this is a contract case in order to decide to contract case the question has to be answered did mr slinger breached the contract if he didn't breach the contract he gets his severance for one year and what the  was decided that the defense based upon the defendant's belief that summary judgment was appropriate so i read that in your brief the one thing i think every one of the part of the problem with this case below it seems to me and still do a little bit is the way the complaint was framed and i know you talk about this in your brief but it called breach of contract basically i can't remember the exact language by pretext or something like played that way and i completely understand the confusion i got in the case after the plating said closed and and that's the way they did it was it had the pretext but i do know we look for case law that said is there any protection will breach of contract i don't think it exists my understanding of pretexts and i think it comes up mostly in employment cases i don't work i do traditional employment cases but it's so i agree with you but how do you deal with coke that because we're actually a pretty good example because what they addressed st in there was the breach of contract line and unlike in this case there was there was a limitation o n the determination of what constituted a breach because it it in that case it said if it was found by the company to be a breach in there could be a terminations in the contract language here there's no limitation with that here hell had a similar lamentation right excuse me they hail case  to limitations to your point is that those were still breach of contract cases they just created provisions where the subjective belief was relevant whereas here it's a pure objective inquiry that's right that's right in fact the hill court said it stands for that that case and employment contract made limit the inquiry to whether the import employer honestly believe that calls existed for terminations that is nowhere to be found in this country nowhere to be found but up back that there's an app will provision that they have just fired him for any reason to know he's got an employment contract for a definite period of time and if they and it has specified reasons for terminations of granger's now it will provision in there and it says irrespective of the other terms or something to that but also has a provision your honor that if they do that and it's not for calls he's entitled to severance and they quite frankly they they acknowledge that in in in their briefing blow up only i mean to says notwithstanding anything in the greenman to the contrary so that provision seems to be st among equals to me the at will and if you're willing you can be fired for any reason and that is the ultimate obligation i guess for controlling aspect of the agreement so why why doesn't that i think it written differently i agree but you were given the way it's written suppose they had not given any violation of all fire him for any reason i think but if they do that it also triggers their obligation for severance if it is without calls suppose they i mean i pencil you read these together which is the point of the questions but supposing you gave no reason i mean here that we were disputing there's a reason and what was that a valid reason under the cause for cause terminations but suppose they just said you're fired they did triggers the the without calls terminations provision that allows him to be why is that why is the trigger without cause versus they just they haven't stated why it's for cause but they haven't state any reason so why is it triggered why is it true are those opposed just the well provision that says this trumps you can be fired for any reason and this this controls over anything that's conflicting well i don't have to go back and study that provision again but it also even though they can fire him for any reason that provision i don't think says you falls there well i don't think you can read the out of the contract other provisions i mean i understand the notwithstanding the not standing other language that they can fire in for any reason but also there's another language in the contract that says if you fire him for any reasons other than the specified reasons you have severance so to the extent there is some conflict i don't think you can read that out they can find for any reason but there are consequences to that and i don't have to go to be honest with you i haven't looked in focused on a provision for this for this argument your friend and i didn't they didn't raise this so it doesn't matter but an event they did fire him for cause right they their allegation is they fired him because he was soliciting it st it was whatever the gross misconduct but it ultimately was that he was soliciting people under the solicitation probation that's what they that's what they claim and you know your client i'm just curious because i thought he said he didn't remember saying does he still maintain except there are a bunch of people that said he did say there are there are four or five there's a number of people but those people also said he's the manner in which he said it was very light hearted very you know now i understand you know all that goes what is factual question but my point is still there is a number of people that said he's correct and he did not deny that he said  just did not remember that he said it and you know the words the list solicitation under the plain meaning of that word it's an it requires active persuasion and intent to bring about a result that just does not fit those words particularly in the context here and also in the context of that ultimately a factual question of what he meant and what the context was and i think so at minimum it is a factual dispute that needs to be decided by the trier of fact in this case it would be the trial judge because it's been strong but that's at minimum there's a factual dispute here because the st mary's employees that said he said that that comes from an affidavit that was stuck in front of them by their their lawyer in their c e o or president weeks after this occurred you know in their they're in the midst of a big change so you contrast that with what they said in a deposition when deposed him and just about all of them said mr slater didn't encourage us to leave we didn't take it that way we didn't you know he was very light hearted they were asking him questions about what the status of things he was trying to reassure them about the fact that he didn't know of any plant any further facilities that would be closed it was so those words in the plain meaning were just not a solicitation in particularly if you look in the contract where they are there in the midst of an anti competitive provision of an employment contract in those are typical that you have nine complete not confidentiality and non solicit he didn't have anybody to solicit for d or anything to offer these so you know that's just under the common meaning it's just in your brief you have a footnote that at least raise a question about the enforceability of the non compete under state law that was an issue that was she was not really litigated below it was not we didn't get to that issue you know i think that's a question because you know just the breadth here that you know any maybe it's not a question you really litigated alone it's not a question it's really raised in the briefs here other than i think your foot no we did raise it in a footnote it's they raised the question as to whether or not we waived and i want to touch on this real briefly wade this issue and it's the same time that knowledge we raised the argument that this was a breach of contract in the in the in our others curious and also point out and i know i just got a few minutes but if you look at their summary judgment briefing and this is not in our briefing here but they are all throughout that briefing and they're summary judgment motion is particularly good they say slingers receipt of payment of any severance benefits under his contract depend upon whether slingers behavior during the term of the contract constituted a breach or a violation of the contract so the issue was before the trial court we raised it they raised it the trial court did not decide that issue in their reply brief they again say this is a contract case and they say the contract in this they said in their motive is irrelevant in contract all their belief unless the contract allows it is irrelevant in this case and in the trial court improperly decided the case we submit based on my  let me start at the end the facts in this case really aren't in dispute at all what happened here is that mr slater on february twenty three two thousand and seventeen decided that he wanted to go to the new concorde facility and the company agreed and even paid for his plane ticket he went to the new concord facility and according to the testimony of five witnesses each of whom testified by both affidavit and deposition mr slater told each of them don't be the last man standing of encouraging the employee to resign solicitation as as my friend indicated solicitation could apply to be encouraging an employee to leave the company and come to work at my new company this contract provision does not say that this contract group is awful difficult for us to decide that it specially in the current posture adds and where i do agree with your friend that what he said in his brief that there does seem to be some subjective being kaori going on here and it seems to me alternately when viewing the evidence in the light most favorable to the plaintiff why isn't that just a factual question as to what that means because your honor this court has stated in the norfolk the progress of the geisha or will get a firm for any reason on the record that's well established but that doesn't answer the question of why we would interpret this statement essentially in your favor because in the st place as my friend indicated if the employer yours motivation is irrelevant so is the employees what matters is the action that was taken and the action that was taken was to tell these individuals don't be the last man standing witness hostler testified we're going to take it was this place wouldn't be around and they're not going to keep the employees here didn't leave make me feel good are you still standing by this pretext analysis the way to sort of formulated below i'm standing by the pretext analysis only to the extent that that is the manner in which the complaint was pled that is the manner in which the plaintiff argued at the summary judgment and that is how the district court viewed the case is being presented i think there's two ways to look at pretext one is in a legal fashion and the other is just the reason they gave is pretext rule for the real reason they fired me which is they don't want to pay me severance and so that's the breach of contract that this whole state made up stuff he's just made up and to the extent they rely upon the notion that this stuff is just made up they lose because it's not made up the facts are he did say that and he says i don't remember and at deposition i agree with you that we have to accept that he said it because there's no evidence to the contrary but the point still is what it means and that to me you are apt to view in the light most favorable to him then the question is viewing it is is it solicitation and if i may your honor go ahead with this white testified slinger came to tell me don't be the last man standing which i meant understood to mean the thoughts we had about the company was going to close could happen a lot faster than we thought and reaffirmed my feeling i needed to find another job e c f forty one  slinger was walking through the big room on feb twenty three dollars telling everyone not to be the last man standing including white miller jeffries ron smith he told us not to be the last man standing really take care of yourself which oliver interpreted as we were going to be let go so we needed to start looking for other work listen i mean the more like particle solicitation cases that you're telling someone to leave some place to go specifically to somewhere else and usually are affiliated with the other place that will benefit you those elements seem to be lacking here those elements do not matter in this case because the way the contract is written it says and i have the contract in which you're before me section seven d executive will not directly or indirectly at any time during the period of executives employment attempt to disrupt damage in pair or interfere with the company's business by reading any of the company's employees which is what you're talking about there are soliciting any of them to resign from their employment by the company so if if the boss hostile holland says you know sue you know i got to tell you people here don't you know just to be honest with you people don't think you're really cutting it you might want to look for another job under your theory that's a solicitation because you're encouraging them to leave the company albeit for a reason you think that they're just not cutting it and you're just giving them a heads up before they get a really bad evaluation well that's a solicitation with respect your honor i submit that is a distinctly different situation but the answer is yes under the exact language of this contract one can a company tell someone to leave they can fire them which is pretty directly telling them to leave out of a violate their own solicitation agreement with the company may decide has this contract permits them to think about looking elsewhere they if a partner use that language in this agreement is in place there's or a lawyer uses this language they've solicited yes because that's exactly what the language says they have encouraged the individual to go find another job when you tell an associate attorney as i've done hey dude you're not going to make partner the clear message the unmistakable message the message every associate understands it's got any sense at all is you need to go find another place to work because you're not going to be here all that much longer so if the law firm if the partnership said hey you were way out of line you had no authority to tell the associate that you had no authority to discourage that associate we think she's a really good associate in the partnership if this language existed could in fact tell that lawyer you're terminated on that example your honor i think under those circumstances this language would clearly permit the law firm to terminate the individual no question about familiar partnership agreements tells me there's always lots of reasons you can get rid of partners  yes but yes and the more common case would be hey i'm leaving to go to the firm down the street watch it come with me yes so i just asked about the pretax because i i could see if if there was a factual question about whether the company actual facts are was he actually soliciting and that sends this in that sense in my mind as a pretext thing kind of falls away we'd have to look doesn't really matter what they thought he was when it matters or they thought he was doing only to extent that actually informs what the actual facts were we have to look at the actual facts and and judge to parse that a couple of times it just seems like the record is sort of spewed there i disagree with the notion that the record is disputed there i do agree with your comments about the nature of pretext what has happened over the course of the last forty years is that a pure contractual relationship all employment relationships are contractual in nature when title seven was st inactive the only remedy is permitted we're back to an attorney fees which was a pure contract form of remedy with the civil rights act of one thousand nine hundred and one when congress had compensatory and punitive damages subject caps congress in effect attached tort remedies on to what previous to that had been a pure contractual analysis prior to that in the donald it was the green the united states supreme court gave us the burden shifting analysis legitimate not discriminatory reason title subtitle seven analysis which now has sort of morphed into taken over the whole world of employment law and i respectfully submit what probably happened when this complaint was pled is that's how the attorney was thinking my friend was not in the case at that time i just submit that's what happened i'm not disagreeing with you that that is not a pure contract analysis that is how the case was pled it was how it was argued by the plaintiffs and as the district court noted in a footnote that is how the district court analyzed the case or the four with respect to the four cause terminations provision you only really need one for cause reason you get five reasons for which don't pan out but so long as one of those satisfies the for cause purpose you can be terminated i think that would satisfy the contract that it's been my right that the only one you're relying on here is the non compete aspect right no sir not the non compete aspect i don't want to still get confused about some non not on solicitation in the sense of quitting come with me but non solicitation in the sense of just quit and go find another just wanna make sure that's the only that's the only clause that's the only argument you have for why was that is correct your honor that is correct  good the testimony of the individuals which i have started to recede they all say basically the same thing and again slinger admits in his affidavit and his deposition that he didn't recall one way or the other if other people say he said that he's not able to challenge that proposition he concedes that there's no issue about that so i respectfully submit to the court again the statement don't be the last man standing it is inconceivable to me how anyone could actually subjectively interpret that to mean anything other then you need to get out of here  using an object of standard it is i respectfully submit that the court can and should conclude that as an object of matter there simply is no other way to interpret the perm don't be the last man standing is specially when it is repeated over and over to each of these individuals individually one on one this is not what someone off comment that he makes while he's standing in front of fifteen people this is a statement oliver testifies he was walking through the facility talking to the people one at a time and he told them all don't be the last man standing this is a big room with cubes they can hear each other they testify they can hear each other so didn't  y and i haven't gone back and looked at the depositions but it is your friend right that they testified that sanger never encouraged or solicited them to leave their employment there is evidence to that effect from one or two witnesses yes your honor there is also evidence from other witnesses to the contrary the whys and the factual inquiry because i don't believe the reaction of the individual is any more relevant than the intent of the speaker could help us understand what the words meant i cannot disagree with that you're on anything further i think not your honor america do you have any questions ok thank you counsel counsel can you address your friend has a nice argument that this provision non soliciting because i have to confess i was thinking of it same way judge redler talked about which is solicitation in the ordinary sense but there is this or soliciting any of them to resign from their employment by the kompany and then don't be the last man standing i think a reasonable interpretation of that is resign get out a year before they cut their fiery one is that not  solicitation i think you have to look at one thing i would say i think you have to look at the context in which that provision exists in the intact compared to provision but i'm not trying to limit it here  know i've probably been guilty of things that you get that the court raged here let me put it in context my st farm i was with i can imagine a day when i was there for a few years where i got so frustrated that i could walk down the hall and said you know this place stinks let's all get out of here under their interpretation of that provision i solicited people to leave and we've cited case law that says those type of statements those innocuous statements do not amount to solicitation years later when i was there not great firm i was with but i went to one of my senior partners but is that solicitation in the traditional sense which then i would agree with you or this really brod soliciting any of them to resign from their employment i don't think would i i don't think solicitation by definition requires that you actively persuade somebody or try to get somebody to do something anunnaki what's comments like what mr suggestion what's the best wisconsin state case to define well we cited because there's not a lot of wisconsin case law we cited in but wisconsin case law says if there's not anything that defines it go to the dictionary and we we we could not but we did find it at least i don't think i have to make sure of that but i know we rely heavily upon the dictionary definition and that dictionary definition does not include what we're talking because a lot of people said we didn't we did not solicit they said this we didn't even think twice about this it was no big deal those are some factual issues which we never get to by day thank you very