issue is whether phil foreman alleges a breach of his siemens wage contract isn't titles it's whole the limitations on that because of concealment and lack of disclosure of the facts underlying the claim by american seafoods this case was decided against mr zimmerman on summary judgment by judges only two issues are raised first whether or not there was evidence of primitive concealment that would require a trial that was submitted below the first or the principal piece of evidence suggested by the plaintiffs on that regard was that mr foreman received settlement that indicated the value that indicated that his pay was being based of the value of the if you're for the value representation was made when he was given the settlement sheets in connection with his paycheck after the season was over the post is on shipboard the posted values were supposed to be that's not true that what the company did is the company underestimated the price that the fish would sell for and over estimated sales cost and there's substantial evidence of both of those facts in the record in particular an expert report that said in fift basing your pay on the value and he took that to mean an accurate estimate of the value which i think is the natural implication of that the second issue here is whether or not the company in this situation has a duty to disclose to set of facts here cry out for the imposition of the duties to disclose that are normally imposed on us that give sherry here we've got a situation where a very important part of the contract depends based on a long history the company has been selling this product that semen doesn't have the semen is unfamiliar with the prices the products sell for these are if you look at its appendix b to our brief it's one of the price sheets for thirty four different grades many grades of so remey in a row that are sold in japan of course these are not retail prices they're not wholesale prices they're sentient producer prices that the manufacturers is selling at and they mount their turns on costs that are uniquely known to the company it's called sales costs so the crew member is in a very poor position to understand look at that price and know whether it's a fair price for an unfair price and then in this situation a company compounded that by keeping the whole process very secret there's evidence in the record that that director of human resources would been a director for many years the vice president of the company had no knowledge as to how this product process worked human resources person would be the person who would be answering questions from the crew members about how their pay was computed and i think there's some evidence there that the jury could look at to determine that well this is part of the concealment process but the human resources that we're and about here at any other time the v p of operations said that he would he was a factory manager which is the head of the factory one of those before he became v p of operations when he was a factory manager he didn't know how this process was done  he only found out when he became the v p of operations and started becoming involved in doing so i would submit that mr storm and as a processor on the ship is in a very poor position to ever discover how y court and the reason was is that they are and a difficult position of david cracked cases almost two hundred years ago say they do not stand on even ground with their employer and making their contracts cases have said similar things  giving same in special rights in recognition of the fact that they're at a very difficult bargaining position with the company right down through the history of this court because this court in orsini in two thousand one reversed a summary judgment because the contract more as the crew member says well the price could be more or less than the actual sales price and the contract and the contract reserves to the company the discretion as to how to do it but the theory of  the essence of what the representations of the crewmember is and what this case is about is the company did not do the best it could the company looked at its costs for example and it said we're going to charge the crew five percent for an allowance of returns their historical returns were a few tenths of one percent they did the same thing with the sales cost another three percent for the sales cost historically was about two tenths of a percent was what their sales in the middle of this period it makes that sales price estimate which would post after they've shipped to alaska and really have no way to protect themselves so it's not that signing of a contract that we think's important or the ability to read the contract it's the way the contract was performed it was performed in a way that the crew member was taken advantage of and he had no basis to figure that out and that's why we think it's very important that if you need to disclose it be placed there's there is no legislative history i don't think there are any decisions of this court that explain in any great detail one decision of this court says well one of the benefits we're going to give to the company is the short term attention provision in exchange for the requirement here most certainly but nevertheless i would also suggest to you that the fact that it's very short makes it especially important that the doctrine of russian concealment apply when there's a situation where the company is taking advantage of the seamen because the west to the steam and in that short imitation period is greater he's more vulnerable to be taken advantage of especially if he could be back out to sea on another trip the six months is gone and he's got  on your own motion because your honor i was concerned that since the brief disclosed facts that were given to us subject to a protective order below that we might this was a prior to filing i did write a letter to counsel for defendant asking counsel you just trying to be careful fact that such provisions are consistent with congress's decision to impose a similar six month limitations period on siemens in ram wage remedies and that's the forty six u s c one hundred six zero two fishing in the statute  contract and in particular the use of the posted price system for valuing the product in advance of when it's produced much less in advance of when its sole was specifically to avoid the uncertainty of valuing product for purposes of as you've suggested a profit sharing arrangement in a situation where the product in some instances may not be sold for three six up to a year after it's produce arrangement is inherently fraught with conflict of interest in the estimation and with the uncertainty of somebody later coming back into you can issue with how you've done the estimate and yes he attempted to address that and i think  in a very straightforward manner and what is that is we're going to establish posted prices at the commencement of each trip before one lb of fish is produced and before long before the product is ever soul and we're going to publish those in the wheel house and in the factory so that everyone is aware before any product is produced what the product is going to be valued at for purposes of the cruise compensation it's like a unit rate a system where the commitment is to pay actual value or actual value less certain specify costs as again was the case for example in the princeton versus linda rose case then i think it's absolutely appropriate never been the claim here and no one has ever come forward to try to assert that there's anything unfair about ten in crew members at the beginning of each trip before they produce one pound of product how we're going to value the product the unfairness is not th question under the posted price system we don't tell them we're going to estimate our costs or that we're going to tell them our costs we tell them we're going to tell you for each type of product produced what the value of that product is going in some ways it's like this semantic problem here because it's not value in market value we know that and it's not really price as in appraised paid well it's simply here is the stipulated a matter when you get a percentage of that correct and then the question comes as to whether there is anything this reading about the way this has been presented because it's  either value or price even though those are the two words that are used by the company correct so well in the rain is an issue is there factual issue as to whether there's been some misleading as to when this that were published on board of us all at the commencement of every trip and again these seem to me to be fairly straightforward in identifying for every product that's going to be produced the value or the price i mean the and as the district court found that language does not say we represent or promise that we will post these prices strictly equal to estimates of gross market price it does not say that anywhere it says to the contrary we will post these prices at our sole discretion and it says the actual final sale price of this product may be greater or maybe lower but that's not going to affect your compensation i'm not sure how much more clear this is quantity the only aspect respectfully that is subject to a profit sharing like issue here is that their compensation is still tied to the production of the vessel in terms of the quantities produced so to that extent if they have any question about did we accurately report in their settlements how much of which grade of product were produced to apply to the to the compensation formula in the contract absolutely they're entitled that absolutely we have a duty to account for that but do they have the right to come back as this chart or mine telling aspect of this on this same line of inquiry on which is the original theory on which this claim was found file and in the discovery responses and so forth and even up through our arm of our motion for summary judgment that led to dismissal the and again in connection with the wind litigation in ninety nine to mr storm and same counsel that these were never prized that these never never were developed as prizes so then they changed their theory and they said oh well we we we have them in that theory now we and as i look at the way they try to define the the beauty of disclosure it seems to me that the only defining parameter of that is to create a duty here for us brought enough to sell this mr farmer's clients because in reality there is no duty to affirmatively disclose how a posted price is derived any more than there is a duty to disclose how an hourly rate is arrived at the employer employee relationship as your honor alluded to earlier is you know employment agreement more importantly these are not facts that warrant this court creating a new affirmative disclosure guidelines mr thorman admits he made no effort to ever see clarification this employment relationship as one that requires some affirmative duty i think another example of that is that there is an accounting ramey and again i think this is one of lines of your honest questions earlier there is an accounting remedy in one of six o two but that account crisis think there's one other topic that i would like to briefly address which is the actual notice and constructive notice prong of the fraudulent concealment are judged silly and there's no appeal from this aspect of his ruling ninety nine b season judge philly's year old on our motion for summary judgment that because mr foreman was an active participant in flores one that the knowledge of his counsel of that posed price template for the ninety nine circular prepared by the bank of america for a private placement offering that the company was undertaking in the offering circular bank of america represented that the company typically understated crude prices and seasons back that's what  lawsuit was filed within six months of the production of that document the contracts that i heard mr starr talk about is not the contract that's present here this is not a unit price contract a unit price contract the se n gets the contract attached to the back of this list of prices and he's told you get paid based on these prices or case rates they often are that's not what happened here in this case he signed a contract that says used to be paid on sale prices  specificity as to how the crew member is going to be paid so it's an estimate of sales price and the contract itself says hey we'll be high sometimes we'll be love sometimes it's an estimate we're not perfect but we're trying to hit the sales price so when the company intentionally does not hit the sales price when it in the words of bank of america understates the sales price to the cli it is breaching the contract with the scene and that's our theory