released the sale of the business or the terminations climate it is judge obus we argue that i'm forcible under either standard but if it is seen as ancillary to employment and therefore using the employment standard i don't think progressive even question is whether the compete well agreement restricts traffic from soliciting customers of the progress that a progressive that became customers after march of two thousand and thirteen after the sale was completed that would seem to indicate that it was but that restriction was not based on the serial that is our argument your honor it does prohibit him from restricting customers that were not arkansas state securities customers at the time of the sale not only that not only customers but it also prohibits him from going into lines of business that were not pursued by arkansas state security at the time of the sale not only in the types of business that were being done when he sold the business but any type of business in any way competitive keeping progressive does during any time mr chaffin was employed by a progressive after the sale and this is one of the issues is progressive doesn't happen in arkansas cases that say you should use the business sales standard in these circumstances so they go to other states and these lockouts going to look counsel let me just let me stop you what troubles me about this case covenant therefore it's at the injunction is absolutely wrong he didn't didn't if he didn't follow that that taste and forgetting the name of but never a line on the st paragraph of the judge's or four of which as enjoins david shaven from violating is not compete with progress so that is the terms of the preliminary injunction there is absolutely no departure from arkansas last i think you can't rewrite not to compete in an under our state law isn't a court didn't it ordered compliance it granted an injunction based on in the exercise of his equitable discretion in granting an injunction pendent i did which is no more coercive or harsh than it needs to be he put in the one hundred and fifty mile recital which may or may not be operative foot yes your honor thank you and that's our argument is that you cannot have there is no works this interference claim without a violation of the non compete and there is no civil conspiracy i'm sorry i'm sorry because that's simply wrong i mean i have done enough of the no business litigation you can have an intentional interference this was intentional interference of a business or a you are misusing trade secrets i'm doing we are the trade secrets claim form no part of the district court's injunction and progressive is not pressing the trade secrets claim on appeal as any alternative basis for upholding d anything the misuse yes your honor the information though is not confidential it was just pricing information that was perfectly asked by other progress of employees who were under no agreement not to disclose that information it was standard pricing information that progressive displayed in open court without protection in the district court so this is just standard information that's pricing information that by the way according to the district court was not even used to compete because a district court said that mr chapman was not even competing based on price he said that the competitors left for gres of the same deal so there are without any improper interference there's no tortious interference claim and without a torturous interference playing there's no tort for the civil conspiracy claim so those claims are gone once the not compete claim falls away the getting back to the issue of whether this is and started to employment or not just ross that was our point is that the person who can't make the argument that it bargained for all this good will that did not even exist at the time it made its bargain so even if you're going to use that test which is not in arkansas by the way are arguments that you look at the language and structure of the non compete and here the term doesn't strictly from the sale of a business as you would expect a business sale covenant to do it also runs from the end of chapman's employment so why would a purely as a purely business sell covenant in joint areas of competition far outside  the selling business but the other issue though is even if you're going to use this this test that progressive wants to use from other jurisdictions none of those cases even support what they're asking to do and in particular we have evidence in the record about the bargaining power of the parties and what they bargain for the group or the president of the progressive repeatedly testified that he bargained for a five year quiet period he said quote i mean we negotiated hard on this whole trip all acquisition everybody tha council and we understood we were buying a relationship based business and we understood that five years seemed an appropriate period as a joint appendix to fifty not he also said quote so that idea was that you know we d would have this year window and frankly it standard even if that's the one to use this is still hopelessly overbroad because it goes far beyond the or his pursuit is still in business briefly because i'm getting close to my rebuttal there's also the issue of whether the not compete even applies in this case it runs and why does why does the word employment in the company necessarily and he have to be construed by creating in the twenty one factor employee versus in the bad contractor tested supplied in many other quite unrelated concepts seems to me employment does may not necessarily exclude all sorts of all sorts of relationships that would that technically be an employee for text or other purposes yes or i'm not sure that has argued that employee doesn't mean what standard legal language of employ means but i'll tell you another reason in the asset purchase agreement it has a provision about post closing restrictions and they contemplate that the buyer in its sole discretion will formulate this not compete and the parties talk about it running from the the end of but then you get as a non compete drafted by progressive council in tennessee and you look at what the non compete does and it says employment there was an intentional decision there to go from any consulting contract or employment and narrow that to really just mean employment when you get to the case your honor i would like to go directly and a judge will i can back to your question about the stone are confidential information in this case and there were three things that were independent contractor and their record a j l was identified as a competitor of progressive formed in january th of two thousand and twenty right before his lawsuit documents your honor and then i'll tell you why that justifies that he also mr clements gave a whole physical hard drive not just uploaded to the cloud drive to jail we have our former defendant in this case who until his testimony in this case under the table because they were helpful to power and indeed they were they still documents and gave it to mr traffick and after he was terminated so these documents were used and in fact an identical did was submitted to the malvern school district using these documents and joey howard and the defendant mr clements went to the malvern school district and met with that progressive ought arkansas state security which was operating in arkansas seventy percent of its business now that progressive in arkansas is with arkansas school districts across the state of arkansas mr chaffin then testified on both direct and cross examination that he did business with those arkansas school districts within a hundred and fifty mile radius of little rock a radio little rock for all practical purposes and the court can take judicial notice of geography in the locations of iraq being close to the center of arkansas that that for four progressive in the school district and one includes rogers arkansas your honor and if you're familiar with the bentonville area then i know your honor it's a layer that rogers is just right down the road from that so  we are operating in that area at the state your honor and an injection would be appropriate especially at as judge miller noted in the preliminary injunction stage where we are dealing  not only with the covenant not to compete issues but we are dealing with serious civil conspiracy issues and tortious interference of contract issue if you look at the evidence of the school district that howard was able to i'm sorry that mr chapman along with in some cases mr howard is working with a jail were able to get in a couple of weeks before we were able to has knowledge of that contract and that knowledge of the contract he's been servicing these contracts since he an arkansas state security and then selling to the schools different and that he is using and the priest  going back to judge gratz the question about the stone document the google cloud the physical hard drive the identical bits where the prices don't change but they want to change provider he's using that still on information that's been converted in connection with interfering with those contracts and taking those contracts having them flat out breached and cancelled out a school district council established these relationships across the state of arkansas with school districts with these superintendents of school districts and this is a heavily a very heavily  who has served in the schools and has these relationships with the school superintendent which is has been described as that and i quote a tight knit community is what mr chapman described them as so you've got this tight knit community  school superintendent who want that surveillance intercom alarm system fire suppression system and they're giving time to people to listen to them and decide who they're going to go with on the how do you not prohibit mr chapman from working across the state of arkansas that's basically where he has testified he is and working when he owned the business and after he sold the business there was never a single time in the entire history arkansas state security and up through november th the twenty seven to two thousand and nineteen that these superintendents did not associate those services with mr chapman and mr tatham with paid for him on the front end and he was paid for them very handsomely when he was employed fast progress so there's never been a quiet period there's never been a time that he didn't retain  for someone to sell a business and enter into an m point agreement in connection with that sale there's not a test and none of these none of the cases cited say that the test is does the covenant run the date of the sale of business or does the cabinet run from the date of determination employment and that goes back to my prior point on a quiet period if you've got someone who's developed all the good will it is an intangible and progressive paid on the allocation of purchase price which was ex those relationships then you have to have a bottom bargain for protection when you have an employment agreement there is and you know i hate to admit this because i argue these as well your employer you've you've got you've got to look at this as to what the party sparking what and as to the practical realities of this situation in not just progressive buying arkansas state security but in those sales so both parties were benefiting from that and we are going to on the front end to get those protections as happens in many sales a business you have the sale of the business you have the allocation of the purchase price and in this case the majority of the purchase price was allocated to these relationships contract rock represented mr chaffin and another law firm represented progressive they were both represented by counsel five year period that terminated at the end of employment your honor there's no question that that mr ashley and i disagree vehemently on when mr chapman's employment ended but there is no question that the five year quiet area it triggered at the end of his employment that's what was are can for now chapman argues that it ended much earlier than the deal document these are to me that the three most important deal documents for the court to look at these three deal documents reference each other they were entered into negotiated and were entered into looking for the cy but there there are in our brief we put out there d are covenant that the state of arkansas has upheld for five years they've held for ten years they've upheld or fifteen years and they've upheld or twenty five years and one of those longer was all about one hundred years ago there were some of those were white them time ago your honor right versus marshall as the case i was trying to think of and that case sensibly rating at several times does not look like it even had any time when that and your honor when you think about it even if even under stricter standard of an employment contract and act i think our government would be in forcible and or injured as well but i don't think you even get close to getting there but sure you would have an employee who's employed hypothetically if you had an employee employee for twenty years wouldn't you even have more reason to have a restrictive covenants for a time here yet after they leave they've had twenty years of developing customer relationships in this case away from the office of that is the one on one or a one on two situation ninety three the arkansas feels hell up a year ago this kind of information is not a protective all business interest it's not confidential because other employees have access to it without restriction and secondly in this well for an admitted that when you you cannot be in competition these parties were not in competition they had the quiet period progress of a lot of money or i think that's covered in the briefs the length of vs area issue there are some cases in the business context not employment have a longer term but look at the geographical restriction in those cases it's usually a county it's maybe forty or fifty miles in one case it was just a block across the street from the gas station also look at the breadth of the competitive behavior that's prohibited b agreements it's not this anything in any way competitive in any time during the employment which is what we have here the last thing is this theme that keeps coming up about mr chapman pay mr howard and mr clements he did that at a con is it doesn't make sen mr howard years in advance so that in the future when he discovered concerning behavior about progressive and he wanted to investigate that he would need mr howard around at some point in the future he didn't know about you're on a progressive got what it bargained for