court my name is anthony howard and i have the privilege of representing the appellant patrick gannon who as think as the court knows lives and works in massachusetts i'd like to reserve four minutes for rebuttal the central issue in this case is whether under this court's heightened standard mr gannon clearly and unequivocally waived his right to remove an action and brought exclusively under the repayment agreement this is a legal issue subject to this court's de novo review we submit that mr gannon did not waive his statue right to his claim under the repayment agreement in any way and the writings here cannot reasonably be construed to meet the clear and unequivocal standard to some degree the very fact that we're here debating this issue suggests that we are correct but the primary consideration i would urge the court as in all cases of contract interpretation is to look at the language of the writing themselves the expressed terms are the best indication of the party's intent at the time of signing so if we look at the agreements here we must start with the repayment agreement itself that's a seventy one of the appendix council are we what's the approach here are we looking at separate agreements or are we looking at parts of one agreement well i have a two tier argument in that but what we submit is that you must first look at the repayment agreement that does not contain a consent to form it does not reference any other agreement it does not incorporate and it stands alone and that with respect under this heightened standard well i think it's counterintuitive to me frankly what i understand but this court has a stude the eleventh circuit view that clear and unequivocal is ordinary contract for principles but exceeding to the question well no no i don't say abandon them i say that they inform but but the heightened standard is something different support their counterintuitive proposition contract interpretation it's contract interpretation and our primary argument you're on is that you must look at the contract the writings so if one does look at those together they only further support the proposition that that mr gannon did not clearly and unequivocally wave because in this case if you then look if you apply the rule of construction which i understand your honor says one should as one of many rules  construction and look at the fact that documents were signed on the same day were related to employment you then still have to look at the the wording of the agreement itself in the employment agreement in this case  and there's often there is no country i don't agree with that you or i think it's an offer of employment subject to him signing two separate agreements medtronic made a conscious decision not to integrate but to have two separate agreements that stand side by side and then the how can you have a contract without a price term excuse me or not isn't the the separate agreed the repayment agreement doesn't that include the term the price term yeah you salary and benefits and that sort of thing so the market you have a contract is not a price term it does have a price time it states what the guarantee was and then the conditions for repayment there's nothing in turns one only if it's looked at as this way does the employment agreement along contain a price to the meaning in salary employment agreement does not ok so hot and that can stand alone can it it it stands alone with respect to the subject matter that it covers and and it says these other things related to compensation it expressly says that things related to compensation how much you paid your benefits and any agreements related to compensation  documents and explicitly says this agreement does not affect compensation benefits in quotes or any agreements related there to that's what the words of this contract say now that means that the agreement the employment agreement has no effect no bearing upon a no influence upon the repayment agreement your interpretation i think that but i think it's giving effect to the ordinary meaning of the words which is what that's only if they're red separately under minnesota law it seems it would you have separate contracts for separate agreements in addition to simultaneously signed at the same time in or in two like these seem to be there to be read together in reading them together cuts against the argument that you're making him believe or were following minnesota law in the interpreted because the agreements perhaps you look at all of this that the rule is you have to consider whether there are a single contract viewed in the light of all the circumstances at that to determine the party's intent and when you have specific words in a contract which instead of integrating separate these two things and say one doesn't affect the other then that means in these circumstances in the particular facts of this case it was not the intent of the parties that they be read as a single agreement that's the application of the rule and in the lead case marceau the supreme court of minnesota's case it says explicit and positive language importing a different purpose cannot be overruled but must be given its obvious meaning and there are many circumstances where you can have a contract on the same day with respect to the same transaction but the parties intend them to be separate if if the repayment agreement let me give you an example suppose a repayment agreement contained an arbitration provision i don't think anyone here would be saying that now that the venue provision applies so the fact that they're signed on the same day at the sounds it sounds ok but i think it's far more complicated when you aren't so if one looks at willesden on this principle one of the cases that wilson sciences and southern district in new york case it's not in the breeze but i'm using it just where what i just said is was the exact circumstances a stock purchase agreement an employment agreement employment agreements were actually appended to the stock purchase agreement stop purchase agreement has a forum selection claim an agreement has an arbitration provision the different factions in which and in arbitration now i'm talking about this i'm talking about the rule of construction which is let's let's assume a tronic paid your client half of the salary that he was expecting and he wanted to sue under one agreement would he bring that he would bring it he wouldn't bring it under the employment agreement there's no terms that he said that that's my point exactly but there's no term when you have to bring it both on the employment agreement and case under both the employment agreement and the repayment agreement because that's where the salary term is that in the repayment agreement right i don't agree with that you want to hear what you bring in under it bring it under the repayment agreement along with only employment agreement no it doesn't absolutely the employment agreement doesn't have it has no bearing on the on the repayment agreement it doesn't say anything that effects the outcome of the dispute and that's our operating these two things are separate they are said to be separate they stand in parallel and the venue provision does not apply to the repayment agreement nose by the supreme court in minnesota reflects what you have asserted is a well established principle so your honor when i say that the doctrine is well established what i'm referring to is the fact that this  principle has been upheld many times since since march so what's this actually most probable so that the most relevant case would actually be a case arising in the district of minnesota boston scientific the kyle and this was a case in which the parties had entered into an employee agreement and another document with a very long name that was referred to as the agreement concerning employment and that case there were concerns contemporaneous documents and the execution of both documents was a condition of the employment for there were actually two forms election clauses ok we can we can read boston's short which is which is the release of persuasive authority one can have minnesota law the least controlling i should say maybe very very persuasive what what is the contemporaneous document is why i asked a specific question i'd like to answer your honor this doctrine has been applied a number of times at the minnesota court of appeals since marc the parties agree that mr gannon received the offer letter the employee agreement and the repayment agreement together as a package he read them all together signed them all at the same time and he returns them in the same email all in conjunction with the beginning of his employment with medtronic appellant apparently disputes only the applicability of one part of the doctrine whether the documents were signed for the same purpose but that argument fails because the documents themselves indicate that the shared purpose of all three documents was to initiate and govern the at will employment relationship between m signed unless all three were signed they were a package deal as the instrument with other cords address and she seemed to point out the parties wanted to integrate these three they should have just stated that with a simple integration there are multiple ways for parties to manifest intent at the time of contracting your honor and in evaluating all of the circumstances judge nelson determined she made a factual determination that the parties quote manifest intent was that the three documents be read together as one contract certainly whether there was an integration clause would be one of the facts that judge nelson or any judge could consider in determining the party's intent but in light of the language of the offer letter which i think judge nelson clearly indicated was very persuasive evidence of the party's intent that the documents be construed together along with the broad language of the form selection clause the facts surrounding how the documents were sent signed and returned it was all clear and a clear indication to judge nelson of the party's intent at the time of contracting and so she made a factual determination that the parties did intend for these documents to be read as a single contract and that determination is reviewed for clear error a standard that mr gannon cannot satisfy you heard my hypothetical about medtronic paying him half of what he's entitled to do you agree with your opposing counsel that he could bring that soley under the repayment agreement i do not your honor why mr gannon would have to bring that claim under both the employment agreement sorry the employee agreement and the repayment agreement  because as i indicated earlier the repayment agreement it's not a standalone document the concept of receiving a guarantee and being entitled to a salary massachusetts citizen in massachusetts state courts employer in massachusetts didn't pay me what i what i was told is very apt to resist massachusetts employer we're dealing with a minnesota employer viewing i'm dealing with your answer the judge granted question sure and so i perhaps i was not clear that is a good reason why he's in the form selection strip for provisions in each of the three documents and i don't think that the court has ever held that that was required that it was required to do so in order to have a clear contract  and unequivocal their objection is to put ability not whether it is clear and unequivocal on its own and as judge nelson found it is the language of the form selection clause is sufficiently similar clear and unequivocal standard to substantially similar forum selection language and determined that it satisfied that principle so the issue is whether the claim under the repayment agreement is embraced by that clause and under the doctrine that all document signed at the same time for the same purpose and in the course of the same transaction be interpreted together and that all provisions be given effect with respect to all all of the document must be the case that the one and only form selection clause in this multivac human contract govern claims that arise out of  where do we go well so judge nelson didn't actually need to evaluate or didn't need to make an initial finding of ambiguity before a value adding all three documents contrary to opponent's position under  that what i'm maybe i wasn't clear what i'm saying is that there was no there is no requirement that there be an initial finding of ambiguity in order to step outside the four corners of the rep a meant agreement in fact to determine whether to apply the doctrine which for shorthand purposes book called them are so doctrine to determine whether to even apply that t ambiguity it's not an ambiguity because you start out by once you determine what the parties intent was at the time of contracting you if if the party if the if the court determines that the parties did intend for the documents to be read together then it construes the document as a single contract and there is no ambiguity internally in the situation however than even if you read them together is and isn't the form selection clause in one of the documents gives rise to ambiguity your honor however if the court did we disagree sure we're sure that if the court did find that there was  contract that my court could go outside to look at the to discern the intent of the parties which is a similar analysis as that which judge nelson conducted there was no that's correct your honor that's correct however at that point i believe the court would be conducting an analysis of the or related to language to determine whether it was sufficiently clear and unequivocal that claims related to as opposed to those arising directly out of the employee agreement would be encompassed by the form selection clause and as judge n articulated in the remand order because of the circumstances surrounding the execution of the documents and the return of the document and the language of the offer letter itself opposite case in the boston scientific case situations where the one agreement integrated the other so i think that that's very important so that brings me i think that to to me the question judge going to that you have more than once i think is the key a claim under the repayment agreement has nothing to do with the employment agreement the employment agreement covers not solicitation non compete inventions but nothing that relates to that guarantee and the repayment obligation to have both sides of the contract don't you have to have duties and employment and then you get compensation and therefore don't you have to read those together because what matters here is what the repayment agreement said and what was the sales plan under which the regain and that's not in the employment remit that's a separate agreement remember when he signed the employment agreement he signed like six or seven different documents the repayment agreement was only one of them so the this repayment claim does not get resolved in any way by the employment agreement the point being that doesn't inform the claim in any in any way and the absence to judge smith's point of the integration clause in the repayment agreement is is very significant and when we come judge will open to the rule the minnesota rule that you reference one has to look at the intent of the party in all the circumstances as you pointed out this was in the nature of a non negotiable contract medtronic a very sophisticated party knows how to integrate if they want to but they presented separate agreements they didn't put forum in they didn't reference or integrate the two things they did the opposite they say one does not affect the other explicitly the employment agreement has no effect on compensation that is the sales compensation plan or any agreements related to that to that's the repayment agreement so when you put all those circumstances together which is the rule of construction in this case one is led at a minimum i submit to the point that there is uncertainty and if there's uncertainty in the context of applying the clear and unequivocal standard then this  submit must find in favor of mr gannon in terms of the fact that he didn't clearly and unequivocally way and that's i think how the court should approach this analysis and if there is ambiguity and i think this discussion has led to the charity that there are two competing interpretations both valid i suspect in the court's mind the court's grappling with both of them but the moment we accede to the fact that there are two competing interpretations then that does not meet the clear and unequivocal standard it's a statutory right and that we could have a nice debate whether it's really federal or state law that should apply and that is not yet decided i think with it's  or thank you also muslim your court thanks both counsel for your presence in the argument which you provided to the court this morning the briefing which you have submitted will take the case and revise