colorado law recognizes that misappropriation of a trade secret is, quote, in and of itself, grounds for an injunction against a defendant under the Colorado uniform trade secrets act. Unquote and it cited Colorado Revised Statutes Section 7-7-4-103. Therefore, if the district court, and if this court inferes that the district court made of finding that there was no irreparable harm because any harm to STT could be offset by money damages at the after trial, and there is no irreparable harm between now and that ultimate trial date, it made an erroneous conclusion of law because under either Texas or Colorado law, it's wrong. And the district court has discretion regarding the facts, but it has zero discretion regarding applying the law appropriately. It has to apply the law correctly. If it had the ultimate answer, the Mr. Jenkins said that this one facet of the preliminary injunction test, was not met. That's the only possible conclusion that there was, and potentially finding, it made illegally erroneous conclusion. And for that reason, it has to be vacated. It made no other findings. It made no other conclusions other than STT doesn't get a preliminary injunction. It has basically done nothing to aid this court's review, whereas any magistrate who had done this put forth an opinion for a district court would probably set out facts and including the mechanical basis, just as former Texas Supreme Court Justice Baker used to do it in a mechanical basis. Here's the law, here's the facts, here are the facts applied to the law. That's not what we have here, and so I don't know how you can review that
. Thank you to both counsel for your briefs and argument. The case will be submitted. We call the final case for argument this morning