seventeen dash four zero eight six first american title insurance versus northwest title is would this morning your own one this is steel turns on mother first american title insurance company or first american idol company l o t ever plaid argued or proved that one of them had standing to didn't sorry or no problem yes you have to look at some of the underlying facts there are important so when i see so we come to this this term a nation of the know but the but it became the parent then of equity and then equity merged with the l l c six and when when judge who says desking about the evidence here you didn't provide the transcript you proved all the elements of a cause of action but do you disagree that the l l c merged with equity i do really i do because and  move for judgment after the jury we move for judgment if not for the jury but if that was denied improperly you have to establish that by giving this the transcript of the stablished and there was an evidence to support it and they didn't do that your honor the problem was the same in the beginning and i want to get back to your merger argue ok because this was brought up for the first time when we c so we have two different documents both of them claiming that they resulted in the wire getting one hundred percent of the stock with there's there's none of that here this is an afterthought as far as i can tell your honor we did it we asked for jury instructions that said that each corporate entity stood on its on itself the judge refused denial summary judgment which i think we've indicated to you your honor but that that led to the jury instructions well ok let's go to the jury instructions ok requested a jury instruction the judge did not definitively rule at that time you never objected to the fact that he didn't grant instruction isn't that correct that is not correct or i can find it in the record that you provided here when did you do that your honor we asked for the jury instructions we all asked for multiple jury instructions this is not it's ok if you ask for jury instructions to preserve it you either have to get a definitive ruling denying it which there wasn't or you have to object that it wasn't given without their weapons so there was a it you have to the judge has all these instructions they're much proposed the judge makes may overlook one he may think it's it's already covered by other instructions so he doesn't  need to alert him that you had an instruction you propose that he didn't give her she i don't remember the gender of the judge here but your honor we did and we said well here we are where you don't cite in your brief your honor we have support think that the record needs to be supplemented in that regard that we moved when we found this brief to supplement the record but it should not be necessary because understood the whole gravity one of this proceed your complaint and of your walk here before us is that the employees of the original corporation were terminated at the time of the sale merger or whatever the proceeding was is that correct were they terminated according to the complaint were terminated and rehired and that is in the record before us is there a place where we could find chapter and verse the evidence of the terminations of those six motion here as i understand it the employees were terminated if the employees are terminated that's if there is no contract there is no carry over obligation on their part to do anything let alone not to compete notwithstanding that even if it's even if they said what you were entered into a new contract of employment that employment was two years proceed and before that was  determination of before there was this so called for each of the covenant not to come here on it was on their side so i get back to a what i think is a very simple question made very complicated by the argument so far and that is there evidence that these employees were terminated what is work and i find that chapter and verse your honor you can find it in the sealed appendix where you will find  the fact that all of the employees signed first american imp agreements employment agreements no later than early twenty twelve and  merch for the so called merger doesn't happen until the end of twenty is that the document the title that first american provided and it relates to all its subsidiaries affiliates  status them your honor one of our problems with the four it's if you did not instruct the jury on the significance of judicial admission six  that they were terminated by equity and hired by first american l l c they testified they were hired by first american all the documents saying first american that's the whole problem even then i you know i think i'm not sure this matters but equity done would have had a cause of action against smith and carroll for breach of the non compete at that point no under your theory  because our theory is the force that the the agreement lapped last year more than a year before the northwest was formed to not to make two thousand in two thousand and eight when the under your theory the case their employment status ended with equity upon the stop the stock purchase agreement cracked and they they switched employer because they didn't tell us which one of the first american they should have been clear about who was the employer instead of playing what their counsel admitted at the pretrial was a corporate shell game they wanted the benefits of having those employees  wanted and they never assume those contracts and they change their employment status and they change their salaries they have all the benefits of tying them up and none of the downside you know i decided to use the word advising them terminated and i think this will just take a very brief answer ok you complained a couple minutes ago that the district court did not instruct the jury about the admission in the complaint did you request an and the that triggered the problems that we have that have led to this litigation and now the subpoena there were in the original employment agreement that incorporated the covenant not to compete were between these plaintiffs and who what corporation the first all they were the defendants first american for and there were two types of agreements there were the employment agreements right and then there were the agreements that were contracts that came out of the employee handbook and the code of ethics which employee handbook were those signed by the employee they were signed electronically by what happened and there's evidence on the record of this the employees when they would go into art and that was actually a that was but that was whose employee handbook it was the employee handbook that governs the first american family of companies which as expressed in the contract and i think to charge you you paraphrase company right purchased stock in after the tie all right which was the original employer of these employees that happened in the series of transactions between two thousand and three and two thousand and eight a corporation they went to work every day in a building called equity title their stationery their forms had equity title that company continued to exist throughout the entire period of time of the stock acquisitions my first american title insurance company and tell two thousand and twelve when equity title merged into the first american company first american which ever the company that acquired the stock between two thousand and three and two thousand and eight which we refer to as first american insurance is the parent company first american title company which is the entity that later there isn't anything like that formally demonstrates that first american adopted all these contracts two answers to that question the first is there is a document in the record it is an exhibit or a schedule to the two thousand and eight stock purchase agreement which identifies that at least two of these employment agreements works presley smith and williams carroll's it was a different form of agreement terminated and in the complaint nowhere in the records were they terminated there's a false dichotomy that the appellant's allege here that if they are hired by first american they are therefore terminated by equity and that's not true and i think there is well that's their theory but there is no authority for the transport especially deny that on summary judgment in multiple points in time throughout the pretrial trial process but getting to my first question or right first observation it seems like you are treating the employees of corporate assets as because the employees as long as the have are willing to work  employees of whoever is hiring them and paying them but the obligation of the company it's not to compete are independent legal obligations between them and equity and so the corporate form doesn't matter and equity was giving them a paycheck until some point and then at some point they no longer as i understand the facts were getting a paycheck from equity but are now working for somebody else they were getting pay here equity title remained a corporation that these people work for the fact that their paycheck or they may have been on the first american payroll that doesn't mean that they were ever terminated by  the exact opposite of the chiefs on something when a corporation's stock is acquired by someone else or becomes a subsidiary of another corporation that doesn't change the legal relationship between the employees of the subsidiary and the subsidiary does it not also so they were they were employees of equity even after equity was one hundred percent acquired by another company it's like right it  in the employment agreement with equity continues and what you mentioned is there was an additional obligation that the equity employees now had because they signed this document as a plea of an affiliate of the overall first american entity right and ok so they have that agree then then equity ceases to exist when it's merged into the l l c it now  anyway continues when that corporation merges with another corporation yes my operation of law book statute and utah intense are going to florida which we've cited in our our break for kit so at this point there are two obligations on the defense one is pay whatever agreement they had with equity  continued even after equity becomes a subsidiary and then even after equity merges with another company that those obligations are owed to the l l c in addition there are obligations that's going to some really stupid on the record when you've first american because of this document that was when first american became the pair and that's an obligation t first american career that's exactly right and the obligations importantly are essentially the same their obligations against competition and solicitation now one reason this is so complicated it appears to me that nobody worried about this during the trial everybody was referring to first american but now opposing counsel is saying this of misconceived this that the attorneys for the defendants continue say you've got to distinguish between the us and cities and which one has those rights in this case they were identified and look at jury instructions eight and nine they are express separated out as to the two separate entities that they are and then as has been the course of performance by counsel in the court throughout the pretrial and trial proceedings they were referred to collectively as first america th ere was never in most of even though the source of the defendant's obligation was to some extent different with respect to the two persons are in so far as the equity contracts they were different but insofar as companies that are being collectively identified as first american because nobody there was and there was really no substantive difference between the two for purposes of the issues in trial because  obligations we're talking about but under the equity contracts and on the first american hand but also look at the special verdict form the first three sections as i recall required the j they had contractual and other obligations under the first american hand meanwhile back at the  judge waldock used to say if the nut butts were candy and nuts we'd all have a merry christmas but the fact is that at the time of the corporate transfers mergers whatever you call them were the employees notified or given any opportunity to reaffirm any of the covenant that they may have had with the original employer equity was a notified of the transfers and the fact that it take the position that you're taking here that those obligations continued where they had put on notice in any way so that they could pay i don't want to talk work under these terms like th were not asked to sign new non competing agreements as the equity agreements because from first americans perspective those equity agreements i understand continue they work however given the employee handbook and the code of ethics they they acknowledged electronically receiving and reading those those documents imposed upon them sent similar non complete non theory is correct on this latter point that the signing or the acknowledgement of the handbook became make a condition of employment then you don't really need the original contract at all you don't you do not and did you argue that to the jury and that the predicate of your case what we did and instead referring to the first three sections of the special verdict form you'll see that the jury express that even though the court had told them that subject to defend the equity title contracts were binding they also had to check the additional box about being bound by the employee handbook so that's exactly right the employee first american is a california company it is illegal to require employees to sign on competing green the first american handbook does not contain a non compete agreement and neither does