morning your honour's please the court mark perry for you your honor the six point six million dollars in punitive damages awarded in this case cannot stand because mr marlowe failed to present legally sufficient evidence that a managing agent that you yes may determination decision that's when i when i read white versus whole term our my conclusion was i can't figure out what california law is a managing agent looks like  jury question rather than a legal question because they just they seem to go back and forth in somewhat unpredictable ways on whether you really have to be a policymaker for the corporation or whether you're if you're high enough up you're treated like one  why isn't that enough that the jury had a proper instruction and decided that he was let me start with the first part of question judge kleinfeld the white case clearly articulated a standard which is the managing agent most quote exercise substantial discretionary authority in the decision making so that their decisions ultimately determine corporate policy that is the standard established in white then the question is is there legally sufficient evidence in this case from which the jury could have concluded that mr robinson exercised such authority in the answer is no and to pick up on one of your points about whether that is a clear test the california supreme court returned to it in the robie vs mckesson case and said what kind of policies are at issue in the court said quote formal policies that x that affect a substantial portion of the company and are of a type likely to come to the attention of corporate leadership so those the california supreme court's legal standards in on this record there is no evidence that mr robinson had any role you just corporate policy the other points in the white case that are based on that convenience store case they could say that they could have a written policies that says you don't discipline people for challenging corporate policy but a practical policy by a guy have high enough up to enforce it that we don't follow that written policy if you challenge the companies at over time policy or whatever it was you're going to get ca your honor that there is there is a line of authority that says that a managers of the ready to depart from corporate policy absent retailer supervision from above is sufficient to establish that he has authority to set policy there's no evidence of that here either there's no evidence that mr robinson departed from corporate policy in other words all that was submitted to the court here and for the jury here was robinson's title the number of authorities under his supervision in the size of this district in the district court here we know made a very clear legal error in deciding this question this record said twice that the pages are nineteen and twenty two robinson was a managing agent because he made the termination decision if we go back to why your honor that was the issue in the case the california courts of appeal had conflicted on that very point in wrongful termination cases and the supreme court very strongly said that merely the of for ready to terminate can't make them energy agent otherwise punitive damages would be available in every wrongful term case and then the court and this is a very important point of white that has been overlooked i believe by my colleagues it says let's look at the statute it says officers directors and managing agents and that those three things have something in common the legislature used them to define the control group of the corporation well not my question actually questions are exactly the same and also stated slightly differently because i'm not sure i understand what your answer is as a stretch kleinfeld questions when i read white versus tomorrow and it says here the managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy i have no idea what that means it's one of those situations where the devil's really in the white case so that's application let's set aside all of the definitional terms here she was a local supervisor who apparently lacked the authority to terminate that plaintive without having to go to the plaintiff and i'm looking at the case i think this might be judge justice must disclose concurrence but as he described it she meaning miss solace in the white case engage in local practice of retaliated against my firing an employee who testified at the unemployment hearing of another employee and so here mr robinson took action against somebody who was utilizing the court process in order to vindicate rights how is that not factually similar to light such that mr robinson like miss allison light could also be being the managing age judgment thank you and let me try to explain this as to the terminations decision white could not be more clear and this is the majority opinion page five seventy five that the mere fact the supervisor had the authority and exercise the authority to hire or fire an employee does not make that person a managing agent at the end of the opinion at the end of the majority opinion part d was salah managing agent what the court held was there was sufficient evidence aside from the termination decision to find salah was a managing agent because the supervision of eight retail stores and sixty five employees is a significant part of ultra margin business and the test of money of the other managers including scholars supervisors established that she had substantial discretionary authority over that company's that small company's business because of the scope of her sponsibility aside from the termination decision in other words that's the whole section of the cleaning read and really as a usable legal rule i i read it as a somewhat clumsily written effect to distinguish between written policy and real policy for example a company could have a policy that says  don't fire people for testifying in unemployment hearings and it could have people with the authority to fire people firing people for testifying and unemployment hearings so it's clear that the written policy is is not real and it's not meant to be real it's meant to be just dressing to protect and legal proceedings had by the minute because they said so more explicitly but that's the only the old legal realist approach to reading decisions to determine what the holding is is look at the facts and look at the results and figure out what rule would link those facts to that result and when i read it that way that's the rule but i guess judge kleinfeld there are some court of appeal decisions after white that did exactly that which is why i believe the robie vs mckesson case which was another wrongful termination case that went to the california supreme court the court said it's not a hoc decision making it said it is quote formal policies formal policies you mean and a policy has to be in writing or adopted as a formal as a formal policy in disseminated throughout the corporation of exactly right isn't the ke one way of looking at this is that there's a difference between making formulating the policy and having a c files to empower a corporation one way or another by example or otherwise unwritten and implementing a policy is simply just one house question really talks about implementation of a policy can be can can occur  somebody has no effect on making the policy judged are all supervisors implement policy right think it's an important distinction because in a hierarchical organization the policies are set at the top and they were carried out through successively lower levels have maybe the pay for at the top hope there carried out at lower levels maybe the people at the top hope that they're not and they hope that the written policy will work in a legal proceeding and if that's the theory your honor then to get punitive damages as opposed to compensatory damages it is the burden of the plaintiff to show who at the top had that evil intent remember this is punishment of a corporation not responding at superior or california has rejected that as a matter of state law so that the plaintiff in a punitive damages case has to show that somebody within the control group you know the twelve officers of this corporation the fourteen directors of this corporation or some seal got to go order for u p s because it's so large you've got to go back to headquarters in order to have to need it damages case again robi both make the point that it's not whether the individual manager did something wrong but whether the corporation could lawfully be punished for it and the white case goes extensively through the legislative history of the thirty thirty two ninety four b amendment in which the legislature was consciously rejecting the approach that any supervisor was would could make a company liable to pay the damage i guess i guess what i keep thinking of is monella liability municipal liability typically for police misconduct is his work comes up so and out of leave the police manual in the regulations would say don't beat up prisoners but you could have a bad police force where they always beat up prisoners and anybody that doesn't participate in beating up prisoners gets in trouble because the other police and the supervisor say something wrong with you here you don't you're not and he says but the the book says and they say yet right and it looks to me like the reason california has developed somewhat hard to understand statements of law is that they're trying to deal with that distinction between the real policy of the police department in my hypothetical case and the formal written policy in say the formal written policy is not the whole the whole deal on policy making your honor to answer so that first in your hypothetical damages would have to show that somebody the top knew about it intended departure from the policy so that the policy was a sham there's no evidence in this points that the anti retaliation policy which is on the books was ever disregarded by any other supervisor anywhere so what you would say is limit these deviations from formal policy to sham policies some evidence that somebody at the top knew that something else is going on that's exactly right the second is in this circumstance that is where a policy does exist there's no evidence that it's not routinely followed it is the plaintiff's burden to show that the person who actually made the decision had some of the already over the corporation as a whole aside from the termination decision otherwise in every wrongful termination decision demanding agent test collapses on itself because the person who makes the decision always has the authority to make the decision and if anything is clear from the white case it is that that is not the law that's what the district court did here so we know the district court then we get to what the evidence is and it's a sufficient the evidence case and we put them to their challenge and this is not a mystery it was in the pretrial order it was in the discussions was in the final order we put all the evidence with tasha torah bleiberg it's eleven pages five of which are this relevant story about lauren bigger so it's six pages that we submit from which no reasonable jury could find i think i think the person that i can't remember for sure i think the person who authorized the dismissal was called the vice california and i should point out there's an irony in this case you know these lawyers at this table have been litigating u p s management cases for a dozen years they have all the organization charge they know exactly how this works they didn't put any of that evidence because they know he's not a manager that's not on the record those own claim which is in the record this court decided his case is that titles aren't dispositive he had a supervisor title in his wage our claim was he wasn't really a supervisor therefore he should be paid overtime so that for them now to rest on robinson's title is a bit ironic given the nature of this entire litigation which is that this is a hierarchical organization in which decisions really are made at the top like reserve the balance of my time your honor yes thank you thank you please i think in order to treat him as a policy making authority you have to as a practical matter impose a duty on the  officers and directors of a corporation to constantly investigate their own operation to make sure that their policies are not being ignored or deviated from this is that right that is not actually that is not the case  what it is in california three standards for peanut damages and it's in the code it's in the jury instructions and the special verdict which is officer director or managing agent the manager the agent when you find how do you find out what what they're doing i mean a how can they protect themselves from from this liability except by constant investigation the funny thing is here they act there was testimony here that they did investigate this mr robinson testified before the termination he spoke with about exactly what he discussed with him about this investigation there well it is not new to me but there's no evidence that anybody else played a role in that decision except for him right that he may have talked to somebody else but is there any evidence i don't think there's any have instructor says and they told him they endorse that they said yes by all means that's correct but what they're trying to do is minimize the importance of mr robinson and the testimony was we asked him to describe the staff level employees that worked under thi i understand the law and this case not being familiar was california law at all it is that he he had to be in a position where as a practical matter whatever title was whatever his position was whatever studios were he and in fact could influence corporate wide policy and i mean may have been let's say the son in law  could he do and what did he do what was he expected to do in terms of influencing the overall policies of the corporation and i candidly i just don't see in the record where if that's an accurate perception of the way the law works that it's there it's not an accurate perception ok and in fact i would agree refer the court to the mitri case which this ninth circuit decided on april one of twenty fourteen which u policies not do they set policy ok the other thing is to do they approve decisions contrary to corporate policy which would clearly have here and where they treated by other employees as having substantial thore every single u p s employee testified this robson's the highest ranking person in the district he controlled with the people voted he controlled rates he controlled their decision to control the entire work life there was no no debate about that this strikes me as more of a jury argument than a legal argument  sure it's a really big guy u p s and a whole lot of people are under him but it doesn't show that he makes policy for the corporation he doesn't have to make policy what he has to do with his decisions have to implicate their implicate you look at a person and you judge by the aggregate of circumstances here just as the jury had to and you say what authority does he have what power does he have how much influence does he have you go through all the california cases which the meter case also recites where they have even a supervisor of four employees they found them to management agents and you say are they high enough in the chain to have to be a managing agent which is i will admit is a big definition as defined in the civil code it's vague in the various courts but look at one of the factors you have to evaluate when you decide whether someone's a managing agent is how are they treated by other employees as is whether the other employees treated them as having substantial story well i'll tell you that i do agree with what your opposing counsel s in that in some extent this is really a sufficiency of the evidence case you've got all of these cases out there that talk about situations in which somebody could be deemed a managing agent and i think we can all agree that the ability to hire and fire just because you're supervis and i think different words implementing or creating formulating policy can be used depending on the the factual circumstances but isn't the key that you have that level of substantial discretion in making decisions that could potentially affect corporate policy you're hitting the exact same thing the judge person did and post trial motions and you said you look at the aggregate you combine all these factors together and we judge progress and it is he found on his own when reviewing seek some sort of concerted action for employee benefit and so you or i didn't understand this is more than just what this was is the evidence show that he was four months from trial when they fired him i couldn't hurry he was four months from trial before they fired what is there to show that u p s as opposed to this guy has a policy of firing people who litigate against the or other said i don't believe we submitted haven't said that but what we did submit and what the jury found is that there was a class action that was filed by mr marlowe i want to know if there was what evidence there is of a policy by u p s s a corporation to fire people who engage in protected activity u s i don't think you can introduce any policy at all i didn't ask you about what u p s introduced i ask you what evidence was there before the jury that u p s had a policy of firing employees who organized concerted activity for benefits we didn't really there was any evidence we focused on they were so all there is is this is a guy did that and he's a really big guy u what we showed is that it's a thing about oprah mars even even though it's a little hard to understand their language they spend most of the pages of lengthy decision talking about how being a supervisor who then all he's doing is implementing the policy he's not creating it influencing it i mean if if the record had shown for example he did this and somebody else did it later the same sort of thing and the retaliation for some sort of class action suit or whatever something that a corporation understandably could view is very troublesome and potentially very dangerous and adverse at some point you could maybe say yeah he he was the past fine he was the one that showed the way to the other people in the corporation at his level there's something ok at this and to me that would be influencing policy if you could has already had a policy formal informal that all he was doing was ok that's our policy it's not a nice or good one or lawful one but my point is as i understand it he has to play some kind of affirmative role in the creation of the generation the establishment of corporate policy i don't think that's the law here that passed the law and i'm overstating it and marc and if you would take your your hypothetical integrity that they do get a free pass that's what white first assault from our it says it says that if a supervisor with the authority to manage and fire people fires people for a bad reason that cannot give rise to punitive damages against the corporation because that would be merely vicarious liability for punitive damages which does not exist in california law that's why first assault from our says that well i have read it to you if if you're really want to get into this it says it says a rule defining managing agent as any supervisor who can hire or fire employees but it does not have substantial authority over decisions that ultimately determine corporate policy effectively allows punitive damage why ability without proof of anything more than was significant developed since then what's really tough about your case i think in some sense is the sheer size of the cooperation involved in this case you know i think that in reading through california law and i struggle to understand where the limits are in terms of managing agents you can be a local supervisor and still have the ability to exercise the level of discretion that makes you a managing agent because you are supervision although regional could have some impact on national corporate policy and so here mr robinson is a pretty substantial supervisor setting aside his title he manages a lot of people and in a smaller corporation i think that that would be enough now how do you think we should look at a situation where somebody is a local supervisor with substantial authority but yet at the same time because the corporation is so big he still relatively small in the in the broader scheme of things how how do we look at that and what cases do you think we should look to for the answer to that question look at it the same way judge person did in the post from motions were judge garzon did address this issue and his his position was you cannot just go back to atlanta and say the people that whatever the number of board of directors are after authorizes action if you're doing that you're making a mockery of allow your making a mark of punitive damages here if you do not you're getting a free pass to every large corporation because again there's there's certainly eschews that you have to hold people accountable but we don't really make california policy the california supreme court decides what california law is that this case this court does affect the law here and we were just struggling to interpret it we're struggling time why whatever the california courts say about it when you look at the analogous cases where the management agent has been found  this case clearly falls within the management definition you don't know what they're asking you to do is to impose a bright line formula here california has already rejected the bright line formula and you take it on a case by case basis you take it by the aggregate of the facts just judge a person of twenty plus years who reaches that conclusion i ha like thank you very much the argument trial decision which said this is a paid year and eighteen you're looking to see what person in the management hierarchy would have significant managerial authority over the decision whether to terminate somebody that violates the very principle of white the holding of white the law has not changed in a way that my friend suggests that this court is bound of course paula california law the robie case the recent decision in the california supreme court that he want to dress said quote when we spoke in white about persons having discretionary authority over corporate policy we were referring to formal policies that affect a substantial portion of the company other types likely to come to the attention of corporate leadership it is this sort of brought us that already that justifies punishing an entire company for an otherwise isolated act of oppression fraud or malice what this case is about is an isolated act no broad policy judged are finally on punitive damages i would point to the comparability ratio one point labor code section one hundred eight point six the statutory basis for their claim says you cannot fire somebody for for engaging in protected activity specifically firing filing a wage our lawsuit it sets the maximum penalty at ten thousand dollars over and above compensation this award six point six million dollars is grossly unconstitutionally disproportionate to that as well as all the other factors in our belief all right thank you very much interesting issue