the honorable the judges of the united states court of appeals for the th circuit these the court my name is michael to turn with my co counsel don trotter and julian collins we represent the appellant's in this action just in jordan daniel curran michael nicholas and christopher hadley the decision below should be reversed or at least  nd the remedy that the court chose a call back of every penny received is unsupported by court consideration and is again at odds with maryland law and rd there were factual disputes that the lower court resolved by making inferences adverse to the nonmoving party the defendants in this case and for any one of these reasons and certainly for all of those reasons the lower courts summary judgment decisions should be reversed let me briefly address some salient facts the pla leaches group is the largest staffing company in the world with revenues to believe to be in excess of twelve billion dollars based on its website today only just today has at least ten subsidiaries including not only aerotech and tech systems the ones that you broadly cover nearly the entire staffing and recruiting industry throughout the united states the defendants here were all former employees of only one subsidiary errata which focuses on staffing engineers in the aerospace engineering and high tech correct but strangely what's happened is that in the i i p which has even broader restrictive covenants the court simply moved onto the ip without any kind of analysis and allowed them to go through and  what you call restrictive covenants almost begs one of the important questions in this case there was a an employment restrictions and the court struck those down as too broad and consequently the employees could work correct in the two hundred and fifty mile area and immediately the incentive agreement seemed to be a little different it seemed to be an arrangement by which  just a whole group of companies allege that as an incentive to grow the companies participate in the growth be recognized in the participation of the growth and to protect that growth for thirty months after they leave you can receive a bonus but you don't have to receive the bonus you don't have to take it but if you elect to do that and so what you call covenants are really conditions for the incentive  is as i would just read it straight on now if you want to try to fit it in the covenants that's your best argument i think you you try to make it an employment agreement but they have an employment agreement and that was ruled on favorably to your clients what what was what the court did on the incentive agreements was to say that these employees did not hon undertakings to get that money and as a consequence they're not entitled to it i think that's where we stand on it so i think for my own purposes it would be better just instead of give them categories that make you win automatically is to address the contractual language of this incentive agreement well i think your honor st of all you know that there is a lot to the effect that where one has a satellite agreement that is related to one's employment that it should be treated under maryland law as an employment agreement and one looks at the term employ you hear something like fifty times i would the programs are they're all in agreement connected with your employer but the public policy that restricts employment agreements is based on the notion that it prohibits you from working and earning a living in the area in which you are skilled and where you do live and so those have to be construed narrowly in furtherance of that public policy but here these employees could work and could take a job they just couldn't get the incentive if they they could get the incentive if they agreed to the restrictions which were restrictions promoting the allegiance group the whole group of companies and grow their business  nine and the point of it was to incentivize him to work he worked hard as a result it's really deferred compensation more than anything else the fact that it really did earn no buy it was a conditional bonus and when he left looks like he had the intent to form his own business and he knew the business well he was a big hitter and he need not have taken that bonus he knew that if he squirmed his own business  following a little bit on judge and a march question that wasn't everything along the line in this arrangement voluntary  voluntary contract i'm not sure i see the element of duress that would add to the strength of your case for example there was no sometimes  and these agreements if you're going to work here you gotta agree to these restrictions if you really and we don't have that here they weren't signed and you've got to send us an order to or so i think there's a few points that i can make your honor st of all there are other non compete cases including the holloway case from the supreme court part of appeals in maryland where money is the issue it's not necessarily just a simple question of an injunction that you can't work restrictive covenants have been found where there is a money component it damages component if you go off and compete or solicit or so the fact that it's money versus an order whether you can or cannot work is not you know i would say dispositive at ninety three and ninety five it's far more than a non solicitation agreement because the language of those clauses say that if you do anything to divert business away from and only just company and i mean any elite is company i don't just mean the aerotech company could be major lindsay in africa if you divert business under section ninety five a friend comes to say i want to leave major lindsay in africa want to go work for another legal recruiter and you say you know i think that's a good idea that's a violation of nine five and you were there by they seem to hone in on soliciting or contacted employees and attempting to influence custom ozo personnel overlay just those that seems to be the heart of nonthaburi well while it may be the heart i think dortch opposed teaches that we don't look just at the heart of such governance we look at what they what they mean across the board and what effect they may have on the employee and one add to that this remarkable provision in section nine that says if a if a person like mr jordan even dares challenge ninety three or nine were conditions for his getting the bonus and the bonus was healthy and the bonus didn't just affect his employment it affected the growth of the aegis group you know your honor on that point i  don't know whether there's no facts to establish whether it works and in the face of no no i understand that your arm but we don't know whether the allegiance group the other nine or ten subsidiaries actually pulled down the value of the leader stock we don't know whether his work for aerotech was enhanced by them being part of the hall or was in fact attracted as part of any employee for the group who advances the group's business and agrees to protect the group business for thirty months after he leaves to get a bonus and the idea is if all the employees are pulling for the group that will help grow the business but these are not things that are breached these are conditions that must be satisfied and that's a lot of difference on him because as judge wilkinson pointed out it's a voluntary program so he can he can engage in it as long as he satisfies the conditions he gets paid well again the yet he's has these advances paid to him he enjoys that but he understands if you don't satisfy the conditions he's not entitle to well but i think again the question of how much damage has been done here well he has gotten paid us the return of a bonus that he didn't well so st of all and the other point i think is that the facts as found by the judge below don't support that in fact he preached the  months the judge finds it was summary judgment looking at the contract faced the contract right but by we have to draw we have to we have to know what he did and chose what he did i mean he he there's numerous things he did he clearly called on customers he expensed those customers to his new business and he spoke to the former employees about the business i think your honor that's not that that those inferences were found by the by the court and in our e mails well but in fact your honor the the only e mail that is referred to by the judge the fact of preparing to compete is not a violation of the old on the former customers to that attempts to extend the sun to its not only covenant but it's an incentive if you protect this business group you get an incentive and he violated this business group and he did it knowingly well but your honor this work was done by mr by mr jordan that the company promises him these these payments presumably he gets a lower salary as a result of these incentives well i mean the company doesn't freely give money away so well but as laurie's salary where in the record does it show they lowered we don't know you're on and then again these are these are factual issues we really don't know the judge decided on well there are in another area they did that expressly that's in the record and alleges didn't complain they said the employees they were moving our families two hundred and fifty miles so that we can be outside the geographic zone which was basically a confession the condition of the incentive agreement the it wasn't a he was accommodating the non competition clause which district court held illegal but he also accommodated by not actually doing any work actually having any business done until after his three months were done he called on other people and that's in the record because i called on other people at those customers that were not this agreement doesn't quite quack like a duck in the sense of a traditional non compete and i think the majority of jurisdictions have hell as much but it seems to me that the food fair case that was not discussed much below  police in maryland seems to suggest that whether or not you style this is a non compete or the double lucian or elimination of a bonus it still is a restraint in trade at least as merlin courts have interpreted it and this seems to me very similar to the as a contract is not restoring greeley's rights the future employment in the sense that it does not present the classic situation and and then he goes on to says that doesn't matter that's right and acts like a duck and looks like a duck then it's a duck and we have to treat it in the same way as we would treat a classic non compete subject to the restrictions that are typical of non competes and i think that your honors you're dead on and i think one has to think of these as restraints on trade because mr jordan is in fact  with a strong monetary incentive being told you can't work you can't do and our maryland law his pension plan might be considered compensation for your employment well in fact i think a pension plan is if i may less of the reasons in favor of the food fair case or actually let me ask you a question is it a pension plan compensation for your employment it's promising exchange for your work that's that's true your honor but that pension plan is just simply for being at the company here there's an incentive there's an incentive to work harder and let's stick with the question question as you're saying it's pension plans just being that the company you have to work yes of course you're on i'm sorry i didn't mean it that way you do have to work but you are the performance of your work how hard you work the it at that extra oomph which is what the info and sound of plan does here mr jordan was earning larger amounts of units because he was doing a great job i mean that order came in and said mr jordan because of the quality of your work we're going to give you twenty thousand units rather than ten thousand years rather than five thousand that's not the case with a pension plan and so using that looking at the food fair as an example here is there dangling this over mr jordan's head during his employment saying work harder stay late or do what needs to be done unlike the pension plan where if you work you work forty hours you get the pension plan so this is hung out over mr jordan's head and at the end they say you can't work you cannot provide useful activity to the people in maryland which is what this is all about restraining trade restraining mr jordan and these other people from providing the highest quality work in the fields that they know best that's why it's a restraint on trade just like in food fair so it's not just an incentive plan your honor i think it's styled in this way but again or impermissible certainly not your honor but i think if an agreement that said you're going to work on commission but then when you and we're not going to pay you the commissions until after you leave and then if you compete while you're leaving you don't get those commissions i don't think that that would be consistent with food fair or georgia post as simply an incentive plan that would be you're working hard now we're going to dangle it over your head for two and a half years so that you can't work for that except to get that commission and if you stay out of our lane we'll give your commission your good work well the fact is that the record reflects that allegiance and its subsidiaries cover something  like you know ninety nine percent or ninety eight percent of the fortune five hundred they have people involved in all of these companies if you look at judicial notice of their website they have completely covered the staffing feel if this agreement had been limited to the three principal companies at issue in this case would we have a different result you mean aerotech tax systems and an allegiance if it were limited to aerotech it would be not tech systems tech systems is is a is a different vertical but there was evidence in the record that these individuals had some connection or at least call in contact with texas that the the court below despite finding against the defendants in this case found clearly that there was no goodwill earned by these people covers all of those companies so if you say go out and work and do something else mr jordan would really have to change what it is that he knows how to do this is the whole point of the initial questions was his employment agreement w prevented that but there is employment agreement was invalid he could work he could work one hundred percent in competition he could call in most companies what he couldn't do is earn a bonus that was conditioned on his not calling on those people and again that was the nature of it was a separate incentive agreement and it was not just aerotech it was to promote the group the aegis group and they were basically they probably have a with employees across the group saying if you promote the group while you're here for thirty months after which will give you an incentive and he had elected voluntarily to participate and again your are i think if one looks at the holloway case reading case in maryland and the food for case which proceeds and is followed by holloway the fact that there is some after after acquiring money but which has a condition on it that you cannot work or you cannot do certain things you can't compete in a certain way those should be reviewed as restrictive covenants under maryland law and when you do and you look at the breadth of th an employment contract where you're paid for your work including pension benefits and incentive agreement which you can voluntarily enter into as an additional it with all respect your honor when you have the kind of money that's being dangled here for these employees who work for us to only work for ten years your honor knowing that in each case with another i guess that not really whether or not you see a difference is the question whether or not the american courts see the difference and i don't think they have johnson so we've spent a lot of time already this morning talking about the ip and i think it's important to understand specifically how it differs from in the plan you get an account right and during the course of your employment you are potentially awarded units based on performance but under the contractual language of the ip and as noted by create any in any participant rights in or entitle me to payments right that just because you get an account while you're employed does not mean you have an entitlement to one set  potentiality right this is a unit that you may get to cash in on after you leave if you comply with section nine of the all that's a just me is that this is a more carefully crafted agreement th you might have found in food there but the point is that there is no risk just as in this case there was no restraint on trade on the employee in food fair he or she was free to compete but if he or she decided to compete she would not be entitled he or she would not be entitled to the pension benefits in that case and i don't see how that is any different than what this agreement says here if you even if he want american courts of concert that way and i'm asking you how do you distinguish that case other than the fact that perhaps there was a vested interest early on maybe that's enough of this of a distinction i'm not so sure because the only thing that ha s happened here is that there is no best thing until after the employee leaves the point remains the same that employee is free to compete or not but if they do they forfeit whatever benefits call them unit's pension benefits the furred compensation it doesn't matter maryland courts appear to be in the minority in considering these agreements differently than the majority of courts i don't know that i necessarily agree with that reasoning but that seems to be the law in maryland your honor but the question doesn't end there even if you even if the maryland law were to construe the i p section nine provisions as restraints on trade and they to outline parameters on what should or should not happen as far as employment activity by participants if they want to get the money it is there are restrictions section ninety three and section ninety five that are a issue for us today after sections and then to the extent that there are a point or is this is this is an agreement that is focused solely on the post germination period or does it lead back in some way to two things they were cumulative prior to the point of think i don't think that there are authority that i can point to that would go to the distinction that you're looking for your honor as far as but i but i would go back to the point that even if you look at the restraints of trade which is what your honor suggesting maryland law would do is saying that these are restraints of trade they're not they're not conditions prerequisite even if you took it that it doesn't in the inquiry because of then they would just need to be reasonable under the facts of the case right under maryland law and here you've got a plan that's premised completely on high level executives sees her not low level salespeople these are high level individuals within the tech organization who under the ip had the ability to get payments based on the value of a leech yes common stock  which of course would take into consideration the performance of texas terms and air attack and other subsidiaries some of which were mentioned that now exist were not at play back at the time right so it the whole plan says we'll pay you after you leave if you don't compete with the organization with limits and those limits are you set forth in section nine and it  case right so in the hypothetical that you have given if this was a much longer restriction or geographically more progress direction then it would be a question about whether or not the facts initiate a particular case more to having restrictions that broad and in that in this case  not to do business with the companies it's talking about the customers of the companies and there is no dispute that the lockheed martin's her comments at the world are issue here are our customers of the companies so going back to what's reasonable under these facts you know these are high level executives to kind of work in silos where they didn't know what or anything were going on at texas stems with respect to the staffing the record establishes that they they were privy to and received reports about the activities of tech systems that they intend attended national meetings with texas news executives and that there was information share and cross selling amongst organizations there's been no evidence or refuting that so it's not that these individuals were kind of in some sort of blind you know silo where they didn't know about texas and while they're employed and that's one of the reasons having restrictions that go to the elitist organization as opposed to just air attacks raise this this record in this case found the employment agreements which were similar i guess in scope to be an unreasonable risk restraint in trade so why is the language of this any different because if you're going back to the purpose the intent and the facts surrounding the i p as opposed to the employment context restriction is not the language is just a broader purpose it isn't in it it is in fact the language and the purpose which is part of the overall facts of the of the case now if you look at the language the language of the law and compete and what i'm asking you is how is the language of this not this post employment agreement different from the language of the non compete that the district court found to be on in for have you go that if these are overly broad because it extends to other allegiance subsidiaries and therefore should only be limited ed to competing with respect to their attack their employer then it would be ok for them to keep honest at one million five hundred thousand dollars in incentive payments while competing that were based that money that dollar amount was based on the value of the common stock p the purpose in the in the reason for as a voluntary plan these individuals were not forced to sign up on these this was a ballance very plan that paid lucrative benefits to r t very well paid individual before the court your honor one is that did allegiance korea in fashioning this to spawn terror program as and this is you know no good deed goes unpunished right they they come up with an idea to have an right to have repaid the money that he has given the three jordan headley and current move the monies that is given them the us far in the course of this plan of trade that require a provision it was completely voluntary to the extent that none of this was forced forced upon the individuals your honor there has been no restraint of trade that you know that you know they talked about these punishes in draco nian restrictions these are all voluntary that they could have just said i'm leaving it's been nice i'm going to go do my own thing and take in jordan and his colleagues could have started sacking piper and everything else several from the underlying provisions that each of them are to be decided on their own on their own merits of their own bodies i don't think you even need the contract bargain to some extent not completely because you structured the agreement that there's a fifty percent repayment of the yeah but you would have gotten the benefit of your bargain to her significant  sort of undo that out there the the question of the contractual right to repayment it is a different matter oh may be a different matter because it was counsel so doesn't it wasn't a coerced situation and so i'm wondering if that provides us just possibly a narrower  nature of the of the whole transaction your honor with respect to your initial question about which one it necessarily a hostile question if the restrictions are an enforceable i think if you ask me which one is i think is the stronger i think it's the stronger i think that the whole ira this was not a condition of employment and the fact that it  well the fact that they were sophisticated business people that have counsel certainly ways in favor of giving the meaning to every provision in the agreement and the find out that there was no correction and it was voluntary and there are the pallets with essentially pick and choose the provisions of this i pay that they would want to have remain in place the ip is what gave them any and title meant to the payment payments to begin with us so to have a result which would allow them to say oh but the restrictions are in forcible by keep the money is not is just picking and choosing which parts of the restriction that they would like to have and forced as i understand it there are the remains in this case a claim for unjust enrichment which would i would think provide a remedy outside of the contract that would allow the district court to fashion something perhaps along the line the judge welcomes and was talking about some remedies short of you know full contractual execution of we all thought about that and payments are understood to be made in exchange for this post separation loyalty for thirty months if the person doesn't engage in the co separation  it because he thinks it's illegal then he would be unjustly and rich because that's clearly what the payment was for and if he didn't engage in that but i suppose the contractual language is it's i pretty clear to you it says that if any portion of section nine is declared to be on and forcible then in the same sense the participants return the money the money is  exchange for this loyalty for this protection of the company for thirty months after separate and if they don't engage in those conditions or don't participate in that for one reason or the other is that they chose not to or it's held invalid possible to assume argue and the provisions were on enforceable and then go to the contractual language which would studio give you a right to  quite clear this was also from the profits of the whole food fair group and it was called an incentive bonus and retirement plan so there was this incentive plan that says that after you're done you will get a pension plan that is paid for out of the profits of the group as a whole so work really hard and at the end but after you leave if you act in any way inimical to the good of the company including competing with it we can take that we will lose that case remains good law and i would i would contend along with the suggestions that or the questions that you've been asking your city has that it governs here whether whether people like it differently or not that's the law from the highest court in  in maryland second i do want to make it clear i don't think there's anything in the record that defendants here had counsel at the time that they signed the plan or when they got the award letter they didn't have counsel until finally when the acknowledgment letter is signed ten years after mr jordan st signed the ip he i don't believe there's anything in the record that he had counsel when he signed that clause or had that provision which says don't think about challenging  because otherwise we're going to take your take your money away i mean i think what what concerns me is this doesn't seem to me i mean this is really on and for civility a fairly close question as all of these things that depend and bottom out on the facts a reasonable no skin sometimes big you know all these non competing arrangements bottom out on reasonable ness but it doesn't contracts sure room null and void by the courts would really be looking at things five years would lawyers in the corporate boardroom and say oh no you can't give the employer this break even if they want it even if they might want to use to sign it and earn some money afterwards i mean this may seem to redound of the employees positively in your case but in the long run of cases it can hurt employees very badly by removing options from the table that somebody who's about to retire or whatever might really want particularly somebody who's not in going into competing but somebody who it is just feels like i work long enough i'm sixty two i'm sixty five i'd like to leave and i have no idea of competing i'd like to collect the us and if we remove this option regain we're going to hit people near retirement age and deprive them of a chance to earn some money if they want to go into a nd career and that's what  one of the problems it may respond quickly with just two or two very quick responses st in answer to your question the ip has provisions in it that work exactly the way that you suggested wilkinson nine and ninety four are all reasonably constrained within the food fair constraints it's narrowly tailored to a particular the work that you want done before it's narrowly tailored to that time period society as a whole restraints on trade are bad things as a general matter it's true maybe an employee might or might not but as a general matter restraints on trade cause the economy to do more poorly that's a decision that they made you know if we did it and i trust analysis on this i don't i don't think maryland seems to suggest that's what we should be doing on this i mean you have a normal problem about what is the market what's relevant what's reasonable what type of restraints for building the company and loyalty to the company for thirty months the employee says i'll take it i'll take the money and all agree to those terms if it turns out that those terms are on will the agreement says everybody goes back to zero you give me back the money because the employer voluntarily took the money for that particular benefit and now the employee didn't provide the benefit so the real question is why isn't it fair if it's unenforceable as you argue that everybody give back the money because that's the only reason they got the money is section  question is there are benefits to the employee and to the company that is if you promote the company will give you x dollars you promote the company will give you x dollars and promoting the company means but food fair is exactly the same i'm asking you a question on the contract not asking a food ask you let's say it's on enforceable yes it seems to me this is more discreet a grangemouth then a food fair which deals with the pension plan that you earned there is nothing earned here wealth is a benefit that's discreet and it and it basically serves one purpose promote the company increase the company and then don't destroy it for thirty months now will give you big bucks for that give back so much money as the company has actually been damaged and in this case you can't in this case hear the terms and conditions set forth in this section nine or material in central terms of any award of units in the event that any participant shall return to the company's any and all amounts but your honor it seems to me that's just a motion of fairness you've gotten a benefit under this contract a big one and if you don't if those benefits are improperly earned you return the money that's what but the clause was improperly included it by your hypothesis to a court of competent jurisdiction has found that this employee was working under the burden of an unfor contract that said you may not you are restrained from doing certain things that was an illegal provision voluntarily agreed to but we can't voluntarily agree to things that are mean things that are illegal things that restrain trade and i don't mean it in the i mean in the restrictive covenants sense he's being told you can't do these things and a court subsequently says that company should never have said that in the st place it's not it's not his compensation for his work he gets no value for while occurred in legal yes to return it yes your honor because a restrictive covenant which are viewed with skepticism by the maryland court of appeals and need to be reasonably tailored in that clause was illegal because that's what a court of competent competent jurisdiction has said you can't do this then the fact that he has accepted money on the basis of a condition that should not have ever been in that agreement because it was illegal that he then needs to give the money back i don't think that's appropriate jurado what's what's it mean when a man sits there and signs a contract he sits the table with you in the two of you greta a provision and say i want to give you a one thousand dollars if you're willing to not compete with me for a year and the guy says deal here's two thousand bucks and it turns out that it's illegal should he give the one thousand bucks back if they have an agreement that if if this is illegal give it back to you if  the if a man who signed this said i promise to give it back to you if this is an unforeseeable in that what he said signed with all respect your honor i think that contracts that include illegal provisions that prohibit something that you're clear language standard well except your honor i think we can think of many examples where for example there's a there's an overbroad clause in a lease just in the fact that he signed this and agreed i'm not i'm not i'm not resisting your honor his agreement to return the money is unenforceable that's what you're saying but he did agree to return the money he did agree to that and then if it is the case that in some way one needs to look at the benefit of the bargain so what did the company get other than what they weren't entitled to which was the illegal contract then you would in fact have this remand to the district court what are the what did he give to the company how many months did he not compete how much did the the company get what he promised i understand but they promise something that wasn't that wasn't and why don't we start with contracts to enforce in the way they're written then if there's an overriding policy that says that's illegal that's another thing but when two people sit in the room and read it and sign it and say good deal for both of us and then he refuses to give the money back now you difficulty that i have is you're you're trying to push us into a broad position which is to rule the whole concept of volunteer post employment agreements unlawful restraint of trade that's where you're going but i hope that's not the court that's where you're going because i can tell you the a lot of corporate counsel by their very nature who are going to be risk averse and what they do is they'll look at an opinion like this like or you want and they said no we can't give and we can't protect ourselves against anything that your court ruling and we can't give an employee any post employment  option that might be in that employee's best interests and courts have taken this whole concept and said that it's it's impermissible and that it's a you know that  the long run is going to harm many many people you want to have some sort of retirement where they are urn funds but i'm not competing but your honor the are the provisions in the we are not seeking to strike down the entire i p that section ninety one which is a non competition agreement that has reasonable terms and is not applicable to the major lindsay in africa and a whole bunch of other subsidiaries that that allegiance has that had nothing to do with mr jordan that's ok ninety two dollars which is a non solicitation of customers the customers that you were dealing with the people you were dealing with directly that's ok the the not the  it's going to be you know going to be reasonable count of who were particularly you know the whole idea of a contract is to protect against future risk ok that's what contracts exist for and you switch could go this way all that way all this my all that way so you say no a company can't protect itself against this then do you undermanned the whole nature of contract which is to protect that didn't reduce it food fair do beyond what maryland law believes is appropriate shitless compensation for work done it was an incentive program you're on and it's like wages for worked on you don't give those back as a matter of public policy this was a discrete agreement apart from an employment agreement that was sought from executives for good pay in the executives knew what they were doing so what you're basically saying that the executives return the benefit if it's illegal i can your honor with all respect i think that exactly the same could be said in deutsch a post or food fair or holloway especially food fair there was no in food fair there was no express provision that allowed for restitution but that's implicit in every contract it seems to me but there is a difference here and i think the kind of circled around that and in the traditional non compete you know if the agreement is found to be unenforceable the parties are you sent back to the status quo essentially the employee is free compete the employer doesn't get the benefit of an overly restrictive overly expensive contract provision but here i guess the problem is the employer has doled out a substantial amount of money on the assumption that the supreme is going to be in force and then the employer is left without a remedy and so you're suggesting that that's perhaps the result of maryland law but what about the equable remedy of unjust enrichment if you thought about that well so st i want to make one point on this allegiance actually paid curran and nicholas despite having been told expressly that they were going to compete in a certain way and m paid them and they knew that they were going to work with jordan so they can then made those i ip payments with the fall knowledge that these two gentlemen were going to go work with jordan and they're going to work competitive to texas times when hadley the rd person decides to leave then they say ok and afs enough that's too many people we're not going to do it anymore so there are material breaches you know the one i looked had to know that he was working within an hour soliciting within that three month period and then used if it was doing and who is committing a material breach of the contract why then it is an unjust enrichment to allow him to breach the agreement and to recover all the fine why the all the funds question i think that's that's where i would honor a material breach means that you don't have to perform any more it doesn't mean that you automatically get all the money back material breach means you stop performing and then you determine how much damage there really was that's that's really if this court is going to treat it as damage because it was never earned well except what it says is if this is an enforceable return the monies and your honor what i'm trying to answer to is that if one gets out of the contractual provision and into an equitable situation then the equities would be i would submit how much damage have we can't go back to the status quo we just can't because mr jordan did not compete you can say that he competed aggressively at some point we don't really honor we argue that there was not sufficient factual foundation even as to the question of whether the breach occurred you know two days before the end of the restrictive covenants he wants to remain on the m a question and i would say