former employees and the freight brokerage company a competing one that those former employees joined it involves theories of tortious interference breach of the duty of loyalty and civil conspiracy and the case also involves damages a claim for damages as well as injunctive relief that arose here in the federal district court of the district of nebraska this case was assigned to judge lori smith camp and she presided at all phases of the pretrial and trial following the filing of the complaint in this action by the plaintiff the court entered a temporary restraining order against the defendants that turned into a temporary injunction which lasted for a certain time eventually after that injunction temporary injunction was lifted the case proceeded to a jury trial and damages after a jury verdict in favor of the plaintiff for a little over one point five six million against the defendants the defense filed post trial motions under rule fifty and rule fifty nine and the judge truck court denied those in all respects and this appeal followed the standard of review for this court is de novo for reviewing rulings on under rule fifty west plans l l c it is a freight brokerage company with that means is that it matches shippers of goods with the customers who need those goods shipped and hopefully being a m helps hopes and expects to make a profit the appellant r g control or if she controls is also a freight brokerage company in the same business that is and is a match maker it was started by agreement when they left the employment of c t freight this is a very competitive business there's twelve to fifteen thousand of these kinds of businesses in the united states in the case of  exclusive relationship no exclusive contract with any customers customers are free to use a variety of freight brokers and they do and so if freight brokers customer is potentially every other freight brokers customer well it seems that the e mails and the instant messages here were probably what the jury relied on in large part why is that not enough to show a breach of duty of loyalty or it's you know this is not a contract case like you say for restricted government it's just a common law duty of loyalty well with the duty of loyalty it for spot judge and there were instant messages and there were  direct judge but but in terms of causation you know did the fact that some of these employees were talking amongst each other an instant message did that really result in what the legal standard is for breach of duty of duty of loyalty and a legal standard there is and has to substantially hinder the company in the continuation of its business and the evidence was clear at trial that in december of two thousand and twelve the month before these folks left and and january of two thousand and thirteen were banner months for c t freight in terms of sales these people working hard they may have had some instant messages that that were as i said in candor were stupid but the fact is they continued to work hard they  process loads for their employer and you know the sales figures showed that they continued to work hard c t freight was not substantially hindered in the continuation of its business but the evidence is that there is this business is a personal relationship between the salesperson and the buyer the purchaser of these other businesses so i can see is the way the jury can determine yes they had a lot of business they worked hard because they wanted to maintain that personal relationship and carried over to the new business instead of just giving them bad you know bad treatment in their last days at c t well that's true but but in but in doing you know in looking out for the for the customer and doing what's right for the customer they were benefiting c t freight up until the time that they left and so in terms of well they're my go to damages but i'm not sure that goes to the duty loyally and again i think the standard you know set forth in the kind of a case from this district of brassica as you know did the did the conduct by the employees substantially hinder the company in the continuation of its business and while they were employed and while they were writing those instant messages and talking to each other they were they were not in a position where the company was substantially hinder because of its record sales and the continuation of the boy was that they were we're going to move that that business that book a business of the personal relationships to a new company organized effort to a certain degree but there was no evidence of trial judge that that they can talk amongst themselves they can talk about a new place of employment they can make plans to leave their current employer and go to another it's when they start soliciting those customers while they're on the clock of their employer that gets them into trouble for a breach of duty a loyalty claim and the fact that they made plans that they looked at new space that they looked  fax machines and computers is interesting but it doesn't rise to the to the legal level required for a breach of a duty of loyalty and i will get to the cause they are the damages point on this  a little later can you perhaps you can provide some explanation i wasn't really sure from looking at the material and what the what the answer to this question is  february fifth two thousand and thirteen the employees leave and the next day many west plains former customers began tendering deliveries to it what's that just look at that that looks a little a little strange a little odd almost like a little smoking gun they are with such a quick turnaround to with respect to these employees and and tendering of the leverages what doesn't doesn't take long runner to do that and there was testimony at the trial about that very same thing what had happened was upon going to the new employer they had to send forms to the customer customer had to sign you know a certain agreement had to provide credit information and then they that information about the customer was loaded into a computer system a software program called strategy at that point then the new company can start tent taking loads and during the week from february fifth to february twelfth when the t r o was entered they processed about one hundred seventy five loads is just shepherds it is good to move in start up a new business and i mean day one of a new business have have considerable work i mean there and companies usually start up in day one and with all the a lot of business they have to build so why why couldn't the jury just assume that that's that's evidence of this breach of duty it called to testify at trial about as any kind of improper solicitation prior to those employees leaving c t freight there was one customer who testified by definition deposition from probably the biggest customer land  that go to the jury and say the other words the the day they left they had certain information and cd in the next day they when they used that their trade secrets there was a claim judge for misappropriation of trade secrets and the jury found in favor of the defendants on that point because you know the evidence showed at trial that really in this business there are no trade secrets you know for him for customer from ation you can go on the internet and find out who's in the business of shipping dry goods so the jury correctly concluded that what the is that what these employees did yes these employees were able to get the information they needed to have to process loads and service customers from public sources so they didn't they didn't the evidence revealed that they didn't make use of the customer lists and and rolodex the records that they took with them that they eventually returned that's right your honor their their testimony at the trial was that they went on public sources or call those customers i mean a lot of these customers they knew phone numbers off the top of their head todd you know testified at trial he's one of the appellant's and he testified at length about how you know you know these people and it's not hard to get ahold of them and get their the necessary information to input into the new system  so i think you know that they were able to within a week's time have one hundred seventy five loads that they processed but there were delays you know one of the other nestle purina was a client customer that was unable to get set up for three weeks because of you know corporate paperwork so it wasn't an immediate thing where they were off and running but after april fifth when the court entered lifted the temporary injunction and said to appellants you're free to compete everything's on a level playing field now they were successful in getting business and winning business that was formerly held by the freight but that will solve proper it was all fair competition it was all b a was called r f g controls which was this freight brokerage business and they've been sued and what was the evidence that they were involved here well mr wells was one of the was the founder of this new competing for a brokerage business yes mrs wells was not involved break the law therefore formulate a new business to know what does not know does not you i did want to save some time for rebuttal but i do want to bring up this one point before i sit down the injunction here that was entered was the was the remedy that should have been the end of this case because the result of the jury verdict and the court entering judgment in favor of a very consistent with the jury verdict was that not only were my clients put on ice for two months they also had to pay for the value of a business the entirely on sufficiency of the evidence and in that type of appeal he has to show that the evidence was so insufficient that no reasonable jury could reach the conclusion that the jury did in this i mean yes your complaint was involving those other two exactly yes your honor and would you say it was a second one breach of duty of loyalty breach of duty and loyalty yes what are the elements of that cause of action for breach of duty of loyalty the burden was to show that the defendants acted against the interests of west plains that they did not act with fairness of with fairness towards west plains that they acted in competition or unfairly took advantage of breach of duty of loyalty in addition with support of the really interrelated exactly breach of duty of loyalty support to the other claim there were also unjustified acts of violating the company handbook which had  confidentiality and conflicts of interest there were also unjustified acts with those elements in mind what evidence did you advance against wells his wife what was the main the main legal theory that by which we can reach mr wells and are actually logistics was under the conspiracy theory that he played a part in extensive planning to commit an specifically was the evidence of his comes here and there were extensive amounts of e mails between wells and the other defendants in this case one of which they were  strategy of the best way to recruit the rest of the team the entire team of brokers mr williams told him not to do some things that they did and so forth and that's correct he did he did tell them not to do certain things that and that was wrong and to tell him not to do things that well that wasn't wrong but under the professional business services versus ross and the vigor industries versus crist case they make clear that under nebraska law it is a breach of duty of loyalty to recruit coworkers to join a competitive entity and there are e mails between bryce wells and cindy shelton where they are strategizing the best way to recruit the whole team so that's where we get the conspiracy of wells involved is that he is participating in that recruitment of the entire team of brokers to be lifted and to move over to west plains when i was move it over you know whose loyalty or we attacking here that the new person the new person both the centrally because they all conspired together  todd and drew there are e mails from chad needham that's on page ten seventy seven of the joint panics where he is recruiting the team by his recruiting drew by saying there will be no c t freight and that's how they got they got all the folks to come along there are let me back up a minute i think i understand mr wells and on the business this was his t he sold the business correct and then started this new business and then tried to recruit the team from his old company that he just sold for to an app million dollars correct correct the entire what is that part of your argument i mean that's just because you sell a business doesn't mean you can adjust beams as you say i'd like to take some of those people with me right right and defense counsel talks extensively if about the fact that there's are at will employees and they do have have  they did not have nine compete agreements and that is true in this case they were free to compete after their resignations but they didn't set out to do that they didn't set out to compete what they set out to do was to lift the entire infrastructure all of the freight brokers from west plains and move it over and there's testimony from kevin's empathy who is the representative of land o'lakes who was west plains biggest customer that he was responsible for forty to fifty thousand loads a year and his concern was in order to transfer the business he had to have assurances that the defendant had an entire infrastructure in place to be able to service those customers there's also testimony from  defenses industry expert that says the business follows where the team is who has the capacity to do the job this is michael who is the industry expert that opinion and that was his opinion it's on page ten eighty seven of the transcript where he says the businesses are looking for capacity because there's normal attrition there's normal people who leave and join another company in there they're allowed to do that but here the defendants knew that if they could only be immediately successful if they lifted all of the freight brokers all of that capacity to service the customers well following up on judge green's question it would have been entirely appropriate would it not for mr wells to contact each of these employees individual and offer them positions with his with his new company yes i believe that would have been lawful for him to do that but that's not what he did he contacted a few of them and then conspired about how are we going to recruit this whole team and then they began recruiting the evidence evidence here is that he did not contact each of these individuals that is correct that is correct most of the recruitment was done by chad needham who was responsible for land o'lakes the biggest customer of west pla there is multiple ways by which the jury could find that these these individuals breached their duty of loyalty one was in recruiting their coworkers which i've already discussed one was the fact that tom danner his wife rebecca sheltering and chad need them all were paid five thousand dollars to consult for a competing business while they were still working for west plains and those consulting green mitts were submitted to the to the jury and defendants also planned every aspect two of the competing competitive entity page eleven seventeen through eleven thirty three and fourteen eleven through fourteen twenty two of the joint appendix shows extensive planning e mails where all of the defendant working through everything they need to do to set up this joint entity they also took advantage of their positions to solicit customers prior to their resignation and there is no smoking done on them there's not a email by which they solicit the customer over email and quite frankly that's because there were hundreds of thousands of electronic correspondence between the defendants and west plains former customers they were in touch all day long and we just simply didn't have the capacity to go through all those files but what we were able to find were extensive e mails where the defendants state their intention to contact customers ahead of time there in mails from time dan or from  or with plans to contact the customers on page fourteen fifteen of the joint appendix tom danner talks about the fact that they had to contact the customers ahead of time because large companies don't respond quickly to a quote name change up in january and he says i will be speaking to them about switching to us he in fact does go up there as defense counsel said kevin's him ski testified that he did not believe he was solicited because he wasn't told the name of the new company whether or not he was told the name is irrelevant here he admits that what he was told that was that chad needham was leaving and he also admits that at that point in time he had a decision to make he would have had no decision to make had chad not solicited his business and most importantly though after all this this the evidence of what their plans are to do to these customers sure enough right after february fifth their revenues of west planes from its top twenty customers plummeted for west planes and skyrocket for r f c the jury was was presented with financial documents to show that for example page twenty seven seventy appendix is a comparative document that shows the top twenty customers it shows the revenue that the freight obtained and then the revenue that our logistics change and the jury could see that direct correlation also page twenty ninety eight and twenty one zero three of the appendix shows that the revenue went from one point nine million in january to two hundred twelve thousand in march after the did all th here of credibility here that by the time of closing arguments you had right you had your evidence the e mails and so forth but you had their testimony saying we didn't  do that yes there is an issue of credibility because their testimony does say that we did not solicit customers they basically are stating yes we planned to we planned to solicit the customers ahead of time but we didn't actually do that  then you have the testimony from the customer kevin's mc who says they he came to to handle aix and told me he was leaving and then i had to just make a decision about what was best for the business he also testified unequivocal e that he needed assurances from the defendants that they had the infrastructure in place to support his business for forty to fifty thousand loads a year and again there's the industry expert who testified that the the business follows who has the capacity to do the work we want to address quickly defense argument on the effect of the injunction in this case his claim is that there could be no damages after the expiration of the injunction and he support he provides two cases to support that however neither of the cases make that holding in both of the cases the appellate court states that the jury properly acts that assess the extent of damages caused by the defendant and that's the standard here the jury has to assess the extent of damages caused by the defendants there is no question that their conduct a lasted well beyond the temporary injunction and if the court were to adopt the rule of law that defense is requesting it would produce illogical results because that would mean that no plaintiff could ever obtain damages post a temporary restraining order the plaintiff would be left to decide whether or not to seek a t r o or to seek seek damages after a bath what the jury needed to do was assessed the extent of the damages caused by by the defendants in this case and what defense counsel is asking this court to do is essentially step in the place of the of the jury that's the theme of his argument to come in here and weigh the evidence which is not a proper or not proper for the court to do i see a moment at a time less the court has any other questions i will i will thank you for your work on this case ok thank you very much thank you i've got to ask my curiosity is build to trick your father he is yes yes just curious yes that's correct honors i'm not asking the court to put itself in the shoes of the jury i'm asking him to put itself in the shoes of the trial judge who at the joint appendix want to wait in the order for summary judgment said that the damages for tortious interference in this case will be considered a conjunction with the court's polyphony injunction order and will be subject to mitigation but she never did she was given the opportunity she knew the effect of the injunction better than the jury dead and she she had given specifically these defendants the green light to compete all that evidence of what happened after april fifth the business skywriting were skyrocketing for our s g and going down for c t freight was the result of lawful competition that this court district court loss of business value which has never been a theory that's been adopted by the nebraska supreme court in a tortious interference case the correct measure is lost profits and there was no evidence of what lost profits c t for a sustained the court had an opportunity to fix that post trial and did not we asked the this a circuit court to interject meant as a matter of law for the appellants or in the alternative to grant a new trial or