i'm not sure i'm on a video  twelve and what three minute break or you want longer i was just to get some opportunity to figure this video out ok i'll take a five minute  you i can't start the video because it says the host has stopped to go ahead and stop everybody's video while we're breaking and then we'll restart it's not courageous it's a little low you see your microphone in the bottom left corner if yes go to audio settings you can you can change your volume perhaps i think it's is it except a bold for us to continue and then after that we can try to trouble yeah i can hear you now andrew but at one point during the last argument i have you dropped off almost completely good morning she morning we can see  i'm not sure your colleagues here is as miss cox on yes you are oh ok great all right well then how try again i'll call the k and good the issue of a prior breach of the terms of the employment agreement that relate to a bonus and commissions that would be received in a separate document we think the court was   reparable injury instead preferring to use a connecticut law presumption when in federal court it's rule sixty five that should govern and despite the fact that even by the terms of the connecticut law that presumption doesn't apply when there's been a delay between the violation of the covenant and windy motion for plymouth area junction is brought before turning to those two arguments however i'd like to say a few words about the status of the case in the district court because the case is set for a jury trial on january five two thousand and twenty what of course due to no one can be certain that it will actually proce d at that time there are issues in the case on the claim by magellan for damages from breach the court has granted a summary judgment on enforceability of the non compete agreement and the nonspecific aisha customers but not the employ on solicitation provision they're also claims by law or with for damages that will be tried so although that trial is coming up this appeal but mcclary injunction still matters very much first of all the pulmonary injunction remains in effect and it's preventing this trial our west from competing in the mattered as you would like to do and nd magellan is claiming at the trial that during title to a permanent injunction to and eighteen so i'd like to turn to the st argument of priory there's no question that a prior breach of an employment agreement is a complete and full defense under connecticut law to a case like this there's also no question that the district court does not reach that defense on the merits because of a legal determination that the bonus commission incentive plans would be in a separate document that was not yet in the existence at the time of the employment agreement was  and that's fair because a future agreement can be incorporated into an employment agreement here and it was expressly referenced in the employment agreement that mister lar west will be eligible for these benefits  this is not contradict any of the terms of the employment agreement that was in existence rather it particularized those obligations and that is what connecticut courts have said is entirely proper we cite in our brief cases from connecticut such as the mckinsey case where the court says if the provisions will only explain a particular ideology a should for the parties there's no obligation to the enforcement of those supplemental provisions that must be cased found a description of benefits was properly incorporated and the lamb case which we cite which is a federal case applying connecticut law dealt with future plan amendments to options that were not yet into effect now think about the effect of an alternative ruling that would allow part obligations to their employees by separating the non competing to a separate agreement and saying well we're not concerned about the obligations of the employer to be employed as could be breached with impunity and the employer what you have a defense and i think that unfairness those obligations and then it's ascertainable and it can't contradict what's already in the agreement if it contradicts then it's hard to ascertain because what would govern but if it only explains in particular rises then i think what you have is a meeting of the minds that whatever that bonus plan will be in this case whatever definition will be it's incorporated into the agreement and the employer has to live by it and a breach of that is actually it is a claim of prior breach of the employment agreement  i would turn to the nd argument now which is that there is also independent error by accepting here a presumption of irreparable injury and i think the record is clear that the court did apply connecticut presumption of irreparable injury it said that expressly and it also said that laura west wasn't able to overcome that presumption although opposing counsel who it is argued that they are findings of irreparable injury we do not see that in the court's opinion finding some irreparable injury in this context would be findings that the plaintiff was in this case a counter plaintiff was harmed by it by a certain act and it would not be possible to determine that with with certainty and so you have irreparable injury or that there would be a lack of good will that cannot be determined with sufficient certainty you don't have those kind of findings you want to have a finding some breach but what about the district courts i think it's on page thirteen of the to establish in damages that the loss of customers would be compensable in damages and i note here that there's going to be a trial in the district court on exactly that the claim that there was a loss of customers which magellan is seeking to quantify the economic effect cases of e bay and other cases like commodore it is clear that you have to prove irreparable injury under rule sixty five you cannot presume it to the extent some cases have allowed for an exception when a statute creates a presumption there is no statutory presumption here under connecticut law secondly even if one except as a presumption under connecticut law he would not operate here because the connecticut cases make clear that they  applying that presumption because in a situation where someone runs into court immediately after it has been a violation here isn't the availability then of evidence that there has been damages if there is evidence that can be used pro the presumption applies when the plaintiff moves immediately and that no opportunity to show the effects of the violation and i would note your honour's in connection with that that all the debate in the briefs about whether the court found it was an excuse for the delay in bringing a claim whether it was settlement conversations or something like that is beside the point though it may be relevant to a lattice defects but they're not relevant to an issue of whether the presumption of plots the presumption only applies when there isn't  because and the poor say that and the logic of it is if you have the latest you have here nine months for whatever reason you should be in a position to come forward with evidence to prove you're actually reparable injury and therefore for both of those reasons rule sixty five says you do not rely upon that and because of the fact connecticut bought us an import presumption in these circumstances those are reversible error since i have a little time left i just want to make you know that this is an unusual case where people talk about the public interest and here there is also an issue regarding whether the public interest is this or by an injunction which prevents an individual like mister lara w continuing to provide economic benefits which records as flow through to others in the community of these lower drug prices if he has been negotiating with the plants and i understand that gets into issues of the evidence that were in the district court but it is an issue that's been fully briefed and we rely on that as well as the other points in our papers thank you thank you good morning ma'am please the court my name is joining sacramone cox and i represent the apparently magellan now context is important here particularly when we are dealing with equitable relief like a preliminary injunction  the court should inform should affirm the district court's order granting the preliminary injunction in favor of magellan a little bit of background this case represents agree just violation of restrict mister r with as this court is aware these restrictive covenants are contained in law with employment agreement with magellan which he knowingly entered into when the business he was employed by e m i was sold to magellan and he was then r employed by magellan in two thousand and fourteen as the senior vice president of business development and at that time he received a twelve million dollars bonus upon them after separating from magellan in january of two thousand and eighteen wrong with set out in a systematic effort to compete directly with magellan in the very narrow market a pharmacy rebate management and admittedly actively solicited twenty it's further admitted by mister law with the evidentiary hearing every single piece of business that he obtains in his new company came from magellan's clients that either mister la with or his team i am going to compete against you i am going to break whatever covenant that stare it's not in my view not in force and i'm going to take twenty million dollars of your business that is i understand happened in june of the year that  with was terminated why does that not put magellan on notice absolutely that it immediately needs to seek to enforce what is used as an enforceable restrictive covenant and why does the failure to do that not diminish any any argument regarding reparable are clear if you look at it mirrors a very fulsome record with respect to the timing of this the district court consider in very careful material in june of two thousand and eighteen you're right there was a letter and we would submit that it  was a bone proclamation but immediately magellan set out to understand what are you competing and what specific area what would you be doing are you going after our customers and endeavored to ask questions a solicitation and not to pete agreement say i can't compete it right he did say that in the letter but i don't think that he did any opportunity or any information as evidence of the next several months in meaning  understand exactly what he was doing a lot of it is you that a party is required to engage in full discovery and if full knowledge before they are at least on notice that a someone is violating  we don't say get full evidence but you know as these cases go many times will go to the court and you've got in this case will lead an obligation to say we are suffering a reparable harm and in that situation the court would say well what is your evidence of irreparable harm so this argument tends to be somewhat circular right we would be right back here if we went in that time and not necessarily able to satisfy a good faith obligations to say here is the harm that we're suffering and in fact you know as the court and i was at the lower court level there were you know opportunities for us to try to understand what exactly was going on so that we could determine whether it was point he continued to be a base of him we felt we had choices right we endeavor we went back and forth for you know a bit of time to try to understand and without getting any further and we said we don't have any choice here but to file based upon these those issues and found that the gun lay was reasonable and that's a factual finding that district court made in light of the entirety of the record below and it's not just to correct correct me if i'm wrong but it's not just that he obviously our position is that we think that the judge properly found that the agreement was not to cooperate by going to bring actually there is no language in i know the employment agreement or the two thousand and fifteen commission plan which incorporates by reference the other number two it's undisputed that the two thousand and fifteen commission plan was not even contemplated or in existence until more than one year after issue which i'll get to you in one moment if i could your honor the c e o testified at whom your injunction he is the one that drafted it he testified that the commission play was a standalone document unrelated to the employment agreement that evidence was uncontroverted but i think the most important point is that the language that mister a lawyer with relies on is very general and it states only that he will be eligible to participate in any engle incentive bonus and assented to the additional provisions and of course only incorporate by reference when the whole writing and this or some stances surrounding it it's making evidence right now is that if there is a plan and if you go to the two thousand and fifteen plan it specifically talks about incentives i think that concept generally that there may be a new incentive bonus plans once contemplated but this particular plan was not contemplated in particular there was no plan in two thousand and fourteen so i think it is a hypothetical future that if there are clients he can participate in them but again there would need to be answered tina both danders about how those terms document that was a subsequent document could be a particular writing document that you could argue any document that is adding details and there would be no limit i don't under it is a nonsensical argument to say that this is a particular izing document because it goes well beyond that and it doesn't meet either the requirements in housing authority there is no knowledge in the scent of the terms and there's no ascertainable standards and the cases to which he cites are completely in opposite  i believe in what i am which is the stop option plan they discussed that there were clear ascertainable standards and they discussed what those were believe it was section ten of the stop plan agreement which specifically said how those terms were going  but i think it is intuitive and implied in that that you know if it would end up on trial or upon the entry for a permanent injunction or national by phone terms with respect to expiration of the no it's not i mean it just does it as a matter of general principle there were quite a bit of time that had a lots where he was violating new greenland ok thank you  reparable harm your honor heard showed that we had lost business it's true that we had lots opportunities with respect to painting business it showed that we had lots customer goodwill in terms of erosion and trust of our client relationship and very as other things there was a plethora of evidence in that at the evidentiary hearing with respect to both of our legitimate business interests the customer relationships as well as the confidential information at issue normally don't see that makes that clear and june and later and the plaintiff not the plaintiff but magellan did not that and you do not have to have if you believe you're uncertain about the facts of all there's no magic words in connecticut law where you have to use to incorporate the document the document here makes reference to the fact that the employer will be eligible for a plan for bonus secondly there's not an issue here of a sense it is the employer who's coming up with this plan the employer isn't asking for an employee's assent the employer has his own plan this would be different if the employer was coming in here and m district court doesn't allow that as a defense now it doesn't matter if the c e o stands up and says i viewed it as a standalone document the issue of incorporation of legal documents is treated as a matter of law and this court can review that  i think that was a really good point and this man is there in case that supports that point about the difference i'm not aware of a case law that says that express lane but i think it follows from the idea that you incorporate documents long as they particularized and describe what you had before and the whole notion of after trainability because what you want to avoid is a party being bound to something the death party did not reach but here you don't have that risk because the employer is simply being asked to enforce a very planned if unilaterally created so i don't think that any of the concerns expressed in any of the cases where you don't incorporate would be a clickable here this is a very clear grounds for reversal of governed by rules sixty five no defense and even by the terms of connecticut law that when you have this type of delay for whatever reason justifiable or not the presumption does not apply the only thing that's argued is well the court made these other findings but they were not findings of irreparable injury separate from the presumption there's no findings here that you couldn't calculate damages and in fact right now this trial is one where magellan is seeking millions of dollars of damages show that it can calculate that but there's no findings that would show otherwise so there are two independent bases of which this should be reversed on the on the record before this court thank you very much your honour's thank you mister singer mister you are the only  and so did you miss conduct so we enjoyed the presentation appreciate the presentation and that concludes our arguments for the day