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SJC-12948, Governo Law Firm LLC
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with Kimberly and Bergeron and others.
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And Attorney Fliegauf, We'll start with you.
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Thank you, your honor and good morning your honors
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carefully off I represent the plaintiff appellant
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Governo Law Firm.
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We're here because the trial court made three errors below.
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The first error was with respect to the jury instructions
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with respect to our 93A claim.
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The I apologize the court aired
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because instructed the jury that the defendants conversion
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of the Governo Law Firm property
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was irrelevant and could not be considered with respect
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to the issue of whether the defendants engaged in unfair
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or deceptive business practices.
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Secondly, the trial court aired with respect
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to its order where he declined to order
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the defendants to return all of the property
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that they had converted from the Governo Law Firm
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and third the trial court erred with respect
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to interest both pre-judgment and post-judgment interest
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turning to the jury instructions.
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The trial court ordered that with respect to 93A
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any ex-prior to November 20th, 2016 was in fact irrelevant
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and cannot be considered by the jury.
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The November 20th, 2016 date was significant
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in the court's mind because that was the date
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in which the individual defendants terminated
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their employment from Governo Law Firm.
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The conversion of the Governo Law Firm's property
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occurred prior to that date prior to November 20th, 2016.
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Do you excuse me for interrupting?
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Do you have a date that you would be comfortable with
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other than the 20th would you peg it at November 1st
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when it was incorporated?
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The conversion occurred in October in November of 2016.
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So both before and after the incorporation of CNPG3.
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And--
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What about the last sentence of the instruction?
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The last sentence reads instead for this claim,
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the Governo Firm for must prove
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the defendants did something
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to compete with the Governo Firm after they left that firm.
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That was unfair.
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So if they use something they took prior to,
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I mean I understand
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say they were just caught in the act
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of stealing this stuff and fired.
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I understand that would be in 93A claim.
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Yes, sir.
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But if they walked off with it
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and then a month later started using it to compete
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doesn't the last sentence cover that of the instruction?
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But the prior part of that instruction dictates that
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the jury cannot consider the fact
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that the property had been converted.
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The jury was required to consider the fact
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that they used property without consideration
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as to how the defendants came to obtain that property.
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So they were not allowed to consider the fact
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that the property in fact had been stolen
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which occurred again prior to November 20th of 2016.
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Well, I thought in part that you wanted that change
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because you wanted to be able to support
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a 93A claim in terms of their conduct,
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somewhat separate from this count
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that the money damages were one on
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was there not another count
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or a claim you were looking to support with that evidence?
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Well we certainly put the...
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We had a claim for conversion
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and we put that in that and we prevailed on that.
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The jury has a better effect that the defendants
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had converted the property of the Governo Law Firm.
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Our position with respect to the 93A claim
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is that it was a 93A violation
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for the defendants to have used
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the converted material in competition
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with the Governo Law Firm and as instructed by the jury
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that the sorry, by the judge, the jury was not allowed
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to consider the fact that in fact,
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the property had been converted.
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Mr. Fliegauf, I agree with you that
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the word irrelevant was erroneous
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because obviously the jury needs to understand
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the circumstances in which
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something was taken from the firm.
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And in order to be able to evaluate whether the later
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the action was unfair or deceptive.
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So the word irrelevant it seems to me it was clearly error
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but going down to justice character's point,
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if you look at everything else
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surrounding that erroneous instruction
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isn't it clear that he's just trying to instruct on
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manning persons sacrament and and understanding that
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the conduct can't be an employee
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its actions against an employer during the employment?
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I do believe that
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that's what the judge was trying to get at.
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However, that was erroneous for three reasons.
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First, with respect to CMBG3 which was a defendant
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that was found to have converted the property.
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Again, the conversion happened prior to November 20th.
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CMBG3 never was an employee of the Governo Law Firms.
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So the man in case simply does not apply
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with respect to CMBG3.
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There was no reason to provide that instruction for--
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Exactly, because he is saying that
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the employees of the plaintiff firm were
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while they were still employees, agents of the defendant?
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The jury found that the defendant CMBG3
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independently converted the property of the Governo Law Firm
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So we did they do it through the agency
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that's the way it happens
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but that's what the jury found.
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Okay alright.
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So with respect--
No I agree with you that
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Peggy Walton or whatever that case is,
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is the correct law that if you stole something,
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I mean the example is the secret recipe.
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You're the baker you steal the secret recipe
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and then you go out and start a new bakery.
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I get that that should be a 93A violation,
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but I just don't know if the judge,
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I mean, the instruction is just a choice
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and shouldn't have had the word irrelevant
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but is it good enough for Governo work here
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to convey that they can still sue for that later activity?
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It's not your honor.
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The key to our case was the fact that
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the material that had been stolen was used in competition.
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And as instructed by the court
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the jury was not allowed to consider the fact
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that the property had been stolen.
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The jury was required to consider the fact
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that from the jury's perspective
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with respect to the 93A claim,
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it was as if they had found it on the street
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or found it sitting on their desk
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and that there was nothing wrong with the fact
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as to how they had obtained that material.
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That's the way the judge instructed jury.
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Counsel, can I clarify then your opposition position
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is that the 93A claim involves both the theft and the use
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and that by instructing that the theft was irrelevant,
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it undermined the ability of the jury
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to reach that part of your claim.
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Yes your honor.
Okay.
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Yes, your honor.
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So it was erroneous again with respect to CMBG3 clearly,
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because manning simply doesn't apply
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with respect to the individual defendants again,
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as just articulated our claim was that
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they use converted material
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and the jury was precluded from considering the fact
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that it had been converted.
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Additionally, with respect to the individual defendants
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we went back, we looked at Manning.
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The Manning case says that 93A does not apply
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to acts arising out of the employment relationship.
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There is no authority in manning or in any other case law.
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And there's certainly nothing in the 93A
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that provides that business competitors
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who happened to also be employees
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receive blanket immunity from Chapter 93A.
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The legislature did not intend that
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there's a Connecticut case that considers a similar statute
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with respect to Connecticut Law
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that says again that you need to have
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it needs to be trade or business, the Larsen case
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And High Court said that if you are acting
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outside the scope of employment that there can be liability.
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Can I shift you 'cause the other two issues are huge too.
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Can I shift you to the second issue
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'cause my sense is the legal community is
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most concerned about what can be taken and what can't
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and how it can be used afterwards.
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That's the particularly well
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partners are moving around law firms all the time.
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Yes they are.
And they're walking...
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They're leaving with their files.
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So what are the judge described the rule?
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And 'cause I haven't
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I'm not sure I fully grasp what the judge will...
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The jury found there was some proper conversion
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and that's not even being appeal from what I gather.
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Correct.
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But what did the judge allow and disallow afterwards
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as precisely as you can
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'cause that's a huge issue to the bar.
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Yes, your honor.
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That was the entire defense of the defendants at trial.
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And they lost them.
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I understand that the jury, I'm not sure.
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I thought that was it.
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I'm not sure that's so clearly a jury issue
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but that's beyond us at this point.
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So I'm just trying to understand what did the judge do.
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Okay, he found him proper conversion.
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but he allowed some of it to be retained some of it not.
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What did he allow and what did he disallow?
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'Cause that's important.
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Yes your honor thank you.
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So what the judge did was
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we moved for a permanent injunction
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after the jury's verdict.
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And we asked that the defendant be required
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to return everything that had been converted.
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And the court in its decision
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said the defendants have no right to hold on
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to the electronic materials that they improperly took.
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He then drafted his order.
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Well, hold up but from what I understand
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some of these are client files, some of these aren't
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and it's not too obvious to me
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what's permissible what's not.
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But then and it's not all water under the bridge
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because we are dealing with this issue of
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what he allowed to be kept
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and what are you required to be returned?
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But you keep talking about the electronic files.
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I don't it's...
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You need to be a little more specific to be helpful here.
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Certainly your honor first to be clear,
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separate and apart from the material that had been converted
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the Governo Law Firm transferred all of the client files
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that the defendants were entitled to have.
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Before you answer that,
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can we just maybe establish some terms?
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I think that might be helpful when you talk about
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you're really talking about the database, the client files
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and the administrative files, correct?
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Yes.
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Three kinds of electronic files we're talking about.
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And right now you're talking about the client files.
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The Governo Law Firm transferred the the client files over
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issue was the court's order is that the court did not order
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the defendants to return
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what we call the administrative files.
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So these are the Governo Law Firm contact lists,
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notes concerning clients, client billing history,
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employee handbooks, those types of things
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things that have nothing to do with the client files
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the court simply we thought he had just made a mistake
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and had overlooked the fact
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that the administrative files were also
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among the materials that had been converted.
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We raised it on a motion for reconsideration.
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We asked the court to include that in its order
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the court denied it, but didn't provide any explanation.
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Didn't make any findings of fact as to why
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that material should not also be returned or deleted.
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So we say that that is an error as well.
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So in justice ciphers terminology, the three categories
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I thought we were fighting over the second category
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not the administrative one, not the client files
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but the third category of this kind of history sort of this
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are we just talking about billing records
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and your employee handbook because no one's...
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The bar is not gonna be focused on that going forward.
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Are we talking about a lot of their research files
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and other things here that are---
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I apologize, your honor,
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the court ordered all of that material to be returned
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and that has not been appealed.
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And that would be called the data file, right?
267
00:13:23.981 --> 00:13:24.965
The database file.
268
00:13:24.965 --> 00:13:25.798
(mumbles)
269
00:13:25.798 --> 00:13:28.530
Yes that is that was ordered to be returned.
270
00:13:28.530 --> 00:13:29.960
We have no issue with that.
271
00:13:29.960 --> 00:13:32.570
All we're talking about is the administrative files
272
00:13:32.570 --> 00:13:35.270
separate and apart from the client files
273
00:13:35.270 --> 00:13:38.501
or what might conceivably be a client file
274
00:13:38.501 --> 00:13:40.890
turning to the interest issue.
275
00:13:40.890 --> 00:13:42.750
So I'm sorry--
But before--
276
00:13:42.750 --> 00:13:44.410
Clarify this one more time.
277
00:13:44.410 --> 00:13:47.850
So in the words that you use in your brief
278
00:13:47.850 --> 00:13:52.850
the 8,500 file, the asbestosis historic folder
279
00:13:52.910 --> 00:13:54.810
that has been ordered returned right?
280
00:13:54.810 --> 00:13:56.010
Yes, your honor.
Okay.
281
00:13:56.010 --> 00:13:58.880
The databases have been ordered returned, right?
282
00:13:58.880 --> 00:13:59.713
Yes your honor.
283
00:13:59.713 --> 00:14:01.070
All right so all you're talking about
284
00:14:01.070 --> 00:14:02.480
is the administrative file
285
00:14:02.480 --> 00:14:04.860
which is like the standard operating procedures
286
00:14:04.860 --> 00:14:08.510
billing history that was not ordered returned.
287
00:14:08.510 --> 00:14:09.470
And we don't know why?
288
00:14:09.470 --> 00:14:10.303
Correct your honor.
289
00:14:10.303 --> 00:14:14.360
All right but you're not asking for current client files
290
00:14:14.360 --> 00:14:16.660
that clients have directed you
291
00:14:16.660 --> 00:14:20.330
or your client to change to the new firm.
292
00:14:20.330 --> 00:14:22.560
No all that has been--
293
00:14:22.560 --> 00:14:23.820
You're not asking for that.
Okay.
294
00:14:23.820 --> 00:14:26.550
That's not an issue.
All right.
295
00:14:26.550 --> 00:14:28.070
I need one more clarification
296
00:14:28.070 --> 00:14:29.710
before you move on to please.
297
00:14:29.710 --> 00:14:31.720
As it relates to the administrative files,
298
00:14:31.720 --> 00:14:33.470
you've touched on this.
299
00:14:33.470 --> 00:14:35.570
Are you saying that this was inadvertent
300
00:14:35.570 --> 00:14:37.314
when the injunction issue that
301
00:14:37.314 --> 00:14:42.210
the administrative files weren't being returned
302
00:14:42.210 --> 00:14:43.850
That's what we believed.
303
00:14:43.850 --> 00:14:46.370
And we moved for reconsideration on that basis.
304
00:14:46.370 --> 00:14:48.710
And the judge I don't know why
305
00:14:48.710 --> 00:14:52.440
but the judge did not change the order
306
00:14:52.440 --> 00:14:54.930
and let it stand simply saying that he had discretion
307
00:14:54.930 --> 00:14:57.710
but making no factual findings as to why
308
00:14:57.710 --> 00:14:59.550
he should distinguish this one category
309
00:14:59.550 --> 00:15:01.810
of doc of material from others.
310
00:15:01.810 --> 00:15:03.900
You're gonna go to the pre and post judgment.
311
00:15:03.900 --> 00:15:07.210
Yes, your honor so with respect to pre-judgment interests
312
00:15:07.210 --> 00:15:11.620
the trial judge vacated the award of approximately $267,000
313
00:15:11.620 --> 00:15:13.940
worth of pre-judgment interest.
314
00:15:13.940 --> 00:15:16.847
And in doing so, he relied upon old case law
315
00:15:16.847 --> 00:15:19.833
the USM case and the chest spray core cases.
316
00:15:20.850 --> 00:15:23.010
After those cases have been decided
317
00:15:23.010 --> 00:15:25.540
the legislature amended the statute
318
00:15:25.540 --> 00:15:29.560
Chapter 231 section 6H
319
00:15:29.560 --> 00:15:33.950
which now provides the in any case where damages awarded
320
00:15:33.950 --> 00:15:36.520
it must be pre-judgment interests.
321
00:15:36.520 --> 00:15:39.510
Now I think that's the problem though what is damages?
322
00:15:39.510 --> 00:15:42.650
Here you just scorch profits.
323
00:15:42.650 --> 00:15:45.230
No respectfully no, your honor.
324
00:15:45.230 --> 00:15:46.063
Okay.
325
00:15:46.063 --> 00:15:47.930
Here our damages were measured
326
00:15:47.930 --> 00:15:51.090
by the benefit that the plaintiffs received.
327
00:15:51.090 --> 00:15:54.380
They are still damages to the Governo Law Firm.
328
00:15:54.380 --> 00:15:56.370
And if you look at the Curtis Wright case
329
00:15:56.370 --> 00:16:01.370
they expressly defined that calculation as in fact damages.
330
00:16:05.100 --> 00:16:06.490
But pre-judgment interest
331
00:16:06.490 --> 00:16:08.810
is meant to compensate the prevailing party
332
00:16:08.810 --> 00:16:12.930
for the time value of the money accrued between the time
333
00:16:12.930 --> 00:16:15.010
for the resolution of the legal dispute.
334
00:16:15.010 --> 00:16:15.843
Yes your honor
335
00:16:15.843 --> 00:16:20.250
In here I thought that $900,000 was based on a calculation
336
00:16:21.700 --> 00:16:24.663
from November 20th to date of trial.
337
00:16:24.663 --> 00:16:26.910
There was no time delay
338
00:16:26.910 --> 00:16:29.580
it's built into the 900,000, isn't it?
339
00:16:29.580 --> 00:16:32.960
Yes, your honor that's how they were measured,
340
00:16:32.960 --> 00:16:34.200
but they are still
341
00:16:34.200 --> 00:16:36.330
that is a measurement of the Governo...
342
00:16:36.330 --> 00:16:40.320
It is a way to get at what the Governo Law Firm lost.
343
00:16:40.320 --> 00:16:44.224
It's an acceptable way to measure damages
344
00:16:44.224 --> 00:16:46.130
through Governo Law Firm.
345
00:16:46.130 --> 00:16:49.740
Built into that calculation is that
346
00:16:49.740 --> 00:16:53.750
that time that normally pre-judging interest would be--
347
00:16:53.750 --> 00:16:56.010
Correct that is the method
348
00:16:56.010 --> 00:16:58.230
by which the damages were calculated,
349
00:16:58.230 --> 00:17:01.470
but they, it is an approximation
350
00:17:01.470 --> 00:17:04.590
for what the Governor Law Firm lost.
351
00:17:04.590 --> 00:17:06.620
And therefore they are damages again.
352
00:17:06.620 --> 00:17:08.461
Chris Wright expressly describes them
353
00:17:08.461 --> 00:17:11.693
as damages in per the statute.
354
00:17:13.410 --> 00:17:17.050
All damages are to get interest.
355
00:17:17.050 --> 00:17:19.940
And this court has said that it is a in the error cases
356
00:17:19.940 --> 00:17:21.840
it's a catch all interest provision.
357
00:17:21.840 --> 00:17:24.140
And in the George Case, legislature's intent
358
00:17:24.140 --> 00:17:26.940
is a pre-judgment interest always is awarded.
359
00:17:26.940 --> 00:17:28.820
And in case of compensatory damages.
360
00:17:28.820 --> 00:17:31.000
Counsel, if it's all right with the chief of justice
361
00:17:31.000 --> 00:17:32.320
I have one more question.
362
00:17:32.320 --> 00:17:34.380
I know we're running close on time.
363
00:17:34.380 --> 00:17:39.380
And can you tell me how much, if any precedential wait
364
00:17:39.410 --> 00:17:41.810
we should give Judge Young's decision
365
00:17:41.810 --> 00:17:45.870
in the Federal district court on the interest statute.
366
00:17:45.870 --> 00:17:48.090
Well, I mean, obviously it's not binding,
367
00:17:48.090 --> 00:17:53.090
but I think it is convincing he looked at the statute
368
00:17:55.840 --> 00:17:58.830
he saw that the statute had been changed by the legislature
369
00:17:58.830 --> 00:18:03.830
and saw that the prior decisions of this court can not stand
370
00:18:04.320 --> 00:18:06.640
in light of the amendment to the statute.
371
00:18:06.640 --> 00:18:09.430
Did he get discussed in any way
372
00:18:09.430 --> 00:18:14.430
the meaning of the term damages versus this profit?
373
00:18:16.500 --> 00:18:19.090
He recognized, I believe he recognized
374
00:18:19.090 --> 00:18:20.200
I don't think he expressly said it
375
00:18:20.200 --> 00:18:24.170
but he recognized again that these are damages
376
00:18:24.170 --> 00:18:26.700
that are being awarded to the plaintiff
377
00:18:26.700 --> 00:18:28.830
and therefore you get free judgment interest.
378
00:18:28.830 --> 00:18:29.663
Thank you.
379
00:18:29.663 --> 00:18:31.740
Then turning to the post-judgment interest.
380
00:18:33.270 --> 00:18:35.460
What happened is the defendants
381
00:18:36.700 --> 00:18:40.530
refused to release the amount of the judgment
382
00:18:40.530 --> 00:18:42.200
to the Governo Law Firm
383
00:18:42.200 --> 00:18:44.980
and instead deposited with the court.
384
00:18:44.980 --> 00:18:47.110
The whole point of post-judgment interest
385
00:18:47.110 --> 00:18:49.460
is to benefit the plaintiff
386
00:18:49.460 --> 00:18:51.763
for the loss of use of the money.
387
00:18:52.690 --> 00:18:54.820
The defendants refuse to pay that money
388
00:18:54.820 --> 00:18:56.810
over to the Governo Law Firm
389
00:18:56.810 --> 00:18:58.860
I thought you didn't want to accept it.
390
00:18:59.840 --> 00:19:02.340
We wouldn't accept that they made a contingent.
391
00:19:02.340 --> 00:19:04.170
They said they would provide us with the money
392
00:19:04.170 --> 00:19:08.730
provided only contingent if we abandon our appellate rights
393
00:19:08.730 --> 00:19:11.050
which we're not willing to do.
394
00:19:11.050 --> 00:19:12.220
Does anybody have any other questions
395
00:19:12.220 --> 00:19:14.243
about the post-judgment interest?
396
00:19:15.780 --> 00:19:17.540
I would just add that the amount
397
00:19:17.540 --> 00:19:20.970
that was deposited also was $35,000
398
00:19:20.970 --> 00:19:23.500
less than what should have been deposited in any event.
399
00:19:23.500 --> 00:19:27.040
So thank you, your honors with that
400
00:19:27.040 --> 00:19:29.210
we just would ask that you would remand this matter
401
00:19:29.210 --> 00:19:31.780
for a new trial, with respect to 93A
402
00:19:31.780 --> 00:19:34.270
you struck the trial judge to order the deletion of
403
00:19:34.270 --> 00:19:36.650
all the property that had been converted.
404
00:19:36.650 --> 00:19:40.140
You struck the trial court to award prejudgment interest
405
00:19:40.140 --> 00:19:41.576
and post-judgment interest.
406
00:19:41.576 --> 00:19:42.924
Thank you your honors.
407
00:19:42.924 --> 00:19:45.000
Thank you, Attorney Carr
408
00:19:45.000 --> 00:19:48.032
Yes good morning your honors I appreciate your time.
409
00:19:48.032 --> 00:19:51.340
Let me just say we did not appeal.
410
00:19:51.340 --> 00:19:53.053
I represent CMBG3
411
00:19:53.053 --> 00:19:54.780
and even individual attorneys in this case,
412
00:19:54.780 --> 00:19:58.160
I appreciate your honors hearing us today.
413
00:19:58.160 --> 00:19:59.730
We did not appeal.
414
00:19:59.730 --> 00:20:04.030
And so I'm stating that out front where
415
00:20:04.030 --> 00:20:06.430
the issue is whether or not
416
00:20:06.430 --> 00:20:09.220
the I'm gonna start with the injunction.
417
00:20:09.220 --> 00:20:12.170
Judge Salinger crafted that injunction
418
00:20:12.170 --> 00:20:17.170
based upon the trial evidence that was heard by the court
419
00:20:18.580 --> 00:20:19.980
for the duration of the case,
420
00:20:19.980 --> 00:20:23.530
with respect to the administrative file honors,
421
00:20:23.530 --> 00:20:26.280
there was no evidence that those files
422
00:20:26.280 --> 00:20:27.200
administrative materials
423
00:20:27.200 --> 00:20:28.880
which I understand now we're just focusing
424
00:20:28.880 --> 00:20:30.800
on the administrative materials.
425
00:20:30.800 --> 00:20:32.490
I did not understand that from the briefing,
426
00:20:32.490 --> 00:20:33.590
but now I'm understanding that
427
00:20:33.590 --> 00:20:35.930
from the argument this morning.
428
00:20:35.930 --> 00:20:39.367
There was no evidence that the administrative materials
429
00:20:39.367 --> 00:20:43.580
generic handbook, generic billing procedures,
430
00:20:43.580 --> 00:20:45.010
and the evidence was your honor,
431
00:20:45.010 --> 00:20:48.370
the Governo Law Firm created the handbook.
432
00:20:48.370 --> 00:20:51.280
For instance, by taking information off the internet
433
00:20:51.280 --> 00:20:53.840
created the billing procedures from other firms
434
00:20:53.840 --> 00:20:56.580
that other people had been out over the years.
435
00:20:56.580 --> 00:20:58.170
So those materials--
436
00:20:58.170 --> 00:21:02.420
Counsel does the administrative file include contact list.
437
00:21:02.420 --> 00:21:04.720
Client contact list?
438
00:21:04.720 --> 00:21:05.730
Your honor I--
439
00:21:05.730 --> 00:21:08.805
And should be a trade secret, no.
440
00:21:08.805 --> 00:21:11.880
Well, I don't believe the evidence was that
441
00:21:11.880 --> 00:21:13.720
even as all the administrative files
442
00:21:13.720 --> 00:21:16.520
as broadly defined included kind of contact lists
443
00:21:16.520 --> 00:21:19.297
but client contact list are not confidential
444
00:21:19.297 --> 00:21:23.090
and proprietary business information of the Governo Law Firm
445
00:21:23.090 --> 00:21:25.020
and that was what the purpose of it is.
446
00:21:25.020 --> 00:21:26.003
Why, can you explain that one?
447
00:21:26.003 --> 00:21:27.490
Because that's inconsistent
448
00:21:27.490 --> 00:21:29.420
with every trade secret case I've ever heard?
449
00:21:29.420 --> 00:21:32.440
But the court did mean and had said
450
00:21:32.440 --> 00:21:35.350
this court mean way back when said that
451
00:21:35.350 --> 00:21:38.200
part of the duty of an attorney departing
452
00:21:38.200 --> 00:21:41.790
was to notify clients that they are departing
453
00:21:41.790 --> 00:21:44.380
and that the contact information of those clients
454
00:21:44.380 --> 00:21:47.180
need to be provided to the parting attorneys
455
00:21:47.180 --> 00:21:49.050
so that they can communicate with the clients
456
00:21:49.050 --> 00:21:50.819
that they are departing, so that indicates--
457
00:21:50.819 --> 00:21:53.860
So I think you just mean the administrative file
458
00:21:53.860 --> 00:21:57.490
is only the current client contacts
459
00:21:57.490 --> 00:21:59.630
of the departing attorneys?
460
00:21:59.630 --> 00:22:03.540
No I'm not even certain as I sit here today
461
00:22:03.540 --> 00:22:06.750
what is the quotes administrative files of the law firm
462
00:22:06.750 --> 00:22:09.850
other than they described the handbook,
463
00:22:09.850 --> 00:22:13.760
the billing procedures, the internal operations of the firm
464
00:22:13.760 --> 00:22:17.090
how to bill, how to put time down on a time sheet
465
00:22:17.090 --> 00:22:19.620
and Mr. Governo at trial conceded that
466
00:22:19.620 --> 00:22:22.900
that information was derived from the internet,
467
00:22:22.900 --> 00:22:25.660
from public sources of information.
468
00:22:25.660 --> 00:22:28.210
And so when judge Salinger determined
469
00:22:28.210 --> 00:22:32.050
whether or not the permanent injunction should extend
470
00:22:32.050 --> 00:22:35.930
to information that was not confidential and proprietary
471
00:22:35.930 --> 00:22:38.130
there's no abuse of discretion there.
472
00:22:38.130 --> 00:22:40.130
Judge Salinger you determined that
473
00:22:40.130 --> 00:22:42.660
the plaintiff had not established
474
00:22:42.660 --> 00:22:45.970
I need for permanent injunctive relief
475
00:22:45.970 --> 00:22:47.737
and this court and your enlightened lab said,
476
00:22:47.737 --> 00:22:52.737
"Hey there's no evidence that there's no future offense,"
477
00:22:53.660 --> 00:22:55.650
there's no the injunction was proper was
478
00:22:55.650 --> 00:22:58.750
in the court's discretion to fashion the order.
479
00:22:58.750 --> 00:23:02.060
Here so for focusing only on those administrative materials
480
00:23:02.060 --> 00:23:06.060
there's no reason to upset that injunction
481
00:23:06.060 --> 00:23:07.940
the judge Salinger entered
482
00:23:07.940 --> 00:23:10.423
with respect to the client file material.
483
00:23:11.575 --> 00:23:13.480
So speaking of the administrative file
484
00:23:13.480 --> 00:23:15.570
are you suggesting that if I look in the record
485
00:23:15.570 --> 00:23:18.640
there's gonna be a finding what Judge Salinger saying
486
00:23:18.640 --> 00:23:20.580
that the administrative files
487
00:23:20.580 --> 00:23:23.623
whatever they may constitute are not confidential.
488
00:23:25.250 --> 00:23:28.350
No, the judge did not make a specific finding
489
00:23:28.350 --> 00:23:29.480
and entering the order.
490
00:23:29.480 --> 00:23:32.320
I'd have to go back and read the order on the injunction
491
00:23:32.320 --> 00:23:33.433
it's in my agenda
492
00:23:34.555 --> 00:23:37.620
but the plaintiff had the burden to prove
493
00:23:37.620 --> 00:23:39.870
why it was entitled to an injunction
494
00:23:39.870 --> 00:23:43.090
to protect these broad swats of information
495
00:23:43.090 --> 00:23:45.960
that it claimed was it's property.
496
00:23:45.960 --> 00:23:48.240
It claimed that it owned the client files.
497
00:23:48.240 --> 00:23:50.220
It claimed that it owned
498
00:23:50.220 --> 00:23:53.470
all the information about ongoing clients.
499
00:23:53.470 --> 00:23:56.090
And so therefore all of that should be enjoined.
500
00:23:56.090 --> 00:23:58.000
And it also claimed that
501
00:23:58.000 --> 00:24:02.340
it's confidential proprietary business information included.
502
00:24:02.340 --> 00:24:06.120
For instance, just as an example, the employee handbook
503
00:24:06.120 --> 00:24:09.620
and there was no evidence in the record the trial record
504
00:24:09.620 --> 00:24:11.840
to substantiate that was confidential
505
00:24:11.840 --> 00:24:16.050
and proprietary business information to permit an injunction
506
00:24:16.050 --> 00:24:17.980
as an additional equitable remedy
507
00:24:17.980 --> 00:24:19.850
for the misappropriation claim.
508
00:24:19.850 --> 00:24:24.363
Is that not part of the conversion finding by the jury?
509
00:24:25.960 --> 00:24:28.602
No because there's no evidence surrounding--
510
00:24:28.602 --> 00:24:31.650
I asked you then to turn to the 93 A jury instruction.
511
00:24:31.650 --> 00:24:33.663
Why is that not erroneous?
512
00:24:35.220 --> 00:24:38.370
Because as has your honors had indicated
513
00:24:38.370 --> 00:24:41.250
if you wanna say the word irrelevant is erroneous,
514
00:24:41.250 --> 00:24:43.670
I'm not gonna fight with Judge Salinger
515
00:24:43.670 --> 00:24:45.590
constructed only from this perspective.
516
00:24:45.590 --> 00:24:47.840
I wanna address that point.
517
00:24:47.840 --> 00:24:50.020
The word irrelevant is relative
518
00:24:50.020 --> 00:24:52.730
to assessing trader commerce.
519
00:24:52.730 --> 00:24:55.440
What Judge Salinger was stating
520
00:24:55.440 --> 00:24:57.440
is that the conduct that occurred
521
00:24:57.440 --> 00:25:01.170
during the course of the employment is not relevant
522
00:25:01.170 --> 00:25:04.400
to the assessment of trading commerce.
523
00:25:04.400 --> 00:25:06.440
And that's meaning that's solid.
524
00:25:06.440 --> 00:25:08.860
That's all the cases from this court
525
00:25:08.860 --> 00:25:13.000
that says inter entity conduct is not trader commerce.
526
00:25:13.000 --> 00:25:15.950
So that's what the word relevant irrelevant was referenced
527
00:25:15.950 --> 00:25:17.750
to when you read the instruction.
528
00:25:17.750 --> 00:25:20.210
And that's, I mean, I understand everything
529
00:25:20.210 --> 00:25:21.850
that's around the instruction,
530
00:25:21.850 --> 00:25:26.750
but that I don't think when the jury say it's told
531
00:25:26.750 --> 00:25:30.620
and so anything that happened before X day
532
00:25:30.620 --> 00:25:34.600
that's all irrelevant to the 93A claim.
533
00:25:34.600 --> 00:25:36.920
I just don't think they took it that way.
534
00:25:36.920 --> 00:25:40.050
Now I think afterwards he does make the point that
535
00:25:40.050 --> 00:25:44.720
only consider unfair and deceptive practices
536
00:25:44.720 --> 00:25:46.543
after they left the firm.
537
00:25:47.530 --> 00:25:50.190
And so it's juxtaposed, I believe against that.
538
00:25:50.190 --> 00:25:52.490
But to say that everything that happened
539
00:25:52.490 --> 00:25:54.543
before they left is irrelevant.
540
00:25:56.463 --> 00:25:58.350
That has to be error.
541
00:25:58.350 --> 00:25:59.981
Well, your honor.
542
00:25:59.981 --> 00:26:03.220
I don't read the instruction that way, your honor
543
00:26:03.220 --> 00:26:05.800
because the judge said specifically
544
00:26:05.800 --> 00:26:09.660
that if you find that the use of the copied materials
545
00:26:09.660 --> 00:26:13.070
was used for competitive advantage after they left
546
00:26:13.070 --> 00:26:15.900
you may find that there was an unfair, deceptive practice.
547
00:26:15.900 --> 00:26:17.280
And that's what the case was about.
548
00:26:17.280 --> 00:26:19.940
It was the use of the materials to compete
549
00:26:19.940 --> 00:26:22.545
after they departed, that was the case.
550
00:26:22.545 --> 00:26:23.870
There wasn't--
551
00:26:23.870 --> 00:26:25.630
Isn't it important that
552
00:26:25.630 --> 00:26:29.610
the material arrived at the new law firm improperly
553
00:26:29.610 --> 00:26:32.240
Then nobody restricted the evidence
554
00:26:32.240 --> 00:26:34.560
from going in on that point the whole case was--
555
00:26:34.560 --> 00:26:37.050
No I guess to Judge Lowy's point
556
00:26:39.790 --> 00:26:44.200
isn't it important that employees talk
557
00:26:46.370 --> 00:26:51.320
this confidential information while they were employed
558
00:26:51.320 --> 00:26:56.320
i.e before November 20th, and by instructing the jury
559
00:26:57.000 --> 00:26:59.273
that they could not consider that,
560
00:27:01.580 --> 00:27:06.120
that caused the jury perhaps to misconstrue
561
00:27:06.120 --> 00:27:07.463
the subsequent use.
562
00:27:09.132 --> 00:27:11.890
You honor I disagree with that from this perspective,
563
00:27:11.890 --> 00:27:15.220
as I read the instruction, the court was instructing
564
00:27:15.220 --> 00:27:17.330
on the element of trade or commerce.
565
00:27:17.330 --> 00:27:19.070
That's an essential element
566
00:27:19.070 --> 00:27:22.500
because this count went to the jury.
567
00:27:22.500 --> 00:27:24.450
And so the jury had the first determined
568
00:27:24.450 --> 00:27:26.093
with this trade or commerce.
569
00:27:27.430 --> 00:27:28.263
And the all--
570
00:27:28.263 --> 00:27:30.575
I find with regard to the new firm,
571
00:27:30.575 --> 00:27:33.100
the new firm--
Am sorry I didn't hear you.
572
00:27:33.100 --> 00:27:36.430
I know the new firm is not an employee.
573
00:27:36.430 --> 00:27:37.263
Absolutely.
574
00:27:37.263 --> 00:27:41.860
Why new firm pre November 20th conduct, not relevant.
575
00:27:41.860 --> 00:27:43.630
The new firm didn't operate
576
00:27:43.630 --> 00:27:46.050
until after my clients left on November 20th.
577
00:27:46.050 --> 00:27:48.863
The evidence was undisputed that point.
578
00:27:48.863 --> 00:27:51.400
But isn't that really counsel isn't that really,
579
00:27:51.400 --> 00:27:53.400
I don't mean to interrupt just this Wendlandt
580
00:27:53.400 --> 00:27:54.350
the answer to your question
581
00:27:54.350 --> 00:27:57.680
but isn't that really the point here that conduct
582
00:27:57.680 --> 00:28:01.397
there could actually the cases say
583
00:28:01.397 --> 00:28:03.860
"Oh, it's an employee employer relationship."
584
00:28:03.860 --> 00:28:06.870
So we're not looking to at trade secrets
585
00:28:06.870 --> 00:28:09.140
and all that stuff, but really what was happening is
586
00:28:09.140 --> 00:28:11.070
you might not have been active.
587
00:28:11.070 --> 00:28:13.630
You were incorporated by November 1st,
588
00:28:13.630 --> 00:28:15.820
but everybody was acting in concert
589
00:28:15.820 --> 00:28:20.820
for the benefit of the new firm before leaving Governo.
590
00:28:21.320 --> 00:28:23.260
And so that can color,
591
00:28:23.260 --> 00:28:25.180
even though they're still technically employees
592
00:28:25.180 --> 00:28:28.070
does not color the 93A claim.
593
00:28:28.070 --> 00:28:29.773
Your honor yes, it does.
594
00:28:30.990 --> 00:28:33.520
but the jury wasn't precluded from considering
595
00:28:33.520 --> 00:28:37.580
that evidence on unfair deceptive practices after they left
596
00:28:37.580 --> 00:28:40.180
the jury can't consider that information
597
00:28:40.180 --> 00:28:41.340
on trade or commerce.
598
00:28:41.340 --> 00:28:43.310
That's the distinction I'm trying to make
599
00:28:43.310 --> 00:28:44.414
the element of trade or commerce.
600
00:28:44.414 --> 00:28:46.599
What kind of the instruction should I look at,
601
00:28:46.599 --> 00:28:49.620
for your trade or commerce?
602
00:28:49.620 --> 00:28:52.420
It's that's where that irrelevant language arises.
603
00:28:52.420 --> 00:28:54.370
It's with respect to the first element
604
00:28:54.370 --> 00:28:56.240
as the court went through the instructions,
605
00:28:56.240 --> 00:28:57.670
the court said the first element
606
00:28:57.670 --> 00:29:00.410
you need to determine is trader commerce.
607
00:29:00.410 --> 00:29:04.610
And it said my law and an employee, employer relationship.
608
00:29:04.610 --> 00:29:06.853
If you look at the instructions, says conduct as part of--
609
00:29:06.853 --> 00:29:10.080
What page are you on the instructions in your appendix.
610
00:29:10.080 --> 00:29:11.944
So my addendum your honor
611
00:29:11.944 --> 00:29:16.910
if you get it's actually in my brief excerpted at page 15.
612
00:29:16.910 --> 00:29:18.740
Yeah, no, I'm looking at the entire
613
00:29:18.740 --> 00:29:19.900
whatever's in the record.
614
00:29:19.900 --> 00:29:24.900
And which is on submitted was page 157
615
00:29:25.070 --> 00:29:26.840
and then it jumps to 158 and then it jumps to...
616
00:29:28.850 --> 00:29:30.100
That goes forward.
617
00:29:30.100 --> 00:29:32.860
But where in that stretch
618
00:29:32.860 --> 00:29:34.710
is the section you're talking about
619
00:29:39.290 --> 00:29:40.983
Its in denim page 120, 123.
620
00:29:44.660 --> 00:29:47.593
Okay and it's not the paragraph you're referring me.
621
00:29:48.430 --> 00:29:52.770
I'm looking at, if you look at the bottom of addendum 120
622
00:29:52.770 --> 00:29:57.770
it starts with one more claim to talk about is the 93A claim
623
00:29:58.500 --> 00:30:00.250
the court goes on to prevail on this claim.
624
00:30:00.250 --> 00:30:03.650
The Governo Law Firm had to prove two things first
625
00:30:03.650 --> 00:30:04.850
that the defendant did something
626
00:30:04.850 --> 00:30:07.050
while acting in trade or commerce
627
00:30:07.050 --> 00:30:08.470
that was unfair, deceptive.
628
00:30:08.470 --> 00:30:10.870
And second unjustly profited.
629
00:30:10.870 --> 00:30:12.430
Okay.
As to the first element
630
00:30:12.430 --> 00:30:14.690
they must prove something was in trade or commerce.
631
00:30:14.690 --> 00:30:16.490
And then the court goes on to talk about
632
00:30:16.490 --> 00:30:18.810
and instruct on trade or commerce.
633
00:30:18.810 --> 00:30:22.050
Can you tell us where in the instructor?
634
00:30:22.050 --> 00:30:24.170
Because I thought the only saving grace
635
00:30:24.170 --> 00:30:27.210
was the sentence after the irrelevant one.
636
00:30:27.210 --> 00:30:31.190
Is there somewhere else where Judge Salinger makes clear
637
00:30:31.190 --> 00:30:36.190
that if they stole it earlier and used it later
638
00:30:37.070 --> 00:30:38.550
that could be considered
639
00:30:40.469 --> 00:30:44.645
where do we turn in the instructions to clarify that point?
640
00:30:44.645 --> 00:30:47.100
So Judge Salinger goes on to say
641
00:30:48.630 --> 00:30:52.000
instead for this claim, the Governo Firm must prove
642
00:30:52.000 --> 00:30:53.460
that the defendants did something
643
00:30:53.460 --> 00:30:55.670
to compete with the Governo Firm
644
00:30:55.670 --> 00:30:59.010
after they left that firm that was unfair or deceptive.
645
00:30:59.010 --> 00:31:01.860
Yeah if that okay that's what...
646
00:31:01.860 --> 00:31:03.960
Mr. Carr, just to clarify
647
00:31:03.960 --> 00:31:06.230
that's what I thought was all the same.
648
00:31:06.230 --> 00:31:07.720
If that's all you got
649
00:31:10.260 --> 00:31:13.010
how do they do what you're talking about?
650
00:31:13.010 --> 00:31:14.090
'Cause they've just been told
651
00:31:14.090 --> 00:31:17.050
that everything before this is irrelevant
652
00:31:17.050 --> 00:31:20.160
so they need to do something unfair and deceptive
653
00:31:20.160 --> 00:31:22.870
afterwards but they're not told that they can,
654
00:31:22.870 --> 00:31:26.810
that they use afterwards is relevant I mean.
655
00:31:26.810 --> 00:31:30.060
It says right here, your honor, it's the next paragraph?
656
00:31:30.060 --> 00:31:31.450
Lawyer read to me.
It says,
657
00:31:31.450 --> 00:31:33.290
so given the evidence in this case,
658
00:31:33.290 --> 00:31:35.040
and again this was based on the evidence
659
00:31:35.040 --> 00:31:37.120
and the arguments of the plaintiff
660
00:31:37.120 --> 00:31:40.070
that their case was about use to compete when they left.
661
00:31:40.070 --> 00:31:41.470
That was their case.
662
00:31:41.470 --> 00:31:42.850
So Judge Slinger here says,
663
00:31:42.850 --> 00:31:45.480
so given the evidence in this case,
664
00:31:45.480 --> 00:31:47.960
the Governo Firm must convince you
665
00:31:47.960 --> 00:31:51.210
that the defendant used confidential information
666
00:31:51.210 --> 00:31:54.040
or documents, belonging to the Governor Firm
667
00:31:54.040 --> 00:31:55.890
to compete against that firm
668
00:31:55.890 --> 00:31:58.340
in an unfair or deceptive manner.
669
00:31:58.340 --> 00:32:00.270
And they did so after their employment
670
00:32:00.270 --> 00:32:02.680
at the Governo Firm ended.
671
00:32:02.680 --> 00:32:06.700
Okay so you feel that clarifies the irrelevant mistakes.
672
00:32:06.700 --> 00:32:07.950
Absolutely 'cause then he goes
673
00:32:07.950 --> 00:32:10.390
to talk about the element of unfair deceptive
674
00:32:10.390 --> 00:32:12.020
even further, your honor.
675
00:32:12.020 --> 00:32:14.390
So Judge Salinger goes on after that,
676
00:32:14.390 --> 00:32:18.200
then again define the elements of unfair deceptive,
677
00:32:18.200 --> 00:32:20.060
and he doesn't use that language
678
00:32:20.060 --> 00:32:22.380
relative to quotes irrelevant.
679
00:32:22.380 --> 00:32:24.960
So it's clear that he's instructing the jury.
680
00:32:24.960 --> 00:32:27.050
And this was an important part
681
00:32:27.050 --> 00:32:29.750
that I raised, frankly at the charge conference
682
00:32:29.750 --> 00:32:31.540
and wasn't even addressed by the point of,
683
00:32:31.540 --> 00:32:34.040
I was concerned about the arising
684
00:32:34.040 --> 00:32:36.240
out of employment relationship
685
00:32:36.240 --> 00:32:38.640
that everything that occurred arose out of
686
00:32:38.640 --> 00:32:40.618
I was preserving my appellate rights on that issue.
687
00:32:40.618 --> 00:32:42.057
And Judge Salinger said,
688
00:32:42.057 --> 00:32:44.467
"Look I disagree Mr. Carr,
689
00:32:44.467 --> 00:32:47.240
"if they use the materials that they copied"
690
00:32:47.240 --> 00:32:48.470
and that the evidence was
691
00:32:48.470 --> 00:32:50.650
that they copied the materials before they left.
692
00:32:50.650 --> 00:32:52.934
There was no fight about that.
693
00:32:52.934 --> 00:32:56.610
But if they use those materials after they leave,
694
00:32:56.610 --> 00:32:58.720
I think that does not arise out of
695
00:32:58.720 --> 00:33:00.000
the employment relationship.
696
00:33:00.000 --> 00:33:03.290
I'm gonna instruct the jury that they can say that
697
00:33:03.290 --> 00:33:05.760
if they use those materials that they copied
698
00:33:05.760 --> 00:33:07.060
because the court had already given
699
00:33:07.060 --> 00:33:09.340
all the instructions on conversion,
700
00:33:09.340 --> 00:33:11.940
and misappropriation on trade secrets
701
00:33:11.940 --> 00:33:13.560
that those instructions have been given
702
00:33:13.560 --> 00:33:16.740
pre prior to the 93A charge.
703
00:33:16.740 --> 00:33:19.120
And so if you read the whole...
704
00:33:19.120 --> 00:33:20.890
You gotta read the charges as a whole
705
00:33:20.890 --> 00:33:23.240
and say, okay the judge is saying
706
00:33:23.240 --> 00:33:27.080
that if you find that the information my clients copied
707
00:33:27.080 --> 00:33:28.777
before they left was confidential
708
00:33:28.777 --> 00:33:32.710
and proprietary information or trade secrets of the firm.
709
00:33:32.710 --> 00:33:36.814
And they did that in a manner that was a violation of law.
710
00:33:36.814 --> 00:33:39.530
That can be an ex claim.
711
00:33:39.530 --> 00:33:43.340
And if they use that information that can cause damages.
712
00:33:43.340 --> 00:33:45.462
And then they went on to describe the 93A piece
713
00:33:45.462 --> 00:33:48.400
of that whole theory of the case.
714
00:33:48.400 --> 00:33:51.383
There was no way that the plaintiff was recruited
715
00:33:51.383 --> 00:33:54.570
or prejudiced in any way from the jury
716
00:33:54.570 --> 00:33:57.340
understanding that the copying and use
717
00:33:57.340 --> 00:34:00.180
those two things combined was the case.
718
00:34:00.180 --> 00:34:01.930
And that was the whole theory.
719
00:34:01.930 --> 00:34:05.000
And so what Judge Salinger was concerned about
720
00:34:05.000 --> 00:34:08.130
and this came up during the charge conference--
721
00:34:08.130 --> 00:34:10.730
Mr. Carr I've hadn't a chance to read the closings
722
00:34:11.750 --> 00:34:15.610
are the closings making fighting over that point
723
00:34:16.450 --> 00:34:21.100
that basically the Peggy Wotton point,
724
00:34:21.100 --> 00:34:23.750
okay if they stole it and they used it
725
00:34:23.750 --> 00:34:25.400
that can be a 93A violation.
726
00:34:25.400 --> 00:34:27.950
Is that clear in the closings?
727
00:34:27.950 --> 00:34:31.360
But I don't recall your honor but I do recall this
728
00:34:31.360 --> 00:34:35.550
that the plaintiff wanted the jury to use
729
00:34:35.550 --> 00:34:38.040
all of the other so-called bad acts
730
00:34:38.040 --> 00:34:42.620
of pairing to start a new firm as a 93A violation
731
00:34:42.620 --> 00:34:45.800
as part of the unfair deceptive practices
732
00:34:45.800 --> 00:34:48.090
of planning to compete with Governo.
733
00:34:48.090 --> 00:34:50.360
And that's what led the court to say
734
00:34:50.360 --> 00:34:53.680
don't consider the negotiations about the buyout.
735
00:34:53.680 --> 00:34:56.280
Don't consider that they were opening a new firm
736
00:34:56.280 --> 00:34:58.580
or that they waiting secretly to leave
737
00:34:58.580 --> 00:35:01.180
because none of that can be in 93A claim.
738
00:35:01.180 --> 00:35:04.030
The plaintiff in closing, my recollection
739
00:35:04.030 --> 00:35:06.670
is they talked about all these so-called bad acts
740
00:35:06.670 --> 00:35:10.100
that my clients engaged in addition to the copying.
741
00:35:10.100 --> 00:35:13.900
And so they wanted the jury to focus on everything.
742
00:35:13.900 --> 00:35:16.830
And if you look at the requests relief in this brief
743
00:35:16.830 --> 00:35:19.733
if you look, if they specifically ask you to remain,
744
00:35:20.850 --> 00:35:24.520
to permit all evidence of pre-departure conduct
745
00:35:24.520 --> 00:35:28.760
including the copying, not just the copying
746
00:35:28.760 --> 00:35:31.000
including the copying to be considered
747
00:35:31.000 --> 00:35:33.770
as part of an unfair deceptive trade practice.
748
00:35:33.770 --> 00:35:36.164
So they're gonna they want you your honors
749
00:35:36.164 --> 00:35:39.630
to say that plans to leave and compete
750
00:35:39.630 --> 00:35:41.890
and start a new law firm
751
00:35:41.890 --> 00:35:44.970
can be part of unfair deceptive conduct,
752
00:35:44.970 --> 00:35:46.320
not just the copying.
753
00:35:46.320 --> 00:35:49.080
And that was the argument that they argued to the jury
754
00:35:49.080 --> 00:35:51.810
that you can consider all of what they did
755
00:35:51.810 --> 00:35:53.360
to secretly plan to meet.
756
00:35:53.360 --> 00:35:56.060
And you saw they referenced in their brief
757
00:35:56.060 --> 00:35:59.740
the so-called bad conduct towards Mr. Governor.
758
00:35:59.740 --> 00:36:03.290
That was what the Judge Salinger was trying to avoid
759
00:36:03.290 --> 00:36:06.700
was the undue prejudice to the defendants if you will
760
00:36:06.700 --> 00:36:09.770
that the jury would consider all that other conduct
761
00:36:09.770 --> 00:36:11.430
as part of trading commerce
762
00:36:11.430 --> 00:36:13.570
and as part of unfair deceptive acts
763
00:36:13.570 --> 00:36:16.620
as opposed to yes, they copied the materials.
764
00:36:16.620 --> 00:36:19.420
Is it the jury had to first decide
765
00:36:19.420 --> 00:36:22.280
is that Governo property or not Governo property
766
00:36:22.280 --> 00:36:23.920
and they used that.
767
00:36:23.920 --> 00:36:25.370
Mr. Carr
Yes sir.
768
00:36:25.370 --> 00:36:28.830
I'd like to get your take on the pre-judgment interest
769
00:36:28.830 --> 00:36:32.420
'cause we're over already when lines point
770
00:36:32.420 --> 00:36:37.000
seems to me compelling that
771
00:36:37.000 --> 00:36:39.800
and different from anything that's been argued,
772
00:36:39.800 --> 00:36:41.560
or even with Judge Salinger wrote,
773
00:36:41.560 --> 00:36:46.370
which is that the way you calculate this disgorgement
774
00:36:46.370 --> 00:36:50.030
it basically builds in the time value of money
775
00:36:50.030 --> 00:36:52.050
is that's real.
776
00:36:52.050 --> 00:36:55.490
To me, that seems to be a narrower distinction
777
00:36:55.490 --> 00:36:56.980
but one that's sensible
778
00:36:57.930 --> 00:36:59.910
just 'cause you measure damages
779
00:36:59.910 --> 00:37:01.930
by disgorge profits in general
780
00:37:01.930 --> 00:37:04.710
it doesn't seem to preclude prejudgment interest
781
00:37:04.710 --> 00:37:09.660
but here it seems like the amount builds up over time.
782
00:37:09.660 --> 00:37:11.330
So it takes this into account.
783
00:37:11.330 --> 00:37:14.810
So it isn't that the way we should analyze
784
00:37:14.810 --> 00:37:16.700
the pre-judgment interest point
785
00:37:16.700 --> 00:37:18.460
I agree that's one way.
786
00:37:18.460 --> 00:37:23.460
And I think when I decided to jet spray in my motion
787
00:37:24.191 --> 00:37:26.404
(mumbles)
788
00:37:26.404 --> 00:37:29.950
to amend the judge to remove prejudgment interest
789
00:37:29.950 --> 00:37:31.420
I relied on jet spraying part
790
00:37:31.420 --> 00:37:32.860
because that was part of the analysis.
791
00:37:32.860 --> 00:37:34.690
I've understood jet spray to say
792
00:37:35.543 --> 00:37:37.990
that is the damage if you will
793
00:37:37.990 --> 00:37:40.320
And so therefore you can't get interest on interest.
794
00:37:40.320 --> 00:37:42.350
You aren't just point I'm saying it a little differently,
795
00:37:42.350 --> 00:37:44.520
but it's the same concept
796
00:37:44.520 --> 00:37:48.160
because these are discord profits
797
00:37:48.160 --> 00:37:52.290
of what my client earned on the misuse of the materials.
798
00:37:52.290 --> 00:37:56.810
Not harm, not damage sustained by the firms.
799
00:37:56.810 --> 00:37:58.800
So they're not deprived of that money
800
00:37:58.800 --> 00:38:01.100
during that period of time, because they never earn
801
00:38:01.100 --> 00:38:02.950
that money during the period of time.
802
00:38:02.950 --> 00:38:05.590
But to the extent that they are being compensated
803
00:38:05.590 --> 00:38:08.323
through money, it's the same concept.
804
00:38:09.280 --> 00:38:10.650
That's the amount of money that
805
00:38:10.650 --> 00:38:13.370
if you so-called quotes were deprived
806
00:38:13.370 --> 00:38:15.520
it's the same deprivation of use.
807
00:38:15.520 --> 00:38:18.290
And so therefore the prejudgment interest statute
808
00:38:18.290 --> 00:38:20.140
if you will, I don't think it applies.
809
00:38:20.140 --> 00:38:23.650
I really don't wanna see that point because
810
00:38:23.650 --> 00:38:26.620
there's no way that in my estimation,
811
00:38:26.620 --> 00:38:29.420
based on this court's decision in the judge case,
812
00:38:29.420 --> 00:38:32.390
that not every payment of money is damages,
813
00:38:32.390 --> 00:38:34.840
it's gonna be compensatory damages.
814
00:38:34.840 --> 00:38:36.540
And these are disgorged profits.
815
00:38:36.540 --> 00:38:38.920
This is unjust enrichment and the appeals court.
816
00:38:38.920 --> 00:38:41.150
And I believe this court has held before,
817
00:38:41.150 --> 00:38:42.920
including in national merchandising,
818
00:38:42.920 --> 00:38:46.290
which goes way back the whole long time ago,
819
00:38:46.290 --> 00:38:51.190
that there's a bright line distinction between damages
820
00:38:51.190 --> 00:38:54.960
and discouragement and so if this court says--
821
00:38:54.960 --> 00:38:58.140
The problem is all the lawyers left, right?
822
00:38:58.140 --> 00:39:00.390
So he doesn't have any ability to keep--
823
00:39:00.390 --> 00:39:01.530
That's not accurate, your honor,
824
00:39:01.530 --> 00:39:04.950
that's frankly that's not accurate this is not true.
825
00:39:04.950 --> 00:39:07.860
All the lawyers initially did not leave.
826
00:39:07.860 --> 00:39:09.620
There were still people working there,
827
00:39:09.620 --> 00:39:12.010
including Ms. Kelly who stayed behind
828
00:39:12.010 --> 00:39:13.340
who was originally part of the group.
829
00:39:13.340 --> 00:39:15.650
So, and not to interrupt your honor
830
00:39:15.650 --> 00:39:18.770
but what happened was my clients laughed
831
00:39:18.770 --> 00:39:21.820
and the clients chose to leave to go with them.
832
00:39:21.820 --> 00:39:24.220
And there was no evidence the court directed out
833
00:39:25.130 --> 00:39:27.700
the breach of fiduciary duty claim on solicitation
834
00:39:27.700 --> 00:39:30.820
'cause there was no evidence of unlawful solicitation.
835
00:39:30.820 --> 00:39:35.260
So the clients exercise their rights to choose my clients
836
00:39:35.260 --> 00:39:38.640
and that there were lawyers remaining at Governo Law Firm
837
00:39:39.620 --> 00:39:43.170
and so the answer is they could still earn a living.
838
00:39:43.170 --> 00:39:45.150
It's just, these clients chose to depart
839
00:39:45.150 --> 00:39:47.110
and they have a right to do that.
840
00:39:47.110 --> 00:39:50.810
But so either on your honor's understanding,
841
00:39:50.810 --> 00:39:52.150
which I agree with
842
00:39:52.150 --> 00:39:55.550
that that amount of money is serves the purpose.
843
00:39:55.550 --> 00:39:57.190
If you will, a pre-judgment interest
844
00:39:57.190 --> 00:39:59.850
of the same statutory reason for that
845
00:39:59.850 --> 00:40:01.010
as the court has interpreted
846
00:40:01.010 --> 00:40:02.780
the pre-judge interest statute
847
00:40:02.780 --> 00:40:05.800
or it's not damages under the George case
848
00:40:05.800 --> 00:40:07.490
where everything that's a money payment
849
00:40:07.490 --> 00:40:09.797
is not a demon subject to prejudgment interest
850
00:40:09.797 --> 00:40:12.130
and there should be no pre-judgment interests.
851
00:40:12.130 --> 00:40:14.830
Do you think the legislature was contemplating that?
852
00:40:16.180 --> 00:40:18.970
As I understand the way this honor
853
00:40:18.970 --> 00:40:21.680
this court has interpreted statutory construction
854
00:40:21.680 --> 00:40:24.910
time and again, is that the legislature is supposed to know
855
00:40:24.910 --> 00:40:27.200
or does assume to know
856
00:40:27.200 --> 00:40:29.610
there's a distinction between money damages
857
00:40:29.610 --> 00:40:30.920
and discouragement
858
00:40:30.920 --> 00:40:35.650
which is rooted in in our law for many, many, many years.
859
00:40:35.650 --> 00:40:38.020
So when the legislature wrote 6H
860
00:40:39.360 --> 00:40:43.490
and use the word damages as opposed to monetary recovery
861
00:40:43.490 --> 00:40:44.970
which I would then probably
862
00:40:44.970 --> 00:40:46.540
not have a very strong argument
863
00:40:46.540 --> 00:40:48.210
on the compensatory damage piece.
864
00:40:48.210 --> 00:40:51.100
But I still agree with your honor that
865
00:40:51.100 --> 00:40:54.150
it's still within the rubric is pre-judgment interest.
866
00:40:54.150 --> 00:40:57.140
I would probably not have that same argument, your honor.
867
00:40:57.140 --> 00:40:59.290
So the legislature is presumed
868
00:40:59.290 --> 00:41:02.030
to know the current status of the law
869
00:41:02.030 --> 00:41:05.240
when it drafts a new statute, it new jet spray
870
00:41:05.240 --> 00:41:09.670
jet spray is still of bedrock case from this court
871
00:41:09.670 --> 00:41:11.870
it's still cited throughout.
872
00:41:11.870 --> 00:41:14.890
And so therefore so they know what the distinction is
873
00:41:14.890 --> 00:41:17.123
between disgorgement remedy and damages.
874
00:41:19.340 --> 00:41:20.580
Anybody have any good question?
875
00:41:20.580 --> 00:41:22.900
Yes and that's just as Carr
876
00:41:22.900 --> 00:41:24.710
referred to the closing argument,
877
00:41:24.710 --> 00:41:26.480
can you tell me are the closing arguments
878
00:41:26.480 --> 00:41:28.820
will be produced in the record appendix?
879
00:41:28.820 --> 00:41:30.780
My recollection is they are.
880
00:41:30.780 --> 00:41:32.310
Okay, thank you.
881
00:41:32.310 --> 00:41:34.390
Do you or your honor I didn't address cause I'm over.
882
00:41:34.390 --> 00:41:35.750
I wanted the answer to your questions.
883
00:41:35.750 --> 00:41:36.630
I don't know if you want me
884
00:41:36.630 --> 00:41:39.280
to address the post-judgment interest issue or not.
885
00:41:39.280 --> 00:41:41.800
Otherwise I rest on my brief on that
886
00:41:41.800 --> 00:41:43.800
and I appreciate your honor's time
887
00:41:43.800 --> 00:41:45.400
and ability to answer your questions.
888
00:41:45.400 --> 00:41:47.060
So thank you very much.
889
00:41:47.060 --> 00:41:47.930
Thank you.
Excellent.
890
00:41:47.930 --> 00:41:49.553
Thank you very much, counsel.