court required that a stanza provide evidence of a written nor published industry standard but utah has no such requirement here assigns i had three highly qualified experts representing each different player in the f in the industry to testif that it is the custom and practice of the industry for parties not to threaten or pressure other parties to breach sales rep agreements they also explained why this standard is not anticompetitive but competitive this was more than sufficient to clear the hurdle summary judgment and with respect to lost profits the court required sanzar to identify and substantiate costs that the district court itself described as minuscule this burden far exceeded out utah's well established test that lost profits must be proven with reasonable certainty not mathematical precision and i'll start with the issue of improper means and its push order the district court said that although it had not initially addressed the improper means i summary judgment it found that a sunset would have lost on that issue anyway and used it as a basis for denying the post ground motion and the court believed to appear that the industry standard articulated by the experts in this case was not objective because it had not been written or published but you have doesn't have any requirement that an industry standard be written in order to be enforceable and fact in the result and isn't that his view doesn't count home agree with you on that point but i mean we published i'm not sure about that your honor i do think they think that the concept of objectiveness requires some sort of written or published standard in order that folks in the industry know about it but again utah has specifically said that you may have stablished at stanford and that people in the industry know about it through expert testimony now with respect to this the requirement external and objective i think the district court just misunderstood with that men and again this is a criteria that has been thoroughly law but they thoroughly and emphatically indorse the walker standard which specifically says that external an objective only means that it's industry wide not just subjective or internal to one particular player in the industry and that was the  issue presented in the walker case and again there's no suggestion of that that is a problem here again we had three expert witnesses one representing manufacturers one representing purchasers and one representing sales representative confirmed that this was the standard throughout the industry that it is not unique to any particular participant and the industry let me address that the church raises an argument that it's not sufficient  show an industry standard that prohibits interference with contracts that they're somehow must be something more than that the church does not cite any cases to support that notion it wasn't the basis of the district court's ruling in this case and of and the final thing i want to emphasize on with respect to industry standard is one of the things that courts worry about is whether with improper ference there's going to be a disruption of competition but this industry standard is as the is not a competitor of the church and the reason why the whole industry recognises the standard of not interfering with sales rep agreements is because it benefits both purchasers and manufacturers so world wide industry and without th experienced and knowledgeable body of sales representatives there would be any real hardship on smaller manufacturers or purchasers who don't have in house sales reps to make the connections and find  partnerships around the world and the sales reps enable this on both sides that's why everybody in the industry recognizes and supports went the experts though they were totally on the same page were they weren't the standard to be an advocate  room temple and the exact same conduct with respect to the other manufacture so this conduct that the district court describes is dead in the right in the center of what these experts have described as the industry standard breaching the industry stan now i think with any industry standard you could come up with hypotheticals where there might be some bright area no matter how written or published or anything that is and you know to the extent there was any tiny disagreement among the experts it might be any sort of hypothetical scenarios but that's just an issue of credibility and i want to highlight the fact that the church has acknowledged that the question of whether there is an industry standard is a question of fact that's at page nine hundred and fifty dollars of the appendix and the summary  or the church acknowledged this was an issue of x and to the extent you know someone supposedly about some hypothetical example whether this is or isn't within the industry standard that goes straight to credibility and that would be an issue for the jury a judge person i think you're talking but you're i'm sorry i don't want to shuffle papers and make noise over here so here is where i'm having a bit of difficulty maybe you can help me out so it seems to me that your positions a little bit circular the argument is is that you have a case based on someone using improper means to induce a breach and so to prove improper means you go get experts who say in this industry it's the custom or industry standard that people in the industry don't use improper means to induce breaches of contracts and it just seems to me that that i mean you could do every case could be an improper means case in that instance because you could always go get someone to say hey we're an ethical industry we don't do that it's a practice in this industry that we don't induce breaches out how do you how do you deal with that well your honor i st i think disagree with your premise that you could find in any industry experts willing to say we have a standard in customer this industry that we don't interfere with a particular type of contract and i think that's what makes this case different this isn't just saying you know we have a standard where i as a competitor don't go try to take away my other competitors business that's  the kind of a conduct that we want to allow we want competitors to be able to try to steal each other's customers away but this is an entirely different type of case this is where again and i think it's critical here that each different player in the industry confirms this industry standard i don't think any customer in a normal industry would say i don't want people competing for my business including if it means breaching their own contracts you know that would be a typical competitive industry type of evidence  but here everybody agree he is the standard is important and it's pro competitive because it having these folks the sales representatives available to do this work is essential to our ability to find each other as business partners and i think that's what takes this out of the scenario that you have described which is what the courts are trying to avoid and so i get the uniqueness here is that the standard is is pro competitive and again we do have expert testimony from every participant in this industry describing that this is in no employees the storage costs no shipping costs mistress we testified that he did have a home office with overhead but that all of that overhead would continue to be incurred regardless of the church's interference and then get to the extent he had any travel costs could be allocated to the church for in this it would be talking about prospective travel those costs would be de minimus now that all of that evidence about costs his calculation a net income calculation it just happens here because of the nature of this business that his i'm going to defer to the chief here all right well i was just going to say the minister has a legal you know dictionary definition not sure how's an accounting definition in the us the question here is what reasonable certainty in a county mr sweet was using it as as a lay business owner and he wasn't use it to reach a legal conclusion and of course that the jury isn't going to receive an instruction that mentions the word to minimize but i think it was a wholly appropriate  description to give a category of costs again that had never been allocated in that which he had personal knowledge to know weren't going to rise to any significant level certainly relative to the amount of revenues that he had forecast here and again that the summary judgment is you have to have evidence on an issue and of course his testimony is evidence and at the end of the day of course we know that in fact these costs were to minimize they were between you know point eight and one four percent of his overall revenues and i under utah well i think the requirement under utah law is that you have to establish your net lost profits which includes putting forward evidence of what your costs are which is exactly what mr sweet did here and i think to the extent and we put it in perspective you're saying you're saying in these kinds of cases that heineken just say i don't have any cost subtend and then sit down and say really what i want business big number damages without proving any co going to get very much to depends on the nature of the business and the reasonable inference is to be drawn from the record for example if the plaintiff and son ridge a residential home builder said we have no cost and a story that's not enough to create a genuine issue of material fact for s judgment but for this type of business and this contacts with the business owner you know spreading all these other types of costs and then saying it there is this other little category of cost but it's de minimus and when you look at the entire big picture of all of the evidence  profits that is certainly sufficient to get to a jury if a utah supreme court told us that there is an exception for persons who have businesses that are run out of your arms as i don't know your honor but i think  the standard is you have to show the cost that you would incur to produce the future revenues and that's the evidence that mr speight provided was all of those costs relevant to produce this future revenues and you have to look at the the facts in the for the particular business that you have  and i like to reserve the remainder of my time for a republic before you i have i have a question isn't it isn't there a timing problem with that though i mean didn't he provide whatever cost he might have had after the decision was already made your honor the testimony before was that the costs were to minimalists and i think the district court fully recognized that you know where do you draw this line of cutting a burden on i plaintiff to prove that he did minimize cost is de minimus and the court acted like he would like to let him might my next question is is does the defense just have to accept that so i say i want to know all your cos when you say they're de minimus and ok i want all the information relating to your de minimus kos and you say well they're just so small it would even justify producing up and so does that this just have to do they have to eat that just because you made a representation that they're that small no your honor and in fact the church could have asked for that specific information  examined about whether these are or aren't and then a must but his testimony that they weren't in the midst in this context with this low cost business and with all the other evidence on the lost profits calculation was sufficient to clear the hurdle of reasonable bant please the court and counsel i think it's important with respect to the tortious interference claim to begin with bedrock utah law under utah law there is no quote a deliberate breach of contract even where employed to secure economic advantage is not by itself improper means because the law remedies breaches of contract with damages calculated the benefit of the bargain there is no need for an additional remedy in tort unless the defendant's conduct would constitute a tort independent of the contract in other words there is a right under utah law to to induce a breach of contract through proper movie now of course improper means are not necessarily privileged and the court has gone through and indicated the various kinds of things that can indicate an improper means and one of those it is true is an industry standard that deals with the means by which a contract is breached in a decades that's if there's an industry standard that says you can't breach the following means and that of course would be relevant to the tour but the problem here is that a stanza is arguing not really that the church breach through an improper means but that there are no proper means by which the church reach that there is an industry i thought i thought the argument was that you have an exclusive contract here to friends or suppliers and that the church inserted itself between the supplier and the plaintiffs to saying if you don't buy from us directly you're not going to get any sales from us period is that most improper me no it is not because it is how well it is iran our position our position is that you do have a right under utah law to induce a breach of contr you are able to say if we don't get the things that we need under you know we don't get direct access we don't get an opportunity to to con and consult with you directly with respect to design and and other kinds of features we going to walk away and that's not an improper means that they have that what they've asserted is that they have an industry standard that makes it improper no matter what basically an improper means for them some kind of an off and unlawful activity that's not what it's talking to and they haven't and they haven't argued that this is that this is coercive in that sense what they're arguing is that there's an industry standard that says that you can't induce a breach periods stop and that simply cannot override the very nature of the tort the very nature of the tort is you can induce a breach you just can't do it through improper me and judge briscoe you mentioned earlier that that you know these are not competitors i think you said the church is actually not in this industry the church is in the faith industry it's not in the furniture industry it's a customer of the furniture industry it's a very different posture it's not a competitor it is a customer a customer is able to ask questions like hey we want direct access we want to be able to consult regarding design issues and a lot of what they're arguing was somehow terrible and inappropriate i think it's important for the court take a look at three documents that i think would help to kind of round out this dark narrative that has been presented and demonstrate that it really was nothing nefarious on here not that it necessarily matters but i think it's  in there is or any indication that the church is trying to cut out a stanza from being able to get its conditions and its problems it's not what the church was trying to do it was trying to get direct access so that it could have repeatedly reaffirmed that which is appropriate but they after a point stop paying yes they did and that's a breach of contract and a stanza did pursue an action against at least one of them  the church to simply to ask for direct access there's no case that that remotely suggests that that is improper no case involving a customer reaching out to a manufacturer of abuse or and saying can we deal with you about it and it indicates that you know we define improper me his narrowly to include only those actions that are contrary to law such as violations of statutes regulations or recognize common misrepresentation bribery unfounded litigation defamation or disparaging falsus in the court goes on to say such acts are illegal or torches in themselves and are clearly improper means of interference now of course an industry standard and so regardless of what they come up with even if we simply assume that that their industry standard is accurate it still doesn't it still doesn't under undermine the fact that utah court was taking a look at the and how amorphous the suppose it industry standard is and he was mentioned earlier that judge carson that this is this is a fairly circular zisha in that it's been but it's been alleged well a point in the cases was to understand was between an industry wide standard versus a standard that is applicable say only to one company run and that really is the dining and dividing line between objectivity and subjectivity and to the district court when it looked at the utah case law that it apply correctly i think it was getting  the important point that what we have here is isn't that so now well i i think the court did not engage in a full some analysis of the entire entire question your honor i i think so i think the word objective and includes you know is it clear is it is there is there something that actually meets a kind of rule of law standard and it's not you know bringing in three experts which do you know who do have sometimes contradictory ways of describing things you know we don't believe that rises to the level of a true objective standard unlike in some of the other cases where there are written industry standards that clearly articulate published standards required they're not required but they have the burden of showing that there is indeed an industry standard which which deals with improper means in a way that is objective and and in a way that is clear this industry standard is nothing more then the resurrection of the rejected improper purpose problem under utah law so you know a lot has rejected in the context of tortious interference contracts and improper purpose analysis and if you read through what these experts are saying they're saying look it's perfectly fine to to talk about to talk about direct access to talk about all of these things design issues and so forth you just can't do it with the motive of cutting out the cells for that is just an improper purpose analysis and i mr opinion actually one of their key experts testified as a deposition and question well he was asked whether motives would be what would determine whether there was a violation of the industry standard and the answer was quote yes if they had the motive to cut the rest out in that question then you hit a violation that's appendix page two hundred and eighty four to eighty four that's a significant concession because that's the old improper purpose prong of this kind of analysis which the court has repeatedly rejected the  documents the e mail exchanges that you referred us to wasn't that all about motive as your whole point in citing those is to say well the church never said what they wanted to cut out the plaintiff in any of the e mail exchange yeah i think it i think it shows what was truly going on and the most important purpose here is that these companies there's a reason why we showed you is that these companies were were reaffirming their contractual obligation to pay commissions and we were not disputing that in any way our issue was something else and something else that we're pursuing is not as a matter of law and improper means not maybe just address very briefly the cost issue but the bottom line here is the utah wall requires a showing of net loss profits and those must be proven with with reasonable certainty and that includes a cost com on the church declaration the declaration sad and some page six hundred and thirteen paragraph ninety one the declaration said i don't have any real office costs and then it goes on to say quote although there were costs for travel needed to have been travel costs we have a we have a rip a representative who is a sales rep who is in colorado we have a client that is in salt lake city we have a manufacturer in europe we've got another manufacturer in central america and temples full of and he says we have only recently have negligible costs of travel we submit that's implausible and in if you can your honor if this case is resolved on the question of lost profits it will be resolved on an unforeseeable technicality that we now know would be wrong on the merits  to prove and document that those costs in fact are tiny that would be a terrible policy it would be such an onerous burden on a plane to that would be fundamentally inconsistent with the reasonable certainty standard and it would be inconsistent with utah's policy that we don't let tortfeasor is off the hook just because lost profits can be hard to prove with precision again the standard here is not mathematical preposition we're talking about one tiny category which this business owner testified