areas that we believe there was a serious error of law that affected telecom italia substantial rights the first relates to the court's denial of the rule fifty motions that  in trial and after trial related to the plaintiff's claim for a multiplier or accelerator pursuant to the contract between the parties the second relates to the the expert chart that the multiplier accelerator claim the parties entered into a written written contract and there is no dispute that this contract was agreed to it was submitted by both parties as evidence in the case the contract had clear terms about the compensation that mr monaghan was entitled to mr monaghan received a one hundred thousand dollars a year in base pay and then he was also entitled to a certain level of variable compensation provided that he met certain quotas they contract also said that he was a title to no accelerator and had a specific target as you question who was the evidence in the record mr monaghan testified that he went to several meetings at which an offer was made that if he sold a certain amount or anybody did excel or it or would apply and the reason i asked that is because we have some cases in california that an executed written agreement can modified by an executed oral modification now why is what mr monaghan testified to not sufficient as against not believe that there was evidence that he was given an offer and i think the terms used by both mr monahan and in the appellate briefs indicates that what was discussed in the brief or in the by mr monahan was a series of what he terms presentations one of which was a time that he was at a meeting with the entire staff of the office about five out of the thirty m employees were sales people well we don't we know from first year contracts offers of rewards made out to the public office why is that not an offer it was made to more than one person your honor because it was not directed to him there was no testimony that it was directed to him specifically if the boss says if anyone here sells over one hundred twenty percent of their quota they'll be an accelerator and anyone here but there was no testimony that it was anyone here there was testimony that it was presented also at trial mr monaghan was asked specifically was there any amendment to the contract that said that you were entitled an accelerator and his response was there was no executed amendment there was no testimony at any time that he was ever presented with an offer that he accepted that said he was entitled to an accelerator in fact he that was to find it and quickly here it was quoted in our reply brief and i'll find the reference to it but the the the the terms  were was it's a p r two thirty and mr monaghan was question if there's any agreement that says you're entitled to an accelerator his response was no executed amendment sir and then he was asked in there is a contract that says you're entitled you're not entitled to an accelerator and he said correct sir the the other so that my contract with his sides of the issue and he's a player and he's a plaintiff do we take the admission that there is no executed amendment and strike the testimony that he heard there was an offer on that he accepted well i think first your honor that he does not actually say there was an offer he says it was presented and it was there was testimony that was not contradicted that there were many people in that meeting who were not salespeople who had no role in sales in fact it was a it was a small minority it was less than a sixth of the people who actually were salespeople there was also on contradicted testimony that mr monaghan contract was a very different contractor than any other the salespeople operated under he had in eligibility for a much more substantial variable pay but then was not entitled to any increase of that through a multiplier accelerator whereas the other salespeople had it much smaller maximum compensation level for the burial compensation that then could be subject to an accelerator subject to a variety of other factors that in none of that was ever there is no contradiction to that we also turn back to the contract itself with which says that there is in the contract that there are no oral modifications of the contract submitted additionally the practices of the parties indicates that they understood that and proceeded under that assumption because there is testimony that is not disputed by either party that the parties did amend the contract twice but both times that it was amended it was amended in writing and executed by both parties so i do not believe that given the express written contract between the parties and the nature of the testimony including mr monahan's admission that he did not make an oral modification he only claims that he was presented on various occasions and never says that he was presented individually or told if you exceed this that you will then receive the multiplier and i believe that so why should we think this made any difference because what the jury want of doing seem to tracking well you if you complain elsewhere and will get to i assume the page from the expert report but the numbers that match are the numbers from the from the no accelerator column and that is true on some of the claims your honor but it only relates to the two of them terminate the post terminations claims and there is a that there is another claim which really each to the unpaid wages claim and that unpaid wages claim does not relate to any activity after terminations but it was wages that were allegedly due to mr monaghan at the time of terminations and then under california which are obligated to be paid within a certain  certain days of terminations and mr monaghan made a claim there presented expert testimony and as the court says in its order that there is that there that number that mr monaghan was awarded by the jury for unpaid wages and penalties the the pre term anation claim essentially was the no multiplier section was less than half of what the jury awarded and what's significant about that is one the jury could quite reasonably have decided that mr monaghan had not shown that he was entitled to the variable pay following his terminations but could have decided that he testified the total level is the multiplier is set at one hundred twenty percent of his quota and there was testimony that he had exceeded that hundred twenty percent while he was performing services for tests on there  no testimony that or no evidence because he was not any longer selling products for tests not that he had reached that post terminations of the jury might have inferred that he could but it's also i  think the fact that the jury awarded him double his claim for the accelerator or for the past year wages the only source of that that those sums could be the provided noneconomic damages to mr monaghan and it did not so there was zero so there is reason to believe that the jury viewed this as a purely economic damages click case and not only is the  past due wages claim the pre term anation wages claim a purely economic claim but there is no basis for which you know noneconomic damages could have been applied there now i  cannot give you a clear answer as to why it came to two hundred seventy some thousand dollars as opposed to the three thirty five the jury arrived at but i also do not believe the courts reasoning that it was double the claim plus five thousand provides any clearer you know understanding as to how the jury arrived figures i think what is clear is the jury a more awarded him much more than he was entitled to receive under the contract to do so for you well i think your honor that the that the rule fifty motion should have been granted a trial it should have been granted post trial there was no way for a reasonable affected by that and they should be entitled to a new trial because of damages well i think on the issue of damages as it pertains to the excel or excel or specifically i don't know how whether it would be possible for the court to only try this case as a damages case i do think there is also a fact that having this decided that way at trial could have on the juries a valuation of the claims to snus defense was essentially that mr monaghan was terminated for constant complaints about his compensation as you really didn't believe that well they didn't want you to be tried again well they did they they may not have believed it they may have believe differently if if that had been likely to be tried again well i this issue alone i think it you you're correct that the damage issue alone is is what's affected here if you're honest have any other questions on that i'm happy to answer him or i could move on quickly to the some other issues i didn't move try to try had another issue what else do you think is important your honor i would next like to to briefly return to that expert chart that was admitted by the district court over to snow as objection the objection was only grounds of hearsay was not only grounds of the charge being cumulative of the evidence given by the expert or the chart when admitted it i believe it was the chart was on the wall in front of the jury he was to examine and direct examination is everything that short said he was examined on cross examinations or the chart said what remained that was hearsay what was an out of court statement presented to prove the truth of the assertion when everything was examined in front of the jury your honor i think that the chart was hearsay in the sense you're correct that we did your say until he was examined about every element of this circuit in the court and one of the cases cited by the defendants addresses this issue and makes the distinction between what they termed pedal nothing different was there well i do know that numbers were put in evidence by his testimony yes your honor so it's already there well the numbers are but the i believe that the the the judge the court itself acknowledged that the document was hearsay and then the court later without changing its ruling on that said that it was still going to admit that on the grounds that it was helpful to the jury and i don't believe that once the co until all the evidence was given by the witness as to the content of the statement then it was the hearsay element of it which was the inability to cross examine the declarant is removed ordered the testimony of one of the witnesses read back this was pursuant to a request from the jury the jury actually requested that one of the three witnesses from to snow's deposition testimony be read not quite the jury requested mr shoop as testimony including his deposition what was read back was the entitle entire shoop was testimony which included some cross examination from his deposition why was not the judge's interpretation of the jury's request reasonable well i think they did the i don't think that the court that they asked at any point for any of his his deposition testimony itself in fact the court directed the jury that they could not have his deposition tested juries not requests in quote supposition testimony about his nose misclassification of money and no then clarified the jury wanted soup was deposition testimony right i don't think that the jury know it itself asked that that what they wanted can we get a copy of mr super's testimony stating that he felt mr monahan should be w two employees question mark what we are requesting is mr super's deposition on this matter yeah that's the one and i think that note and i think that the parties were all at trial when this was discussed understanding that the jury what the jury was asking was for deposition testimony back is what you know how does the court safeguard against the undue emphasis and i understand that this will last for a series of mitigating instructions all of which will give it well we asked for it instructions we also asked that the other testimony on that point from another witness be admitted the court's the court's response was well they did not ask for that but you know it is our position that they also have not asked for the deposition testimony itself u morning honors and may it please the court brian have forefinger strauss and pull a firm for the plaintiffs in the appellee in this matter i'd like to respond to the focused inquiry that my colleague has drawn attention to and i'm happy to answer any further questions on the issue of the rule fifty motion and this excel or later or multiplier i think your honour's have correctly identified that there was evidence of juice to trial that monaghan was executed modification the fact that there was no executed amendment is not controlling because it was established a trial that he was mis classified as an independent contractor in other words he should have been treated as an employee and so the fact that due to their illegal kind conduct as the predicate he didn't receive in a contractual written terms and this multiplier does not that they don't get to modified and he says no it wasn't now doesn't that could against the idea that the presentation was you an offer for a unilateral contract and he performed certainly your honor that the testimony goes in effect and all modifications of the in writing doesn't that and question i don't think it does your honor where there's an illegal contract this contract is pervaded with the illegality because it had mis classify do you connect up the classification to the terms if anything that seems to me it would point the other direction if he was being treated as as an independent contractor he's not receiving some of the benefits that employees get you don't expect the terms or become more generous to him by being reclassified as an employee i just understand the logic of why being called an independent contractor instead of an employee meant the terms of the deal change our position your honour's we respectfully disagree we think why we think that the protections that are extended to employees are greater than those extend as california law provides for an accelerator for all employees and what is not ok so how does that protection affect the terms of the deal because he was entitled to the benefits that the employment relationship would have provided such as the accelerator is but one piece of that the other pieces which were awarded through the trial and through the summary judgment included the fica contributions the other per per of employment so we just why i say if anything the movement from independent contractor to employee should push in the other direction with regard to the terms that were explicitly agreed to the employer was likely to be more generous of it thought it was and then have to make those other contributions on the employee's behalf i simply don't understand why we should read into the contract an accelerator simply because the contract was written as an independent contractor relationship rather than an employment contract  that it's a fair question to honor and i think that goes to the weight and for the jury to consider but going to the second point of the analysis i'm not sure that it ends up mattering because there was no prejudice since it was an awarded by the jury anyway as the district court went into and which which gets to the big big question that's lurking out there and although it's not directly attacked by telecom it makes me wonder where did that jury award number come from i mean some numbers you can trace exactly and then there's a number that i can explain what's the explanation for that number well the district court in the in the excerpts of record i believe this is a page eleven came to the conclusion that the multiplier was not awarded  the district court to the wrongful termination and future losses but the only way that you can get close to three hundred thirty five thousand based on your experts testimony seven thousand one hundred ninety two thousand and eight thousand you can do two hundred seventy eight thousand which is close well fifty thousand dollars to the thirty three thirty five but what other evidence is there that you can point to that comes close to three thirty five because if they didn't award the multiplier you got seventy and ninety eight us one hundred sixty eight plus eight hundred seventy seven thousand and they  award three hundred thirty five i think that there's any evidence that they should award one hundred seventy eight times to your honor's there's no evidence in the record one way or the other but i think it is what it is no evidence one way or the other then the award of the jury is in firm i'm sorry i misspoke there's no evidence to suggest that the logic the jury applied was improper nor was there any argument by the appellate of how they should have crunch these numbers and so they just record if you continue in the opinion do you do you this doesn't surprise you the defendant doesn't argue that some portion of the plaintiff's economists number should be taken it's a little the right hand column one hundred seventy eight thousand more or less a multiplying by two the district court judge collins surmised that that was the logic and following in the opinion i think it's very accept that one hundred seventy thousand and we're going to bump it but multiplying by two because in the column your honor there are several and let me let me  in the column with no multiplier but they can't be because of the value of the present value of the residual commissions true because if we give any credence to the residual commissions claim we're double  counting because the jury verdict gave him loss of future earnings you can't do you can't get both residual commissions and lost future earnings so that the don't go there and your honor you are looking at the five hundred sixty five thousand figure right ok so looking at that column as the judge surmised it and i'll get her opinion here and this is  at the excerpts of record at eleven where at excerpts of eleven at page at line twelve where she states it's clear the jury did not apply it commission multiplier to the damages for wrongful termination i think we all agree on that and they ought to call inferences that they did the same thing with them just due to misclassification that is they do not apply a commission multiplier certainly defendant is not present in any interpretation of the special verdict form that suggests the jury apply the commission multiplier to either claim and so that's it appears to be that the jury awarded the amount stated in the non multiplier call them doubled and rounded to the nearest five thousand go here i know that's not what we would tell the jury not because we wouldn't and so we think is the jury award supported by the evidence we believe so your honor and what evidence supports the three hundred thirty five thousand dollars part of the order we believe the testimony of dr oxtail contests which she also supplied the summary chart and although it's not immediately clear how they did their math we think that the chart provides ample evidence to support the award for the misclassification now moving on to the other and lesser further questions on this issue like to address with the remaining time the other items that counsel mention and that is as to the and certainly again final point is we don't think they've met their burden to show prejudice as mr purcel stated i cannot give you a clear answer and certainly the statement no reasonable jury could find for a multiplier is somewhat moot when they didn't turning out of this chart i think your honour's have correctly identified that it was no help but i'm going to stop again there yes the times to part where does that come from isn't that a multiplier of some have been for there unless that's a backhanded way of getting to a multiplier so your honor may have been embedded in that residual commissions which we already discussed in terms of being reduced to present that would be double counting because you  on the jury for form compensation for future loss of think it could theoretically be double counting but given the figures are radically can't be anything but double i don't i respectfully don't agree because going to the second box for the for the wrongful termination damages it's not there's no evidence for example that the jury didn't shift monies from that in other words not double count when they awarded the other amounts so i think we are in a space where it's ambiguous precisely how the jury walks through the process but again falling back to it being the appellant's burden to show that an error occurred they just haven't met it nor have they shown prejudice for example substantially higher amounts could have been awarded so he really could have used them multiply by three you know as to the ruffle terminations for example the categories for three or five year or never recovering these other these other items in other words they were much larger numbers on the chart now turning to the to this chart and the arguments here say i think you have correctly identified that it no longer became evidence no longer hearsay once addressed by the extensive testimony there are literally thousands of lines of the transcript we've provided that it's approximately seventy pages of our supplemental excerpts twenty one to ninety one and so certainly the content of the chart was in the testimony there's been no argument that the chart inaccurately summarized her testimony and so unless there are further questions on that will move along to the the read back issue and on this we would simply say that the appellant's characterization that the note only sought deposition testimony is simply inaccurate in fact perhaps it was confusion as to the proper legal parlance for the trial testimony but the judge addressed this in open court and with the jury she she told them that they can't have the deposition that's not evidence and then went on to order the read back with the new off admonition prior to and after the read back so certainly there was no prejudice especially where in the new hof case under those facts there was a read back there was not a proper adm and the jury came back i think nine minutes later with a verdict and in that case they still found no prejudice this case isn't even a close call in our opinion on the read back and so unless you're owners have any further questions about any particular pieces of the appeal turn it over to my colleague well although it's of truly minor importance in the in the scheme of things i'm i'm puzzled by the summary judgment on the canvas bonus the conversion of euro's to dollars i wasn't there not a genuine disputed fact with regard to whether the obligation was supposed to be in dollars or your rooms the only admissible evidence on this canvas bonus of seventy one hundred euro was the testimony of his nose officers this is robert and joseph rubino that mon han was entitled to be paid a bonus equivalent to seventy one hundred euro but paid in u s dollars now well man i read that testimony they were being given information and asked him to state the understanding based on that i didn't see testimony that said the deal was supposed to be in europe period the amount was to be calculated in euro's and then there is testimony that's testimony from a defendant executive said that his understanding of the deal based on the deal not based on something he'd been told or was put in front of him was of the deal was in your office this would be joseph for being no and this is at the supplemental excerpts at one forty five and one forty six he testified that monaghan was entitled to be paid a canvas bonus equivalent of seventy one hundred euro based on the appropriate conversion to us dollars at the time it was paid in addition there's  written signed contract well wait stop so i'm now made my way to page one forty five and i see a question that's underlined in the copy here that this is part of the record so is it your understanding of this document and i read that i think it's what i read before that doesn't mean his testimony testifying based on what he knows of the deal he's testifying based on the understanding of the documents and put in front of him is that correct because that's not the question i asked i asked about somebody who knew about the deal right well let's turn to the document because the document also is the only admin so is there any testimony from anybody about who knows about the deal i mean your brief argues this is a judicial admission which it's not i'm waiting to find evidence that says it's conclusive it's unquestionably a deal for euro's and i haven't found the canvas bonus contract is that supplemental excerpts one fifty six and the copy is not the best but this is what is the record and it states in writing on the floor if you turn it sideways on the far right hand side euro bonus and there's a symbol for euro seventy one hundred dollars and that's executed by mr monaghan that's the only written evidence admissible written evidence on the issue so that summary judgment they were not able to create a triable issue that anything other than seventy one hundred euro is what was owed to mr monaghan there is nothing to rebut this document that meets standards of admissibility ok that's your position any further questions from your honour's thank you thank you appears to be related to the multiplier you know i only have a few seconds left i want to address just one point that mr havel thinker made which is that he has correctly stated that is our obligation to show that there air but it is under the ninth circuit law as a very johnson cites the head adversus locket lockheed corporation case it says the reviewing court must find prejudice unless it concludes that the  more probably than not untainted by air and i think you know as we discussed particularly as it relates to the jury's award of damages that appear to be related to a a multiplier for what are only one claim that was only related to minimum we believe that the issues related to the multiplier have to be in the damages that appear to result from that would have to be either retried or there should be instructions that the the jury cannot consider the multipliers part of it