case as it came up first and was resolved in february of two thousand and fourteen and come at once and in that case that court was reviewing a motion dismissed and taking the allegations of the complaint as true the second complaint held that mr allegations were sufficient if proven to say the cause of action of specifically the court noted a couple things that are important i think for this case first of all the court noted that there was a what it because referred to as a veiled threat letter in may of two thousand and eleven we know now that mr command or the american center was investigating j p morgan mr max employer from as early as two thousand and five and two thousand and six before mr compact left in two thousand and seven we know it was common knowledge that american century i'm around american century that he would be a witness in any dispute involving american american century and j p morgan we know that they treated him differently these are things that were in the second minute complaint that are within the record on the summary judgment motion we court would have to say we're taking inferences in favor of the moving part under the summer's judge a standard the inferences are supposed to be taken in the video i must tell you have to prove this is all pretext but that as you know honor we don't believe the district court analyzes properly this is a breach of contract i'll show you what you think the district court erred by following what was the law the case which was that there is there is a useful analogy to be pursued here is exactly what the district court does after pursuing that analogy instead and even if i didn't use the mcdonnell douglas format i'd reach the same conclusion correctly say for you to suggest that that was an error of law first analytical retaliation an adverse action taken against somebody for a violation of potential violation of public policy and in this case testified what the what the district court did was applied the employment discrimination t framework in which all you have to do as a defendant is to present some justification which does not even require a put by preponderance of the evidence and then it throws the burden back on mr command to disprove weren't for what they denied him in notice that eighteen months denied him a notice of three it's the ny noticed that they made the decision had executives in general counsel attend his testimony at deposition had  letter unprecedented in multiple ways signed by somebody never sent the letters prepared by somebody never sent the letters c seed to two people who never received c c s and then when he asked are you going to call my stock they wa could have done it and i think that's a very good question because are they in a box that they can't do anything that they won't get screamed about well here are two things they could have done one they could have given the eighteen month notice in october of two thousand and seven followed their policies unwritten informal but followed on every other shareholder in the record well but then that but their argument there it is that we actually were if he if they had done that as i understand it from the record he would have received substantially less for his stock than he did when they actually called well no because eighteen months gets then into the great recession of the crash in the fall of thousand two it's an eight and they did and they deliberately held off because the stock it got so low what if they thought they were doing the the employee of  what could the defendant have done so that your client wouldn't have sued they could have followed the policy they followed on every other shareholder given the eighteen month notice yes in october no in october two thousand and seven again looking back what could they have done to avoid this worry about entanglement when you follow your policy you don't try to make up something new on the fly so they could have given the eighty the notice and the fifteen month or the three month notice which he didn't get they could have told him what they told the other two shareholders were deferring because of undue hardship and in care about it hardship in december two thousand they could have done the same thing they did for everybody else now let's assume they didn't do that because they're worried about untangle a word they th executives all use exactly a lot come the end of the arbitration testimony mr mack has testified at deposition of father general counsel and the member the management committee and john adams into all of them to spit in the decision they mislead him by suggesting that the decision is made monthly when in fact it was they now think it's officially made two years or there are things they could have done you could have sued for that suit for what you are for the misrepresentation or deception or disclose in our argument is one of the cases oscar berger and ashgrove cement that if you if you make a partial disclosure that partial disclosure can be active as just as much fraud as an act of a for this representation if you lead somebody into your confidence if you lead somebody into believing something is going to happen then you have a duty just disclose the whole truth not that after so again we agree your honor by misleading mr command in may in june two thousand eleven we believe he has a cause of action for the negligent misrepresentation or the fraud which is part of our motion to amend i'm very sure that a said anything at any time before the air betrays that relating that that could influence i mean i've been a lawyer in those situations they couldn't you couldn't turn around in a in a small closet without without a record without jeopardizing the proceedings your honor i think if we use the employment analogy if you situation to affirm the district court your honor on this in good faith breach of good faith in applied duty the court must ultimately decide that none of the other inferences that can be taken from the series of events where they treated him differently they denied him notice they misled him and in manger to that letter none of those are reasonable inferences none of those contain a grain of common sense i believe they contain some i don't say i'm going to win a trial there's enough evidence here that a reasonable jury can determine that mr combat was retaliated against based on time the actions the disparate treatment and the other things are brief i think the court always or my time in the joint appendix at the internal memoranda and pages of eleven forty three to eleven forty six that establishes that shows and it was undisputed uncontrover that the decision to call mr km x shares in accordance with normal practice was made in the spring of two thousand and nine over a year before he testified before the case against j p morgan was even filed although it was coming it was within a month a year later in that same series of exhibits and what was the decision made in two thousand that if they're going to wait until after the white occasion was yes there were three and then that's the other point that those exhibits will show you there were three individuals three four a glorious who had come up to the eighteen months post employment and whose stock was subject to being called three lo mack was obviously going to be a witness in the arbitration case the stock price at that time was at a historic low eight dollars and forty eight cents to pay off the bank loans that mr command took out to buy the stock would require the price to be at least sixteen fifty that's why he never wanted to sell it because he always had to realize enough to pay that debt anyway those three individuals were up for call and in the case coming up he's obviously a witness in the case and we don't want to be the tank a year later in that same series of exhibits in the record a question is asked by the director of human resources to the  american century affirmatively used his testimony as part of our case in chief against j p morgan we liked it it wasn't adverse or bad for us these reminder letters that were sent and i mean that seems to me is that if there's a if there's any one thing in this case as troubling as those reminder letters you know you could depending on your perspective did you can say they were would you need to do you think he would have ever really forgotten where he he had an opportunity i mean he knew he knew he could standard at any time right i think i think he probably did yes but the since the time had passed substantial time had passed the market had down recovered and the question was raised i'm in possession of testimony once the case was submitted to the arbitration panel the question was right well should we call the stop now  eleven on their face there are one hundred percent accurate there's nothing inaccurate about those letters there is no contractual requirement in the stock restriction agreements that mr comebacks on that contain the color there is no entitle me to notice nobody is entitle to do this either a notice of intent to call or a reminder or anything else there is to to read that kind of element into the contract goes in our view way beyond what the implied covenant cause of action in place because it would add terms to the contr don't worry that's different they didn't say that they said as a reminder your stock is subject to being called any time and if you want to sell it back to us now to current market price again and had he done that eleven then the decision came down in leave it was august of two thousand and eleven and the second reminder letter came after that because at that point well what's j p morgan are they going to appeal are they going to see district court review which they did is it final what's going to happen the second reminder letter was sent ultimately j p morgan do have their hands paid the award in full that's the least possible but i think it would retaliate tory or i think i would concede to the core of the american century did not want to pay any of the damages money caused by discovery on it that that's never been an issue in the case in and to make that business judgment is not retaliating for the substance of what he said in the arbitration which is the public policy briefed they're there they're the people who are involved in the decision about the substance now i i now understand they said they didn't read it but that's different from knowing the substance so they didn't so the decision makers didn't have any idea what mr said yes the general counsel attended from time to time general counsel didn't brief to see on the testimony of one of the most crucial witnesses in the armatures not that that's a little better that's a little hard to believe i'm not arguing that either ok is it is reasonable for everybody to assume that upper management everybody was aware of the command was a witness in the case that's why the decision to defer the call was made the question is when they said let's make the call were they saying we really don't like the testimony that he gave and we just said that might have been one of the reasons no i don't i hope i didn't say that you said because they didn't want payment special they don't want paying the special dividend because they didn't  we're talking about here in the deposition in live testimony in the arbitration is not the equivalent of everything that mr comeback did over his tenure at j p morgan from two thousand and three through two thousand and seven you can you should not equate to the certainly nothing in this record that would suggest that everything that mr command did was covered in his test in fact it was not in the testimony itself but the deposition and the live testimony is is in this record is there missouri case law versus universe in missouri is i believe the leading missouri case law on the scope of the implied covenant it sets a standard of substantial evidence to make out a claim and to survive summary judgment it is the test that the district court was applied applied here but on that question is it the fact of testimony or what was said i'm not aware of any particular case law but if you think of it i mean is that against public policy  questions in two different question i totally agree if somebody testifies under oath i've been investigating from the government for years and then that employee gets fired or being fired for embezzlement or because they testif it's the investment they are two different things and that's what we have here so the actually there is a fair share of a well developed body of case law on that very issue in the ceiling context and actually had s court that it became very clear to everybody that summary judgment was coming because there really was no evidence that's when for the first time you got this motion for leave to amend and mr come back affirmatively moving for summary judgment on the existing second amended complaint on an entirely new theory never in the case never argued before and that is that the color rights were important because they were somehow inconsistent with the original stock option plans from back in the ninety's pursuant to which the country is and is this the third man you just said and the proposed third complaint that that was rejected that theory was alleged at the same time mr come back moved for summary judgment under the second amended complaint the operative word and on the theory that the call rights were unforced of all and we american century h not a element an issue in our implied covenant analysis good faith analysis and then denied leave to him in because it was untimely it was based on arguments that could have been presented earlier i mac one there was a veiled threat from the letter in may right after his testimony in october right after the decision to send him another reminder of what they called a stock on december ninth if they wait till december tenth he gets his annual d he gets a special dividend because you had to call before the night or the stock the shares continue through that month so they call the stock up on the day that denies in the annual dividend and the day that denies him the special di never tried to pin it down some that's baked into the annual dividend none of it's baked into the special in the on the on the two thousand and nine decision what you get if you've got a law that says the substance of the money and property that the public policy includes retaliation for the substance of the test i do not what i have your on and i think what you're arguing because because the the decision that he should be shouldn't get the special a special dividend is quite understandable of unfetter an unfair for no reprisal testimony a public setting and it page five sixty seven it quotes a supreme court of law talking about employer employee relations and the potential for adverse action reprisals that will that will lead an employee not to want to testify at all or not want to testify truthfully that's the principle that's at stake here if this case is up held and you say a discretionary right to call can be called that any time because we do it to everybody else you've shredded combat one which said you can't do it for a violation of public policy and we have inferences of timing inferences of different treatment inferences of not liking his testimony inferences of the general counsel the associate general counsel and the decision maker on the management committee hearing his testimony and then they take the actions they do at each stage including the may eleventh that i made it to them eleven october two thousand and eleven letters were truthful in that they have a right to call his stock but when he asks specifically are you going to call my stock they said we decide that on a monthly basis they can't have it both ways