make her see may please the court at summary judgment the district court rejected plaintiff's legal theory usually when that happens plaintiff loses and the case is over this case is a cautionary tale of what can happen if instead the district court decides to craft and substitute a brand new legal theory for plaintiffs here this led to two fundamental errors first the district court misapplied the new legal theory of unilateral contracts and ignored a crucial exception to it then the district court compounded the error by granting summary judgment class wide even though the case was never a class certified under the court's new theory between two thousand and seven and two thousand and ten pinera told store remained employed on the payout date both of which pinera had total discretion to prevent and only if their stores met certain profitability requirements during the fourth and fifth years of work measured against a benchmark that fourteen the chief question in this case is whether the managers who eventually completed their fourth and fifth year were performing the original offer or the new capped offer that they were paid for the district court was correct when it concluded that  should have asserted is that the bonus offer was an offer for a unilateral contract that could be accepted for the performance where the district court went wrong was its conclusion that the narrow was powerless to change its unilateral for what it did nothing but full performance is enough because of the language of the offer itself now i will address your your question if i my but i want to establish the legal principle first that the district court missed the biggest record ignored the exception that applies that when the offer to pay itself makes clear that the obligation to pay can be cancelled any time prior to full performance then we don't look at that substantial performance issue at all whether it's the financial part part or anything else the exception recognizes that there can be no justifiable reliance on an offer like ten years work or to be cancelled or she or it could be cancelled any time it was clear that these employees were not after going to receive their bonus unless and until they work the fourth and fifth years and this is important they were present on the payout date that was clear they weren't going to get anything now under missouri law employees that will chant if they're promised a bonus they and they're fired before they are able to complete their performance they might be entitled to a pro rata share of the bonus but in this is important the cases make clear that's not true if they have to be there according to the offer on the payout date and that's exactly what an aarons offer said so these folks had no justifiable reliance to think that part performance or substantial performance in anything other than full performance was going to get them anywhere that is the rule of law that the district our offer was also specifically based on the store profit horrible but it's specifically said in the offer hey we can change that to again no basis to realize that this was going to be on the table when they got to the end  parties only after for summary judgment or even brief to do a supplemental brief about whether this was in fact a unilateral contract or a bilateral contract and pointed to cook a cook is a case in which there was full performance before there was an attempted revocation so to that extent it certainly shows a certain level of performance that might be expected morrow was a different case in that in that that is a situation in which the employer was not trying to to modify  we had the full right to revoke and replace the offer and that's what we did and by the way these folks worked for years afterwards without complaining about it and then they took the money and they kept the money for years afterwards until two thousand and fourteen so i  it was an employment agreement and it was a bonus agreement and they were tied together there's no question about it it's simply not a cup it's not a contract because the promises were all lutherie by everybody an heir had the right to get out of it in atlanta so the right and the managers had the right to quit so that's why th record correctly found that it was in fact nothing but offer for unilateral contracts i would also say that even a substantial performance one of the top wait wait in office is if it's an offer for a unilateral contract and then  employment at will relationship it's a term or condition of employment the only thing the employer has promised is if you do this all that's right all right now but this has this has additional i mean the bonus this past specific future is a big bonus provision makes this a little bit different i didn't see any discussion of the district court or which this that i think that to some extent yes i'm although moral wasn't involving an offer of anything and so it wasn't a unilateral contract and since i wasn't offering a bonus it was just simply  force as if it was a bilateral contract in arbitration every time every time an at will employee is fired off i'm sorry every time at will employee is fired yes instead of acknowledging the central valley of the fourth and fifth years insisted that working for five years was not at all a condition of payout the court said those are just used to measure the amount of bonus but if they didn't work the fourth or fifth years they got nothing so that sounds like a condition to me  and similar similar the variability as to how long they all work after getting the cap was record version of labor is not necessarily a good vision for the formation of contract that's true it's a different agreed venture general manager compensation yes and that that was the documents were talking yesterday and it specifically this compensation plan that the focus of what's happened here that's correct all right now in these documents are signed by the company and these these managers i believe that's correct and they were in the in the text that it refers to as agreements that is correct and the compensation plan says that this plan is a fairly complete exclusive agreement  isn't as of the company modified this point so the significance legally a centrally under missouri law is not much although the plaintiffs would like to like it to be under missouri law that kind of clause is basically offer was met all the requirements of a unilateral contract offer the they did meet the requirements of a new contract that is valid and i would point the court to jennings versus s s m which is a word that is exactly what the  certification analysis i think that's their right there and our briefs make clear that had the court followed the proper procedure certification i would not have been allowed because there are a lot of individualized issues here including either we win or the  incorporates the employment confidentiality agreement that has been discussed and then it says that no modification or waiver of this agreement shall be valid unless in writing signed by the party against  this provision is binding in missouri to prevent unilateral con unilateral modification by either party it can only be overridden could only be overridden if the parties in gauging modification by valid correct yes which is consistent with my long standing understanding of all that will relationship so what morrow hild is that an employer cannot gift itself new contractual rights based on the at will nature of employment an employer cannot say hey if you continue working for me then you've consented to be bound by an arbitration agreement this case is no different from that situation we have this contract which was binding at the time both parties signed it because the class members entered into numerous enforceable promises and i'll come back to that your honor but we had a set of contractual rights in this written document that both parties signed and one of those contractual rights that the plasterers had period problems to them was if you earn a buyout it's going to be paid in amount determined by this very specific formula that was the status description at will relationship it is accurate if you don't have preexisting contractual rights and obligations here we had this contract that the parties intern into where i never had agreement and compensation plans were not enforceable bilateral contract was an adult relationships right employment was that route will but the power to end employment relationship does not in any way mean imply a power to revoke contractual promises or to amend contractual promises why would you consider that when i get it from the language of this agreement it's very clear in this analysis was correct under if you look at it as a unilateral contract or a violator will contract your honor and to use your terms we had an at will employment relationship here ok then that means that this written contract this twelve page document was simply an offer to make a unilateral contract and the law is very clear on this point cook is very clear on this point that an offer can be revoked at any time prior to acceptance and less it's supported by consideration and so the what consideration consideration is a promise to do or to refrain from doing something that's legally binding and this document of the class member sign is rife with consideration it is filled with all sorts of  a contractual agreement to waive the right to a jury trial that's in forcible under the missouri supreme court considers it decision in milan realty we've got provisions limiting damages limiting consequential promise in forcible under the missouri supreme court's decision and highline sales it's a twenty three southwest second for ninety three it's got a nondisclosure covered where the these employees promise not to disclose any of the information they glean from their time working for pinera that is a massive promise that is in forcible against them as an example of this court's decision hallmark cards versus merley seventy three federal third five fifty six that's twenty thirteen opinion affirming a jury verdict in favor of an employer who sued an employee for violating a non disclosure agreement virtually identical to the one contained in this employment and the second restatement which is that the beginning of performance or par performance is sufficient consideration to bind to bind off or to his or her offer be the kaufman decision in the could be stationed they both  e the treaties corban all contracts that has this language that says as soon as the render is a substantial part of the requested performance then the offer is bound by his promise so is that a little bit more strenuous then  maybe but if you look if you look at the actual decisions the missouri courts have come to in dealing with attempted revocations of unilateral contracts they just follow the first to each statement soon as the offeree begins performance in good example in that case the insurer offered to pay a claim that the sub contractor would resolve a collateral claim in the court held that by beginning the goshi agents to resolve that collateral plane and forbearing to sue  the sub contractor the offeree bound that insurer to the next settlement offer they didn't have to complete it have to actually settle the claim they just had to begin the negotiations that was the request of performance and catcher side versus mclean and another case that  we did we discuss in our brief the offer was an oral offer to conduct an auction and one of the auctioneer do well he inventory any marks the items to get them ready for auction which was just significant but he didn't even begin conducting the auction itself and in the court held that that was sufficient performance to bind the offer work at offer and that option your got paid for that all even though he did hear these sixty seven class members they all fully performed all five years a meeting with twenty general managers and then now we're not going to cap the bonuses with a hundred thousand dollars and a manager stood up and said we don't accept that it's not fair and there and then said then you're all fire well two points one all sixty seven class members learned about this buyout cap before they were actually kept some of them it was because they were given a powerpoint presentation with respect to the name plaintiffs  they learned about it in different ways either through e mails or because pinera posted a footnote on the on its website or in internet announcing the capitol knew about it so and that's that's the that's the crux of defense it's always been you know we told we told these people we were going to catch buyouts before we kept the violence and that you know that applies equally to everyone regardless of whether they sat in a power point presentation but more importantly than that the defense fails as a matter of law because the fact that the fact that pinera announced it was going to impose a buyout cap in and of itself doesn't have any legal significance why not because in order to modify this it's the theory we've always had whenever whenever the court has asked us about it i'm not going to shy away from it now if i think the the court was right under her unilateral contract analysis i think she was right under her bilateral contract analysis it does it doesn't matter because this as i've explained the terms of this written document became binding on pinera or long before it it told people it was going to impose a cap so you're under your theory your bilateral bilateral contract theory or the language you have on the board is really that's it that is insignificant with respect to your theory the requirement for writing it's highly significant what the requirement for writing is not so much significant as it is that was what i thought i thought you just said that they had to be consideration etc but i haven't heard you reference the the requirement for writing so i just assume that under under your theory whether it's a requirement for a writing in order to modify or no requirement for writing in order to modify your theory would still have mayor is what i'm hearing  i think that it speaks volumes that counsel of refuses to defend the district court's judgment in its favor because the district court's judgment was rife with error i also want to point out that this reference to the legal argument for pinera and what i want to leave with is that its initial offer remains fully read a couple substantial performance or part performance didn't change that because the offer itself allowed it to be fully revocable counsel if the offeree pays the offer or to keep the offer open and then in that sense gives consideration then it's not freely revocable but other than that unilateral offer remains freely revocable and here it did so