thank you may please the court eric olson i represent a large protection and like to reserve five minutes for a bottle of possible i'll i'd like to focus my arguments today on the motion for judgment as a matter of law that should have been granted limiting safes damages claims to those six customers where there was evidence of wrongful conduct conning causing them to cancel their accounts with say the jury's award should have been limited to those six and it would have been six times safes account valuation of two thousand four hundred seventy five dollars the trial court acknowledged in denying the jama well motion that the jury's verdict depended on an inference that defendant's conduct involving six customers extended to the great majority of safes alaska customers with whom alarm protection had task of taking turns away from the police now that there was training as to an upgrade or update technique and there was evidence of one customer one customer who allegedly received that technique as we'll and that was it up ticketing now that was called it was called upgrade a particular sales technique and there was evidence of one customer you can't take training that allegedly leads to one last account and extend that somehow to hundreds of accounts there's not a basis for that in the record there is no evidence of how many customers  alaska alarm protection contacted there was no evidence providing a basis to infer contact beyond six and thus no basis for a verdict of over nine hundred thousand dollars without total speculation by the jury which should never have been allowed the jury was properly instructed in instruction number twenty one that it had to find causation on the first three claims before awarding damages and damages on the three claims had to be calculated based on the number of accounts taken improperly all three of those claims required evidence of causation the sta unfair trade practices act claim which applied to six customers who were identified required causation the alaska trade secrets act as to which there was no evidence of a loss resulting from an alleged misappropriation of trade secrets and third the lanham act requires causation now safe tries to justify the jury's speculation by referring to a number of a number of and other cases involving relaxed standards of proving causation and damages and so called crude methodology is of calculating damages the problem is there is  asked for a judgment with notwithstanding the verdict you're basically it's got to be no evidence and clued in inferences as far as that goes and the jury certainly you could say well i don't think it was the strongest case but to say there was no evidence it's really a pretty difficult rock to push uphill whether the problem is there is a causation element and a damages calculation element you've got to prove the fact of damages before getting to the amount of damages and this is a plain and simple lost profits damages case under the lanham act there is no relaxed standard that applies to this type of claim they introduced evidence that their tradition rate in the lesko was greatly different and greatly higher than those nationwide why can't a jury infer the based on the training received by your clients people the actions they were taken with respect to at least six of the customers that those actions continued during the period involved and were responsible for the increase lack of increased attrition the problem your honor with this attrition theory that was presented for the first time in closing argument was not presented by an expert of any kind the problem with a fear of it was presented in closing argument because there was evidence of it from which to argue in closing argument correct incorrect because here's the evidence here's the evidence that was provided this is what was in the record on the attrition theory save had eight hundred nineteen lost customers in alaska each valued at two thousand four hundred seventy five dollars safe presented its customer attrition percentages your honor mentioned in alaska and its customer attrition percentage in the lower forty eight and safe called randy perkins a fact witness who testified that while there were service problems that were on par in both places customer moves and competitor solicitation were substantially higher in the state of alaska what was missing was any fact or expert testimony timing the excessive attrition in alaska to wrongful absolutely did we called a number of witnesses several witnesses who testified that they cancelled was safe to go to some to someone else they canceled was safe because they moved they canceled for any number of reasons we provided all the customer notes satisfied we have jury trials they put on their evidence and asked for their inferences you put on your evidence that eats away at that and then they're instructed as to the burden of proof and you both argue it and then the jury decides what they believe and they don't believe that any belief your side of the story not quite the problem and i understand your honour's point regarding jury trials absolutely all right i mean oblon is very argument here is not court the problem is that and this was illustrated well in the farley transportation case a case involving a motion for new trial where you had it was an antitrust case involving the relaxed damages standard that applies in those cases at least for causation and even with that relaxed standard a new trial was needed because there was no segregation between the customers lost for wrongful conduct and the customers lost for lawful competition that's the reality that we have here you've got to have some rational nexus between wrongful conduct and some loss that you suffered that's cuz ation that's how it why the jury thought that was pretty sleazy contact and the inference from that is if you're doing it with six people and then there's all this loss if that's how they're dealing and that's their whole approach of getting customers that doesn't point your client and a very good night with the jury oh it absolutely did not mean that could explain the jury's verdict your honor exactly the problem is the jury couldn't get there without some evidence of how many customers alarm protection even contacted let alone whether there was wrongful conduct in those contacts but in order to do the comparison my question on technical things people on rebounded it right and we did we offered a lot of that but there wasn't a need for us there was not a need for us or was because what you put on didn't rebut what they presented to the jury so as in farley transportation it's the plaintiff's job to put on evidence showing a lost the trial so they put on evidence that alaska if i recall is twenty one percent attrition nationwide it's about eleven to thirteen percent attrition they put on evidence of wrongful conduct what's wrong with the district court's conclusion that there was it was a permissible inference even though it's not perfect well the there are few reasons one you've got a series of cases that say when a relaxed standard applies and this is not one of those cases this is not a case involving comparative advertising where you've got some kind of presumption a widely disseminated statement leading to some kind of burden shifting conduct by the defendants making it impossible for the plaintiffs to just run a standard damages calculation and it's not an antitrust case that would involve some kind of yardstick methodology where you're doing that kind of comparison but even if it were the comparison that they were trying to run doesn't work in all the cases that have been cited using this yardstick type of method where you're using a proxy to try to create your damages calculation in all of those cases it has to be a proper comparison you have to have some some some clean sample such as several years of sales without some kind of wrongful conduct and then you have to have a can a sample that includes evidence of an actual of actual ronn full conduct but it has to be an actual apples to apples comparison here it was apples to oranges because as their own witness acknowledged when he went through his attrition comparison it was different in the lower forty eight from alaska because you had increase elicitation not necessarily by alarm protection there was no evidence of that and increased moving that lead to cancellations in alaska so you didn't have a true apples to apples comparison that would have allowed for the yardstick method the art sick methods never been never been used  lost profits damages case that's been cited here in this case so there wasn't a basis for making reasonable inferences that alarm protection talk to any number of customers beyond the six let alone good morning i'm robert salander and i represent security alarm find me and you pick up on your learning friend's last argument that the comparison was not valid with the forty eight states below can you respond to the yes side look to respond to that that was an argument that they made to the jury and to judge gleason several times and so the evidence on that that existed was well not much they did not show that and did not prove that alaska had any higher moving or any hi market conditions they would talk about the you know the geography of alaska and ask the jury to infer that it was difficult to get to some portions of alaska there was there were some indications of that but there was no you know kind of evidence that more people move out of alaska than move out of other states or that there's any kind of these changes what the evidence on this well as was that really from safe and the statistical inference is and comparisons that you can draw there were there were a couple so first of all sa food who's been in business for many years had this historical attrition rate depending on which witness it was was eleven to twelve or nine to thirteen percent but a fairly low attrition rate and a fairly consistent attrition rate and the testimony from the c e o of why it was so critical that stay safe stay on top of that attrition rate and that it be accurate for its business model and it other business relationships so that was a baseline nationwide we had a second baseline which was from the pinnacle acquisition and the pinnacle acquisition was not just in alaska it was all over the country and in some cases i think canada and puerto rico and that attrition rate mirrored safe's historical attrition rate in  approximately twelve percent rate we have the testimony of the chief operating officer who explained what the reasons are for normal attrition which include all of these things that a p t wanted to argue so customer cancellations move outs whatever reason dissatisfaction a whole bunch of things we also had then testimony from safe about the efforts it goes to to try to retain customers and to solve issues with non working equipment or customer dissatisfaction all the things that go into having maintained a fairly constant attrition rate over the years then we look at alaska so you could compare alaska to safe general way or you could compare alaska to pinnacle outside of alaska and the reason those comparisons were important is because one of the p t s arguments was that the pinnacle customers were an inferior type of customer the pinnacle had inferior equipment or just not have that available so that was not evidence that that we could get what we did though is introduce evidence that when safe purchased the pinnacle accounts it did not purchase all medical accounts but there was a fairly detailed due diligence process that went through to qualify accounts and that accounts had to be of a certain quality with working equipment with no outstanding service issues and so safe went through a pre purchase due diligence process to make sure that what it was purchasing was quality accounts and counts that were of the same same nature as fits into its portfolio so you didn't have any evidence of what was the attrition rate in alaska by any other company before you bought correct we did not we did have evidence though that two things that during the same times were peak periods that safe was losing its customers because they didn't all quit like wakin a steady pace cross that year there would be high periods of cancellation those corresponded to when a p t was most active and had the highest number of sales people active in alaska so there was that correlation and then we also had evidence to show a p t s increasing customer base in alaska at the same time that we were decreasing who which could create the inference or a jury could believe from that that there was no difference between the alaskan market and any other market and i guess the final point on that is that we have eight alaskans the a p t is trying to convince hey your state is different and is a bad market and i guess they get to decide whether they believe that or not  that and improper to evidence but here are the defendants offered counsel lation letters and that they were excluded so why wasn't that error especially in light of the court allowing your extrapolation theory the reason it was an error is a step for the cases you know ya open the door you know it's what i you know when the the barn door flies open then you sue man for you know plant evidence to rebut fact and it seems that they did get to put some evidence then but that district didn't get to put exactly what they want they actually did get to put in what they wanted to but not in the form they wanted to do it and so let me let me address the question this way the exclusion of the cancellation letters i'm going to jump to the end of that argument and then i'll come back it was not prejudicial to them because they were able to get in safes customer notes customer notes were notes that a safe customer service representative would type into the computer when they would contact a customer would cancel they get a cancellation letter they'd be contacted by customer service customer service that call would be put in these computerized customer notes those were produced in the case and they were offered  evidence by by a p t so they had the ability to get in the evidence of a recent past have inherent authority to decide what you know i mean whether something for the form of things but what was wrong with these cancellation yes and that's the that's the beginning part since the prejudice was the end of the analysis the beginning of the analysis where they had  and it was a double hearsay problem because we had evidence and there had been a lot of discovery work and motions with regard to who actually wrote the cancellation letters and we had admissions from two of a petey's salespeople that they wrote them and so these other cancellation letters and we did not have any evidence of who actually wrote those cancellation letters so some cancellation letters we knew they wrote these other cancellation letters we had asked for discovery from a p t tell us did your salespeople write any of these they objected to that on the grounds that it was over burdensome for them to provide that information and that the letters were not relevant anyway and so on those bases is judge gleason did not allow us the discovery to be able to go in and identify whether there was objecting to indications of trustworthiness of these cancellation letters so on that basis she excluded them and i believe properly so if we had not had all of the litigation and the discovery motions and the  effort that had resulted in our finding that a p t was actually out writing those letters judge leeson may have come to a different decision but because of all of that work and the indication that these might not be trustworthy i think they were partly excluded one additional reason was they weren't necessarily a contemporary contemporary contemporaneous statement of the person's state of mind as judge police and found these if they were written by the customers they were written with the intention of a scaping obligations under a contract which she then cited as a reason that they may not come within the state of mind exceptions so they just were not trustworthy and the fact that there was other evidence from which they could argue the same thing and did argue the same fact made the exclusion of those cancellation letters not only proper but not prejudicial you would agree that the damage calculation was entirely inferen to say yes but i don't totally agree with the word entirely inferential i think that what we had was we had certain facts and we had well at least the six customers it was inferential and there were actually eighteen people that came in and testified either live or by phone call or by videotape but yes when we get to the number the total number of lost i agree with your honor that that was inferential and appropriately so because how could we get it any other way well i mean you didn't put on an expert witness who said here are the damages i've looked at the statistics and in my opinion the damages were x amount of damages were caused by the actions of the company so so it's a little bit different from the case where you're arguing inferential damages b expert testimony as i read it it's just you put out some numbers showing a difference in and attrition right you put out some evidence of wrongful conduct and then has the jury to to draw the line of correlation right that's exactly what we did in that context no expert is required it doesn't require any specific knowledge skill training or experience it's not a scientific calculation it's not a social science experiment to determine that these these kinds of calculations can be made it's completely within the can of the jury to be able to make a mathematical calculation like that and doesn't require an expert all it does is require a factual determination than an expert really isn't third to testify to any way the causal effect is shown by the differences and given the amount of evidence that went into explaining how safe controls for attrition rate and the kinds of activities that a p t was engaging in as an overall scheme i think the law recognizes that when you have an overall scheme like a p t engaged in here that does make it difficult to identify individual law is damages or damages with great precision that the the losing defendant can't be heard to complain that the damages weren't calculated  with more precision in fact we all know the damages don't need to be calculated with perception and we've looked for a lot of cases on those customer by customer proof issue it comes up and is generally rejected the only time it has not been rejected has been outside the context of the issue of damages and and causation that's come up and been identified for example where the where the plaintiff was not able to show a sufficient broadcasting or substantial communication with numbers of people to create a false advertising sort of  scenario so they weren't able to prove an initial element of the cause of action but in terms of damages i'm out of time can i just finish this answer sure in terms of damages you would have to ask yourself what would  trial look like if it had to be tried the way a p t is saying here and so if we use four hundred customers as the number are we really going to require four hundred people to come in that's you know even at fifteen minutes a witness which is pretty tough to get a witness on and off that's one hundred hours of trial just hearing these people say the same things so with that i would submit the case and request that you have firm that the judgment of alaska that's randy perkins on s c r six fifty three safe had no history in alaska and there was no evidence of pinnacles history in alaska thus there was no control group there was not a proper proxy and not a proper comparison safe's attrition theory put the jury in no better position than in the farley case there the plane of presented some evidence of how its competitors business was infected by an illegal scheme and some evidence of the total business that was attracted to the competitor but no evidence on the portion of diverted business attributable quote soley to the illegal scheme close quote there was no way in that case for the jury to parse out wrongful conduct from other causes such as lawful competition and the same was true here with the jury was left to speculate beyond the six it was entirely inferential beyond the six customers indication that pinnacles experience in alaska before they were bought was not available to say there's no evidence that that evidence was unavailable i don't know that argument was ever presented below second point to make quickly as to cancellation letters that would give us further evidence of why customers left yes we had the customer notes but the customer low notes didn't completely overlap with the customer cancellation issue letters that were before the court by the way the record has been supplemented as to all of those cancellation letters judge gleason did enter that ruling recently discovery the council referred to was on a series of form cancellation letters that looked exactly the same that would have been written up allegedly by alarm protection representatives we're talking about here is a and the court can read them there in the record i think there are over one hundred fifty customer cancellation letters some of these are on customer letterhead all laying out the reasons customers canceled it's entirely admissible under the state of mind exception in rule eight zero three three it was error for the court to exclude these cancellation letters even if even if somehow this entirely inferential damages theory could have been permissible it could have been presented to the jury you agree with you with your learned friend that you objected in discover the irrelevant no this is to those form letters that i that i mentioned that's what the discovery centered on and what we're talking about here is the ones that actually came from customers and there were a whole bunch of them it was all presented to the court in the courts rule which would you object to the bureau of and those those form letters that were all written by allegedly by sales representative they look exactly the same there this big they take up less than half of a page limine that's a different issue what the court ruled on in the motion and lemony it was this one hundred fifty plus cancellation letters that laid out reasons for cancellation and as to those letters the court simply ruled under rule four zero three sue a sponsor say that they were prejudice schol and they shouldn't they shouldn't be admitted there was there is a risk of unfair prejudice but when you look at the substantial prejudice that ended up running to a large protection from the exclusion of those letters not being able to show that customers left for any number of reasons that was absolutely substantially prejudicial