it's ok we'll have you so you haven't really had she had see if that's correct are well then i don't you either you know i'll something in writing either agreeing or opposing to it within five days that's one of the primary reasons that the trial court granted summary judgment in this case is that they felt that mr sebastian did not travel to trail colorado on a consistent yes i think the from my reading the primary reason was the travel however and the reason i want to start with that with the traffic was because going through the analysis of that particular issue it's just a good road map of how these other issues have to be treated in a summary judgment context so for the travel situation the first issue that the court would need to look at is to determine whether or not the contract employment contract in this case was clear or whether there was any ambiguity in the language of what mr sebastian was required to do in the lower court we argued that it wasn't because it contains language with regard to this particular issue of approximately  about a week every month particular fact that he was out there for eight weeks over this period of time but again that doesn't  the question and that's that's where i'm going with with this is that that some of that argument might have been lost in some of the briefings that this has to really be a material breach in addition to your honor's comment there were communications between the parties after some of these issues came to light and there were some communications mostly in march which i believe swann is testifying or or alleging that those were the notices that were required under the contract after that happened in in march in april the parties then reached an agreement where mr sebastian was paid the substantial reduction in salary so our argument is that at that point in time that the sla two option that was in was in march however there were those types of conversations even later at the end of may even at the beginning of june a few days before mr suppressions terminated there were communications seem we'd like you to continue to work home yes yes there was that however he was clear that he did not want to give up his rights that if they terminated him for a cause he would be paid his severance pay he was clear on that all want that was never negotiated he said i'm entitled to that negotiated that eight months ago after i was a consultant for you for a number of months you hired me you gave me this this contract and that's what we negotiated a months ago isn't one of your positions that theory should be able to fire a fact finding whether or not was really the reason why they eventually said we're returning yes there was a a memo by one of the principals at swan where there was an indication that they were trying to sell the company and i think they looked at mr specialist contract and they probably thought it is not working out like we thought it would that just mean it's for cost but he's not working out like we thought in which we don't have to pay him this money if we sell this company and we're considering doing the  saying that the approximately this one lives it will be this the language approximately and on average ok and what about shall be expected to spend i mean that is pretty definitive the terms of the whether robert gave permission to are excused him from coming out or he travel to other locations and then even if we get beyond that we say is it material so so there's really there are so many hurdles here that's one has to it didn't really say precisely whether it was under there are three different provisions under which you could be terminated for cause the first one i think is clear didn't apply it was for dishonest things like that that the next to one was  what well first i would say if there's no definition it should go against swine because they've they've prepared the contract but gross negligence we know i cannot find any case law in illinois that would define prostaglandins in this context and when you're given is that it's a question of you know nothing gross negligence can every just of course it can and it's in the country the question is whether the court should determine had based on these facts that were presented that would ever even yes there were performance it's equal growth no no so it does have some meaning yes i think it does have some me several provisions about intellectual property and not competing three secrets that sort of thing or yes typically in these types of contracts and we do have some employment contract work those types of timeframe was we think you're spending too much time an option pick disputed out as to whether or not he was spending too much time on option it and in this march correspondence back and forth there was an indication that i would try to divest myself even further from consultant for a number of months before then they hired him act over a twenty thirteen he's correspondence exchanges went back and forth in march of twenty four team so it might have been a reference to you know throughout this year i'm going to search for yes myself but he was terminated two months be on satisfactory work products that contain errors and then your client responded by saying that he was embarrassed he had made a massive strategic mistake and he recognized that he could be fired now why can sue me but you have to pay me that under the contract because i'm not terminated for cause so they could just they could have terms it was an at will employment but in certain circumstances it's not because they have to pay for severance and he certainly didn't dispute what he did with that particular project and that's i think a primary example of just it was maybe a poor performance i you know the employee didn't do everything they could have done and he felt bad about that he said i did it in a way i did up it was an algorithm he did it a certain advisors the circuit court's order granting summary judgment should be affirmed i recognize the justices questions related to whether there are issues of material fact in this case which should have gone to a fact finder here they should not have and justice raise i think you've addressed some of the reasons why particularly exactly the email you're on it was just referencing mr sebastian understood that he was not performing at all he was not satisfying any of the obligations identified in this contract that were later identified in specific correspondence from randy swann advising mr singh that sebastian of the extensive performance issues the extensive concerns that the company questions about the specifics of that if the court let me identify the three areas of cause that i want to get back to the specifics about durango first this travel to durango requirement which is specified in the contract second there were issues related to  mean one week if it were to say you must be enduring one on one week out of every month we wouldn't be here would we the language says employees shall be expected to spend approximately one week a month on average at the company's offices so conceivably under this provision there could be circumstances in which mr sebastian did not spend a full week at the company's offices in durango but what is specified here about how often he did get out there didn't he testified to the following and this is a question that you had your honor in november no travel to durango in december three days not talking about four days we're not talking about a full week three days january no when sebastian also said that the brother gave him permission not to be there for four days some i forget that you were here whatever and that going somewhere else wasn't part of this the way the trial court interpret it interpreted it i believe is instructive this is on page three of the trial court's summary judgment decisions in the appendix at page eight accordingly over the course of his and type of his roughly six month employment was swine sebastian spent only ten days in durango averaging less than two days per month the trial court made that calculation averaging approximately two days per month when you look at the language of this provision in paragraph seven  me a management supports the court's decision it supports the court's decision because the facts in this case are not disputed mr sebastian does not dispute that in fact yes those were the days on which he traveled to durango and the travel question is not the only basis of the trial for its decision whether it is absolutely one of them and it is certainly a basis on which the trial court could grant summary judgment force one but in addition to that there are other bases in the record and the facts underlying those bases and the court asked what those are at that ludes violations of a c c u regulations and federal regulations and it includes  regulated industry and as the court is aware they are required to follow those regulations closely mr sebastian frequently appeared as a pundit on cable news he had a lot he was a regular presence in social media i believe and there are potential complications related to swan's business practices depending on what mr sebastian represents were states in those appearances or in those blog posts that's why those need to be cleared through sponsorship compliance officer before those appearances happen before those blog posts are made there is no dispute here and this comes back to what i was saying about undisputed facts there is no dispute that mr sebastian even after he was reminded you have these mandatory compliance requirements in your employment agreement you need to follow those mandatory obligations even after that mr sebastian says he did his best to advise the sea the sea chief compliance company of these blog posts and media appearances he didn't do that frequently and the and the ramifications of that sorry just one last point on that are that that could create a significant problem for swine did it here it doesn't appear so from the record because there say for example he was recommending a particular trade and that particular stock or that particular company were a client or stock owned by someone that creates a regulatory issue and i am not a compliance attorney so we can't get into greater however that's why this communication it came up over the course of mr sebastian's of women become so crucial to this concentration of whether there was a question of whether mr sebastian understood their work there were performance issues here when you don't know when there was  stated in his deposition and i believe it's in some of the correspondence he had expected it to be completed i believe he said relatively quickly which when we're talking about a start date in november he was expecting it sometime in saying in his correspondence if you're not performing the way we expected you to perform and the way we agreed maybe we're talking about two different things i'm talking about the e mail to up yes that's the march eleventh e mail right that's just in contract waiving execution of any existing terms and to enter into a new agreement specifically all terms or a buyout conditions original that's not the only document that the court looks to in evaluating whether there was much contact is about what does this mean in terms of the actions that took place there was a million dollar  to sell and part of the company was sold was that that's true and are we supposed to be all reasonable inferences to the facts when we decide whether or not there's questions of back that a jury or a judge to decide to trial as opposed to as a matter of law and summary judgment absolutely your honor but you don't think this was a bench trial no your honor for her specifically to that point two reasons one is because there was never a change of controlling interest on the table there was an up there was an effort to sell a minority share because there weren't any buyers but there's absolutely no question this record that this company wanted to get rid of the million dollar payoff they wanted to get rid of the conditions of germination they want to get they wanted to waive any any and all visions and they wanted to reduces their eventually his salary history to there i'm sorry don't mean interrupt accord but there is nothing in the record that to durango was requested in the realize the court's looking at the march eleventh correspondence the march twenty fifth letter from randy swan details the seven different ways in which swann is frustrated and disappointed sebastian's performance and has concluded he is not performing in the manner expected through the employment agreement the reason i point to that is because that's where we get into some of the specific problems that the court the trial court identified and that includes travel to durango and it also includes this issue related to the trading manuals now understanding that the problems here what the trial court ultimately made its decision about in finding that no reasonable trier of fact could come to a different conclusion that there was a subset of terminations for cause in this case is because when the court considers the up that march correspondence with mr sadat describing exactly what the issues were with his employment and why he was not satisfying his employment agreement mr sebastian responded in april he agreed he agreed that these trading manuals relate you recognized for performance he agreed that he would adjust his performance level and he agreed to a reduction in his salary in recognition of exactly that of his performance issues of him not performing in a manner expected under this agreement and after mr sebastian it clear that he agreed with all of the concerns expressed by randy swann he did nothing nothing until may twenty second when finally randy swan informed him by email that's it that's it we're still waiting on these train there is no question that mr sebastian was informed in march of the issues related to his performance and then what you're saying now you're saying he was very smart and that was you notice no i don't mean to i'm not trying to w communications there's no end judge acton's i believe references this in his ruling that there is no question and certainly mr sebastian is not suggesting he was never given notice this isn't a situation where mr sebastian was somehow denied the opportunity to address the problem i am not your honor but there are two issues with that number one is i believe everyone in this room would agree the parties are free to contract however you wish and your movie and number two which is even more important this provision does not allow an employer to go after an employee simply for doing a bad job this provision allows an employer to go after him or him for an alleged breach of contract which is what was alleged here swan brought a lawsuit a product counter claim alleging breach of contract that's what the trial court agreed happened here and that's why swan was entitle to those attorneys fees it's not just doing a bad job it's breaching your employment agreement and like i said  you are you wear anything any where it has a provision like this the way your interpret it in other words we're firing you you did you did a bad job if there were need of attorneys fees but there wouldn't normally say are you aware of any case and are you aware of any employers that have anything resembling the interpretation you're suggesting today i'm not aware of any case i can  did anything to you it does not necessarily your honor and for other reasons such as if it were such a routine matter and people routinely being a employers were routinely being given attorneys fees because they hired someone for doing a poor job or because they fired him because we would have cases like this the issue here is related to and i recognize that the court has interpreted this country unlike any case your even aware of i believe the court interpreted this contract based on the language of this contract which is not ambiguous and the parties i don't interpret this contract in a way that i never see any case anywhere and i'm not aware of any standard employment contract that would ever him and the employer the right to get clear from the language particularly at the beginning of the contract which is very carefully tailored to this specific relationship and that comes back to judge jackson's finding about whether or not mr sebastian in this case based on the undisputed facts here was terminated for cause he was take this other example let's assume would you that it least concede that this is a name if it was whether feel then i guess by file but if it is ambiguous then if it is ambiguous then the court looks to the circumstances of this case and the party's understanding of this probe and if the parties have a different parties do agree that there is not willful dishonesty going on but some subsections two and three which are material breach of this agreement or any other agreement by the company or employee or by reason of the employee's gross negligence or intentional misconduct this is again where we look at exactly what happened between march and may of mr sebastian's employment mr sebastian was told repeatedly we expect you to be in toronto we expect you to finish this project if you do not we want to keep you as our employee eat but we are going to have to change the terms of our relationship if you do not satisfy those requirements he did not do that and again just raised as you noted and it's a good place for me to and without furthe questions from this court that is exactly the type of conduct mr sebastian acknowledged in may he recognized his conduct was such that he may well be fired the context of that particular message but the context of the email in which he mr sebastian stated in case i am not fired is important because in that e mail he initially suggests a retroactive reduction in his pay five percent five is two things and you want to answer the court's question one is that the court found either a material breach or gross negligence i believe that judge action suggested that either would be inappropriate to her protection here and to answer the court's question selfish versus called the management is what gives us the ability to reach that conclusion the circuit court correctly decided that a reasonable trier of fact could not differ in drawing inferences from the facts that are not in dispute here the fact material that they had agreed on and you're saying that that a person can't say that word it has to be it should automatically be read what i'm what i'm saying is is more than more than just that your honor not only is it not just mr sebastian's post hoc excuse for why he didn't want to go to durango which is not the only basis is not a way to necessarily create a question of fact it's also necessary in this case to look at exactly what was the context of how his employers were addressing the question of his travel with him and that's again where we look to these these written reminders and reprimands from randy swan say in the march and ultimately at the end of the day after all of this conduct swan made the decision we can't make this work we are terminating you for cause we've given you chance after chance you haven't taken it that's it