obtained in july two thousand and nineteen after a one week jury trial where the jury heard evidence as competitors with transportation intentionally and knowingly hired on two hundred and forty six occasions c r c drivers resulted in them obtaining a commercial driver's license a very valuable license improve their career prospects and are into an industry in having a short drive or shortage or years now post million dollars but the tortious interference claimed in the end the verdict there should be a firm because if the record evidence supports the jury instruction and is in accordance with i will all i'd like to begin with beyond just in this case the district court and instructed the jury instruction number sixteen ringback and seventeen that the benefit conferred on swift with the driver services and that's exactly right the stating that it was the driver services without the need to train these drivers training was not an issue in this case what was it issue was appropriating the services of these drivers when their services had been pledged t to deliver and there are drivers to deliver sirus he attempted to do that but was always short on that stuff and its executives testified to that effect of going back to the unjust enrichment claim here the testimony in exhibits forty four and fifty nine dollars that are in the panics in this case sears to presented evidence that swift profited or each day for each one of the two hundred and forty six dollars crackers d with the amount of days that they said follow the profits rate by transit and as a result of hiring these drivers are at the very least an indirect result of c r s these financial investment in the driver's training that's precisely what happened because the contract has already been performed jensen can return that contract so iconic for it's already been performed but reap the benefit the financial benefit from that contract and the profits from that contract what the value of that contract was cad phobics versus turley a decision that is factually in opposite in cabo bij the benefit was conferred directly by the plaintiff upon the defendant i represented the catboat which in that case that was ultimately built as a result of those services we are not serious he is not asking for any contracts with will be d able to secure because of the security services of the two hundred and forty six drivers c r c is asking for the value of those services precisely what the court instructed the jury and instruction over seventeen decisively in accordance with the evidence that was presented on that point and this just in richmond plent o decision of the district court should be reversed and that verdict reinstated moving on to the i'm just in richmond playing this d case i'm sorry to the punitive damage claim in this case this court found in this case that there was sufficient evidence for punitive damages it found that there was no cost to tional problem with the punitive damages they were not disproportionate to the compensatory damages five million t night but somehow concluded that the conduct was not reprehensible enough for five million and it decided to remit that award to three million dollars the court her individuals that came to them and basically have to rise to the front the costs of this program incur all of the investment in a free ride on the benefit of these drivers that was in training company there was that then they could have the same program if their two year commitment program was not attracting enough cash cow so you're not you're not addressing what bothers me which is that this is not this is a these are actual contracts with a limited non compete provision that the employee was free to get out from under by paying back to the training costs as well as quitting right sented evidence in this case to david souter's up its act it's a c f o that every single one of these two hundred and forty six dollars drivers at the time swift hired them was under contract they had not repaid six thousand five hundred dollars and i noticed was the notice to swift that you're talking about was that pretty hire apposed rehired ok that's my point that's my point and at the time that they hired of the evidence was they had not be paid that was will on notice on this point once they know that there is a contract isn't made aware of a contractual obligation of their own incurring notice to find out whether or not this boy is under contract they didn't do that they went forward with hiring them and so they had noticed with each letter that they received mysteriously that this this employee is currently under contract was d s t they had the contract in their possession they had access to these drivers to determine whether they sn't your position the trans am is not this is not governing on or well we can harmonize things with trans am in exactly the way that your last and last answer the question does it's very significant trans am is governing for judge logan judge struck us and this goes to this one of the fundamental issue that goes to three elements one breach to notice three impropriety  the the fundamental issue is that judge logan focused on is that there is only a breach of contract by the drivers if they have not served the full time months and have is that they sent out contract notice letters and these contract notice letters in response to increase from the department of transportation require that you do an employee verification so in sears to get set employee verification they automatically generate send out a contract notice letter and write their there's documentation as to when they send it whether the driver is under contract but let's assume let's give let's let's give credit to that possible inference there is no evidence that in the time between the contract notice letter and the time the driver starts working for swift that the driver had paid off the six thousand five hundred dollars and this is remaining on contract not the payment amount in fact he admitted i don't know if one cent was paid back i did not analyze the repayment by the dr because it was not relevant to my analysis jenny abernethy the only thing that she testified about was the driver status at the time the contract notice letter was sent out which  oftentimes was weeks or even months before the driver started working for swift so judge local judge strauss you're exactly right there is no evidence that there was breach and there's certainly no evidence that's that knew of a breach as swift indicated witness after witness we didn't know what the repayment status of the drivers was and this the burden for grinch was on security to establish breach for each and every one of the two hundred and forty six drivers they failed it was a fundamental failure and where i was the curia instructed on this issue the jury was instructed exactly what i said you have to find there are contracts in place you must find that the driver has not repaid six thousand five hundred dollars and that the drivers began of course worked for swift before satisfying the th month ten month obligation didn't push that argument so maybe there was an assumption that because it was within that term the so called term that there was a breach but that's not enough there are two conditions so trans am doesn't even reach it there is should be given to the non or the moving party there it made sense that wasn't addressed but the fact is it is front and center in this case so you your reference  failure breach the failure of notice related to this repayment let me quickly move to the impropriety standard so st on this issue if swift isn't inducing them to not pay their costs back then they're not inducing a breach because it the and this is exactly what judges look in just reference and it's the standard is making it harder to satisfy a contract in the swift if anything by hiring them and having reimbursement provisions for individuals trained at other schools made it easier for them to satisfy ok let me quickly get into impropriety because the district co individual knowledge of the not compete is enough to satisfy the torso interference standards in iowa not so i was clear there must be in additional element of impropriety  medtronic magic valley in idaho follower in maryland none of those states required proper means and so maybe you can apply seven hundred and sixty eight sort of a strict liability your knowledge base liability standard  those states you can't use it to read out improper means in iowa under cases like green racing and others so let's move through the seven hundred and sixty seven standards this is where the district court can only ignored evidence for misstated out events and misapplied the factors so as all of you know there are several factors to establish impropriety and the court conflated the impropriety moving to seven hundred and sixty seven if you read the rule fifty nine order from the cork heat the st element is nature the heat the court said that the nature in this case was to hire drivers and increase profits that's not nature nature is to do with the means the method ok in courts commonly find in nature violet is suggesting impropriety if there is fraud misrepresentation threats interrogations things of that nature nothing there as you noted your honor there was passive recruiting and security wants to say this isn't about recruiting it's about the higher it's about the inducement ok in the recruiting it relates to the inducement and here there was none now relating and so the lower court got that wrong by not even addressing the nature they conflated nature intent on intent the court said the intent was to hire drivers ok there's nothing wrong with hiring drivers and judge stress as you noted in your dissent well the law here isn't about favoring one business model over another so there's not an unlawful intent to look to hire drivers and this is customary in the industry as you saw on trans am you see in this record trucking companies hire from one another all of the time series city hires from swift including swift train drivers swift as an academy j d hop hires from both companies as the former chairman and c e o david rush  everybody hires everybody stripes ok so let's get to interests ok and there are three elements of interest in impropriety very quickly i'll deal with of the gather the lower court suggested th leaving unbearable working conditions stifling mobility restraints of trade and this is worse restatement seven hundred and seventy four comes in which suggests that if a program or contract stifles mobility or violates public policy or operates as a restraint of trade then there can be no liability for damages and seven hundred and seventy four dollars was completely ignored by the lower court as were swift centrists so when you put all of this together consistent with just trust us that dissent there is no impropriety in just one other thing because this was mentioned and trans am and i want to make sure i mentioned it there was one document that one around that was attached to an e mail that was technically in evidence where it showed that serious ts leadership are sorry swiss leadership looked into contract mr c r c driver with a non competing but i am going to offer you extra money as an inducement to come over that that could be in price and i could see how trans am would square with ak that is not what happened the record does not contain that let me just briefly address this exhibit forty one of the eighty three reflecting the practice change this with me just because of the sense of the impropriety analysis swith did change its practice at one point refrain from hiring drivers who are subject to a legit non computer contracts ok then in two thousand and sixteen it's a site that changed that practice and it changed it as related to all companies because and this is in evidence there is a growing number of companies who are utilizing not to be progress this was not directed at c r s t the evidence is undisputed that included other companies like stephens and c r englund and others so there is nothing directed at your honor i'm low on time but there are a few other things i want to address up this contract is  is a matter of law and swift has the right to make this point has the right challenger protectable interest that is not affordable issue that is a fundamental underpinning of any non compete it is a precondition underlying protectable interest which is necessary to avoid the restraint of trade otherwise and this is similar to the jimmy johnson example where you can buy into a sandwich maker to a non compete here there is no specialized training not a school that was specific to c r c fifty percent of their under under contract drivers came from schools other than c r estes another fifteen percent from other schools beyond that quickly stop commenting up truck drivers do you suppose there were in the and sixty seven factors those were instructed to the jury even if the court order viewed this case as falling outside of seven hundred and sixty eight those factors were applied in this case the court review and how the jury applied those factors post trial and in this case there d is record evidence from david sousa where he said clearly on the record that at the time that swift hired these employees they were still under contract with stare s t and and notice was given to one of those factors was analyzed one of the significant factors that i would ask the court to consider is that there was evidence in this record that swift had more than enough candidates for these jobs they had as many as forty five thousand fall by candidates in one quarter long that they could draw from and they still went forward and intentionally hired drivers that are under contract with sirus t there was also evidence in this case that the of the societal interest he's bringing drivers into this industry an industry that needs d drivers it's a band thing the cost of their training and that could be weighed against swifts freedom to act in this case all with had to do was what it did for years which is wait ten months until the restrictive covenants expire all of those factors will weigh by this jury the court reexamine those factors under seven hundred and sixty seven post trial and found that this jury the fact that both parties both post with the i'm sorry spirit say there's a massive driver shortage now that sounds completely contrary so hopefully you can explain that to me already five thousand qualified applicants they had one calendar quarter along to choose from that