Narrator: SJC-12948, Governo Law Firm LLC
with Kimberly and Bergeron and others.
-: And Attorney Fliegauf, We'll start with you.
-: Thank you, your honor and good morning your honors
carefully off I represent the plaintiff appellant
Governo Law Firm.
We're here because the trial court made three errors below.
The first error was with respect to the jury instructions
with respect to our 93A claim.
The I apologize the court aired
because instructed the jury that the defendants conversion
of the Governo Law Firm property
was irrelevant and could not be considered with respect
to the issue of whether the defendants engaged in unfair
or deceptive business practices.
Secondly, the trial court aired with respect
to its order where he declined to order
the defendants to return all of the property
that they had converted from the Governo Law Firm
and third the trial court erred with respect
to interest both pre-judgment and post-judgment interest
turning to the jury instructions.
The trial court ordered that with respect to 93A
any ex-prior to November 20th, 2016 was in fact irrelevant
and cannot be considered by the jury.
The November 20th, 2016 date was significant
in the court's mind because that was the date
in which the individual defendants terminated
their employment from Governo Law Firm.
The conversion of the Governo Law Firm's property
occurred prior to that date prior to November 20th, 2016.
-: Do you excuse me for interrupting?
Do you have a date that you would be comfortable with
other than the 20th would you peg it at November 1st
when it was incorporated?
-: The conversion occurred in October in November of 2016.
So both before and after the incorporation of CNPG3.
And--
-: What about the last sentence of the instruction?
The last sentence reads instead for this claim,
the Governo Firm for must prove
the defendants did something
to compete with the Governo Firm after they left that firm.
That was unfair.
So if they use something they took prior to,
I mean I understand
say they were just caught in the act
of stealing this stuff and fired.
I understand that would be in 93A claim.
-: Yes, sir.
-: But if they walked off with it
and then a month later started using it to compete
doesn't the last sentence cover that of the instruction?
-: But the prior part of that instruction dictates that
the jury cannot consider the fact
that the property had been converted.
The jury was required to consider the fact
that they used property without consideration
as to how the defendants came to obtain that property.
So they were not allowed to consider the fact
that the property in fact had been stolen
which occurred again prior to November 20th of 2016.
-: Well, I thought in part that you wanted that change
because you wanted to be able to support
a 93A claim in terms of their conduct,
somewhat separate from this count
that the money damages were one on
was there not another count
or a claim you were looking to support with that evidence?
-: Well we certainly put the...
We had a claim for conversion
and we put that in that and we prevailed on that.
The jury has a better effect that the defendants
had converted the property of the Governo Law Firm.
Our position with respect to the 93A claim
is that it was a 93A violation
for the defendants to have used
the converted material in competition
with the Governo Law Firm and as instructed by the jury
that the sorry, by the judge, the jury was not allowed
to consider the fact that in fact,
the property had been converted.
-: Mr. Fliegauf, I agree with you that
the word irrelevant was erroneous
because obviously the jury needs to understand
the circumstances in which
something was taken from the firm.
And in order to be able to evaluate whether the later
the action was unfair or deceptive.
So the word irrelevant it seems to me it was clearly error
but going down to justice character's point,
if you look at everything else
surrounding that erroneous instruction
isn't it clear that he's just trying to instruct on
manning persons sacrament and and understanding that
the conduct can't be an employee
its actions against an employer during the employment?
-: I do believe that
that's what the judge was trying to get at.
However, that was erroneous for three reasons.
First, with respect to CMBG3 which was a defendant
that was found to have converted the property.
Again, the conversion happened prior to November 20th.
CMBG3 never was an employee of the Governo Law Firms.
So the man in case simply does not apply
with respect to CMBG3.
There was no reason to provide that instruction for--
-: Exactly, because he is saying that
the employees of the plaintiff firm were
while they were still employees, agents of the defendant?
-: The jury found that the defendant CMBG3
independently converted the property of the Governo Law Firm
So we did they do it through the agency
that's the way it happens
but that's what the jury found.
-: Okay alright.
-: So with respect-- -: No I agree with you that
Peggy Walton or whatever that case is,
is the correct law that if you stole something,
I mean the example is the secret recipe.
You're the baker you steal the secret recipe
and then you go out and start a new bakery.
I get that that should be a 93A violation,
but I just don't know if the judge,
I mean, the instruction is just a choice
and shouldn't have had the word irrelevant
but is it good enough for Governo work here
to convey that they can still sue for that later activity?
-: It's not your honor.
The key to our case was the fact that
the material that had been stolen was used in competition.
And as instructed by the court
the jury was not allowed to consider the fact
that the property had been stolen.
The jury was required to consider the fact
that from the jury's perspective
with respect to the 93A claim,
it was as if they had found it on the street
or found it sitting on their desk
and that there was nothing wrong with the fact
as to how they had obtained that material.
That's the way the judge instructed jury.
-: Counsel, can I clarify then your opposition position
is that the 93A claim involves both the theft and the use
and that by instructing that the theft was irrelevant,
it undermined the ability of the jury
to reach that part of your claim.
-: Yes your honor. -: Okay.
-: Yes, your honor.
So it was erroneous again with respect to CMBG3 clearly,
because manning simply doesn't apply
with respect to the individual defendants again,
as just articulated our claim was that
they use converted material
and the jury was precluded from considering the fact
that it had been converted.
Additionally, with respect to the individual defendants
we went back, we looked at Manning.
The Manning case says that 93A does not apply
to acts arising out of the employment relationship.
There is no authority in manning or in any other case law.
And there's certainly nothing in the 93A
that provides that business competitors
who happened to also be employees
receive blanket immunity from Chapter 93A.
The legislature did not intend that
there's a Connecticut case that considers a similar statute
with respect to Connecticut Law
that says again that you need to have
it needs to be trade or business, the Larsen case
And High Court said that if you are acting
outside the scope of employment that there can be liability.
-: Can I shift you 'cause the other two issues are huge too.
Can I shift you to the second issue
'cause my sense is the legal community is
most concerned about what can be taken and what can't
and how it can be used afterwards.
That's the particularly well
partners are moving around law firms all the time.
-: Yes they are. -: And they're walking...
They're leaving with their files.
So what are the judge described the rule?
And 'cause I haven't
I'm not sure I fully grasp what the judge will...
The jury found there was some proper conversion
and that's not even being appeal from what I gather.
Kurt: Correct.
-: But what did the judge allow and disallow afterwards
as precisely as you can
'cause that's a huge issue to the bar.
-: Yes, your honor.
That was the entire defense of the defendants at trial.
And they lost them.
-: I understand that the jury, I'm not sure.
I thought that was it.
I'm not sure that's so clearly a jury issue
but that's beyond us at this point.
So I'm just trying to understand what did the judge do.
Okay, he found him proper conversion.
but he allowed some of it to be retained some of it not.
What did he allow and what did he disallow?
'Cause that's important.
-: Yes your honor thank you.
So what the judge did was
we moved for a permanent injunction
after the jury's verdict.
And we asked that the defendant be required
to return everything that had been converted.
And the court in its decision
said the defendants have no right to hold on
to the electronic materials that they improperly took.
He then drafted his order.
-: Well, hold up but from what I understand
some of these are client files, some of these aren't
and it's not too obvious to me
what's permissible what's not.
But then and it's not all water under the bridge
because we are dealing with this issue of
what he allowed to be kept
and what are you required to be returned?
But you keep talking about the electronic files.
I don't it's...
You need to be a little more specific to be helpful here.
-: Certainly your honor first to be clear,
separate and apart from the material that had been converted
the Governo Law Firm transferred all of the client files
that the defendants were entitled to have.
-: Before you answer that,
can we just maybe establish some terms?
I think that might be helpful when you talk about
you're really talking about the database, the client files
and the administrative files, correct?
-: Yes.
-: Three kinds of electronic files we're talking about.
And right now you're talking about the client files.
-: The Governo Law Firm transferred the the client files over
issue was the court's order is that the court did not order
the defendants to return
what we call the administrative files.
So these are the Governo Law Firm contact lists,
notes concerning clients, client billing history,
employee handbooks, those types of things
things that have nothing to do with the client files
the court simply we thought he had just made a mistake
and had overlooked the fact
that the administrative files were also
among the materials that had been converted.
We raised it on a motion for reconsideration.
We asked the court to include that in its order
the court denied it, but didn't provide any explanation.
Didn't make any findings of fact as to why
that material should not also be returned or deleted.
So we say that that is an error as well.
-: So in justice ciphers terminology, the three categories
I thought we were fighting over the second category
not the administrative one, not the client files
but the third category of this kind of history sort of this
are we just talking about billing records
and your employee handbook because no one's...
The bar is not gonna be focused on that going forward.
Are we talking about a lot of their research files
and other things here that are---
-: I apologize, your honor,
the court ordered all of that material to be returned
and that has not been appealed.
-: And that would be called the data file, right?
The database file.
(mumbles)
-: Yes that is that was ordered to be returned.
We have no issue with that.
All we're talking about is the administrative files
separate and apart from the client files
or what might conceivably be a client file
turning to the interest issue.
-: So I'm sorry-- -: But before--
-: Clarify this one more time.
So in the words that you use in your brief
the 8,500 file, the asbestosis historic folder
that has been ordered returned right?
-: Yes, your honor. -: Okay.
The databases have been ordered returned, right?
-: Yes your honor.
-: All right so all you're talking about
is the administrative file
which is like the standard operating procedures
billing history that was not ordered returned.
And we don't know why?
-: Correct your honor.
-: All right but you're not asking for current client files
that clients have directed you
or your client to change to the new firm.
-: No all that has been--
-: You're not asking for that. -: Okay.
-: That's not an issue. -: All right.
-: I need one more clarification
before you move on to please.
As it relates to the administrative files,
you've touched on this.
Are you saying that this was inadvertent
when the injunction issue that
the administrative files weren't being returned
-: That's what we believed.
And we moved for reconsideration on that basis.
And the judge I don't know why
but the judge did not change the order
and let it stand simply saying that he had discretion
but making no factual findings as to why
he should distinguish this one category
of doc of material from others.
-: You're gonna go to the pre and post judgment.
-: Yes, your honor so with respect to pre-judgment interests
the trial judge vacated the award of approximately $267,000
worth of pre-judgment interest.
And in doing so, he relied upon old case law
the USM case and the chest spray core cases.
After those cases have been decided
the legislature amended the statute
Chapter 231 section 6H
which now provides the in any case where damages awarded
it must be pre-judgment interests.
-: Now I think that's the problem though what is damages?
Here you just scorch profits.
-: No respectfully no, your honor.
Dalila: Okay.
-: Here our damages were measured
by the benefit that the plaintiffs received.
They are still damages to the Governo Law Firm.
And if you look at the Curtis Wright case
they expressly defined that calculation as in fact damages.
-: But pre-judgment interest
is meant to compensate the prevailing party
for the time value of the money accrued between the time
for the resolution of the legal dispute.
-: Yes your honor
-: In here I thought that $900,000 was based on a calculation
from November 20th to date of trial.
There was no time delay
it's built into the 900,000, isn't it?
-: Yes, your honor that's how they were measured,
but they are still
that is a measurement of the Governo...
It is a way to get at what the Governo Law Firm lost.
It's an acceptable way to measure damages
through Governo Law Firm.
-: Built into that calculation is that
that time that normally pre-judging interest would be--
-: Correct that is the method
by which the damages were calculated,
but they, it is an approximation
for what the Governor Law Firm lost.
And therefore they are damages again.
Chris Wright expressly describes them
as damages in per the statute.
All damages are to get interest.
And this court has said that it is a in the error cases
it's a catch all interest provision.
And in the George Case, legislature's intent
is a pre-judgment interest always is awarded.
And in case of compensatory damages.
-: Counsel, if it's all right with the chief of justice
I have one more question.
I know we're running close on time.
And can you tell me how much, if any precedential wait
we should give Judge Young's decision
in the Federal district court on the interest statute.
-: Well, I mean, obviously it's not binding,
but I think it is convincing he looked at the statute
he saw that the statute had been changed by the legislature
and saw that the prior decisions of this court can not stand
in light of the amendment to the statute.
-: Did he get discussed in any way
the meaning of the term damages versus this profit?
-: He recognized, I believe he recognized
I don't think he expressly said it
but he recognized again that these are damages
that are being awarded to the plaintiff
and therefore you get free judgment interest.
Elspeth: Thank you.
-: Then turning to the post-judgment interest.
What happened is the defendants
refused to release the amount of the judgment
to the Governo Law Firm
and instead deposited with the court.
The whole point of post-judgment interest
is to benefit the plaintiff
for the loss of use of the money.
The defendants refuse to pay that money
over to the Governo Law Firm
-: I thought you didn't want to accept it.
-: We wouldn't accept that they made a contingent.
They said they would provide us with the money
provided only contingent if we abandon our appellate rights
which we're not willing to do.
-: Does anybody have any other questions
about the post-judgment interest?
-: I would just add that the amount
that was deposited also was $35,000
less than what should have been deposited in any event.
So thank you, your honors with that
we just would ask that you would remand this matter
for a new trial, with respect to 93A
you struck the trial judge to order the deletion of
all the property that had been converted.
You struck the trial court to award prejudgment interest
and post-judgment interest.
Thank you your honors.
-: Thank you, Attorney Carr
-: Yes good morning your honors I appreciate your time.
Let me just say we did not appeal.
I represent CMBG3
and even individual attorneys in this case,
I appreciate your honors hearing us today.
We did not appeal.
And so I'm stating that out front where
the issue is whether or not
the I'm gonna start with the injunction.
Judge Salinger crafted that injunction
based upon the trial evidence that was heard by the court
for the duration of the case,
with respect to the administrative file honors,
there was no evidence that those files
administrative materials
which I understand now we're just focusing
on the administrative materials.
I did not understand that from the briefing,
but now I'm understanding that
from the argument this morning.
There was no evidence that the administrative materials
generic handbook, generic billing procedures,
and the evidence was your honor,
the Governo Law Firm created the handbook.
For instance, by taking information off the internet
created the billing procedures from other firms
that other people had been out over the years.
So those materials--
-: Counsel does the administrative file include contact list.
Client contact list?
-: Your honor I--
-: And should be a trade secret, no.
-: Well, I don't believe the evidence was that
even as all the administrative files
as broadly defined included kind of contact lists
but client contact list are not confidential
and proprietary business information of the Governo Law Firm
and that was what the purpose of it is.
-: Why, can you explain that one?
Because that's inconsistent
with every trade secret case I've ever heard?
-: But the court did mean and had said
this court mean way back when said that
part of the duty of an attorney departing
was to notify clients that they are departing
and that the contact information of those clients
need to be provided to the parting attorneys
so that they can communicate with the clients
that they are departing, so that indicates--
-: So I think you just mean the administrative file
is only the current client contacts
of the departing attorneys?
-: No I'm not even certain as I sit here today
what is the quotes administrative files of the law firm
other than they described the handbook,
the billing procedures, the internal operations of the firm
how to bill, how to put time down on a time sheet
and Mr. Governo at trial conceded that
that information was derived from the internet,
from public sources of information.
And so when judge Salinger determined
whether or not the permanent injunction should extend
to information that was not confidential and proprietary
there's no abuse of discretion there.
Judge Salinger you determined that
the plaintiff had not established
I need for permanent injunctive relief
and this court and your enlightened lab said,
"Hey there's no evidence that there's no future offense,"
there's no the injunction was proper was
in the court's discretion to fashion the order.
Here so for focusing only on those administrative materials
there's no reason to upset that injunction
the judge Salinger entered
with respect to the client file material.
-: So speaking of the administrative file
are you suggesting that if I look in the record
there's gonna be a finding what Judge Salinger saying
that the administrative files
whatever they may constitute are not confidential.
-: No, the judge did not make a specific finding
and entering the order.
I'd have to go back and read the order on the injunction
it's in my agenda
but the plaintiff had the burden to prove
why it was entitled to an injunction
to protect these broad swats of information
that it claimed was it's property.
It claimed that it owned the client files.
It claimed that it owned
all the information about ongoing clients.
And so therefore all of that should be enjoined.
And it also claimed that
it's confidential proprietary business information included.
For instance, just as an example, the employee handbook
and there was no evidence in the record the trial record
to substantiate that was confidential
and proprietary business information to permit an injunction
as an additional equitable remedy
for the misappropriation claim.
-: Is that not part of the conversion finding by the jury?
-: No because there's no evidence surrounding--
-: I asked you then to turn to the 93 A jury instruction.
Why is that not erroneous?
-: Because as has your honors had indicated
if you wanna say the word irrelevant is erroneous,
I'm not gonna fight with Judge Salinger
constructed only from this perspective.
I wanna address that point.
The word irrelevant is relative
to assessing trader commerce.
What Judge Salinger was stating
is that the conduct that occurred
during the course of the employment is not relevant
to the assessment of trading commerce.
And that's meaning that's solid.
That's all the cases from this court
that says inter entity conduct is not trader commerce.
So that's what the word relevant irrelevant was referenced
to when you read the instruction.
-: And that's, I mean, I understand everything
that's around the instruction,
but that I don't think when the jury say it's told
and so anything that happened before X day
that's all irrelevant to the 93A claim.
I just don't think they took it that way.
Now I think afterwards he does make the point that
only consider unfair and deceptive practices
after they left the firm.
And so it's juxtaposed, I believe against that.
But to say that everything that happened
before they left is irrelevant.
That has to be error.
-: Well, your honor.
I don't read the instruction that way, your honor
because the judge said specifically
that if you find that the use of the copied materials
was used for competitive advantage after they left
you may find that there was an unfair, deceptive practice.
And that's what the case was about.
It was the use of the materials to compete
after they departed, that was the case.
There wasn't--
-: Isn't it important that
the material arrived at the new law firm improperly
-: Then nobody restricted the evidence
from going in on that point the whole case was--
-: No I guess to Judge Lowy's point
isn't it important that employees talk
this confidential information while they were employed
i.e before November 20th, and by instructing the jury
that they could not consider that,
that caused the jury perhaps to misconstrue
the subsequent use.
-: You honor I disagree with that from this perspective,
as I read the instruction, the court was instructing
on the element of trade or commerce.
That's an essential element
because this count went to the jury.
And so the jury had the first determined
with this trade or commerce.
And the all--
-: I find with regard to the new firm,
the new firm-- -: Am sorry I didn't hear you.
-: I know the new firm is not an employee.
-: Absolutely.
-: Why new firm pre November 20th conduct, not relevant.
-: The new firm didn't operate
until after my clients left on November 20th.
The evidence was undisputed that point.
-: But isn't that really counsel isn't that really,
I don't mean to interrupt just this Wendlandt
the answer to your question
but isn't that really the point here that conduct
there could actually the cases say
"Oh, it's an employee employer relationship."
So we're not looking to at trade secrets
and all that stuff, but really what was happening is
you might not have been active.
You were incorporated by November 1st,
but everybody was acting in concert
for the benefit of the new firm before leaving Governo.
And so that can color,
even though they're still technically employees
does not color the 93A claim.
-: Your honor yes, it does.
but the jury wasn't precluded from considering
that evidence on unfair deceptive practices after they left
the jury can't consider that information
on trade or commerce.
That's the distinction I'm trying to make
the element of trade or commerce.
-: What kind of the instruction should I look at,
for your trade or commerce?
-: It's that's where that irrelevant language arises.
It's with respect to the first element
as the court went through the instructions,
the court said the first element
you need to determine is trader commerce.
And it said my law and an employee, employer relationship.
If you look at the instructions, says conduct as part of--
-: What page are you on the instructions in your appendix.
So my addendum your honor
if you get it's actually in my brief excerpted at page 15.
-: Yeah, no, I'm looking at the entire
whatever's in the record.
And which is on submitted was page 157
and then it jumps to 158 and then it jumps to...
That goes forward.
But where in that stretch
is the section you're talking about
-: Its in denim page 120, 123.
-: Okay and it's not the paragraph you're referring me.
-: I'm looking at, if you look at the bottom of addendum 120
it starts with one more claim to talk about is the 93A claim
the court goes on to prevail on this claim.
The Governo Law Firm had to prove two things first
that the defendant did something
while acting in trade or commerce
that was unfair, deceptive.
And second unjustly profited.
-: Okay. -: As to the first element
they must prove something was in trade or commerce.
And then the court goes on to talk about
and instruct on trade or commerce.
-: Can you tell us where in the instructor?
Because I thought the only saving grace
was the sentence after the irrelevant one.
Is there somewhere else where Judge Salinger makes clear
that if they stole it earlier and used it later
that could be considered
where do we turn in the instructions to clarify that point?
-: So Judge Salinger goes on to say
instead for this claim, the Governo Firm must prove
that the defendants did something
to compete with the Governo Firm
after they left that firm that was unfair or deceptive.
-: Yeah if that okay that's what...
Mr. Carr, just to clarify
that's what I thought was all the same.
If that's all you got
how do they do what you're talking about?
'Cause they've just been told
that everything before this is irrelevant
so they need to do something unfair and deceptive
afterwards but they're not told that they can,
that they use afterwards is relevant I mean.
-: It says right here, your honor, it's the next paragraph?
-: Lawyer read to me. -: It says,
so given the evidence in this case,
and again this was based on the evidence
and the arguments of the plaintiff
that their case was about use to compete when they left.
That was their case.
So Judge Slinger here says,
so given the evidence in this case,
the Governo Firm must convince you
that the defendant used confidential information
or documents, belonging to the Governor Firm
to compete against that firm
in an unfair or deceptive manner.
And they did so after their employment
at the Governo Firm ended.
-: Okay so you feel that clarifies the irrelevant mistakes.
-: Absolutely 'cause then he goes
to talk about the element of unfair deceptive
even further, your honor.
So Judge Salinger goes on after that,
then again define the elements of unfair deceptive,
and he doesn't use that language
relative to quotes irrelevant.
So it's clear that he's instructing the jury.
And this was an important part
that I raised, frankly at the charge conference
and wasn't even addressed by the point of,
I was concerned about the arising
out of employment relationship
that everything that occurred arose out of
I was preserving my appellate rights on that issue.
And Judge Salinger said,
"Look I disagree Mr. Carr,
"if they use the materials that they copied"
and that the evidence was
that they copied the materials before they left.
There was no fight about that.
But if they use those materials after they leave,
I think that does not arise out of
the employment relationship.
I'm gonna instruct the jury that they can say that
if they use those materials that they copied
because the court had already given
all the instructions on conversion,
and misappropriation on trade secrets
that those instructions have been given
pre prior to the 93A charge.
And so if you read the whole...
You gotta read the charges as a whole
and say, okay the judge is saying
that if you find that the information my clients copied
before they left was confidential
and proprietary information or trade secrets of the firm.
And they did that in a manner that was a violation of law.
That can be an ex claim.
And if they use that information that can cause damages.
And then they went on to describe the 93A piece
of that whole theory of the case.
There was no way that the plaintiff was recruited
or prejudiced in any way from the jury
understanding that the copying and use
those two things combined was the case.
And that was the whole theory.
And so what Judge Salinger was concerned about
and this came up during the charge conference--
-: Mr. Carr I've hadn't a chance to read the closings
are the closings making fighting over that point
that basically the Peggy Wotton point,
okay if they stole it and they used it
that can be a 93A violation.
Is that clear in the closings?
-: But I don't recall your honor but I do recall this
that the plaintiff wanted the jury to use
all of the other so-called bad acts
of pairing to start a new firm as a 93A violation
as part of the unfair deceptive practices
of planning to compete with Governo.
And that's what led the court to say
don't consider the negotiations about the buyout.
Don't consider that they were opening a new firm
or that they waiting secretly to leave
because none of that can be in 93A claim.
The plaintiff in closing, my recollection
is they talked about all these so-called bad acts
that my clients engaged in addition to the copying.
And so they wanted the jury to focus on everything.
And if you look at the requests relief in this brief
if you look, if they specifically ask you to remain,
to permit all evidence of pre-departure conduct
including the copying, not just the copying
including the copying to be considered
as part of an unfair deceptive trade practice.
So they're gonna they want you your honors
to say that plans to leave and compete
and start a new law firm
can be part of unfair deceptive conduct,
not just the copying.
And that was the argument that they argued to the jury
that you can consider all of what they did
to secretly plan to meet.
And you saw they referenced in their brief
the so-called bad conduct towards Mr. Governor.
That was what the Judge Salinger was trying to avoid
was the undue prejudice to the defendants if you will
that the jury would consider all that other conduct
as part of trading commerce
and as part of unfair deceptive acts
as opposed to yes, they copied the materials.
Is it the jury had to first decide
is that Governo property or not Governo property
and they used that.
-: Mr. Carr -: Yes sir.
-: I'd like to get your take on the pre-judgment interest
'cause we're over already when lines point
seems to me compelling that
and different from anything that's been argued,
or even with Judge Salinger wrote,
which is that the way you calculate this disgorgement
it basically builds in the time value of money
is that's real.
To me, that seems to be a narrower distinction
but one that's sensible
just 'cause you measure damages
by disgorge profits in general
it doesn't seem to preclude prejudgment interest
but here it seems like the amount builds up over time.
So it takes this into account.
So it isn't that the way we should analyze
the pre-judgment interest point
I agree that's one way.
And I think when I decided to jet spray in my motion
(mumbles)
to amend the judge to remove prejudgment interest
I relied on jet spraying part
because that was part of the analysis.
I've understood jet spray to say
that is the damage if you will
And so therefore you can't get interest on interest.
You aren't just point I'm saying it a little differently,
but it's the same concept
because these are discord profits
of what my client earned on the misuse of the materials.
Not harm, not damage sustained by the firms.
So they're not deprived of that money
during that period of time, because they never earn
that money during the period of time.
But to the extent that they are being compensated
through money, it's the same concept.
That's the amount of money that
if you so-called quotes were deprived
it's the same deprivation of use.
And so therefore the prejudgment interest statute
if you will, I don't think it applies.
I really don't wanna see that point because
there's no way that in my estimation,
based on this court's decision in the judge case,
that not every payment of money is damages,
it's gonna be compensatory damages.
And these are disgorged profits.
This is unjust enrichment and the appeals court.
And I believe this court has held before,
including in national merchandising,
which goes way back the whole long time ago,
that there's a bright line distinction between damages
and discouragement and so if this court says--
-: The problem is all the lawyers left, right?
So he doesn't have any ability to keep--
-: That's not accurate, your honor,
that's frankly that's not accurate this is not true.
All the lawyers initially did not leave.
There were still people working there,
including Ms. Kelly who stayed behind
who was originally part of the group.
So, and not to interrupt your honor
but what happened was my clients laughed
and the clients chose to leave to go with them.
And there was no evidence the court directed out
the breach of fiduciary duty claim on solicitation
'cause there was no evidence of unlawful solicitation.
So the clients exercise their rights to choose my clients
and that there were lawyers remaining at Governo Law Firm
and so the answer is they could still earn a living.
It's just, these clients chose to depart
and they have a right to do that.
But so either on your honor's understanding,
which I agree with
that that amount of money is serves the purpose.
If you will, a pre-judgment interest
of the same statutory reason for that
as the court has interpreted
the pre-judge interest statute
or it's not damages under the George case
where everything that's a money payment
is not a demon subject to prejudgment interest
and there should be no pre-judgment interests.
-: Do you think the legislature was contemplating that?
-: As I understand the way this honor
this court has interpreted statutory construction
time and again, is that the legislature is supposed to know
or does assume to know
there's a distinction between money damages
and discouragement
which is rooted in in our law for many, many, many years.
So when the legislature wrote 6H
and use the word damages as opposed to monetary recovery
which I would then probably
not have a very strong argument
on the compensatory damage piece.
But I still agree with your honor that
it's still within the rubric is pre-judgment interest.
I would probably not have that same argument, your honor.
So the legislature is presumed
to know the current status of the law
when it drafts a new statute, it new jet spray
jet spray is still of bedrock case from this court
it's still cited throughout.
And so therefore so they know what the distinction is
between disgorgement remedy and damages.
-: Anybody have any good question?
Yes and that's just as Carr
referred to the closing argument,
can you tell me are the closing arguments
will be produced in the record appendix?
-: My recollection is they are.
-: Okay, thank you.
-: Do you or your honor I didn't address cause I'm over.
I wanted the answer to your questions.
I don't know if you want me
to address the post-judgment interest issue or not.
Otherwise I rest on my brief on that
and I appreciate your honor's time
and ability to answer your questions.
So thank you very much.
-: Thank you. -: Excellent.
-: Thank you very much, counsel.