court my name is william crosbie i am co counsel with brian when we are on both of these cases i will be arguing and to get from mr russell i would like to reserve three minutes if i may as with the other drivers that mr winter described mr russell was a long haul truck driver for the company having been employed for twenty three years solely as an employee he when he attended a meeting in late two thousand and six presided over if they were also told that they would have maintenance performed on the truck at discounted rates those are significant because even if the court accepted what the district court said about  it's undisputed in both the briefs that those representations that i just described were made that was stated in mr russell's deposition so in analyzing the three issues that were addressed by the district judge in his order one that there was  tribal issues and i would address and i want to dress that issue first and that is that with respect to the speaker mr beggs not knowingly making a misrepresentation and the district court's opinion instructed him to say to the drivers and this sort of dovetails into the next issue which has to do with the right of the reasonable reliance and as the case  cited it's kind of the standard case under missouri law renaissance leaching says that first first thought that it's a question of fact for the jury whether there's reasonable reliance and that that has to be assessed from the perspective of the person who's claiming that he relied reasonably under all the circumstances and from the perspective of that person and i i would submit that that certainly under these circumstances would be a jury issue i guess the key issue here that i would suggest would be given attention to is was a district court opinion that whether or not that thirty determination clause would ever be invoked the fact that mr begs for presumably the company at that time in better economic conditions than two and a half then two years later that's really not the issue i'd like to to analogize to the employment context in which  executive say is going to work for a big company and he needs the assurance that he's going to have some security for at least for a minimal period whether it's three years two years five years whatever and in this case these drivers never done anything of this type before in the sense of any entrepreneurial ventures or business and they were asked by trucks that are great expense none of whom could could afford to pay cash and they made a down payment and they were locked into in most cases five years or more payments now if they said there was a partnership then shouldn't there be some consideration given to the interest of the employee and and they cited a case that said well employee relationship is not a fiduciary relationship he's not interrupt you for a minute i don't understand it mr russell's case seems to be different than the other cases because because he signed a second lease and bought a more expensive truck you you enter into a subsequent contract and now you've had the opportunity to review the original contract you've had the opportunity to assess the facts that maybe were fraudulent  and they go ahead make a new agreement that you you're giving up those claims that seems to be still good law and so white that doesn't make all of this go away the brown versus joplin case was a night king ten case over one hundred years old you know that's the only authority they had for the proposition where this gentleman the plaintiff had paid three thousand dollars which was a lot more money in those days will acknowledge that and yet the equity of the situation is such that had they not had mr russell not been induced into the first contract by the assurance that he would be given at least the consideration that the company would if they fell on hard times that they'd consider the fact that there might be a foreclosure that these people might have to go bankrupt or whatever if they had to make payments on a debt which they couldn't afford to pay any more because they had been terminated but you're asking are you just asking this court to ignore the  was just somebody signed another promissory note that was similar to the first promissory note and understandably if those are all the circumstances and one could say well you did that knowingly but at this point in time especially when the company had reneged on its on its promise to do maintenance work and its bearings went out when he's going up the grapevine and hearing needs a new truck so what's he going to do he had to go he had to get a new truck and they characterize it well a cadillac he had to get a better quality in this one no because this case was removed to the federal court and they they waived the right to compel arbitration the alvarado cases were filed later but i would like to just point out one distinction they made in their briefs that he said well this was a future event and the case they cited stevens case and his case said if the future of that that's not you know you you can't claim that he knew it would be wrong but the difference here is they knew he knew m presumably knew that the contract didn't provide for maintenance and he also it didn't provide for maintenance and yet they kept that contract for mr russell and the other drivers even kept it from the union so why would they show him the contract until after they'd bought the truck and there was no turning back now that's to me is i mean that is evidence of fraud it's just not there to perform it's it's deceitful ie keeping the very document that would cause them to not want to go through this when the company would need these drivers presumably because of their own credit risk they needed these drivers to to buy these trucks so and the knowing misrepresentation their tribal issues the district court erred in that in this case should be remanded for that purpose with respect to the protective order that was an issue that came up during the litigation when the court reporter happened to be sitting at the end of the table and was visibly appeared to be working on her transcripts and notes and defense counsel then subpoenas are for a deposition to find out what i'm talking to my client about during a break and i would only submit that of the cases that are cited this san francisco vs their court case which says that if the person is there to promote the client's interest that that's not a waiver and if a court reporter isn't there to promote everybody's interest i don't know who is a court reporters there for one reason to assure the integrity of the proceedings and to make sure there's a clear record and and for a reporter to be subpoenaed to find out what somebody may have talked about during a break i think undermines the integrity of the process it puts the court reporter on the spot of being accused of being a being a spy or not being credible herself when there's no court reporter to find out what was said she's not taking them so i mean this is bring you back to the fraud claim for a minute so if i understand it correctly under missouri law there's a knowledge requirement that is you got to you have to prove that the employer knew that the statement that we want this to be a long term contract to be untrue at the time that it was made on the district court found that the employer did want it to be a long term contract and and had that had that desire and and interestingly it was the mr russell that appeared to testify in his deposition that he didn't really understand it to be a long term commitment now there was this affidavit submitted which the court found to be a sham affidavit that but between those two things why putting aside the second lease issue and the job choppin case why isn't that enough to to rule in the into civics favor on well because he did say in his deposition and maybe he was somewhat naive to say that he thought it would last forever but his his belief really on that point and he certainly didn't say i was on notice that this might be terminated on thirty days notice i think the key distinction is that in the district court's opinion it said the fact that it had a thirty day terminations clause that wasn't disclosed is not the tiriel because they didn't know whether they would be exercised and again i just would argue that just as an executive once a contract that's not an at will contradict this is like an at will subject to thirty days you know notice and it's going to it's totally shifts the burden back to the employer who thinks that he's going into a partnership and they're going to consider his interest the fact that he's going to suffer a tremendous i guess my question is this is summary judgment what's the material one is that he knew that there was a thirty day terminations clause in this contract or whoever he being with randy begs yes or whoever had he seen the contract sure oh well he sure would assume that they had the contract at that point time are they but why would you say why would we assume that i mean what just the record shelf if the record if we don't know what the record shows then we should just say we don't know but it what does the record even if it even if he didn't i can't represent your honor that i know for sure that he had seen the contract but even if he was supposed to be explaining its terms i'm sorry was he explaining its terms was that what he was doing now he just presented it in general terms to the drivers and he promoted the he said it was go be a long term deal and it was going to we're going to be partners in this arrangement and the evidence that that's untrue so far the only thing you've mentioned is the language in the contract itself about the thirty day termination provision is there any other evidence in the record that he knew that to be untrue when he when he said it i should have added he also said and we're going to perform maintenance on the trucks the company will at reduced rates and that was very material to mr russell because that was costly and in fact when they didn't provide maintenance later on that's why you had to buy the second truck how does that show knowledge of of the statement about long term relationship being untrue because the contract doesn't say anything about maidens on the truck so there's two issues if the contract says that it's not going to provide maintenance where does he get off saying they are going to provide i mean it's and they're not letting them see the contracts until they pick the livery of the trucks several months later so whether he knew or not he made that statement with reckless disregard of the truth the court noted this is a summary judgment case i want to state first of all that the there is a district court noted that this is a case in which is somewhat unusual that there seems to be some challenge with actually stating what someone's testimony is or what was stated in the record the summary judgment motion was based primarily on mr russell's own testimony a link the deposition in which he testified that prior to deciding to become an owner operator and enter into the lease he attended only one meeting was a meeting in two thousand and six or two thousand and seven at which mr begg was baggs was the only speaker in generally announced the fact that they p m t was going to have an owner operator program there is it is important and i'll come back to this point that i mentioned in the last case and that is mr russell also attaches to his complaint article sixty three of the western supplement and in section ten c and it's difficult to read on on the attachment the very first few words of that section are should the employer cancel the lease of any owner operator and then it goes on from there the the notion that there was some thirty day clause really is getting at the fact that mr russell claims that p m t did not have the right to cancel the lease that's really what he's after and this section of the collective bargaining agreement says otherwise mr russell was a member of the teamsters he's on collective he's on constructive knowledge that that's a provision in the collective bargaining agreement he should not have had he did not have a reasonable expectation that this program would last for ever  that was everyone's hope but the fact of the matter was that the leases as negotiated by the union and the term in the lease allowed for cancellation no one and he said his claim is a fraud claim and he's saying that well i was told that this was going to be a long term relationship well certainly that that term could not form a duration term of a contract it's not specific enough and there's no evidence that that mr baggs anticipate so mr baggs testifies the reason that the program was cancelled was because of the recession and the crisis in the car industry and there's no evidence that mr russell thinks otherwise and there's no evidence  baggs knew at the time that he said this is going to be a long term relationship that he believed anything other than that i think everyone hoped that it would be a long term relationship p m t had been around for quite some time but there was an n t to have over one hundred car haul tractor trailers sitting idle that were company trucks and so then it was on the precipice of going out of business and had to make decisions and did so with respect to the leases also there is no evidence that this court should rely on that mr russell supposedly needed a new truck because of the maintenance his testimony in  deposition was that he decided to upgrade his truck because he thought his truck was a these are his words of toyota and he wanted to mercedes so he bought a more expensive truck because he was making enough money as an owner operator three to four times what he was making as a driver so that he could afford to buy a nicer and a new truck there also is no evidence that pacific motor trucking company needed these employees and drivers to buy trucks for them instead mr bags testified it was a capacity issue they just had a huge amount of capacity it takes time to train these drivers because what they have to be able to do that it's not just like a driver of a tractor trailer who delivers freight these drivers actually drive the car hauler and they load the units and unload the units in that say decided to pursue with the president the company opening up the owner operator program let me come back now to the first the fraud claim the two the two issues are that there was a statement made regarding the fact that maintenance what occur on these owner operator trucks is part of the owner operator program second one was that the relationship would be a long term relationship i think what's important about the maintenance is that the testimony indicated that there was in fact maintenance performed on these owner operators truck or on the trucks of owner operators it just was not performed on mr russell struck mr russell had one incidence of maintenance he decided not to seek maintenance from the t shop and he never requested maintenance of p m t the maintenance program did begin but then it was decided in the maintenance program so it wasn't that there was a representation that there's going to be many maintenance and then there was there was maintenance and p m t is a unionized shop the mechanics are also unionized and i suppose there was an issue about discount but it was it was stopped and i think that shows a different pattern than what mr russell wants to characterize it as which is you said there was going to be maintenance there was never any maintenance and that's not the that's not correct as far as the facts go with respect to the issue concerning the long term i think this one has been fleshed  out but there's no there's no evidence in this case that mr beggs believed anything other than what he said about the longevity of the program it only made sense that they hoped that it would be a long term program they were busting at the seams business was going very well and they wanted to be able to pick up the freight quickly and so they opened up an owner operator program with respect to whether these two issues were material to mr russell first of all the maintenance based on the facts in the record the maintenance was not material to rip mr russell because he never requested p m t to maintain the truck when the maintenance program was going on similarly the long term comment was not material to him because he never asked mr beggs what he meant by long term he should have known according to the collective bargaining agreement that the  had the ability to cancel the lease and certainly after testifying that he had the two thousand and seven lease for almost a year and a half that he read through the entire two thousand and seven lease there when he decided to buy a new truck at the end of two thousand  so yes the lease was cancelled or terminated there was a notice sent in february of two thousand and nine saying that we're cancelling the lease of on thirty days notice so that left us alone with the truck permit and the obligations to buy the truck if he had obligations to continue to pay for the truck then he would have those obligations presumably there was no requirement under the owner operator program that he b buy a new truck he could have bought the used truck but but yes he he testified that he had a continuing financial obligation and he had to and he so but he could no longer and what was his employment relationship he continued after the cancellation he continued to drive for p m t but he just began driving a company truck at that point in time so he was paid as a driver and not as the l or he worked for a period of time he was injured he was off of work he then retired and then he kept that truck the one the two thousand and nine truck and then he drove it for at least a couple of other companies as an owner  operator after which there was then an issue about i think repossession or foreclosure or something like that the foreclosure did not occur right after a lease was cancelled it occurred down the road after he had driven that truck for two other i guess they'd be lessees under their owner operator programs so the terminations the the terminations decision is not subject to the arbitration cos the term a nation is permitted and the arbitration clause presumably would apply to the obligations of p m t as a result of the terminations which said you either have to purchase the truck for fair value or assist in selling the truck for fair value and mr russell  issue concerning whether there was a waiver or not at that point in time there was it was a single case we the p m t moved the case to federal district court and and at that point that was all water under the after one of those rulings they were provide an opportunity to to leave them in the complaint and after doing so then the alvarado cases get filed at about that same time here to please does our resolution of this case have any effect on the resolution  it may not to the extent that this court decides general issues related to the two thousand and seven lease or related to the other elements of the fraud claim it certainly would yes it would it would based on the facts of the alvarado each of the alvarado plaintiffs even though we took their depositions in the russell case presumably there would have to be a fleshing out of those facts so you're saying that if we went through the whole process in the of it was it goes back to the district court and they get through all the arbitration questions that we seem to be confused about and it ultimately gets to the district court judge on the summary judgment on the substance of the breach of contract and fraud in the inducement claims you're saying that the facts of those are varadero plaintiffs and the defendant why not with the facts of russell and the defendant attended other meetings so perhaps they heard other things that were said to them before they entered the owner operator program so that could be an issue or it might be in the tiriel and it might be that the fraud claim then would be subject to summary judgment because it's not a material and he had to have maintenance and he couldn't afford to have continued problems with the truck where the company would do the maintenance and that's why he bought the second truck just like they had a word about the sham affidavit issue said everything that was to be said in response to a question having to do with the second conversation he had when he bought the truck the second truck in two thousand and nine when in fact in that deposition transcript  cut him off when he gave his answer and went in and asked for further information about that without coming back with the question of you now told me everything that was said in that discussion and yet he represented to the district judge that that was everything that he had said so the main issue in this case is the long term partnership and doing maintenance on the truck and it's a disputed that that was said in his deposition and i just reiterate that the thirty day termination clause not being disclosed and the fact that it's the company's responsibility and knowledge of that presumably before they put somebody out there to promote this program you know they know about that contract or they should know about the opportunity to terminate thirty days notice they didn't and that is a material mission did did does the record show who were out the draft of the contract and sure was written by the come by the russell versus pacific motor trucking company has submitted but that we've completed the oral argument calendar for the day and for the week in the court stands