report my name is howard bash me that i represent the plaintiff appellant john and floyd and associates and with the court's permission i'd like to reserve two minutes for but a lot of people around the clock right thank you floyd is a leading consultant to banks and credit unions providing profitability recommendations and advice in this breach of contract action floyd sued st imperial because the credit union after entering into a contract with floyd and receiving floyd's recommendations implemented at least six of those recommendations using a competing consultants called smart step in the district court's view if two different consultants make the same recommendation than the credit unions only installing the recommendations of the consultant who made the recommendations most recently as the rd circuit recognized applying nearly identical contractual language in the ocean city bank case floyd's contract for priors that floyd be compensated if a bank installs a different vendors identical recommendations no matter if lloyd's recommendations are proprietary or obvious or necessary to the accomplishment of the task boyd made recommendations applies for two years after the tracking period which is a three year period so once the recommendations are installed if any of floyd's recommendations far installed in the in the five year evidence that we rely upon principally as is the declaration of mr john m floyd himself which is contained in the record excerpts at page one hundred and eighty seven dollars there he was so counsel i thought i thought you conceded below the you would not be able to prove that the defendant actually implemented your client's recommendations you seem to rely on a concept of functional equivalents again you seem to concede that you installed the smart step system rather than floyd's system but there was no concession made that the smart sets step system did not include identical simulated neck tickets to the heart of your argument the record as i read this contract it was we will recommend parts of the smart step system to you and you if you accept our recommendations to install those parts of the smart step system you will compensate us i don't read the contract so i want you to help me with this as saying i recommend to you that you get a program that does the following and we have one it's a smart step program that does the following and the the bank then goes out and says oh that's nice other vendor do you have a problem a program that does that and they say yes and simple buy from you instead so tell me how it isn't all of the recommendations here that were made to install call it stall various parts of your client's system where they're not that that is not correct parts parts of it were good parts that were general recommendations of how to accomplish the task well but if the problem with general vendor that's going to advise a bank or credit union on how to install an overdraft privilege program will contain certain things in common and just as as the rd circuit recognized that o c c bank case when i said it's an unpublished disposition which is the rd circuit wouldn't be required to follow if you were there and of course this court wouldn't be required to follow it even if it was published so let me just give you the hypothetical that bothers me your client floyd goes to the bank imperial credit union and says you should have an overdraft protection protection program and we've got one take a look at it it's a great program and they look at it and say you know we do need a program but smart step is called us they want to see us too and they come in and they have here they've end it where you're saying is it once you make a recommendation they are not free to seek a similar product from anybody else that's not our position i think it is our position is that once you sign the contract and install recommendations using us or somebody else now they didn't so you read it in the store your program they installed the program from somebody else your recommendation was that they get a program to do the following and i've got one so please take it and they program or system and one of the recommendations to install your products that was among the recommendations correct but that's a too low too high of a level of generality wells but with respect to the thing that they bought from smart step that was product wasn't that was a series of recommendations as well in was it what didn't they buy a spa product from smart step this is not a computer program that somebody installs and it runs by itself that this is a series of advice and recommendations and they bought a package from smart step that they could have bought from you correct right that they did because you didn't bust you recommended that they buy a package that accomplishes a purpose great and they went to somebody else and bought a package that accomplishes a purpose wrecked comes to you and yours is yours you as a your recommendation should be construed as only installing a package that accomplishes a purpose it wasn't to install your package as that was the specific language exclusivity provision which is not reflected in this contract in other words you seem to be saying that once the bank attender into these negotiations with you once a bank a gun so far as to have your client's program installed and was installed although never became operational that they are not permitted to deal with a nother vendor to achieve the same purpose that was contemplated by their program for had an exclusive arrangement i see about the right time but rather even under this if if the contract is a force the bank still it would be recovering more than forty percent of profit that it otherwise was not realizing after paying both vendors if i can just  that was required to make the proposal does it make any difference in this contract what the reason was that they didn't continue working with you and went to a different company an example from that ocean city bank is that they're the bank was arguing that our program would not have worked on its system if if that were true then i think that there would have been not an effective contract but but here here is you see from the facts the reason the st approach when somebody else's wants went somewhere else was because they got a better financial deal from the nd and so you know you have the time but it doesn't bother me maybe i should bother you but it doesn't bother me i'm trying to do what you're really saying is that this is a consulting contract it's one hundred percent as it's offered and then when we offer you advice if you take the advice you need to pay us right as long as it's covered with it in the time frame that applies and right and that and that that's how you read this contract but counsel if it's a consulting contract you are usually paid for the consulting work you or your client made a business decision to enter into was essentially a contingency and that's maybe they have to live with the consequences of that business decision but we believe that the contingency was triggered once st imperial decided to install the system which reflected our recommendations us this is the way the time period here works as i understand it is that it's triggered by the installation of our record at any one of our recommendations and so but it's not true it's triggered by the payment is triggered by having the program operational for ninety dollars days not a recommendation but a program well that the system would be operational for ninety days and then well but what do you do with the language in the contract that says program ok for ninety days but it seems to me when you read those two sentences together recommendations refers back to program that the program certainly does consist of recommendations and and that's the use of those recommendations that triggers the payment obligation where the bank similar contract type of a range meant that was entered into but the bank in that situation had initially admitted in its answer that it had adopted some of its recommendations and it went to summary judgment stage where the  expert for the the bank never disputed that there were recommendations that were well prepared or c he say your girlfriend is saying we made a recommendation our recommendation wasn't simply by our program i'm not sure i understand the distinction but when we did recommendation was that you get overdraft program and we have a terrific one and you said fine overdraft program seemed like a good thing i'll go look go to your competitor and buy one and so you did put in the program it just wasn't their program this have trigger obligations of the contract you know the contract is specific that you have to install the specific recommendations or modify the specific recommendations there has not been any evidence presented before the district court before this court that that what was the precise recommendation that was actually offered and installed by starts that the and if so if as your measure friend says the recommendation was i'm making up a new recommendation i know it's on the record i recommend you get an overdraft program and the recommendation and then you go buy an overdraft program for somebody else do you owe the money no you know i don't believe something that is so general recommendation by recommendation and set forth what the smart set program offered and compare that to the conflict program and that was something that we offered in support of our summary judgment to show that there isn't any recommendation that was stalled or modif installed there was no response to that exhibit there was nothing put forth in the opposition saying well wait a minute we enacted you know specific recommendation two one which says x and you did the exact same thing and i think this say that the program you installed was functionally equivalent to one of the ones they had recommended that that is their argument and i don't know whether they presented evidence that a fact let's assume that there was evidence that there was functional equivalence why doesn't that breach the contract because that when you look to the specific terms of the contract as required to do to read within the four corners of the complaint the contract says that the the contract as to the recommendation is be installed or modified as installed the council weren't i thought as a factual matter their recommendations were installed they never became operational it was never implemented so that you had in place a working overdraft protection program but i thought the record indicates that the recommendations were installed and the contract language does speak oh installation doesn't talk about becoming but the recommendations once installed become operational specific is installation is it not there was the recommendations were provided and there was a part of the recommendations was to use this program which was installed and put onto a laptop which was never used by the credit union why is an installation the triggering  vent under the terms of the contract the the installation is the triggering event in terms of i mean frankly could argue in terms of timing going to your question your honor as to the timing if that is the actual point of the bank didn't have any type of the program so that would if that's the interpretation of that's when the installation is when that program isn't installed on the computer then this three year period has lapsed but that's not what the district court said no no you are so why why doesn't under the language of the contract once you have once they're installed and monitored for ninety days why don't you at that point aren't they entitled if there is increased fee we would say if again if that's the case then that there wouldn't have been any fees that would have been incurred the district court found that you have to look not just to the installation of this program but does the installation operational and it's becoming operational and being in effect for ninety days triggers a requirement that if it's paid that's the position that the plaintiff is taking and so that's why they're trying to delay the  time period in which this program is operational because then the program going into two thousand and twelve by smart step so they're trying to argue both ways so they're trying to say that we installed these recommendations like in two thousand and eight they were ready to go but if that's true then the time period runs from there and that would be the three years there is no profit so they would be entitled to anything on the other hand if they installed it truly install that recommendation when they instituted the smart step program then they're t rying to argue that that would somehow create penalties for that but it you have to look at what the specific recommendations were in smart step and they've never done that they've never compared their recommendations to smart sets recommendations to show that smart step in fact installed one of their recommendations one of one of my problems with this contract is this use of the word installed wonder if you come to me and say you know do what you are today i recommend you get a better barber and i do one would think that i've installed your recommendation one would think i'd follow your recommendation so the installed to me suggests a program a computer program something physical so it's not just that you followed the recommendation of floyd in this case even if you did don't you and your view do you have to also install the stuff they tell you to install yes you have to install it and it's not just  a manual process there's automation to it like as we said there is this program that was installed it never used on this laptop so it was never offered up to go operational that there would have to be something that would be installed and then all the recommendations need to be package the whole package needs to be package is being their recommendations including what was put on the computer so i was on the computer was just one aspect of their recommendations but there are other other aspects of the recommendations how would you install the other aspects of the work and i guess it goes to the problem that this contract is is confusing it what it is if it is you shouldn't get summary judgment yeah because when e mail says can you go ahead and created data still from j m your client from j m f a and they're asking smart step to create something that goes into that program and i don't know obviously this looks like a computer program to me that you're referencing the e mail which is a file format and that's essentially something that the crediting created for purposes of keeping track of information found in that spreadsheet  so that's not part of the program that's being installed and again that that particular e mail in that format is nothing the plaintiff has not made any contention that that form or that format or anything in that form is part of the recommendations that were minute very briefly your honors the six recommendations that st imperial installed of john floyd when it put in place the smart step system are listed in john floyd's declaration found at page one  it says our objective is to install what's the name of it your program your trademark program the j m f a overdraft program with a little r around and they keep soaring later to installation of the program and sound like a consulting contract that says we'll give you advice about what to do and if you follow it you'll pay us it sounds like a contract to install your program of course program is a word that has many meanings that the one that maybe  most common today we think of a computer program but here it has the other meaning which is a series of recommendations that also include some software and so the contract and of course is a contract from two thousand and eight maybe when acknowledge that the program that became operational here was the smart step program and not the floyd program correct but nevertheless if it doesn't the the contingency provision which provides for compensation for your clients specifically talks about a program that has become operational for ninety days and then the fee calculation begins so if it's the smart step program that became operational how can you argue that it's your client's program that triggered the specifics of the contingency fee provision the specific provision entitling us to compensation which i know was quote twice in our opening brief reads if a recommendation is not installed it will not be included in the field calculation however if any recommendation within twenty four months of the end of the tracking period is installed or installed as modified but what do you do with  other using other part when you do it the other part that i read you before it said will have the program operational for ninety days prior to billing i mean it seems to me the recommendation here is for the program not just the rec not a rec not not divorced from the program th contract contains two alternative provisions governing compensation to my client one is if the credit union and stossel are recommending and the other is if they say no thank you and then they go and do it either on their own or using someone else and so