failing to instruct the jury that damages were an element of breach of fiduciary duty under new york law so let's start with what's not actually in dispute it is not actually in dispute that damages are an element of breach of fiduciary duty under new york law when you say damages do you mean harm an injury or damage or do you mean compensable damages it is harm injury and damage those damages may not be ascertainable they may not be liquidated but the jury must be instructed that they have to find that the defendant was harmed and that that that harm was a result of the breach of fiduciary duty by the person who was accused don't we have that here no we do not your honor the jury was not instructed that damage was an element the claim they were not instructed that they were required to find that there was harm or damage to the employers of mr feldman and because of that there was no conclusion by the jury that there was in fact damage so there's no dispute that damages nome of the clan there's no dispute the jury was not instructed as to damages there's no dispute that they weren't even given a line with which to write damages or to check an affirmation that they had found that there was a damage even if it could not be liquidated so the question here is well what does that mean so the argument that we get from the appellee is that essentially no harm no foul it doesn't matter and they say that for a couple of reasons they st say that it's no harm no foul because they were seeking to score judgment under the faithful servant that's something we'll talk about a little bit more when they raise it but as a practical matter it doesn't really matter the jury did not find that the faithful servant doctrine should be applied so even if that were a potential means of achieving damages it's not one that would apply in this particular case and we also cite to authorities in our papers that's show that discouragement as a general matter is an equitable remedy it is not generally held to be a substitute for damages it's your position relying on cases like i did see that you need these actual damages and you can't use that date with your doctrine and the concept of discouragement to substitute for that that is our contention your honor and the that is in essence what the district court did no i think what the disk the district court was a very know full full disclosure absolutely opaque what i think the district court did by implication when you look at everything the district court did i believe it's reasoning was probably that nominal damages would suffice i think that's probably what judge kaplan was relying upon based on the fact that he's suing sponsor sue a spontaneous ordered nominal damages after the jury returned its verdict so if i could just address then what would i say is the nd argument which is that nominal damages can be a substitute for actual damages damaged is an element of the underlying tort then nominal damages are not available specifically distinguishing other kinds of torts like trespass where damages is not an element of the tort and thereby nominal damage can be recovered from torts like tortious interference fraudulent inducement and we would argue breach of fiduciary duty where as articulated by the new york court of appeals by other panels of this court and even by the pattern jury instructions damages is in fact an explicit element of the client and we would say that given those decisions nominal damages were not available here and to the extent that that is what the district court hung its hat on with respect to sustaining this finding a breach of duty and its decision not to charge the jury that damages were something the jury had to find and that is error and that is something that should be reversed so a nominal damages there are two general purpose support the imposition of nominal damages one is there's liability but there are no damages that's nominal damages the other is there's liability but either damages can be calculated or in this case they've been fully they've been fully paid why aren't nominal damages available in that nd sense even if they're not available in the st i would say that even if damages were available under that  nd sense the jury would still need to be charged they would have to find the fact of damages so even if damages were not awarded even if the jury was not finding that the yukos group suffered a certain dollar value in damages and awarding that under the verdict that in order to sustain in that particular finding that the damages were in fact inflicted but could not be awarded for some additional reason they will have to find damages and they weren't and structed here the damages were an element where they had to make a fact finding that damages were in fact suffered i don't know that there are two breaches of fiduciary duty at issue in this case in one of them even the even the pelleas don't contend that they were damaged they actually made money on the transaction and then on the nd one damages were rigorously and vigorously disputed at that in the trial they were doing and there was doing expert testimony there was testimony from julius baer that the amount of money that the group pay was in no way influenced by the fact that a finder's fee was paid to mr dimitri so i think that you can't simply assume that the jury would have found damages in this case given that the record was so heavily factually disputed and given that the jury was never instructed that that was a fact that they would have to find in order just to sta password and the go ahead to search his account that that constituted permission and that vitiated any claim under the store communications act we argue relying upon decisions such as theo fell out of the th circuit court of appeals that permission is not read literally that permission is only valid if it would not defeat a claim for trespass it is not sufficient to mr feldman gave gave this username and password to pro horwath in fact in most store communications act cases as you'll find if you look through the cases cited in both papers the person whose e mail was searched probably didn't give his password to someone at some point that's generally how these cases come up is typically in the misuse of those credentials that these cases are actually litigated case in particular in this context where there's misuse of files that were previously downloaded as opposed to an authorized access because that seems to be the common element from the cases that i  a specific authority where there is exactly this particular factual scenario what i will note about it is it's not simple misuse of the files that's certainly how it's characterized by the a pelleas what you have here is mr feldman only gave consent in fact conditioned the consent that he gave to the yukos group to search his e mail on representations by crowe hurrell off that the information after i believe it was a date in september of two thousand and twelve would not be searched and not be reviewed isn't that essentially a contract claim instead of a steward communication fact my well it might also be it could also potentially be a contract claim but i don't think the fact that it could also give rise to a contract claim would all  defeat the fact that it could be a store communications act claim that many store communications act cases where an employee for example violates the terms of use that his employer imposes upon access to corporate email and corporate records those could all be contract claims as well they could be breach of employment agreement claims but they're also stored communications act claims so i don't think that necessarily precludes a store communications are not necessarily but that here your client authorized the access on a given set of understandings and they didn't go beyond the access that was authorized they download the material and then you say read material or x it were made use of material that they agreed not to make you said but with regard to accessing the facility in obtaining the communications it seems like your client concededly authorized that i think your i think your honor hits the nail on the head when you describe it as a series of understanding they gave access pursuant to a series of understanding and outright representations from the agent that actually conducted the search and that's where i would look back to the theatre case where they they liken this to trespass a person allows someone on to his or her property based on a set of understandings and a set of representations that in thehotel the example they gave is someone claims to be reading a meter or gas person that's come to just read the meter and instead they come to spy on them by looking through the window or doing something else that would not defeat a claim of trespass because the permission was given to sue into a set of representation and understanding that turned out to be false and we think that it should apply that same reasoning should apply here thank you very  failed to offer any evidence that either of the two schemes were the jury found liability that there are any actual damages but mr fellman is wrong for at least two reasons st new york law permits the award of nominal damages in connection with breaches of the duty of loyalty in trial because of the trial court's failure to instruct the jury on the availability of novel damages for breach of it is your duty under new york law or no compensatory damages could be shown numerous other cases have also done the same thing as a st apartment case called  damage award there but he didn't even think that there was any of the instruction that he was agreeing to give was incorrect so i think that even though there was a you know there was negotiations how they respect decision in the end judge newman enjoined with judge winter joined the self dealing unlike an ordinary tort or contract case is not merely to compensate the plaintiff for wrongs committed by the defendant but to prevent them by removing from agents and trustees all inducement to attempt dealing for their own benefit in matters which they have you definitely can maintain an action with no compensatory damages and that's what we have here and i just want to make another point and the technical right is you know judge kaplan directly addressed this issue and he was asked whether there was a technical right here she said he said yes of course  directors obligation of loyalty to the principle is not an important right i don't think is necessary but if it is necessary i rule as a matter of law that the duty of loyalty and candor of a director or a corporate officer to the corporation is important right technical substantive emotional is certainly the course prerogative to do that i don't think we object to that i don't think it's necessary because i think one we have the action house decision with the court already has taken a position and i don't think that one can read the comment in decision as undermining what this cour there is a judgment against mr feldman for breach of his duty of loyalty as reference in the record at page four hundred and seventy three dollars feldman is bringing an action in the netherlands against you consented he's seeking indemnification for his legal fees in this action and whether there's a liability that any compensation that was received by the agent here mr feldman's accomplishments and in that in the course of his agency is something that he's and he's required to hand back to the principal whether that too is bear overcharged or not it doesn't matter the fact that our agent got this money and kept it is also damaged for us and there's no dispute about that so that's why judge kaplan didn't charge the jury specifically in damages about this because there was no especially based upon inherent authority which is basically the right of the court to control its own activities and if if if the judge doesn't feel like there needs to be sanctions who you make it i understand is what it is a hybrid and i would just i just wish that we thought it was worth raising to be you know as an issue in this appeal mainly for the fact that his perjury was agreed just because you know that two years delays in the case and and he's a member the new  he's a member the new bar now cases they're reversing i cannot fall for failing or for applying it to lenient sanction we were unable to find such a case but if there you know if the court was looking for an opportunity here we have a member of the new york bar who is committing perjury in his in his deposition testimony i see my time is up  thank you your honor is may it please the court i want to respond a little bit to what counsel for the yukos group has mentioned he discussed the action house case i think it's really important to look very carefully at how action house was decided and why it ruled the way that it did in the action house case judge winter acknowledged it's in a footnote but it's a lengthy one the kronos could be held to preclude nominal damages that was one potential reading of kronos and that's the reading the judge jacobs argued for in the dissent but how exactly did winter choose to choose  interference an element of the underlying tort and i think that there is no reasonable way to read qana ten as limited to just those two specific torts i think that the language itself is obviously more extensive than that now counsel mentions that content says well it's available where you need not allege harm to prove your claim respectfully that is the same thing as saying that damage is not an element of the tort and a situation where you need not allege harm is a situation in which damage is not an element of the underlying tort i think those mean exactly the same i think his argument was that the damages were not an issue because it was obvious that there was an improper payment well what i will say is damages were not established as a matter of law there was duty they're not even alleging that there was damages so i don't think they can hold i don't think this court can hold based on no prior motion or no prior ruling by any court the damages were established as a matter of law they mention the faithless servant doctrine but as i said before they lost on that so to the extent that the faithless servant doctrine could substitute for damages maybe in some case but certainly not in this one i want to very briefly discuss the issues raised on their appeal so firstly on their claim that the faithless servant doctrine should apply one they waive this in their jury instructions they waive this argument you have any objection to the jury instructions on the faithful servant doctrine they claim in their papers that they didn't wave at that they did object i would urge you to read the portion of the papers that they cite the portion of the and sixty five they were not objecting to substantial disloyalty they never objected to substantial disloyalty they objected to the time period of disloyalty being found by the by the jury but they never objected to substantial disloyalty standard and this is a standard that is followed by all four appellate divisions in new york we cited to three of them in our papers the th the th department also follows that i would note there are again your argument is that to the extent  they didn't object and there's a split of authority this can't constitute plainly or that is correct and we rely upon the fabry of united tex international case and the andersen group the city of saratoga springs case for that there's no there's no it whether you whether you characterize it as fundamental error or plain error you don't have that where there is an unclear area of law and here you've got two very very robust strains of authority from new york the fact that the court chose to why upon the one that virtually every court in new york relies upon is not playing air they then also argue with respect to they also argue with respect to sanctions and i think the court but really put the nail on the head here they have to prove not only the film did something wrong which he didn't not just that sanctions were sustainable or potentially appropriate the district court had choose to chosen to impose them but that sanctions were mandatory that it was an abuse of discretion not to impose sanctions and not to impose the highly specific an idiosyncratic sanctions that they saw in their papers essentially to call fellman a liar in front of the jury not merely to allow the jury to look at his prior testimony but outright characterize him as a liar to exclude all evidence that a transaction was alone when there's documentary record that it was in fact alone allow them essentially to mislead the jury as to the nature of the transaction and to forbid feldman from explaining why he sought help to pay for his legal fees from prime minister i basically don't offer a defense there's no authority anywhere suggesting that you can do that and frankly that should be rejected thank you very much that they're not the court is not taking that reading so the fact that they meant there could be a contrary reading doesn't undermine what they actually hold and more importantly we then get caught in fifteen years later which makes it clear that there definitely can be cases where there are nominal damages allowed your duty because new york pattern jury instructions say breach of it is your duty one of the elements damages but if you look at them your patent your instructions are they're not geared towards all of the nuances in new york law and specifically if you look at the contract not was subsumed his question to the jury as to whether they whether mr feldman had breaches of it is your duty in regards to the julius baer scheme that was the whole question we didn't have to ask for a separate determination because that was the question that we wanted answered and you know there c payments happened they just said that you know he could he could do that i just want to finally say in regards to the store communications act claim they argue this th circuit case the f l and they say he's they reference that it's that court there used this trespass analogy but there's no trespass case where you agree that you will you know that you'll trespass for certain reasons and then and then you're on the property and then you you leave and then you do them just can't negate the the permission the authorization that mr feldman gave and now i also just you know beyond that i don't want to lose fact lose sight of the fact that you know that was not a motion to dismiss that there was a motion for summary judgment and there was no evidence backing up even the story that mr feldman has told right there's no evidence that that there was any deceit at all you know he said he says that that he was told that the e mail collection was necessary to preserve hydrocarbons business records and that this was false but there is nothing in the record that says it's faults that's not in anybody's affidavit that says that's false there's nothing in there  there's nothing in there that they he says they are the e mails and use them against him there's no e mail there's no evidence that that happened so you know the fact i think they accessed it for secret authorized purpose nothing says that and in terms of mr godfrey you know it's just the case that they only had discretion to they only had to leave to amend their complaint as a rd party defendants so they came up with this claim they just brought in as mr godfrey for who knows what they were going to collect the e mails that he wasn't informed that mr feldman had made this restriction at the time and he didn't tell them oh lied to them or tell mr feldman something and then just do it and there's just no evidence of that at all so really that claim