employment agreement specifically the sign on thirty five thousand shares offered strict that stock which were classified as a sign on stock one hundred eighty thousand shares of pushed restrictor stock which were classified as the time based restricted stock and two hundred sixty thousand dollars two hundred sixty thousand shares of for sure to stock which were generally or i should say just referred to as the miscellaneous stock by the parties and the in this case granted summary judgments of the plaintiff with respects to those three blocks of stock and also at a bench trial valuated the those three blocks of stock and it is our position that the district court erred in some significant a there was a terminations clause in the in the employment agreement which indicated that to the extent the plaintiff was terminated without cause all the plaintiff would be entitled to be two thousand and fifteen and the agreement specifically states that the wrist be miscellaneous restricted stock what not vest for a year after so the first twenty five percent of that doesn't necessarily mean that he would be entitled to it he just means you would be entitled to it and a future date yes but at the time that he was terminated because that termination that terminations clause in the agreement specifically lays out what he's specifically entitled to and it makes no mention of the of the muslim is restricted stock he should not been included in the calculation of of the damages in this considered the actual economic conditions and performance of solar power common stock in hindsight and value weight in the three blocks and blocks of stock in this case and as the as the second circuit has unequivocal and as the new york courts have also held actual economic conditions and performance in light of hindsight are not to be a determining factor or not to be was this argument made to the trial judge this principle of new york law before the judge did all of these calculations yes and as a matter of fact in our in our motion and eliminate papers we set forth for the court cases in which the admittedly not the not appellate courts about the district courts have universally held wash and so universally but a lot of district courts have held that a market ability does count of thirty to thirty five percent should be applied to shares of restricted stock in different question the question is whether the judge was advised that it is improper in a new york law to to calculate the discount rate based in the shares of stock just of course have held that the market ability discount of thirty to thirty five percent those cases in cases in which there was expert opinion neither you nor your adversary offered expert opinion to judge rake off and didn't really help in their e much in trying to figure this this out well but based on the based on what experts in other cases had provided guidance to the courts and restricted for ten years the discount would be larger than the thirty to thirty five percent again here in the cases that we cited for judge rick of the start in marketability discount what's what's referenced that's thirty to thirty five percent o and i would you i would just also add that this this case it's not there are other related cases that are still pending that have identified identical fact specifically there is another case before judge casto where the employment agreement is virtually identical so i think from from from our perspective i think it would be it would be rather helpful i should also mention that there are some other state court proceedings all involved in those cases we meaning you or your client both myself and my client same same courts same attorneys so it like all that good an idea to have the same parties who each other militates in favor of their guidance from from from from this court as to whether the miscellaneous stock should be should be part of the damages in this matter have filed a motion in limine a arguing that the the damages for the three bites of of stock should just be calculated by looking at the data breach what the what the price of solar power was common stock was on each data breach and simply do the calculation that way and response to that emotional women a we responded and advised judge recall that well no and calculate in damages for restricted stock there of the evidence which was stipulated to at the bench trial the price quotes of the stock quotes i'm not sure if the evidence that we provided were stock quotes for the dates of the breach and those were accepted by defendant as the price on that day and at that point the burden as you mentioned which is in a case synergy which was before this court in two thousand and sixteen determined that if there's going to be any sort of a discount that that burden or the uncertainty burden is on the defendant not on the plaintiff or on the party that's has suffered a breach so in this case we don't  you would be cross appealing are you hearing that the discount should be zero you're right we chose not to cross appeal we were satisfied with the results and in fact if you notice the what they're asking for with regard to miscellaneous stock of having this discount of thirty to thirty five percent judge race great cough determination of the value is around thirty two percent so it's falls right within the gamut of what they're asking for so i'm not really sure why we're here but been owed on different dates for mr jamil there is an april sixteenth day which was the date that his contract came into being and then the date of his term a nation which was i believe november third of twenty fifteen where the miscellaneous stock would be provided as well as time be stuck there was an acceleration clause within the contract that allowed for that we agreed with those facts there was nothing in question until today were i'm hearing that the miscellaneous stock should have been a part of the calculation they were always to be provided to my client summary judgment found funding was never subsequently challenge was and john doing the damage correct your honor and so for that reason i believe judge a cop's decision has to be affirmed is no reason not to affirm his decision