agreement reached limits or is green's competition after terminations of employment and where the penalty imposed on the employee for competition is limited to the corporate europe profit sharing or other voters compensation that has not yet been paid to the employee so it's very important to know that what we're talking about today is a case not in which competition is prohibited in which someone could be enjoined from competing but simply where the employee is given a choice they can comply with their employment agreement and not compete after they terminate after they leave and accept their severance package or they can choose to take a job and compete against their former employee and forfeit their severance package and accept the compensation from their new employer i sure i switched just judge posner in the start off of a choice between a cushion and a soft place as compared to a rock and a hard place and it's very important to understand that that's what we're talking about because none of the concerns that the as three years thirty six months of future salary one point six times his base pay the one time place which is based his salary bonus was sixty ordinary meaning of the statute of which is what oregon's supreme court has said of the p g a case you start to in terms of statutory interpretation you start with the context of the play natural and ordinary mean there are absolutely no cases your honor interpret in this language at all and i will point out that that is one of the reasons that we made our motion to certify this case to the oregon supreme court because if the court were to find that this language is not clear on its face then it's really for the oregon supreme court to say with the legislature and i think that there's not yet been plenty common usage of that would be pretty clear with with compensation after emanations because this whole bonus prescription agreement only comes up when competition is restrained after germination of employment so it wouldn't really make any sense if on the one hand it would be a valid agreement if they hadn't paid yet but then if they paid it and they got it back it wouldn't apply the whole point here is that rather than saying you cannot compete after you leave the employees being given a choice because i don't think that that's the case but obviously sounds like you would you disagree i mean the way this is that actually works it's addressing the situation in which after germination of employment the person is being given a choice they can either advise by the agreement and forfeit and receive their severance compensation or they can make the choice to go out and compete and forfeit what has not been paid to them at the time that they were store can be found everything one hundred percent can be found in a kroger or a fred meyer store and about thirty five percent of what you would find in a kroger or fred meyer store how much how much i have i don't know what the percentage of competition this one and another motion and the arguments were briefed and it did not frankly even occur to us at that time that perhaps the already supreme court would be best off determining the issue it was something we thought about as we were preparing these briefs and we pointed out you know our letter brief opposing or opposing their a request that often the issue of certification comes up to aspire day by the panel and that there don't appear to the legislative history which we've cited to extensively makes clear finally on the restrictive points makes clear in fact the legislature realized it had gone too far  ask other statute of requires the payment of those accrued items so i don't think that just because those items are included in the severance package that that means that the severance package is not bonus compensation to turn also to the initial employment issue because and i don't have that much time left so i'm going to be brief but it's important to note that although mr miller initially was given his severance package by fred meyer just prior to the merger with kroger and he later signed his the employment agreement with this with kroger after he had been working for a number of months with this program to the non competition agreement and the starts were the same and as our brief indicated that entire transaction was in connection with his initial employment with kroger so it's i think the other side takes a very technical  hyper technical view that he's already been occurs several months when he signed the kroger agreement but of course kroger as part of the merger had accepted and assumed the employment agreement that fred meyer had given to mr miller just prior to the kroger agreement and that that bonus compensation that he got the new severance package was a part and parcel of the merger i was in anticipation of the merger w because he had already been working at kroger then his move from the c e o of fred meyer to the vice chairman of the board and c e o of the kroger company which is a three times larger company after the merger would be considered a subsequent  reserve my remaining time leaves them in their reply brief on start of the cation just say that unlike they're saying now the language is not clear and there's substantial ambiguity so they argue to this court and certification that they have no clear definition and the reason for that is in there were five three five page six and seven on the merits they argue that the following is not a bonus according to kroeger interpretation of the score was literally that of bonus is not a bonus that the word bonus in the statute does not mean a bonus because they say that mr miller's bonus is not a because of the following the contract defines competition as being in the same business it's specifically for purposes of this competition means the same business right day is in the drugstore business kroger agreements to flee the ninety nine agreement saying it's not a fact until two months afterwards you couldn't have clear evidence of that and even if you take it as a continuum which i'd like to take it as sometimes when the argument here which was not the main or lowers the bonus restriction agreement and they get tied up in a quagmire of trying to interpret the term bonus to fit into severance severance was never mentioned  almost any agreement to be a bonus restriction agreement if the oregon legislature wanted that it would be very simple to say pumping station or benefit but they limited because they were dealing with job to another job frequently in the same business i don't think mr miller did that frequently people move because that's what you do you move often to where you're going to have had that expansion the the employee and employer have meaning provided for those terms you know r s six fifty two point three one zero six fifty two point the next the next thing is that the ninety nine agreement on the pacific veterinary was an illegal modification and fact sixteen undisputed facts sixteen are in the one of the things we thought would lead to life i fear certification of homos there every issue and one of the determinations the certification both in oregon and in this court is whether it's great public importance and with is that broad public policy issue which is not been implicated in this case at all and i think hesitated to respond because  mr miller is it was a it was a great leader of the state gave huge amounts of money to charity through fred meyer required that kroger to give large amounts of money to charities part of the merger which he hasn't done and they should be nothing taken away from that he's an example he went into rite aid after they had all the problems in writing in cleaned it up and he's gotten universally good reviews a and that's one of the reasons why the certification to the organs to cream court makes sense because there is absolutely no case describing the language for picture of profit sharing or other bonus compensation and it's  organ supreme court to decide what the legislature mean and i contend that what the legislature was trying to do was create a balance where maybe a non competition that prohibits competition is fads but where this man is being given the choice between take our six million dollars and don't compete with us or take their ten million dollars and do compete with us he shouldn't get it both and that's something the organ legislature said i think the supreme court would have an interest in interpret in that statute one of point i'd like to make under the initial employment is judge our congress talking about we have cited a case called alston corporation versus summers the federal district court here in oregon and which the court of course to non competition covenants signed two weeks before initial employment and the situation that we really have here is mr miller signing the non competition five days before the merger grima between fred meyer and kroger signed so in there unitary situation here in which the fred meyer board gave mr miller this big new severance package and a non compete in connection with his initial employment with kroger which was contemplated to happen immediately thereafter