may thank you maybe the court i'd like to start with the jury waiver question which is a question of first impression in the circuit and that question is whether a party having deliberately waived its right to jury trial can change it view based on a change in strategy some two years down the road now the tenth circuit and a district court and the sixth circuit have both said that this is an permissible reason for a belated demand of jury trial and judge posner in the olympia case explain why that should be the rule and the reason is if the parties are allowed to waive jury trial in the hopes of creating a form for a settlement and then a settlement looks unlikely to change the playing field by demanding a jury trial well into the case that will actually of law belatedly demand a jury trial after deliberately waiving a jury trial what was the prejudice to tory from that change specifically well there was no prejudice and we conceded in our brief there's no prejudice in the sense of not being able to prepare for a jury trial but there is prejudice in terms of making the prospects for a settlement less likely and there's also prejudice to the extent that this case as it turned out and this is normally an argument but as the case turned out the issues in the case proved less amenable to resolution by a jury trial because the jury failed to focus on the proper issues but i want to stress that our main argument here is not based on prejudice it's based on the requirement of a viable reason in the first instance and the the lack of such a reason here  you know let's not go rushing into discovery that's trying to keep calm keep the peace and that also is an explanation for why there was no jury trial and  deliberate change in strategy i'd like to move on to the question of the insufficiency i just ask you one quick yes the argument that you just made to us about there not being a valid reason was that the sound argument made yes it was made below however the district court in its opinion did not address that aspect of your argument just referred focused on prejudice i'd like to turn to the question of insufficiency and this jury's verdict was insufficient both in terms of liability and damages i'd like to start with damages rhode island was clear that a plaintiff must prove its lost profits or damages with reasonable certainty and there's in many cases the sadness that principal in rhode island for example the aid maintenance case which aside in our reply brief the george employee of a cleaning business who was disloyal so that employer and solicited business for a different company but the rule the rule is is clear in contract case as well as other cases the damages must be proven with reasonable certainty and here there was a total lack of proof as an initial matter national plastics is not allowed in a contract case simply to discords tori's profits that's clear from the ga her candor case explicitly holds that only in an unfair competition case can you simply discord so what we're left with is national plastics having to prove and it's important to remember they were the plaintiff they have the burden of proof they are having to prove some basis for estimation of its lost profits as a result of the alleged breach here and there was a total lack of such proof  the focus the only focus of national plastics was on the sales of toretto and there was a there was a lack of a nexus between the sales of tour and what sales national plastic sort of fat and i'd like to highlight one among other things their stores numerous factors first of all tour has many more employees it has almost seven hundred employees in rhode island whereas national plastics has three employees in colorado tory has a much bigger sales force than the national plastics and most importantly perhaps tori sells to an entirely different set of customers tory is selling domestically to companies like frito lay that have exact specifications and receive warranties and this is a seven a seven ninety six and eighty eight fifty five the evidence on the warranty issue and are warranties important they're important because when you sell something with a warranty as opposed to national plastics which does not this contract for a sells to national plastics explicitly without a warranty that's a nine hundred three section one day of the contract and national selling to two brokers who are in turn reselling overseas without a warranty when you have a warranty versus a not a warranty and a sale the price is higher when you're selling it with a warranty that the purchaser is paying for the luxury of having a warranty that the goods that it's buying are go access to all of your age material which they would then sell well why is warranty an issue here at all given they were going to sell all of your age because the question is let's assume that we were given let's assume we accept national plastics interpretation of what age film means and i'll get to that later but let's just assume that there remains the question of what price it would be able to sell that material at and that is a different price we submit there well tori has has a bunch of a stablish conscious customers including the frito lay company that uses these highly specific plastic bags to practice their food products and the those products of historically been made by toerag and furthermore tour did not have to share the customer relationship with frito lay with national plastics because it was a preexisting relationship the only requirement for sharing approaches was a new approaches to tori but let me go back to the warranty question so these these it's important to emphasize again how different these companies are tory is selling to an established market domestically whereas national plastics is selling primarily for foreign consumption and even aside from the warranty and you can see this in the evidence if you look at the stipulation that was submitted to the jury on what tory's prices were for thirteen months and older material versus what national plastics prices were so it's seven sixty nine to seven seventy is the stipulation and you see from that that the average price that torah is selling for is a dollar eighty two per pound by contrast national plastics in this can be seen at ten forty nine is selling for a range of thirty cents per pound to eighty four cents per pound there was there was simply a lack of effort there was not only a lack of evidence but there was affirmative evidence in the record that the prices that these companies are selling this product for are markedly different so on this is what i'm i'm missing and maybe you can just help me with this i thought the argument was that the damages claims are speculative and not proved with specific with sufficient certainty but if all of the sevens was in front of the jury and it seems to me what you really mean is that it's against the weight of the evidence that the damages  warders against the weight of the evidence so what am i missing well we've argued first of all both points both that we're entitled to judgment as a matter of law and the alternative that the verdicts against the weight of the evidence the consequences of those rulings would be different in one case we would get judgement in another case we'd get a new trial but the fact that this evidence was before the jury i mean i'm citing some evidence here that actually proves why there was a lack of a nexus but it's important to remember that national plastics have the form of burden of proving a nexus and if there's one case i can refer the court back to again it's the eight made its case it talks about how you can't simply speculate that one party's profits would have been the other party can i kind of take my understanding of your argument is that what plaintiffs did below is prove the gross revenues t achieved from the sales and i think your first level of argument is there's no reason to say that national plastics gross revenues would've been the same stories gross revenues because the market is different and they don't have warranties and so forth and then i think a second la argument is there was no evidence as to national plastics costs and therefore no evidence as to profits and measures lost profits and there was literally no evidence on that kareen i agree with that statement we're arguing both a lack of a nexus on revenues as well as an entire lack of evidence on costs we've argued both points are right and what about their argument that the the failure to prove lost profits was we below well we explicitly we explicitly argued at the fifty  conference that there was a lack of proof and damages now in candor we were not quite as specific on the cost aspect which of the second aspect we believe our argument was sufficiently broad to sweep that in i think you know the court should keep in mind here that you know these sorts of fifty eight arguments are made sort of on the spur of the moment at work here at the close of evidence there was an opportunity at the fifty a stage to submit papers we were able to submit papers at the fifty stage but we believe that we did make a sufficient argument there was a lack of proof on reasonable damages such that both costs and revenues could be considered i like to turn the remainder of my opening argument to the film issue and i think here again we're arguing both lack of it entire lack of evidence as well as against the weight of evidence  and the key here it's rather simple argument and it should be a simple argument for us to ask to overturn a jury verdict and that is that the ever the only evidence that age still means thirteen months or older which is what the jury apparently adopted was from accounting yes indeed we had the jury rejected they are we the jury did the dirt jury did reject that argument however again we think that that was against the weight of the evidence here and it's a rather clear legal principle with which w well only if only if those other context could be imported into this context and we respectfully submit that it can't because again the only evidence the matter of contract interpretation prior history between the part no it's not irrelevant but there was no prior to petition that weighed into the aged well notion and in fact there was subsequent performance under this contract and there was an e mail exchange in february twelfth two thousand and nine between mr go to mr shows a where mr joe's a thank you made police card my name's john ratz hall and i represent national plastics i want to just pick up on the very last question put the opposing counsel because it's a very key element these two parties had a longstanding relationship the term aged it goes back and forth in e mails there's letters there's reports that my client did all discussing aged in depositions of the tory individuals they were but in the trial what about it was  a twenty year history there was no surprises to deter aged men or fact when you even look at some of the internal documents or will see that they even reference age and the key element there is this charge there was introduced in the evidence where they specifically talking terms of each with the tory in the trouble is a trial before a jury which everyone realizes is a real test of credibility tori started saying well we don't know anything about eight that's only for accounting the twenty year history and talk in terms of accounting when they use those terms the standard before this court that already has there is an immense one they're trying to essentially retry this case the jury heard all of the evidence the standard is that a reasonable jury could not have returned a verdict now you compound on top of that judge mcconnell saying not only was there small no evidence of national plastics host and therefore no evidence of most profits as opposed to gross revenues what would we have to is this and i guess what i rely on your honor is they have a longstanding history of doing business with one another and tory had so much confidence in national plastic that they signed into the seventeen year exclusive contract there wasn't any doubt in tory that they couldn't handle it they were not that it has been known to them that wasn't a question the minute i understood you ha relationship but the the measure of contract images is lost profits in other words you're not entitled to all the gross revenue that you would have received you're entitle to the profits of your current you're correct that there was little evidence that testimony as to any specific profit but one of the problems we had was we have no idea what this material consisted of it was disposed of and sold the third parties with open any notice to us so we don't know if this was one huge roll of a million pounds of plastic or a hundred rolls of plastic we have no idea so even if we had been given the opportunity to say to the jury here's what it's going to cost us we nest very well at a loss because  couldn't he simply testified our profit margins are typically twenty five percent or you know whatever the number is in our cost structure is x and therefore you multiply however many million dollars in a gross revenue times twenty five percent of missing they did do that indirectly it's all factored in but again we don't know if it would take a single phone call to sell this product or ten phone calls or a thousand phone calls because we never were given that information i think when you look at the aspect of whether there was a breach the breach was sort of let's go back to ok you're saying to us that there was no way to figure out what the costs would have been  for your client was sad argue to the jury was this question that the difference between revenues and costs are due to it i don't believe it was specifically your honor i don't believe there was any real substantive discussion of costs including by your correct correct i don't think we went down that road and i think if we had gone down that road some of these other issues would have been developed before the before the jury trial terms of what our lack of access to the product we were not given customer names we couldn't verify anything so necessarily we were dealing in an abstract world but the jury didn't reach a conclusion to a rich reasonable certainty he got a reprieve you have to remember that respectfully this is an exclusive relationship these parties have a longstanding history with one another tory had so much faith in my client that they gave him a part of your brother's argument though is that you have an obligation under rhode island law to put in some evidence of what those costs might be is that an incorrect statement of the law i think the you have to show with reasonable certainty and i think based on the evidence in the case we essentially met that bird he could there have been other ways or more specificity i suppose there could have been so not to put words in your mouth but you're telling me that there is no obligation no affirmative obligation for you to put in what your measure of what the costs might be that get subtracted from the revenues we would with that degree of specificity that's why the issue didn't come up in the trial court if it i mean you can say we can't prove it because they did not give us discovery on that during the trial it in terms of tort you got arrested testified if you got me a product i can sell it and so we know of this longstanding relationship that's been going on the jury can reasonably  don't see any reference to it anywhere in the briefs or the trial that does it make a difference that the uniform commercial code of rhode island ought to apply to these transactions i not sure based on what transpired i i would not think it i think when we have is throughout the trial there were various references to aged there was the charge there were statements by tory witnesses and there even were sales incentives and what we have is a tory executive even testified that if we sold this product to third parties there would be a breach of the contract so clearly we proved a breach of the contract two of the to executives testified that if they did sell there would be a breach and then they admit at least one of them admitted yes we have sold this to third parties which is a violation of the contract could we go back to the damage warranty what you have again you have to sophisticated parties in this field they know the market they know they've been doing business for twenty years they know exactly the product they know where the customers are plus if there are referrals and need to be made there was even a corporator under the contract that tori would refer potential customers to my clients here so as far as the warranty issue there was not any any specific testimony that i can recall saying that that's a key of warranty that he's talking to filed there is there's no real testimony to my knowledge that that came in the play in terms of well you know that we are not you did not put on evidence that your customers are the most  otherwise i'm sure i don't want to guess but my impression from the testimony is that a lot of the customers know exactly what they're dealing with his they dealt with my client and with tory for years again i'm sorry it isn't the question really  produced gross revenues of i think close to seventy million dollars and the contract you would have had a whole backer retention or whatever was called of twelve percent grants two million dollars ballpark and your argument is that national plastics gross revenues would have been exactly the same as tories which is fine if there's evidence to support additional it's a comparable situation and so on but don't you have to address things like the size of the company the number salespeople the warranty the market if you don't why not think you would respect your honor is because yes my client is the little guy in the picture or is huge but my client was successful in getting tory to give my client a seventeen year exclusive contract that shows the confidence that tory head in my client plus my client this is a longstanding relationship there was absolutely no testimony that during the course of this relationship my client did not fulfill orders or there were mix ups or problems like that and it's like any other business the jury can reasonably infer if suddenly a business sees their business developing they can hire more people in it or they can they can relocate that's the nature of any business and i think the jury understands it so that's why we have jurors with the common knowledge saying this is a business relationship both sides are working well together they should work well together and there was never any testimony that my client was unfit or could not comply with economy all of that is fine but it doesn't seem to have anything to do with the difference between revenues and profits well it does in the sense of the question to put forth to the jury was was my client damaged and how much was that damaged the damage was not here was not an emotional decision irrational that in the word ten million dollars they said the parties worked out that my client would get twelve percent robert we knew  product we knew the customers we knew there were sales and we knew the dollar amount of the sales that was all under spewed because that stipulation and we knew it was sold to third parties we also know that tori had a contractual obligation to give us  so in the event tori found a customer they would take fifty thousand pounds they would put us there so you do have knowledge and in sufficient evidence of sales of what the twelve percent comes from those sales now is it is it is it precise to the penny no my client maybe could have sold it for more maybe could have sold it for less but the jury only has to do a reasonable certainty and there's it middle of there's case law which identifies it's  precise certainty and this is a classic case in which the jury was properly instructed reviewed all of the evidence and was able to make a fair and in just a termination i'd like to start with the warranties point i think there's no dispute that tori sells with warranties national plastics doesn't i want to go back to chief judge lynch as point during my opening argument which is well what sort of competition is out there and maybe maybe national plastic a charge the same price of tory's out of the picture that may well be but there was no proof of that and really there had to be some proof i mean that's sort of an economic theory in the abstract and it may be valid it may not be we just don't know that you finally answered my question ok i'd like to also point out again on the cost point i don't think that there's any dispute here that cost was not raised that it is an essential requirement of rhode island law and that the judgment should be reversed on that basis  that's what you have to instruct the jury on it's an issue in the us well you know we will address this point in further detail in the twenty j letter that your honour's has to submit but under no no no no you misunderstood me instruction was without comment on the but so was there discovery on costs there were there was not extensive if any discovery on costs here and we would respectfully submit that it was in our burden as a defendant to do that discovery it was their burden as the plane how are you going to challenge it if you say they had an affirmative obligation to put in evidence about cost how are you going to challenge that if you didn't do any discovery we would challenge it by saying that it was their burden to put on you are you going to challenge we reparation for trial where we would have at least know it wasn't you but we would have it we would have at least known what their proof was what their theory of what the costs were and being able to examine that see whether was  so it's kind of i'm not trying to avoid the question it's hard to say in the abstract the on the question of sales leads ok which is another way that national plastic is trying to link tori revenues to what revenues it would have earned there was only have and again burdens on national plaster that was evidence of a single sales approach this is a five sixty seven and that approach was by a guy name steve who cold called tour did not result in a sale the record is essentially devoid of any proof of approaches that should have been shared and finally on the age film issue the important thing in understanding the background context is that the term age film was not used age might have been used but not age film that term was inserted only a week before the sun an agreement was signed there was not a meeting of minds on that thank you