a court and charles roberts here for north american this is a contract interpretation is that involves three types plans that we can pander very unambiguous there's really no language in these plans or any president in new hampshire allow that supports the district court's legal conclusion that mr walsh earned and sent if pay when he was cover at a time when he was covered under a plan august two thousand and eight plan was modified in february two thousand and nine that before two months before it was even scheduled to go into effect we contend that the apco part of the judgment should be reversed and that's what i like let to modify so i'm just focusing on when the and i don't want compensation would attack i don't think there's any and just and there's i don't think there's any lack of clarity that what give me simply in language that says when basically you earn it as the premiums coming out of it may be paid but as the premiums come here the police i've spent more hours than i like to think of trying to make some sense right you know you must have had it had it grafted by some may have scientists all right but i can't find any satisfactory wangle in the point that indicates w to compensation would occur i can see the argument that that the right payment depends on when payment is received from custom whatnot but agreement by refusing to pay the money yes it found that it was willful based on what we can say and was focusing on the wrong on the wrong time period because there's no contention that the agreement was in fact the district court found that it was lawfully changed in february at least koreans actions that were negotiated well prior the it through now it's clear that it would have had that effect if it if if if the documentation on both ends we were all right but it wasn't mean one is that this plan no one no one contends that this plan was in effect and these ember of two thousand and eight when the aca deal was he was being paid under i suppose the october two thousand and seven i plan to continue august two thousand and eight plan and look at it in isolation i agree with you when you look at the two plans together i also see that there's a conflict and i see that that's where the jury house the committee well i would respectfully disagree that there's a conflict between the two plans they're inconsistent with each other but that's their own they're inconsistent only if you if you take the position that they're both in effect at the same time what they were bit what they were addressing in august of two thousand and eight was a  plan that would not even the come effective until april the first of two thousand and four mr walsh why during keeps saying april i thought that the plan itself expressed lisas january one to oil in the plan says that the plan  then then it starts at that time and mr walsh by his own by all the evidence in fact you know the district court asked the parties and they essentially agreed that there was no entitlement to be covered under the plan any there was no  to premiums coming in the first quarter of two thousand and nine and so basically you had an eighteen month period where he was the only nothing new alternative distributions in the network and they paid him extra money they paid him thirteen thousand dollars extra month so in the four months that he was negotiating yet he was being paid his base salary was thirteen thousand dollars each month correct in recognition of the fact that there wouldn't be any premiums com during that time period we think that when you read the plan itself even if you read the august two thousand and eight plan with all due respect i think that when you read it it's clear that it's the string of premiums that earns it in fact if mean yes what is there's this debate about wait for the payment to come in and there was nothing that i could that he could even look at in the center and say oh this is how much i will be entitled to receive the premiums because no one knew what was going to be so it was a future that's why you would apparently was not satisfied with his existing paid arrangement and your client did not want to lose him and so enter negotiations with him on on the on agreement that would persuade him to stay in his out of that background if you get this august two thousand a degree which is designed to send devise him to go out and do exactly what he did well he was threatening to leave in two that he would he would go from one to the other so the only question as i as i see he got no compensation on have one of the supplemental papers the question is does that does does the existence of the supplemental benefits of the that he had negotiated for in the august you then tried to take those benefits away with this february revision all right but but what the why what the district c the by refusing to give you the abuse of discretion judgment was that under new hampshire more you didn't have the power to take away an interest and generate premiums until two thousand and ten and there's no dispute that the plan could change into that at the end of two thousand and nine so i don't see how it's really different particularly when the plan includes discretion language that specifically allows the company to make changes and even if under new hampshire law it's not that you have a right to exercise discretion as long as you don't upset the initial intent of the parties or the expectations of the parties and when it changed because that's respectfully i still disagree i don't think it was are and i think the plan can be read in the in the way that it's only when the stream of premiums particularly down so you have these statements of company officials well i think that with the end that's the kind of language that appears in every one of these agreements but there's also the language that that's not in that plan that is in the other one the right to limit incentive in unique situations and i don't know how well a unique situation would be if this wasn't one where were the expectations of the parties that a market that no one knew what the size of the market was going to be when you go she added that thing it turns out to be a lot larger these plans were designed to provide a fair compensation they were modeled to began and where you began your inquiry this is a first of all first and foremost this is a way to case a new hampshire wage case and the issue on ernie is when were was his commissions or title meant to pay earned and and based on the case law in new hampshire in the absence of a specific reference in the agreement to w and i believe told them that the the deal which closed in december of two thousand and eight that he had learned at the time of the closing of the deal the commissions which would not begin until april of two thousand like this and that the legal determination the court made and and communicated to the jury i'm not sure they used the word he used the word he said cannot consider discretion if you find that there was a contract right away then you then they did not have the right to change i think that's what the court the jury still had to find there was a binding agreement should work and if it thought that the february zero nine agreement regardless of whether that was in the exercise of discretion or just  the final agreement the jury could have concluded that the zero eight plan was not a binding and effective agreement without regard or considering any issue about discretion moreover the willfulness fight in this case that the jury found with respect to both the apco deal and the g a o i see there was ample evidence in the record to support this remember  surak try this case i'm one primary basis that there was no agreement in august of zero eight that's the horse they wrote so they would  didn't want to talk about when anything was earned under the zero eight agreement or what the terms of the oh wait agreement were or whether they had the discretion to change it because they were telling the jury the whole time there is we didn't have an agreement based plan and of course they did so in the jury's mind once they found there was an agreement and based on the statements that were made by the executives  said according to mr walsh's testimony not that there wasn't a plan not that we had the right to change it i'm not going to pay you on that plan the plan that's in effect because it's too rich a deal and record is shows in that case with respect to ga i see now we're dealing with the february only nine agreement that zurich says is the agreement and with respect to the vatican remit to which the ga i c deal applied they tried to change the deal after the fact i was holding from walsh premiums that he had earned under the j i c deal there's actually an email saying we own this but we've got to now amend the plan after the fact so the jury heard evidence of what cain said what cyrix said is the why they couldn't pay him when the claimed there was no agreement your honor but i don't think there was really an issue on that because iraq was banking all putting all his eggs in one basket that the oh wait was not the agreement that's what they were and he didn't he made a legal ruling that legal ruling was made prior to it was submitted to the jury and he did it for two reasons one the plaintiffs admitted as an as an additional claim that there was a breach of the implied covenant of good faith and fair dealing and in the colloquy between the court judge and the counsel during that section he said and i think correctly so that implied covenant of good faith and pear deal and likewise if the jury finds that there was an agreement because under a new hampshire wage law you can't change it retroactively only prospect of and based on the the there was an agreement your honor to be counsel on the damages issue that if the jury found that it was a binding contract that the damages would be and if you write in fact exhibit one forty exhibit one forty which i think is in the joint appendix one two nine four was a stipulation if you will that the parties agree that if the jury found that there was a binding agreement then they stipulation at the time they determine what the fees did it was it was not will the jury wasn't told the dollar amount the jury was told in so many words you don't have to consider damages because if you find but i'm not sick you know he said something that i'm not saying there was a grain but if you find that there was an agreement you don't have to consider damages that's that's my although he insisted that he was entitled to the commissions provided for in that all those two thousand and eight agreement with respect to commissions were paid in april two thousand on that that was a five year deal with but was it not and and i gather he then gave up any argument that he was entitled to the one point two five commissions with respect to the next four years commissions is that change the play and in a subsequent year in a subsequent year even we we thought i think it was a little strategy not to overreach that business relationship that was the sale and they projected over one hundred thousand one hundred million dollars in premiums and they cost it all out and they congratulated jim for making that sale and there was a public announcement about that sale and and then after that was all done it after it closed in early january of zero nine they said we can't pay you on that plan we have to change so when they introduced the february zero nine plan jim protested he had meetings with cain but it was it was either you know xerxes way or the highway so he was forced to accept it so so but i will claim is that with the logic of his argument would be that he was entitled to the one point two five on five years worth of commissions so if if one of two things happened we would have been arguing that one he remained with the company throughout that period of time because remember there is a provision in the set of plan that says upon terminations you only get incentives that were earned prior to terminations so he would have had to remain there with the company for five years old or if they wrongfully discharged him and made it so impossible for him to remain at the company he may have been able to claim that but of course we gave up on that and just you're saying that even if they change the plan on an annual basis if those conditions had not been met those two conditions he would still be are you for the full five years if he was but as to the previously earned our position if he remained at the company your honor is that he would not have been able to do i don't think he would have been able they would have been able to do that for the same reason they were able to do it for that they would not have been a