may please the court please so i hope to reserve three minutes of if possible you're the master of your time that's my goal your honor my name's john walker i i grew up in the green river in the early sixty's wild west in one of my common activities early on saturday morning as i get up and watch the westerns today we call them old t v westerns then they were new v westerns and eat my breakfast cereal before my folks woke up and one of the common themes throughout those old t v westerns was a lawless land wherein the cattle barons would often take advantage of the homesteaders but there was always the likes of the matt dillon or cheyenne bodie they could come and protect the interests of the downtrodden today we incorporated in implemented in a case from new mexico in it's the implied covenant of good faith and fair dealing the implied coven in the good faith and fair dealing requires that neither party or parties in this instance commit an act that would injure the rights of the other other party to receive the benefit of their agreement and that's the wyoming case of share construction versus had quest in it and so on on  this claim doesn't your claim fail if the defendants acted consistently with contract it it does not in let me explain why yes i do and i guess i guess what i'm saying is if they if the conduct you're complaining about is something that's that's not prohibited or maybe even arguably allowed  defeat you're your implied company name and it does not your honor and let me explain why i'm i'm both a trial attorney and i'm a transactional attorney many people have commented in sydney must be a really good trial attorney because you understand transactional law my response is no i'm a pretty darn good transactional attorney because of my trial practice and they learn of the loopholes and i learn of the issues and putting together a contract what's the answer to judge gardner the question contemplates the acquisition marketing packaging storing and transportation of a product that is derived from  this product is picked up developed marketed and utilized in the mining industry my client enters into this contract for those purposes working together to sell prepare store package transport if you forget everything else i've said today judges please please remember the s in today's business world and in contractual relationships they're still must be employed covenant of good faith and fair dealing and why i say that if as i believe happened here you allow one group of parties to a contract to dismantle and to attack and destroy the very business entity that they've contracted to participate in and i'm not just talking about a competitive business i'm talking about dismantling the businesses they've contractually arranged in agreed to a system strengthen we have substantial problems with how do you agree that to the extent someone is not a party to the contract that you don't have an implied covenant of good faith and fair dealing claim against them i would agree with it if it catches it attaches to a and whether it be an oral contract or a written contract it attaches to contractual relationships between business and cities right and i wholeheartedly agree with that judge but the point i want to emphasize and again it's the point that's emphasized in the new mexico agreement now i hear what you're saying as well what if the contract itself says you're allowed to injure the rights of the opposing party and that's where the transactional attorney in me is troubled because i don't know how you can draft a contract good faith and again i'm talking about a business transaction in any where your business partners that you believe are working with you working towards the benefit of the business entity are in fact gleaning gathering information from top to bottom and representing to you throughout this period of time that yes we're on we're working together for this common interest in for the benefit of all of us and then three years into that relationship you discover that from top to bottom they've been renegotiating and undercutting and they use the term undermining literally and figuratively the ability for you to perform your conditions under the contract this is it really so much rises upon this concept of an implied covenant that we're going to work together i hear which you say why can't you as a  lawyer abbe language and language and language and language that says no you can't do this can't do that can't do that you can't push me off the train at the end of the day i'm i'm i'm pleading for this court to hold fast to the principles and it was dismissed based upon the economic loss rule and then later the contract claim is dismissed without addressing what does this do to the fraud claim well i mean so the contract claim was was dismissed on the notion that there was no breach right lida slater yes and the fraud claim that doesn't mean that just to apply the economic loss rule does it i mean because i don't think the court ever said there was no contract the court the court acknowledged there was a contract and just said there was no breach and i think the gist of dismissing the fraud claim was you were claiming that their action in breaching the contract was also a fraud and that's how the court came up with that right and what what i have to be totally candid with with the court i did not counsel i was not in the trenches so i can't give you the minutia of well let me assure you who description should be your argument but but at the end of the day to year period in the record below where in representations are being made to my client over and over and over again that please tell us how you store this material please tell us what kind of baggie used the please tell us where you're purchasing the material from the what it were in the business partners had never bought so much as one gram of bad ash from from you know one hundred and twenty three representations it know we are working together don't worry about any concerns that you may have we are not splitting our activities our business interest is the same as your business interests telephone conversations emails where in my client is worried about what is going on and then has we reference within our brief three years later august of two thousand and seventeen my client just is pushed off the train  the business that he had believed they were working so hard to preserve and protect had been dismantled from acquisition to sales that he was unable to perform unable to do the work that he had based upon these representations and these are the kind of representations that a try or fact should review to understand was this in fact a material misrepresentation of a known untruth in that did my client rely upon that information that the trial court had an opportunity to focus on the pure five issue again in we believe that that the trial court should have addressed that issue importantly we believe that the fact that the implied covenant of good faith and fair dealing is an independent and separate action that survives the breach of contract we believe the court should have acknowledged that and provided my client with an opportunity to sealed to stay sealed the appellee is limited small universe of documents to remain sealed yes but the i was going to start with the what brings us here today is a case about secrets in the appellant m k i as and three occasions failed to tell this court why the briefs in this court should remain sealed the briefs that contain the secret sauce and the so called secrets in this court as this court noted those are now unsealed everyone in this courtroom can read those books everyone out who has access to them can read those briefs that's to us when we start this was a case at its core about secrets we get to the implied cover that they did not surprise us that that would be where pelham would go today it's really all they have left because the secrets cleans are so weak in those fall everything in the case falls and what we're left with is an is a an attempt using the implied covenant to breathe something into the contractual to apply it in something that wasn't there and you know there is there any i mean i think maybe we see all more than we should after this litigation and after all these companies now that are producing the similar product and all is there really any argument for continuing to seal this material because it contains business secrets certainly the police believe in open courts are not here to two up and some some broad saipan like that there are limited limited cases where they should be sealed and when the court asks for the parties to tell the court why they should be sealed the court's parties need to respond we did that for a limited number of sealed piece of information which is cases is not really about instead the ones that it is about the case the plaintiffs brought their claims on are the ones that are now  for the the response you say is the defendant pelleas did not come into court they were hailing the court as defendants and so they didn't put their business information out there and try to seek a remedy from another party or they did i don't mean i don't need to put i'm wasting your time while you want to argue so we'll decide whether we're going to keep c or secures an interruption i just the imply duty is implied into all contracts and wyoming law but the duties that are found implied cannot create new and expanded duties of rights that's what the district court found that the appellant had failed to do point to point to him any independent reason why there's a duty breach the if the only alleged breaches we young disputed date they signed the agreement with mr simmons why did they sign that agreement in two thousand and fourteen in march is because they were going to be selling mining material such as glycerin and other liquid chemicals that the mining folks use and mr black's company and i would be a vendor to crown crown is already in the in the in the mining industry had been productive aids and had glycerine vendors and kay i was going to be one of the glycerin vendors they set up a standard n d a and this is this is why it's so important the day after in the years after that was signed the crowd was free to look for other glycerin benders free to come up with its own glycerin free to compete with m p i in glycerin sales right there that's what's that's what's important from the beginning of this controversial relationship the two thousand and fourteen crown always always had the right to compete crown compete with them different products that but that is that what this case is about this and what this contract is about the contract is about anything that the parties share with each other any information to the life of that contract that they share with each other and you cannot use the confidential stuff and glycerin was never in this case because it was never a ledge to be confidential beg your this bet ash was a legit one time to become potential peers that that  mentioning it and we can do it with bed here unless it's secret i think i think what you're getting at is the underlying contract that would give rise to this implied duty is the n b a that's exactly right r and when you read the clear language unambiguous language of of the n d a it's nothing more than the don't use my comments informational disclose at the standard in the provisions that parties enter into it is not a joint venture throughout the briefs of m k refers to promises made to nurture their better business it's not in the country you won't find any promises to nurture the business only promise me is if you give us something confidential we want to use it likewise you crown shirt in the end they knew he was there and crowns behalf why is that important because the ab rubber agreement we had knowledge of has stronger loyalty provisions to it but the court found that company with whom you have known and compete in so that's how he should be treated from this point on that's why there's nothing wrong with his visit that's why it makes sense that he was there in at the record as it shows in the briefs he was we are free to find another that you're better we are free to find other glycerin vendors that's the business we're in when we are crown that's critical to this case it means there's nothing wrong with what was done and  fundamental understanding but it's been at the center of m k s case from the beginning there was no exclusive you could call your own you could call s i p c and say can i buy the special here it's wonderful here's the w says banks and you've a right of st refusal you could buy up to forty thousand tonnes of this dust we produce and only they never did they went to within fifteen thousand the maximum that means s i p c and the on controver hopkins they were trying to push this stuff out get rid of it is just ways that we have to pee to dispose of and it wasn't a secret that this stuff was good for stabilizing rose at absolutely no mention that name or because the reefs also that you'll recognize that name because a mr bob or was the st to do this in twenty thousand and eighty six years before mr black an m k i even got into a under an n d a if a rd party says and as as mr rove one of murray did when he called mr simmons of crown can you can you match this it's done every day in business can you match this i'm getting my bed to your from this this party can rid of it he selling it to jay moat he had been selling it to freedom is continue to sell it now to crown n n k i it just simply is not a secret source case with that the dominoes start falling through this through this mini complaint the trade secrets claim  state law or federal to the trade secrets claim and all of the duties on the implied covenant it's nothing more than trying to breathe in a independent and newly expanded rights which the cases tell us you cannot do mr walker you had a bit of time left i think minute and twenty seconds thank you judge what you have just heard is what gives me great concern about the right of my trial my client to have a trial  and triers of fact you've heard over and over again this fact this fact this fact this fact but as you look at the record there are there is some very contested issues on some of these things in a nutshell this case represents to me a very large onion that has lots of layers and lots of factual layers and lots of legal errors and legal issues to address what gives me tremendous concern judges is the notion of a party entering into a contractual relationship a business relationship to market a product and then have the party that you've contractually agreed to sell this product to get it out to transport it and then that party doesn't just go this is not competing lemonade stance this is a unique concept and to go out and dismantle your business internally and then set up the parallel competing business that's a question that a jury's need to hear thank you so much i just think you are right the case will be submitted in council or excuse