eighteen fifty four twenty one and it is that at all versus time warner cable eight hundred fifty four eighty three kennedy visit at all versus time warner cable oral argument as follows twenty minutes per side fisher jason james tom campbell chris shawn rigsby are with us here today ken bisek mark lopez mike sheets and john cade could not be with us each of these individuals was the victim of a scheme and a pattern of conduct by time warner cable that the district court found to be outright deception and the court was right in that judgment but he  when he granted summary judgment on the single basis that the reliance by the appellants which in kentucky is nearly always a question for the jury was nevertheless  unreasonable as a matter of law the district court made three errors and i would like to highlight today first it overlooked that the plaintiff's reliance on the promises that are undisputed in this record was separate and distinct from their loss of employment their reliance was that they forewent alternative job opportunities and therefore gave up the opportunity to find and obtain other employment because time warner induce them deliberately to remain with time warner during the course of the corporate transition transition this scheme and that purpose when did the false statements actually start the false name which your honor started in as i recall march of two thousand and twelve and certainly know that so after the on process yes yes you're on it soon thereafter i sure are and the first instance i'm aware of from the record your honor for sure was in april of two thousand and twelve when there was a general meeting held by a high level time warner executives at which some not all of the apple appellants attended and those statements went on your honor for the better part of eighteen months in fact the testimony we've quoted in our brief from john doyle makes clear that the rob delay o who was the boss of their boss spent the year selling in the benefits of staying with time warner and they were specifically told that there would be jobs post transition for these people if only they would stay and that they would have specific portfolios consisting of five thousand high quality units in the multi dwelling complexes that each of the appellant's were responsible for that was a lawyer on her clients were skeptical about whether that was true or a that they develop skepticism is the key as the process develops your honor that is correct and i think i think you've highlighted an important point at the august nineteenth two thousand and thirteen meeting excuse me at the august thirty two thousand meeting which was held by time warner if you recall following the high level discussion and strategy session by the top executive chris van name who had been told about the anxiety that the palin's had he wanted to know who had positioned the the transition in a such a way that would raise their anxieties and so after gary glowworm and told them that they would have these five thousand units they call the second meeting and that meeting was with beth bennett a charger rector and  boss and when mike sheets specifically said we have concerns about whether there are five thousand units rob delay all said no that's not true there are fire fouls and units that was a specific and deliberate lie about an actual fact your honor and as you know from the flieger case the kentucky supreme court has made clear that a disclaimer is wholly ineffective in insulating a promise or such as time warner from fraud about actual facts and the western district of kentucky has made that same proposition clear in the long john silver's case in where judge will employee you're not going to be able he did representation you did your honor and turner of course as a federal district court case does not establish kentucky law it can't because we know that from this court woodruff decision in one thousand eight hundred i'm sorry or all turner may well have been wrong but for purposes of this appeal it doesn't matter because only promise in turner and judge hayward pointed this out in long john silver's only promise in turner was the promise of a long career now that's nothing more than a promise that is in contradiction to at will employment because i will employment means you can be fired on a moment's notice so if you know that you're an at will employee and you claim that you were promised a long career you're not you don't have any injury that is separate and distinct from your  and that frankly is you know bedrock law as time warner would say and what's really different about this is i mean the oral promises that you claim were to your clients are really just that there's colleagues left time warner in two thousand and twelve when the merger was in effect or earlier in two thousand and thirteen they would go to a t and t a t and t would go it turns on the cloud of time warner it turns on the motive in part according to the kentucky supreme court in the richard case the court there made it very clear that the motive that u p s had in inducing the employee there the pilots reliance was they needed rickert to continue flying cargo for at will employee becomes not an at will employee if the employer has some kind of bad about you in making a representation to that ploy is that the rule no well that's they have applied to me that's the rule you're with what makes a not an at will employee not an at will employee your in your theory of the cat is not a question of whether there's at will employment or not the at will doctrine says you can't convert your at will employment into a contractual employment you can't change your status by becoming an employee who was protected for some definite period what the rigor case and what the controlling progeny of record in brown and oliver versus hillier lyons all free say is that where you have relied on a promise by foregoing alternative employment venue h cause of action for fraud or no it isn't about motive it is your honor it is the effect on the employee wholly apart from the motive the injury to the employee yes your honor it is the nature of the in oh if you're an at will employee but you're going to be hurt that your employers actions didn't or not and that will employee no you are not will employee and you could be fired at any time but if you have been induced to forego alternate employment  to party there is there is an undisputed record that they there were altered there were opportunities for them to attempt to go to work for a t n t and in our brief or what form would that be found in the record it would be found in the record testimony of among others the john doyle testimony but as importantly your honor the testimony we've quoted of gary glowworm and i'm gary garman was a high level executive of time warner and on august twenty one two thousand and thirteen he wrote a memo to his superiors saying that all of these appellants will not like this new plan and they will lose a lot of money and they we expect they will all go to a t and t as has been happening already a t n t was taking time warner's employees they did not want time warner eighteen t to take these employees because these employees your honor were response and want to leave you think they would have made it a little more attractive for him to stay but that's the point runner they did make it attractive for them to stay and we've quoted the rob delay o email where he says that he had spent a year selling the benefits of stang and the gary glowworm an email makes it clear that because of those representations these people stayed and they could go and as soon as they learned about the new plan they would go to eighty and i don't understand why is that not just a guarantee of tenure in your job it's not a good you're in there induce not to go work for another job very you should stay and you will you have a job here as long as you don't go look for something else what how is that not inconsistent with your the acknowledgment that they're at will employees not inconsistent or because the kentucky supreme court and the kentucky court of appeals have said but in record that wasn't the he wasn't he of the of the company of u p s right and they hadn't signed anything acknowledged the right thing that he was at well didn't say anything but it all over your honor all of those things are true time warner claims in their brief that were there is no case in kentucky where there was an employee who was promised by his employer who had signed a disclaimer order an acknowledgement that is not true the all over case does exactly that and they claim that all over had not acknowledged his disclaimer the record in that case is perfectly clear that he had signed every tension pool agreement personally signed it he himself put that agreement into the record in the oliver case and the court then said that under these circumstances recur controls so the supreme court has made the difference between relying on a future promise of employment during a transition for the benefit of the employer and simply giving up at will employment your honor i i see that my time is up if there are no other questions i'll reserve the remainder of my time for rebutt i would like to reserve three minutes with respect the cross appeal hearing every time i have mentioned this case to an employment lawyer especially a kentucky employment lawyer that kind of scratch their head and said what do you mean that so there they were at will employees they acknowledge they were at will employees but they're basing claims on oral promises that they had secure employment and that they had secure compensation how can that be oral promises that your client made right in your honor of their per the record is pretty clear that the high level people were telling these employees that they were going to be fine they were going to have jobs they were going to be guaranteed a certain number of units or whatever it is i mean do you all dispute whether that was whether those statements for me your honor that dispute what the statements what impact their statements have and what their content would be so we dispute they were it would have been specific enough to create any kind of a contract particularly in light of the  disclaimers that you're there at will unless there's a written agreement to the contrary so i think that's that's where we have to start in this case and that's where ricker didn't start so would it be fair to her argument was just that you disagree as to the extent and the degree not the not the general substance of the statements being but you would dispute to some extent the cantin certainly or are we we don't dispute like most employers one dispute that when they're going through a transition they would like to keep employees so the transition as smooth there's nothing wrong with that every every statement every alleged promise that has been referenced by the plaintiffs in this case is forward looking it's a projection a prediction not only are they forward looking and therefore can't form the basis of this fraud clinton but they were told you're going to do better now in the future than you've been doing in the past and that was said to them fairly constantly won your honor but it's still is a prediction about about events in the plaintiffs say that was based on the notion of predicting about future events based implicitly on the current situation on the facts of the exists now you would say also representations implicitly about facts that the but the fact is that what the representation is that they say was made is as to how many units there would be in the future and t werner had no control over that how many multi do welling units there are in this area you know the person if they made the representation they don't have any control over where whether that turns out to be true eighteen months into the future to sort of despite the fact of the at will employment to clearly articulated in the contract these misrepresentations or would the theory be that you can't have a cause of action for fraud because there are at will employees or with the theory be more along the lines of they could reasonably we're the law and any promises that were contrary to what was in the written agreement it's the latter you're are with an addition there at will employees in kentucky law is that an employer has to have a clear intention to change someone's at will status and in this particular case all of the employees acknowledged that clear intention that kentucky all requires could only be provided in a written agreement sun by an authorized representative not by oral representations or predictions about what might happen into the future as to how many units there might or might not be that that's the difference in this case and record that's the difference in this case and other fraud cases  that's why if if the plaintiffs in this case have these claims it would open the floodgates with respect to employee claims every employee would be able to try to find some representation that was made to them about what would happen in the future despite acknowledging they were not will employ and that their status could only change when they were remembering lawyers shouldn't deceive them i mean it would open the jury here because river mart turner every other case that talks about at will employment record doesn't talk about well i'm talking about fairness i'm not talking i talking about some case right now but you don't go out a lot of people and if it's a question of oh if and if that's of intent to use them ten and what is the intent that normally is decided by a jury where there's a factual dispute that it looks like to me that's what you got here your honor it can't be it doesn't need to go to the jury because in this case the plaintiffs said they they knew what they allege to be faults and they were in a better position to know what the market would hold than than the folks they say i made the representation stay than the plaintiffs had been working in the market so so if if they have a claim then an employee who goes in and goads someone into making what they believe to be a false representation based on their own personal knowledge then they would have a claim they can't have reasonable reliance and there's there is no injustice or unfairness in that scenario reasonable reliance on what they were told many times verbal way by the horror for two reasons one they acknowledged their will status and what that meant and two that he had the ability to ascertain for themselves the truth of those statements and in fact they did is the are the statements just acknowledg ing at will's status is that and or do you all really need to offer a letter to be in evidence because it's very specific about no modifications no or modifications there are no promises i mean that letter is very specific all right but right now it's not in evidence right that's true your are can you get to where you need to go with just the at will statements agreement to the contrary you're going to continue to be an at will employee they don't dispute that they knew what at will employment meant it meant they could be terminated at any time that's why they asked hey we're worried about we eligible for severance if they if they weren't if they didn't anticipate that they might not have a job because they were at will they would have asked that question so there certainly is now the  offer letter does in more detail describe what at will employment is but it's entirely consistent with the important notice which says at will and the plaintiffs agree they knew what that will mean it means you're not promised a job in the future it means your compensation is not not secure it can be changed that everything can change because you've you've agreed that you're going to have this job any time it was in a confidentiality agreement is said in the absence of a specific employment agreement in writing that can be terminated at any time and it was in the policy manual unless there is a written agreement they can be terminated at any time the company's policy is to be an at will employer those all those words are saying the same thing is the important notice and i should also point out that it wasn't just in the important notice it was in the employment at will policy it was in the compensation plan that they had with insight before the transition it was in the time warner commission plan after the transition every document along the way told them that they were and will cause of action in all over the disclaimer it was not he didn't have this claim or until after he was fired it was read to him over the phone after the fact so it oliver is completely distinct from these facts turner is not but oliver is these employees had had knowledge all along the way and in fact they had knowledge superior as it turns out their prediction was more accurate when they went through this on boarding process did they get copies of these documents it would have been an electronic onboarding so what does that mean they would have had to print them out or how would they make these offer letters should they have had them and the operators and their own online every day but if they say i want to copy of it do they get a copy of your are yes i think you can have a copy of it if you get if you ask for it the i don't think there's any record that these plans asked for it then you know the acknowledge the important notice that we've been talking about and they don't dispute that they don't they specifically said in their reply brief that they do not know what was that process exactly it was the electric what happened electronically it was an electronic on mourning process where they would go through several documents your and then acknowledge them just like it was the same process you go through on paper you look at a document even knowledge case the second was that the employee would have a job until the sale of the division was complete that's the same sort of promise that they say is made here your are that action what the promises were on which they base their claim was that that time warner promised the plaintiffs that their jobs were secure their pay would increase and the job itself would be even better that's what they me that's what the plaintiffs allege that's what the basis of their claim is and all of those promises are disclaimed by the important notice by the employment will policy in the compensation plan and in the commission plan what do you mean specifically i don't understand what you mean they said they said they didn't say that these things were not said to us a verbal they didn't take that back to day i'm sorry i'm going to say that one more time they didn't say that the time warner executives did not say these things that they now quite specifically that the time warner executives said to them in order to keep them on right your are so it gets back to what they're saying is we agreed to that will but we also understood that they were telling us even so you're not going to get far and things are going to be good right so it's the difference between and oral representation by someone who wouldn't have been you know who could only sign a written agreement to change things and  you know what the situation and record was completely different not an employee different situation you're aren't they these employees often believe what they're told verbal they do but these clients didn't these pla anticipated there wouldn't be enough units it with regard to the specificity of the disclaimer it is essentially what the plans are going boils down to is they want to time warner to anticipate every specific statement that anybody who supervises these folks might have said to them and specifically disclaim it the world can't work that way employers can't do business that way imply at the at will doctrine would collapse if that were the case if there are there is no case and that includes oliver where an employee acknowledged that they were at will and that that could only be their stance could only be changed in one way and then then said oral promises could could change it anyway but why wasn't the plaintiff in record why isn't he in some sense a worse off i mean he wasn't even an employee which is a distinction but why is that make it a better case for you and i'm not sure i'm making sense here but he's not even an employee th yet he can rely on certain promises when you're an employee why keep you on the promises is it just i mean isn't he worse than that well i mean he's not even anything the reason that it's different is the starting point the expectations and what the framework of reasonable reliance is the the rickert plaintiff's framework of reasonable expectations and reliance is completely different than these plaintiffs  framework of reasonable reliance they they started out here and they wanted to go there all right rick or air meaning they started out as current employees having acknowledged they well that they were there they agreed to those terms and in order for us to change those terms the bargain was there had to be a written agreement that changed and that didn't happen so that was not the case in in record that was not the starting point all right reb against kentucky law i mean you're fighting against so i mean i don't think it's it's not productive at least for me to hear you start at say the only kentucky case that they have to rely on i mean they have the all the understandings that exist in kentucky law just like the law of any other state that have strong at will employment doctrines that is the supportive of their positions so i think i don't think it helps you to characterize their view is the minority here are the controlling along this case his record and oliver this is an important point time warner continues to claim they just told the entered into everything every tension pool agreement and says that at page star one all over entered into a quote retention share pool agreement with hillard lyons by the terms of the agreement the majority of the money would only be paid in later years he signed the document and later in the case your honor the court makes clear that the plaintiff in all over himself put the contract that he had signed into the record of the case at star five in this case all over set forth evidence of the existence of the contract executed by himself now the only distinction that they want to make is that he didn't get a copy of it until after he was fired your honour's in this case we saw the so called important disclaimer clicked across on the electronic screen we never got a copy of it we were never told we could have a copy of it to the extent that council says of course you could get a copy of it there's nothing in the record for that more importantly we didn't get a copy of it either you know that they were at will employees they did know your honor and here's why that's important and this is why kentucky law is so important here in kentucky it doesn't matter whether you know or not the operation of the at will doctrine is what it is it isn't become a super doctrine that bars the i'm for fraud and promissory estoppel simply because it's put into writing now the supreme court says in rickard and the court of appeals says in oliver that where you know your distinction but you're relying to your detriment by forgoing all that employment you have a claim for fraud and it can't be taken away by the court the difference is there was this at will notice the at will notice in your honor ask the question whether that will notice in the offer letter a different well they're very different because words matter in documents and contracts the at will notice doesn't say anything about relying on the world promises it doesn't say anything about how you can modify your future relationship the offer letter does more importantly rob it isn't the of her letter just a reflection of what kentucky is no your honor the important notice is a reflection of what kentucky law is and you're exactly right when you say that the important note is simply simply captures kentucky law regarding at will and puts it into a document the offer letter goes farther do you agree that if the offer letters are considered in this case that you lose no we don't lose your honor because as fleet goes points out and as riverman points out excuse me radio shack disclaimers like that especially in a case like this where there are allies about actual facts are merely evidence of whether a lot reliance is reasonable or not and that has to be for a jury of course kentucky law is very clear that reasonableness of reliance is nearly always a question for the jury here's an important point kentucky law says in the tacky case versus comprehensive mountain care mountain comprehensive care that's a court of appeals of kentucky case two thousand and nine it's cited by the western district in the street first as u s corrugated case that we cite in our brief what that case says is that whether you are on notice or not the operation of the at will doctrine is what it is so the force of the doctrine is not dependent on whether you have been given a notice that says you are not will employ he has the street case as the the subjective understanding of the employee is in consequential i believe that's a quote and the reason that's important matters because it goes to the very thing of record why does it matter that rickert was not an employee and r m r plaintiffs were the supreme court of kentucky says that the will doctrine is no bar to a fraud or promissory estoppel claim and so the only reason that in context of whether you could limit the guys damages no your honor it isn't say the it wasn't really talking about the substantive claim well the case it's difficult to discern exactly but we know that u p s raised the at will doctrine as it is a limitation on damages right we don't know whether this guy could have would it was going to get fired or not or whatever it speculative to to give him future damage rectory correct you you what they said was that because every cause of action required injury you can have the other elements of a cause of action but because you can't claim injury your cause of action fails it wasn't just that we wanted to go have a trial on damages they said you never get to court and the supreme court said oh yes you do and that the hanssen case supplies the v the break if you will on the runaway claims that time warner is concerned about the court's not going to be clogged because pauline's chicken which hanson sites and relies on says all of your damages have to be reasonably what  this characterization of what you're trying to argue assuming you're able to assert a frog your client's needs i were at will employees they were suspicious about the representations that were made to them they didn't think they were going to be enough units i mean they had a lot a fair manner of knowledge about the improbability of the not relax that that's what the record shows and i did not raise numbly we're lab both as a matter of law what's wrong with that characterization because you have the cash even after they raise those concerns they were once again continually promised that there were those units the statement could not be more clear we have questions about whether there's five thousand units no that's not true there are those units that your honor is based on th considered analysis of the second largest cable company in the country and we're being told these these ten little salesmen over here don't worry about your own concerns we've studied the market and we know better you're going to have those portfolios i promise you that that's what they said on august thirtieth your honor and it wasn't true the reason why the case has to be reversed in light of that record is because full eagles in radio shack make clear that when you're talking about actual facts these are not simply forward looking promises you're talking about actual facts we're giving you that portfolio your tabs and thank you you with respect to the cross appeal which we haven't touched on yet the district as you've noted excluded the offer letters that does not impact the  propriety of the judge's summary judgment or but we're going to have a much stronger case if you have those letters i think the plaintiffs would concede that i will not because the important noticed says the same thing and they got it how many pages of when you say when you say late i think we need to put that in perspective as soon as it was realized they had not been pretty and they should have been they were but you're arguing on appeal if i read your brief correctly that you produce them in a timely manner we're not but you can see that it wasn't timely we can see that it was not timely produced except to the extent of the law and i mean it seems to me if you if you find documents the way you produce them within thirty days before the discovery cut off you have an argument that you were timely right that they were pretty they were they were produced timely in the sense that as soon as it was realized they had not been produced and they existed prior to the thirty six deposition of time warner so they got the plaintiffs got ten pages which was no surprise to them because they were there offer letters that they had already seen and it was no surprise because they knew will employment was the and it was really the crux of time warner's defense from the inception of the case so no surprise was interesting that earlier that they were electronic documents and that you they wouldn't necessarily have copies of  maybe they saw them but you actually have the copies we did but but they but i'm curious what did you offer any evidence of what you did and why they were produced the way i mean is there an actual affidavit or declaration from this that that it person or is it just the representations of counsel there is not an affidavit and beth bennett wasn't asked in the deposition you know why didn't you offer an explanation to the court like hey we have this other database we forgot to check it we did as soon as we did we produced a document we didn't offer an explanation i think there was an explanation offered and  was as explicit as it could have been or it needed to be in regard to this situation which was our logic and common sense dictate that if if we had the offer letter it all it did was help us there was no reason to withhold it so the explanation is as soon as we realized it existed where was the time was up let me ask you real quick did they did they ask for an extension of discovery or did they did they do a meet and confer did they or did they just file the sanctions motion or did they ask you to reopen any depositions or anything like that ok and you must have said something in your response to the our response to the motion was they were they were produced this as soon as we knew we needed to produce them and they want to surprise and under the how factors that they should be excluded did you wish your client that you didn't know you were supposed to produce them or that you didn't realize you had the la are it would have been well within our interest to produce them if it had been apparent to us that they existed all right we consider the case carefully and thank you for your