please the court my name is bernard rhodes and i represent tension on below which was due for the opportunity to ask a jury to award actual than punitive damages against j b m on below to obtain what mr putin testified was quote first mover advantage close quote over tension in its decade long partner in supplying a very special type of on below which i happen to bring with me and i'm below for a company called g s k glasgow smith kline which sells a headache powder if you're not from the south you may not know what headache powder is honestly couldn't find an employee at one hundred thirty year old company who had been there or attention supplied to sambal up to j f k so it's been at least forty years because they have lots of people there but they're seed companies when they do their genetic modification it has to have very clear requirements for example that has to be absolutely dust proof because of a seed leaks out in field eighty when the testing of genetic modified i field c then the results are or are gone the final is a company called grains which manufactures per sachets chemicals that smell which go in here requires again highly specialized highly complex design first of all it's a chemical it emits odor so something there is a chemical reaction going in it can't it can't melt it can't eat through it can't make the incredible it can't get off trade you can trust us only you know so far as we refused to sign and compete right so you know wouldn't that be a flag the tabs of the league not your honor and here's why because when the tables are turned gray markets  know there's no non competing you're both free to do whatever you want to do the first partition or the last part is absolutely not true and because in fact you did take work away from from from j date you know so they adopted in two thousand and eleven and then they lie and they lie may lie to us to keep us in the fold until they're ready to spring their trap they asked to get more equipment they have to get things ready so they they have to do a test run with this company called send they you know which they say was great we learned a lot we now are much better at how to steal to customers that this is not just my thoughts that what they're doing is wrong this is what marcus ching ching  continued impression that we're your partner that we don't sell to end users we only sold in the trade when they knew that was false but this specific well with three claims on the fraud affirmative fraud they're not currently selling to end users that's not a false statement it is a false statement if they don't intend to keep that and that's the long more i don't know judge with all due respect if i know that i'm going to go over my time and i say to you i'm not going to go over my time and i have a script right here which shows exactly how i'm going over my time i'm lying to you i'm lying to you and that's what we have minute that's our plan was created and fraud and that would be if if they said we will never sell or we don't ever intend to sell going forward i can see where you would have a point if they say we don't sell currently they said we don't sell and we won't sell and we will never sell reach oh ok now i have maybe a little different that's that's what the evidence s bob broad bear we don't sell we won't sell we were never sell that's why you can trust us with this business here read the gist records opinion he acts as if this was a court tried taste he doesn't give us the benefit of any inference in fact the court itself found that this plan was adopted in two tho compete for j b m and they were and j b m said that's fine but there was a second they were obviously concerned because there was a second request yeah they wouldn't sign at the second time either and the second request was specifically because we were beginning to think maybe there maybe they're not being truthful to us so we called them to kansas city we specifically asked him we said is there anything we can do to help this relationship their answer was sell more on billups rustam make that was a lie that was not what they wanted they already made their plan to go elsewhere they lied to us they laid on the false impression which under missouri law is clearly actionable but weren't you also making noises that you might move some of the business over to china why wouldn't your junk be the precursor to moving the big business over just as they're testing the little market was the precursor to them going directly to their own users i mean if i were if i were j p i'd be pretty darn concerned if you're starting to move the junk over there pretty soon the rest of us are going to fall well they could have asked us to negotiate but not compete if they wanted protections they never did that because that was not their interest they wanted out they had they it well they actually two documents that relate directly to this question about is this junk or is this the big three not only did jamie represent to us that they were our partner that this was how their relationship work they represented a firm believer relationship of trust and we're partners and we supply this product to you in questioning by j s k well why can't we just buy it straight from j b m the answer was we don't sell to end users similarly  there's an e mail i believe i believe it's a memo excuse me from marcus ching ching to j b m again expressively referring to mid co as the partnership which is the testimony of broad bear broad broad bear as to what he  layman terms referred to as their requirements contract for the big three so those are my suit i commence your honor to satisfy the statute  district court and they also attack the apple e's for change deciding to change their business model i think you hit the nail on the head there was not an on compete here you know what algernon compete they had the ability to sell direct there was no prohibition on selling direct and that's one of the problems with with tensions argument they don't come to terms with the consequences of not having a non compete they don't just does there necessarily have to be a written compete absolutely yes in this context absolutely and there is not one they tried to get him to do it and they would not sign it they refused to sign it they worked under a lease for some period of time that was a limited use lease by more closely under the i'm sorry  was in october it was in may in june of two thousand and six it was in october of two thousand and six and it was again in may of two thousand and fourteen when they came to them and tried to trick them into signing and compete but they refused on all three occasions to sign i four in applying the governing case of the district court determined that the question that the court had to grapple with to determine whether there was a requirements contract and whether it existed is whether there was legal consideration and in this case in applying the law to the uncontroverted facts in this case the evidence that is not in dispute all the sales were on a purchase order to purchase order basis it was no larger requirements contract attention was not legally obligated business the attention the problem with this argument is in his testimony as there was no legal obligation and without the legal consideration the court said that there was a lack of consideration and we believe it was appropriate to grant about just one partnership document there's no partnership documents those documents that were some memos back in two thousand and six that said they were when they started working together in selling these and selling the stuff you know if you're the end there was uncontroverted evidence to begin with  said they were not partners they were supplier of these products there is no evidence that controverts that testimony in the record at all and these guys were they were suppliers and that's what s testimony is whenever you had a supplier it was standard operating procedure to get the supplier to sign a non computer they didn't do that here and that's testimony in the record that's also in paragraph one of two of the first many complaint which is a p thirty five that there is a reference there that when you have a supplier and they are settling for you you have to get them to sign the non compete so the testimony also i should say  and the director of purchasing for them also testified that it was standard operating procedure to have a non compete so there is no excuse they can't get away from the fact that they didn't have a non computer a confidentiality agreement and there was no prohibition upon these guys from selling direct if they decided all right how about fraud what if what if they represented as counsel says they did that we don't intend to we don't intend to sell to end users when they are in fact statement in march of two thousand and twelve markets changing said that j b m does not sell to customers customers at that time the court reviewed the record and concluded that tension failed to show that the statement was intentionally false remember that was done in march of two thousand and twelve they didn't in the court pointed out that it may be true the j v i'm adopted a plan but they didn't implement that plan for over two years later so at the time he made the statement he was a good partner he didn't it to customers customers it wasn't in two years till two years later in may of two thousand and fourteen when they were being a b m was being pressured by tension business was being taken away they threatened to move the g business elsewhere and when that happened these guys decided that they needed to do something and that's when they decided to to go ahead and sell direct but up until that time well i think one of the arguments that  uncontroverted evidence it is perfectly clear the documents that he relies on are board advisor minute minutes and memos they form this committee in two thousand and ten because they were concerned they had to write off a big account receivable they were worried about their future you look at all of the documents from the beginning in time they did talk about going direct but they talked about going to wreck with papercuts glassine in rykiel seed packets they did talk about going to react with the packets at some point but they no decision was made in clearly the documents unrefuted in the document said we're not going to go direct on these other issues we're only going to go direct with the paper cups the glass seen in the retail seats they decide they didn't decide to do that until june of two thousand and fourteen so to say that it's not it's not an refuted is absolutely incorrect if you look at the documents in the record it's absolutely crystal clear unrefuted that they weren't going to do anything in these other thousand documents whose documents documents they had a board of advisors during that period of time that they and if you look at the activity during that entire period of time from two thousand and ten until june of two thousand and fourteen they absolutely did nothing but sell to sell the sale to the envelopes detention intention sold and it was when they were pressed into june of two thousand and fourteen may in june of two thousand and fourteen that's when they decided to sell direct and there was no absolutely no prohibition on that in the court made it very clear the fact that there was no non compete there was no confidentiality agreement that j b m had the authority to be able to do that  because at that point in time because and that it already decided what was the day they decided it was the day they were talking to grace that day and it was the day they decide and that was dealt with by the court the district court in the court said looking at that particular statement the court that even if it wasn't so it wasn't a representation first of all the courts that it wasn't a reputation is that even if it was a representation based upon the problems that they were having their memos in the file at tension starting in november of two thousand and thirteen concerned about j b i'm selling direct they're telling the management about that and they're concerned about it and the court looking at that said you couldn't rely upon that statement if it was a statement they didn't show that they have the right to rely upon that statement and they didn't show how they were possibly damaged as a result of that particular statement so i don't think i think the court was absolutely correct on all three of the statements the other fraud claim in the case is the fraud by non disclosure and that's this issue that tension claims that raised the question of fact is the whether or not j b m had a duty to tell tension about their change in their business model in advance of changing the manner of my asking when did let me ask you specifically what did he say and where's the record what's the record show about what he said was a january seventeenth two thousand and fourteen email from broad bear talking about not bringing new opportunities to j b m business being moved away from j b m there is also a declaration in the record from dave williams that goes through mid co moving some of their manufacturing to china in terms of their as well so there are records throughout that i've that i've referred to in our briefs that deal with that but those are the most important ones is the january seventeenth two thousand and fourteen them  on this issue of the whether there was a duty to disclose the district court look at the record and found that this case was very similar to the lakeside feeder's case in help that j b m intention conducted business on a purchase order to purchase order basis there was no non compete prohibiting them from going direct there was no should use your relationship there was no inequality in the company and therefore the court concluded that j b m did not have a duty to disclose that they were going to change their business model before they did it there was no agreement there was no provision that required them to do that they also thought they also have a claim for tortious interference and that is that they claim that j b m made false indicate the question that had to decide was whether the interference was justified the court looked at the the mooney memo and also looked at declarations that were put in from g s k and from grace and the statements in the strategy that was referred to in that many memo as well as the testimony mr put off that they didn't use any of that information in terms of talking to ten and talking to the people of g s k in grace so that the allegations that they made that there were false statements were absolutely untrue and they're totally refuted without any contravention from tension and turn on that particular issue and we talk about the trade secrets  court's directives which meant that case was dismissed we have a couple of cases that suggest that the failure then to refile that is not considered a waiver we believe we have cases that we don't have right off the top of my but there in our brief that we believe that they potentially sanctionable and when the court says in accordance with my directions that's potentially sanctionable correct but let's assume i disagree with your waiver argument ok on the merits how do you how do you win well on the merits of the issue is whether or  not the identity of those customers in whether or not their requirements are trade secrets and was it just the identity of the customers or is it the specifics of how these envelopes are made it's the identity and the requirements but  y but what is the identity and the requirements ok ok and the court indicated that they are not trade secrets under the missouri trade secrets act they also said they're not trade secrets if they even if they are trade secrets that tension didn't do anything to protect those and said that that information the names and the requirements are true it could be trade secrets of the customer and that's where ted that's where j b m got the information from the customer and that's not properly alleging that's why we believe that decision should be affirmed in terms of the dismissal at that point once more very quickly back to the fraud clam suppose we say that there was a question of fact the statement we don't sell we won't sell and we will never sell to direct customers it would not be a travel case for a jury no i don't think so in this case when you look at the facts of this case because at the time those statements were made it was years before anything was put in place to satirize could be a question of fact but back to  expenses beyond the sales what they did here they traded in their short term profits for their protection in the long term by not having the non compete in terms of which you have to look at in terms of the fraud claim is what was the intent at the time at the at the time the statements were made the people a j b m fully believed they were going to continue to sell detention it was until two thousand and in may of two thousand and fourteen when that decision was made to  change what was your motive in hiring a public relations firm they were worried about what was going on with tension tension was putting pressure on them told him they had a non compete they didn't have a non compete totem they were moving business to other places they were was  we wanted to find out whether the state the allegations that were made by tension were actually said to grayson t s k and without fail they said no they weren't made but to hire somebody you know you'd be a straitjacket if you couldn't if a company didn't have the ability to hire somebody to dishonest use me didn't he testified that what he what was being done was dishonest no no he had raised some questions with his son in february about two thousand and fourteen about the problems they were having to use the word honesty versus dishonesty used a number of words there but he was but it wasn't my call my fault when i read that what's going to him marcus maybe this is an example of where the apple fell too far from the tree well i don't think that if you look at your honour's mr wayne is incorrect when he says and i'm giving has to be in writing that that's not covered by the u c c and the testimony was unequivocal that the promise has been repeatedly made we don't we won't and we will never sell direct to your customers that is affectively and on compete the discussion of well how did we rely upon this downright admitted lie at the meeting with mr thomson which is right before mr xing chang mr put up got on the plane to go to  we were doing why because i wanted to get first mover advantage i wouldn't tell my story first i wanted to be the appellant and go first i wanted to use  is not my testimony this is what he says when people find out what happens this will be burning the boat on the beaches because no one will trust us that's about all the evidence you need to know that they had fraudulent intent thank you got a case and submitted we will take it under consideration