[00:00:00] Speaker 04:
The next case on our docket is United Net versus Tata.

[00:00:07] Speaker 03:
That's how I pronounce it, Your Honor, but you'd have to ask.

[00:00:10] Speaker 03:
Is it Tata?

[00:00:12] Speaker 03:
Tata, OK, good.

[00:00:18] Speaker 03:
Thank you.

[00:00:19] Speaker 03:
May it please the court, my name is Scott Fuqua.

[00:00:21] Speaker 03:
I represent appellants in this matter.

[00:00:23] Speaker 03:
This is a matter arising, as you get the flavor from the briefing, from a failed business deal.

[00:00:28] Speaker 03:
that had to do with the purchase of telecommunications assets at below market value in the hope that they would be able to be used and sold to earn a profit.

[00:00:39] Speaker 03:
Fairly straightforward business deal.

[00:00:41] Speaker 03:
What I believe the appeal fundamentally focuses on, what it really comes down to, is the application of New Mexico's place in the wrong rule.

[00:00:49] Speaker 03:
Appellants asserted five causes of action, each sounding in toward there's a cause for

[00:00:54] Speaker 03:
breach of fiduciary duty, one for abating and abetting that breach of fiduciary duty.

[00:00:58] Speaker 03:
There's a cause for tortious interference.

[00:01:00] Speaker 03:
There is a general civil conspiracy complaint.

[00:01:02] Speaker 03:
There's also a claim for unjust enrichment.

[00:01:06] Speaker 03:
Now, for each one of those torts, and particularly for the first four, this question of whether this case belongs in the Federal District Court for the District of New Mexico or belongs in the UK turns on the application of that place of the wrong rule.

[00:01:21] Speaker 03:
Appellants have urged

[00:01:22] Speaker 03:
that the appropriate application to that rule is to hear the tort causes of action in the jurisdiction in which the last act necessary to give rise to liability on behalf of the actor is heard.

[00:01:34] Speaker 04:
So do you do that assessment based on the elements of the tort?

[00:01:42] Speaker 04:
The last act to create liability, I assume that that turns on the application of the elements.

[00:01:50] Speaker 03:
Not necessarily, Your Honor.

[00:01:53] Speaker 03:
It certainly could, and there are certainly cases where the issues presented in this case just don't present themselves at all, particularly in the tortious interference context, which I'll get to in just a moment.

[00:02:02] Speaker 03:
But sort of globally, what I'm hoping to address, first of all, is the application rule.

[00:02:06] Speaker 03:
Second, I'd like to address more specifically some of the questions surrounding the tortious interference claim.

[00:02:12] Speaker 03:
And third, a couple of the issues raised in the answer brief that are not properly before the court procedurally.

[00:02:18] Speaker 03:
But with the application of New Mexico's place of the wrong rule,

[00:02:22] Speaker 03:
It certainly can, in some cases, turn on the elements of the claim.

[00:02:28] Speaker 03:
I think that's really only important for the tortious interference claim.

[00:02:31] Speaker 03:
This is one of the points that I wanted to make.

[00:02:33] Speaker 03:
There's not a lot in the briefing, and I bear some fault for this, of course, myself having submitted two of the three briefs, but there's not much in the briefing addressing the claim for breach of fiduciary duty and aiding and abetting breach of fiduciary duty as it relates to the application of the place of the wrong rule.

[00:02:51] Speaker 03:
The briefing is mostly focused by both parties on the tortious interference claim.

[00:02:54] Speaker 03:
As it relates, though, to the first claim for breach of fiduciary duty, you don't have the same kind of baggage that you have on the tortious interference piece of it trying to determine what it is that constitutes tortious interference and whether or not the termination of the contract to which the party who's asserting the cause of action was a party is an element of the claim.

[00:03:14] Speaker 03:
I'll preview that by saying it isn't, and I'll talk in some more detail about that later.

[00:03:18] Speaker 03:
But as it relates to the breach of fiduciary duty claim, the only question is, where did the breach occur?

[00:03:23] Speaker 03:
Where was the conduct that caused the breach of fiduciary duty or constituted the breach of fiduciary duty?

[00:03:29] Speaker 04:
So you do that, I assume, by looking at the elements of what constitutes a breach of fiduciary duty, right?

[00:03:34] Speaker 03:
Sure.

[00:03:35] Speaker 03:
And I may have misunderstood your question before, Your Honor.

[00:03:38] Speaker 03:
But yes, to determine whether or not a breach of fiduciary duty occurred, you of course have to know what it is that constitutes a breach of fiduciary duty.

[00:03:44] Speaker 03:
And you do that by looking at the elements.

[00:03:46] Speaker 03:
I don't know where else you would look.

[00:03:47] Speaker 04:
Yeah, and same for the tortious interference with contracts, right?

[00:03:49] Speaker 03:
There's one wrinkle on the tortious interference piece, which has to do with whether or not the termination of the contract is itself.

[00:03:55] Speaker 03:
an element of the cause of action.

[00:03:57] Speaker 03:
There's a dispute between parties on that.

[00:03:58] Speaker 04:
Okay, but you're like a chess player at the 10th move.

[00:04:02] Speaker 04:
Okay, I'm just a novice chess player.

[00:04:04] Speaker 04:
I'm just saying, so where do we look?

[00:04:08] Speaker 04:
My 15-year-old beats me every time in chess.

[00:04:12] Speaker 04:
To determine what the last event creating liability for torsion interference with contract, you at least

[00:04:19] Speaker 04:
The board is the Elements.

[00:04:21] Speaker 03:
You've got to know what the claim is, and the claim is defined by the Elements.

[00:04:23] Speaker 04:
Do you look at New Mexico tort law for Elements, or do you look at UK Elements?

[00:04:29] Speaker 03:
New Mexico, Your Honor.

[00:04:31] Speaker 03:
And that is an issue also that is submitted on the briefs, and I'm certainly happy to answer questions about that.

[00:04:37] Speaker 03:
But yes, New Mexico is the appropriate, because it's New Mexico's choice of law rules that are being applied by the district court in determining whether or not form on convenience applies in the first instance.

[00:04:48] Speaker 03:
And that's an appropriate application.

[00:04:50] Speaker 03:
And there's no dispute about that.

[00:04:51] Speaker 03:
I don't read Appellee's brief as disputing the application of New Mexico law.

[00:04:57] Speaker 03:
I mean, that's what their brief argues as well, to the question of whether or not jurisdiction properly lies in New Mexico or whether this case needs to go to the UK.

[00:05:06] Speaker 02:
And New Mexico looks to the restatement first of courts.

[00:05:11] Speaker 03:
A restatement first of conflict of law, a restatement second of torts.

[00:05:15] Speaker 03:
And the restatement and second torts piece is only important in that tortious interference context.

[00:05:20] Speaker 03:
Well, actually, that's not true.

[00:05:21] Speaker 03:
It's important in the context of all of the claims.

[00:05:23] Speaker 03:
And that's actually the first thing that I wanted to address, which is this distinction that is drawn in New Mexico law between injury, which is the invasion of a cognizable legal interest, a protected legal interest on the one hand, and harm or damage, which is the economic consequence of the injury.

[00:05:41] Speaker 03:
New Mexico treats those two concepts distinctly.

[00:05:44] Speaker 03:
Appellees are trying very hard to conflate them because what they want is what they have said is the injury was felt, the harm was felt in the UK.

[00:05:54] Speaker 03:
That's where both of appellants are.

[00:05:55] Speaker 02:
We didn't have a complete action under the elements of the claim until you had what happened in the UK.

[00:06:05] Speaker 03:
I respectfully disagree, Your Honor.

[00:06:07] Speaker 02:
The reason that I do is because... So if I interfere with your contract, or I try to interfere with your contract, but the party continues to honor the contract, I have a cause of action.

[00:06:18] Speaker 03:
Well, Your Honor, this is what the Carroll case...

[00:06:20] Speaker 02:
Well, this is what you think, the Carroll case.

[00:06:26] Speaker 02:
Carroll is a statutory violation defined by ERISA.

[00:06:31] Speaker 02:
Correct.

[00:06:32] Speaker 02:
Okay, we don't have a statutory violation here.

[00:06:35] Speaker 02:
We have a tort claim.

[00:06:37] Speaker 02:
That's correct.

[00:06:37] Speaker 02:
That, as Judge Bacharach has pointed out, is defined by its elements, not by a statute.

[00:06:44] Speaker 03:
That's correct.

[00:06:45] Speaker 03:
And the elements of a tortious interference claim, this is one of the disputes between the parties,

[00:06:50] Speaker 03:
Appellees would have the court hold that you can only have a tortious interference claim if there are some damages flowing from the breach of contract.

[00:06:58] Speaker 04:
Isn't that exactly what Martin v. Franklin said the fourth element is for tortious interference with contract, verbatim what you just said?

[00:07:06] Speaker 03:
In such a case in which the alleged interference was the breach of the contract.

[00:07:11] Speaker 03:
But there is law in New Mexico and it is cited in the briefing that addresses the case where a contract is interfered with

[00:07:19] Speaker 03:
not by convincing one of the contracting parties to breach the contract, but by interfering with the ability of one of the parties to the contract to do what they're supposed to do under the contract to enjoy the benefits coming to them as a result of their performance.

[00:07:32] Speaker 04:
So what is the stand-in element in that scenario for what you say is no longer the applicable fourth element?

[00:07:42] Speaker 03:
If I understand the question correctly, what you have to demonstrate for the kind of tortious interference claim

[00:07:48] Speaker 03:
have asserted here, is that you had a valid contract, you had the reasonable expectation of the benefits of that contract, and that the party that you have sued has interfered with your ability to obtain those benefits.

[00:08:00] Speaker 04:
Okay, let's say hypothetically that the Tata signatories say, well, you know, you, United Net, have really shown us that

[00:08:11] Speaker 04:
that other entities that did not sign this contract, unfortunately, that we're ashamed to say are related to us, our affiliated enterprises, have interfered with your ability to get a letter of credit or to have liquid assets of $10.7 million.

[00:08:26] Speaker 04:
So we're going to waive that.

[00:08:28] Speaker 04:
We are going to proceed with the contract.

[00:08:29] Speaker 04:
Do you still have a tortious interference with contract claim that has accrued?

[00:08:37] Speaker 03:
Well, under those circumstances, the impossibility of performance has been removed.

[00:08:40] Speaker 03:
So no.

[00:08:42] Speaker 02:
So that it doesn't underscore that you have to show the damage.

[00:08:49] Speaker 02:
You have to show the contract was terminated.

[00:08:52] Speaker 02:
That your interference has to have been successful.

[00:08:58] Speaker 03:
You do have to show that the interference was successful, and here it was.

[00:09:00] Speaker 03:
The interference was not convincing the signatory... It was successful because

[00:09:06] Speaker 02:
they enforced the terms of the contract that you were unable to perform and terminated rather than being the very wonderful people that Judge Bacharach is envisioning who waive all the conditions because you were treated unfairly.

[00:09:23] Speaker 03:
I think, respectfully, Your Honor, that conflates exactly the two principles that New Mexico law treats separately.

[00:09:30] Speaker 03:
The success of the interference was not the determination of the contract.

[00:09:34] Speaker 03:
The success of the interference was making it impossible for appellants to perform under the contract.

[00:09:40] Speaker 03:
That's how the interference became successful.

[00:09:43] Speaker 03:
Numerous roadblocks put in their way that made it impossible for appellants to do what they were supposed to do, at which point the Tata signatories to the contract were entirely privilege-determinated because appellants hadn't done what they were supposed to do.

[00:09:55] Speaker 03:
The question is, why didn't appellants do what they were supposed to do?

[00:09:58] Speaker 03:
And the answer is because of the torturous interference of appellees.

[00:10:02] Speaker 03:
And that is the interference that the tortious interference claim centers on.

[00:10:06] Speaker 03:
It doesn't require a breach of contract.

[00:10:08] Speaker 03:
There was no breach of contract by the Tata signatories.

[00:10:13] Speaker 03:
Like I said, they were perfectly privileged to terminate the contract.

[00:10:16] Speaker 03:
And it can't be the case that a third party, not a party to the contract, can interfere with the ability of one of the parties to the contract to perform such that the inevitable result is

[00:10:30] Speaker 03:
contract is terminated, they lose the contract's benefit and say, yeah, but you didn't get tortious interference because nobody breached the contract.

[00:10:36] Speaker 04:
Isn't that exactly what happened in Santa Fe Technologies?

[00:10:39] Speaker 04:
You know, in other words, if the federal government had canceled the bid and said, well, there's been shenanigans in the substitution of the bidding companies, we are going to cancel the bid, would there have been liability in Santa Fe Technologies?

[00:10:55] Speaker 03:
If the federal government had said... Cancel the bid.

[00:10:59] Speaker 03:
In that case, I think the answer is the same that I gave you earlier.

[00:11:03] Speaker 03:
No.

[00:11:04] Speaker 03:
Because in that case, the tortures interference didn't succeed in its goal.

[00:11:07] Speaker 02:
And so here, we don't know if the tortious interference succeeds until they cancel the contract.

[00:11:13] Speaker 02:
They terminate the contract for non-performance.

[00:11:16] Speaker 02:
Again, Your Honor, and I apologize for struggling so mightily against this, but I think- Well, I'd struggle against it too, because it sort of hinges on your informed non-convenience.

[00:11:29] Speaker 03:
Well, it is the key distinction that identifies the fundamental dispute between the parties at the core of the appeal, absolutely.

[00:11:37] Speaker 03:
The distinction is, Your Honor, the tortious interference occurred at the point that it was impossible for appellants to perform under the contract.

[00:11:48] Speaker 03:
That doesn't depend on the termination of the contract.

[00:11:51] Speaker 02:
But it wasn't actionable then.

[00:11:54] Speaker 03:
They had no economic harm.

[00:11:55] Speaker 03:
But again, this is the distinction between injury, the invasion of a cognizable injury.

[00:12:00] Speaker 02:
Well, injury is a legal injury, and you don't have a legal injury without

[00:12:04] Speaker 02:
harm in very limited circumstances like a trespass.

[00:12:09] Speaker 03:
Well, or some of the circumstances set out in the opinion by the Carroll Court are applicable, too.

[00:12:14] Speaker 02:
You have a surgeon... You have a violation of a statutory requirement in Carroll.

[00:12:19] Speaker 03:
I'm not talking about the violation in ERISA.

[00:12:22] Speaker 03:
I'm talking about the other examples identified by the court, such as you have a surgeon who

[00:12:28] Speaker 03:
who leaves a sponge in.

[00:12:29] Speaker 03:
You don't know about that until later.

[00:12:31] Speaker 03:
You have somebody at will that gives the house to the wrong air.

[00:12:36] Speaker 03:
You find out about that after the fact.

[00:12:39] Speaker 03:
The injury is the leaving the sponge in.

[00:12:43] Speaker 03:
The economic harm is the result of

[00:12:47] Speaker 03:
either having to have it taken out or whatever it is that has to be done to remedy the problem.

[00:12:51] Speaker 02:
But the... But you don't have an injury here until there are consequences from the interference.

[00:12:59] Speaker 03:
That, Your Honor, goes to the heart of the distinction.

[00:13:01] Speaker 02:
I mean, you don't have a situation here where

[00:13:05] Speaker 02:
you know, by somehow they gave you bad information and it made you make a bad choice that they were statutorily required to give you full information.

[00:13:16] Speaker 02:
You know, you have a situation where allegedly they interfered with your performance and you didn't suffer any injury from that until you lost the contract.

[00:13:29] Speaker 03:
Your Honor, what I would say to that is that that use of the word injury is precisely a conflation

[00:13:35] Speaker 03:
that I contend appellees are guilty of.

[00:13:38] Speaker 03:
Injury is not the economic harm.

[00:13:41] Speaker 03:
Injury is the invasion of a cognizable legal right.

[00:13:44] Speaker 03:
And here, appellants had a cognizable legal right, both to the expectancies under the contract and that they would be treated consistent with the fiduciary obligations that appellees bore to them.

[00:13:55] Speaker 03:
Neither one of those things happened.

[00:13:56] Speaker 03:
The harm, the economic harm, the damages, yes, flow from the termination of the contract.

[00:14:02] Speaker 03:
But the injury precedes those damages and is distinct from those damages.

[00:14:05] Speaker 03:
And that's what I think that the Carroll case illustrates, not just in the Orissa context, but also in some of the common law contexts that the court discusses by way of example in Carroll.

[00:14:19] Speaker 03:
It is also in the statement, second of torts, right?

[00:14:23] Speaker 03:
It provides other examples, such as trespass.

[00:14:25] Speaker 03:
You know, somebody steps onto another person's land, there's an injury, that's trespass.

[00:14:30] Speaker 03:
But if it's so transitory that it doesn't actually cause damage to the land, there may not be damages from it.

[00:14:35] Speaker 03:
It doesn't mean there wasn't trespass and it doesn't mean there wasn't an invasion on the legally recognizable right.

[00:14:40] Speaker 03:
The same thing could be, in fact, the example goes even further.

[00:14:42] Speaker 03:
Say the trespass actually benefited the land in some way.

[00:14:45] Speaker 03:
It was still a trespass.

[00:14:47] Speaker 03:
And here, there is still tortious interference with economic harm coming later.

[00:14:51] Speaker 03:
And that distinction is critical to determining the jurisdictional issue in this case.

[00:14:57] Speaker 03:
I am out of time.

[00:14:59] Speaker 01:
At what point could they have filed this action if they didn't need the termination of the contract as the last act?

[00:15:07] Speaker 03:
I think they could have filed it as soon as they came to be aware that there had been a surreptitious action taken to prevent them from and them being appellants.

[00:15:17] Speaker 01:
But if the contract hadn't been terminated, they could have continued to make an effort, you know, to... And they did.

[00:15:26] Speaker 03:
That's actually exactly what happened.

[00:15:28] Speaker 01:
They did continue to make an effort to... Which is why the contract's termination seems to be the last act that's required.

[00:15:34] Speaker 03:
Well, the termination of the contract

[00:15:36] Speaker 03:
is the act that creates the economic harm.

[00:15:40] Speaker 03:
There's no doubt about that.

[00:15:41] Speaker 03:
There's no doubt about that.

[00:15:43] Speaker 03:
But for two reasons, one I've already discussed, the distinction between the invasion of the legally recognizable injury and the economic harm that results from that, and also because it puts us in sort of the odd position of liability on behalf of one actor turning not on their own conduct, but on the consequential conduct taken by others, which in this particular case,

[00:16:06] Speaker 03:
was conduct those parties were legally entitled to take because of the breach.

[00:16:10] Speaker 02:
But that's always the case within interference of contract case.

[00:16:15] Speaker 02:
I mean, unless it's the other party to the contract, you're always going to have a situation where

[00:16:23] Speaker 02:
Your cause of action depends on the activity of a third party coming in and interfering with your performance.

[00:16:31] Speaker 02:
And you can keep trying and trying and trying to perform until the other party through the contract says, I'm done.

[00:16:38] Speaker 02:
The contract's over.

[00:16:39] Speaker 03:
Typically, though, the circumstance under which that typically arises is where one party is inducing a breach of the non-party to the contract.

[00:16:47] Speaker 03:
is inducing a breach by one of the other parties, saying, hey, look, I know you've got this deal over here, but I want you to do business with me instead, and taking the business away from the party who then asserts the tortious interference claim.

[00:16:59] Speaker 03:
Under those circumstances, the act that causes the injury and the act that caused the economic harm are the very same act.

[00:17:06] Speaker 03:
It is the drawing of the inducing of the breach of the contract.

[00:17:10] Speaker 03:
And that's just not the claim that's asserted here, because the facts don't bear that out in this particular case.

[00:17:16] Speaker 03:
I apologize, I've gone a little over time.

[00:17:19] Speaker 03:
If you have questions, I'm happy to answer them, but I know you've got other business to get to.

[00:17:23] Speaker 03:
Okay, thank you very much.

[00:17:24] Speaker 03:
Thank you.

[00:17:31] Speaker 05:
May it please the Court, Doug Janisic, representing Appalee's Latin Group, and Stephen Lucero.

[00:17:38] Speaker 05:
I will be arguing the forum non-convenes issue on behalf of all of the Appalee's.

[00:17:43] Speaker 05:
Council for Tata Sons and Tata India

[00:17:46] Speaker 05:
Philip Robin will address their personal jurisdiction defense.

[00:17:51] Speaker 05:
The district court was well within its discretion to send this case to where it belongs, the UK.

[00:17:58] Speaker 05:
United Net is located in the UK.

[00:18:00] Speaker 05:
Its suit centers around a purchase contract United Net entered into with overseas companies, one of which is also in the UK.

[00:18:10] Speaker 05:
The contract is governed by UK law.

[00:18:13] Speaker 05:
And the assets that are the subject of the contract are in the UK and the Netherlands.

[00:18:20] Speaker 05:
And the district court was right.

[00:18:21] Speaker 05:
Under New Mexico's choice of law rules, foreign law applied to the claims that United Net brought.

[00:18:29] Speaker 05:
And to top it off, all defendants have consented to jurisdiction in the UK.

[00:18:36] Speaker 05:
So this is not a question as housing counsel

[00:18:41] Speaker 05:
posed during his argument where, how can this not be torsious interference?

[00:18:46] Speaker 05:
How can you do these things and not have a claim?

[00:18:50] Speaker 05:
That's not the issue.

[00:18:52] Speaker 05:
There could be torsious interference, but the question is, where does the case belong?

[00:18:59] Speaker 05:
He can bring his torsious interference claim, but he has to do it in the UK, not in New Mexico.

[00:19:05] Speaker 04:
Let me ask you the same question I asked United Dance Council.

[00:19:08] Speaker 04:
You would determine the last event creating liability based on the elements, right?

[00:19:15] Speaker 05:
That is correct.

[00:19:16] Speaker 05:
New Mexico kind of also looks at the characterization of the claim.

[00:19:21] Speaker 05:
Is it a tort, which would be lex loci de lecti?

[00:19:25] Speaker 05:
Is it like a contract, which is then where the contract is made?

[00:19:29] Speaker 04:
But you've endorsed the place of the wrong test.

[00:19:32] Speaker 04:
Yes.

[00:19:33] Speaker 04:
Right.

[00:19:33] Speaker 04:
And that's based on the last event creating liability, at least on the tortious interference

[00:19:38] Speaker 04:
contract claim, right?

[00:19:40] Speaker 05:
That is correct, Your Honor.

[00:19:41] Speaker 05:
And also for all of the claims, certainly the tort claims, breach of fiduciary duty, and tortious interference.

[00:19:49] Speaker 05:
I do want to correct, it is not an unjust enrichment claim.

[00:19:52] Speaker 05:
It is a quantum Marrowitt claim that is count five.

[00:19:57] Speaker 05:
And that makes a difference.

[00:19:58] Speaker 02:
OK, let me, because I have a question about that, because if we're looking at unjust enrichment, he was enriched in New Mexico, right?

[00:20:06] Speaker 02:
So why are you making that?

[00:20:10] Speaker 02:
What is the difference in that distinction?

[00:20:12] Speaker 05:
Okay.

[00:20:13] Speaker 05:
First, let me say with respect to the, is there a different choice of law test?

[00:20:19] Speaker 05:
The plaintiff here has lumped all five together into the last act, giving rise to an injury.

[00:20:25] Speaker 05:
So we would submit that it's been waived, that there is even a separate test.

[00:20:31] Speaker 05:
But secondly, if you look at quantum marijuana in paragraph 122 of the complaint,

[00:20:36] Speaker 05:
And again, it's titled quantum merit, not unjust enrichment.

[00:20:40] Speaker 05:
And the difference is the claim in there is Russell claims, quote, equitable entitlement to compensation for services performed.

[00:20:52] Speaker 05:
Well, Russell's in the UK.

[00:20:54] Speaker 05:
The services he performed are in the UK.

[00:20:57] Speaker 05:
So even if there is a separate choice of law test for quantum merit, and again, we deem it waived, it would still fall to the UK.

[00:21:06] Speaker 05:
And on top of that, it really is irrelevant to the extent that if all four of the tort claims are subject to forum nonconvenes, then the district court is well within its discretion to not split this case apart, keep one in New Mexico and the other four in the UK.

[00:21:25] Speaker 05:
Instead, the district court said, I'm keeping this together and sending all five claims.

[00:21:32] Speaker 04:
Can I ask you, Alan, as far as the last event creating liability, how it would work with sort of an unusual type of tort claim that United Net has?

[00:21:43] Speaker 04:
And let me ask you, by virtue of sort of a fictional, a hypothetical question.

[00:21:48] Speaker 04:
Let's say I decide to open, thinking of a case we had this morning, a car dealership.

[00:21:53] Speaker 04:
And I call it Bob Backerack Car Dealership.

[00:21:57] Speaker 04:
And I go to

[00:22:00] Speaker 04:
Bank Janicek.

[00:22:07] Speaker 04:
And I say, you know, I'd like to have a letter of credit financing for, you know, $20 million.

[00:22:15] Speaker 04:
And I have my competing car dealer.

[00:22:19] Speaker 04:
I'm a competitor with the Moritz Car Dealership.

[00:22:23] Speaker 04:
And she goes to the Genesic financing company and says, you know, that Baccarat Car Dealership, he's filed bankruptcy.

[00:22:32] Speaker 04:
He's done all sorts of bad things.

[00:22:35] Speaker 04:
He's got felony conviction.

[00:22:36] Speaker 04:
You know, the owner has felony convictions, et cetera, all of which are just terribly untrue.

[00:22:42] Speaker 04:
And I say, well,

[00:22:44] Speaker 04:
You know, we have a contract, you know, Janusic, and you say, well, that's right.

[00:22:49] Speaker 04:
We do have a letter of credit.

[00:22:50] Speaker 04:
You know, we have an agreement.

[00:22:52] Speaker 04:
We're going to abide by it.

[00:22:53] Speaker 04:
But on the other hand, I have started my contractual relationship with you on a pretty sour footing.

[00:22:59] Speaker 04:
And just like if United Net had started

[00:23:04] Speaker 04:
had not had the contract canceled and the Tata signatories had said, well, we're going to go ahead with the contract.

[00:23:09] Speaker 04:
Well, you've already started without the financing that you had promised.

[00:23:14] Speaker 04:
Why doesn't that create liability?

[00:23:17] Speaker 05:
And I think this goes back to the New Mexico case, Santa Fe Technologies, where the court there said a wrong without damage

[00:23:25] Speaker 05:
does not amount to a cause of impact.

[00:23:30] Speaker 04:
Why don't they have damages even if the title signatories hadn't canceled the contract?

[00:23:34] Speaker 04:
They're starting that huge undertaking with the blemish that they started without the $10.7 million of liquid assets.

[00:23:46] Speaker 05:
But that's the nature of a tortious interference claim, which is what they brought.

[00:23:50] Speaker 05:
Had there been, hypothetically,

[00:23:52] Speaker 05:
a provision, for example, in that contract you're referring to or in this one for liquidated damages.

[00:23:58] Speaker 05:
Let's say you have to meet a certain deadline for funding, and you don't meet that, and then those are assessed.

[00:24:07] Speaker 05:
And by your interference, those LDs are assessed.

[00:24:10] Speaker 05:
Well, that's a different case.

[00:24:12] Speaker 05:
There you actually have harm.

[00:24:15] Speaker 05:
We may not know the amount, but there is the fact of damage.

[00:24:18] Speaker 05:
You have to have the fact of damage.

[00:24:20] Speaker 05:
And so in your hypothetical,

[00:24:23] Speaker 05:
Yes, possibly what he said could be defamatory.

[00:24:27] Speaker 05:
And then if you brought a defamation claim, you'd have to look at where did that wrong occur.

[00:24:31] Speaker 05:
But if you're looking at tortious interference, if it's ignored, if those attempts are ignored, think of it as a simple non-compete agreement, something everyone who's been an employee can appreciate.

[00:24:44] Speaker 05:
If a competitor calls a former employee and urges them to come to work for them,

[00:24:50] Speaker 05:
knows about the non-compete, says, don't worry about that non-compete.

[00:24:54] Speaker 05:
In fact, we'll give you a bonus, and if you can bring these files with you, we'll give you an added bonus.

[00:25:00] Speaker 05:
If the employee says no,

[00:25:03] Speaker 05:
There's no legal injury.

[00:25:06] Speaker 04:
What if they had, and I'm sorry to take up so much of your time, but what if Unitednet had called the client torsion interference with prospective business advantage?

[00:25:14] Speaker 04:
There's no longer an element that has to be termination of the contract, just that you interfered with a prospective business relationship with the title of signatories or any other enterprise.

[00:25:25] Speaker 04:
Now would the last event of created liability have already taken place?

[00:25:30] Speaker 04:
prior to the Tata signatories cancellation of the contract.

[00:25:34] Speaker 05:
What's the fact of damage there, though?

[00:25:36] Speaker 05:
Again, I'm not... You've interfered with their liquidity.

[00:25:40] Speaker 05:
Okay, that's possible, but even in this case, there's allegations of threatening to send them into bankruptcy, but it never happened.

[00:25:50] Speaker 05:
There could be allegations that could be made that certainly would say, okay, at this point, we have suffered an economic harm.

[00:25:57] Speaker 05:
We don't know the amount.

[00:25:59] Speaker 05:
We agree with it.

[00:26:00] Speaker 05:
It's not the amount, but we have suffered a harm.

[00:26:03] Speaker 05:
But that's not what this complaint alleges.

[00:26:06] Speaker 05:
And in fact, they never even sought leave to amend in the district court.

[00:26:09] Speaker 05:
They didn't seek it here in their opening brief.

[00:26:12] Speaker 05:
And so this is the complaint that we're stuck with.

[00:26:16] Speaker 05:
And I want to point out, to kind of sum up in terms of what their theory was, if you look at paragraph 13 of the complaint,

[00:26:27] Speaker 05:
It's clear where they say, this is the first sentence of the introduction of the whole background.

[00:26:32] Speaker 05:
They say, this litigation concerns a failed purchase by plaintiff united of certain assets belonging to three Tata communication entities.

[00:26:42] Speaker 05:
That is what it was about.

[00:26:43] Speaker 05:
That's what this complaint was about.

[00:26:46] Speaker 05:
And so therefore, that last act, that cancellation, is where, under the New Mexico choice of law rules, you would look.

[00:26:55] Speaker 05:
And that was in the UK.

[00:26:57] Speaker 05:
Quickly, just on the balancing of the factors, under the Yavuz case, I believe, if I'm pronouncing that right, this court has made clear that there's substantial deference paid to the district court's balancing.

[00:27:13] Speaker 05:
Here, the district court went through each of the facts of this case.

[00:27:17] Speaker 05:
The witnesses spread abroad.

[00:27:19] Speaker 05:
The issues with the contract governed by UK law, therefore, foreign law would have to be construed as part of this case.

[00:27:30] Speaker 05:
And the district court felt like the UK courts would be better equipped.

[00:27:34] Speaker 05:
I do want to leave, again, time for my colleague.

[00:27:38] Speaker 05:
I want to leave with one.

[00:27:39] Speaker 05:
There is an alternative ground here.

[00:27:40] Speaker 05:
I want to mention the forum selection clause.

[00:27:44] Speaker 05:
The only hiccup below.

[00:27:46] Speaker 05:
was third-party beneficiary status.

[00:27:49] Speaker 05:
And we cited cases from the Ninth Circuit and the Seventh Circuit, Hubel and then Rodney Farrow, that say third-party beneficiary status is a way to meet the closely related test.

[00:28:02] Speaker 05:
It's an example of it.

[00:28:03] Speaker 05:
But it's not a necessity.

[00:28:06] Speaker 05:
And this case is a perfect example of why you need flexibility in the closely related test.

[00:28:12] Speaker 02:
Well, the problem I see with that is that this particular contract has an express provision that says if you're not one of the two parties to this contract, you don't have any rights under this contract.

[00:28:26] Speaker 05:
Yes, except that is exactly what the Ninth and Seventh Circuit looked at.

[00:28:31] Speaker 05:
and said, even if you're not a third-party beneficiary, you can still meet the closely related test.

[00:28:38] Speaker 02:
And especially here, where this is why the test is created in the federal courts, is because you have... Well, wait, you're saying... Are you saying these circuits had a provision like we have here, and they said, despite that provision, if you can, even though you're not a signatory, you're not a party,

[00:28:58] Speaker 02:
you can enforce the contract as a closely related party?

[00:29:04] Speaker 02:
They don't have those clauses.

[00:29:06] Speaker 05:
I understand your question.

[00:29:08] Speaker 05:
I don't believe they did, but again, it was all that clause does is that's a standard clause.

[00:29:13] Speaker 05:
It just says there's no third party beneficiaries, but that's not a requirement.

[00:29:17] Speaker 05:
And again, the importance here is... It doesn't say there's no third-party beneficiaries.

[00:29:23] Speaker 02:
It says by name, if you're not party A or party B, you have no rights under this contract.

[00:29:32] Speaker 05:
Yes, Your Honor.

[00:29:33] Speaker 05:
But the closely related test, as applied by the circuits, has flexibility in it because of this situation where you have artful pleading, where they don't bring a breach of contract claim,

[00:29:46] Speaker 05:
only bring torts and don't sue the signatories.

[00:29:49] Speaker 05:
So you have a freely agreed upon forum selection clause.

[00:29:52] Speaker 05:
United Net agreed to that clause.

[00:29:54] Speaker 05:
They wanted litigation in the UK.

[00:29:56] Speaker 05:
But by artful pleading, they can avoid it.

[00:29:58] Speaker 05:
And that's why I think the federal courts follow the closely related test.

[00:30:03] Speaker 05:
I need to step aside for my co-counsel.

[00:30:05] Speaker 05:
Unless there's any questions.

[00:30:07] Speaker 05:
Thank you, Your Honors.

[00:30:15] Speaker 00:
May it please the court, Philip Robin on behalf of Tata Suns Private Limited and Tata Communications Limited, which in our briefs we refer to as Tata India to distinguish it from the other Tata Communications.

[00:30:26] Speaker 00:
Could you pull that a little closer to you?

[00:30:28] Speaker 00:
Sure.

[00:30:29] Speaker 00:
Just very, very quickly, these Tata companies that are my clients, they have no presence in New Mexico at all, and I think that's undisputed.

[00:30:38] Speaker 00:
The way that the appellants try to get around that is through conspiracy jurisdiction, and they point to the Malaya case

[00:30:44] Speaker 00:
which I think sets the standard in the 10th Circuit.

[00:30:48] Speaker 00:
And under that case, you really need that case very clearly.

[00:30:52] Speaker 00:
You cannot bear allegations of conspiracy.

[00:30:54] Speaker 00:
That's not enough.

[00:30:55] Speaker 00:
In other words, you need to have well-pled allegations, which means non-conclusory, specific allegations that make a prima facie showing of conspiracy.

[00:31:05] Speaker 00:
And here, those are not the allegations that are in the complaint.

[00:31:08] Speaker 00:
The allegations are conclusory.

[00:31:10] Speaker 00:
There's group pleading.

[00:31:11] Speaker 00:
There's references to Tata defendants, Tata communications, even though there's lots of Tata communications entities in the complaint.

[00:31:18] Speaker 00:
And that's just simply not enough to say, well, you can just group into this case these entities from Mumbai, India, and subject them to jurisdiction.

[00:31:30] Speaker 00:
in New Mexico because they allegedly had dealings with someone named Lucero, who allegedly was a conspirator.

[00:31:38] Speaker 00:
And to just give you a sense of why the allegations are implausible and conclusive, I'll just go back to your example, Judge Baccarac.

[00:31:48] Speaker 00:
You had asked questions about, well, what would happen if there was a waiver of the conditions

[00:31:54] Speaker 00:
Would there be a tortious interference?

[00:31:56] Speaker 00:
Well, if you look at the complaint, it's on Appendix Page 14 in Paragraph 51, the allegation is that Tata Communications, and that's how it's identified, Tata Communications actually offered funding on reasonable terms.

[00:32:13] Speaker 00:
At some point during this back and forth over the funding.

[00:32:16] Speaker 00:
Well, if Tata Communications offered funding on reasonable terms,

[00:32:22] Speaker 00:
Well, what kind of a conspiracy is that?

[00:32:24] Speaker 00:
That's not a reasonable allegation of conspiracy.

[00:32:30] Speaker 00:
You can't charge conspiracy, plausible conspiracy, when one of the conspirators is allegedly offering terms that would undermine the entire conspiracy.

[00:32:39] Speaker 00:
I hate to do this to you, but you're 45 seconds over time, so you need to ramp up.

[00:32:44] Speaker 00:
OK.

[00:32:44] Speaker 00:
That's it.

[00:32:44] Speaker 00:
Thank you.

[00:32:44] Speaker 00:
Unless there's any questions.

[00:32:47] Speaker 00:
Thank you.

[00:32:47] Speaker 00:
Thanks very much.

[00:32:50] Speaker 04:
All right, I did want to mention to both sides, I thought your arguments today in your briefing were just excellent, and so I really appreciate the excellent advocacy.

[00:33:05] Speaker 04:
This matter is submitted.