thank you good morning it please the court my name is patrick richter and with my co counsel rob shank we represent lynne braiding and british an incorporated for purposes of our argument this morning i'm going to address this  there are very many facts that are important for my part of the argument this braiding was employed by six dimensions she signed an employment agreement in august of two thousand and fourteen that employment agreement contained customer and employee non of the restrictive covenants and that that's the terminations certification that reminder is not in was not an independent agreement it was part and parcel of and a requirement of the original agreement the pla language of the agreement makes this clear paragraph six of the two thousand and fourteen employment agreement obligates miss breaking to execute terminations certification fallen into her employment in addition just practically speaking if you look at the document itself the terminations certification is labelled page seven of seven in the footer indicating that the parties always intended or thought that this was one document there is simply no way to read the whole of the tw employment agreement together with the certification and conclude that the certification is a new agreement by ms braiding not to solicit former six dimensions employees here that you ask you to question accept or are you contesting that there is sufficient allegation in the complaint and the operative complaint that there are two separate agreements or regardless of the two thousand and fifteen is a sep contract and then secondly do with the problems that exist with your argument whether it was made below i don't agree that the pleading is sufficiently clear that there were two separate agreements that there's one count the breach of contract pled and the language of the all of the admitted complaints is is very best in terms of whether it refers to agreements meaning obligations that as soon as judge hitler made his ruling and rule to the contrary we follow the motion to reconsider and brought our objections that these issues that were are going on appeal to the court's attention well he partially rule did he not i agree that that's what the district court said i think that that is that is with the benefit of hindsight finding that argument buried in that in their policing in their briefing on the summary judgment i don't believe d it was ever clear that they intended controlling piece of wall we have is edwards and one california supreme court opinion that people are talking are you saying that this is settled law in california or do we find the issue quite closed basically you position requires us to hold does it not that that this did in california a reasonable restriction of any time i mean do it differently me emphasize the other w good morning a place of court by robert shank i'm going to address two issues st why six dimensions is not entitled to a new trial on the trade secret claim that the jury decided against it and nd the district court's proper grant a summary judgment in favor of faber and mr price is testimony alone sixty dollars mentions cannot come remotely close to meeting its extremely high burden after all week long trial the jury found for proficiency on six dimensions trade secret pla specifically the jury found that prohibition did not misappropriate six dimensions training modules materials or customer pricing in projects information six dimensions only move for a new trial the district court acted dimensions never move for either one only move for a new trial this court reviews the denial of a motion for a new trial wrought on the ground that the verdict is against the great weight of the evidence for abuse of discretion then for provision in support of its argument six dimensions cherry picks a handful of quotes from mr price's testimony and ignores other portions of mr price as testimony which themselves support the jury verdict that is all that provision must show i should say that this is all the provision must show any evidence at all that supports the jury's verdict is easily made that minimal showing as a jury was correctly entitled to include mr price provision ever acquired much less used six dimensions training materials we ask you about where you put it that it was unnecessary wasn't to show that it was used under the texas statute trade secrets acquisition has gone up is that correct acquisition is enough under the texas statute and that was one of the theories given to the jury and  is one of the theories that was given to the jury into the jury verdict your honor no we did not agree we don't think you ever get to the use issue but we believe and we've cited in our cases a number of the jury could have construe the evidence and proficiency never even acquired the training materials that were in mr price is possession but we also believe and we read texas law as showing that you use also is required based on the cases that we cited were brief your honor right now we're looking at whether the it was in from the jury required a different result and that was one of  message you know it's interesting for a couple reasons mr price testified in his testimony he did not show the training materials to robert sumner is the individual you are referring to he did not show the materials to mr sumner during this telephone call he did not do a screen share mr price specifically testified that he never uploaded the materials and superficial computer that no one from or fission ever saw the training materials that mr price pertain when he left six dimensions so i'm not aware any case or precedent that says that merely because an employee retains materials from his prior employment and has a very general discussion about that that that constitutes acquisition and and the more important point from our standpoint your honor is the jury could have certainly believed mr price's testimony that he did nothing with the six in the portions that we've cited that he thought better of it and he said specifically your honor in the trial he said when he when he talked to mr sumner mr sumner told him let's not use the training materials unfair competition claim can you still hear me ok yes ok the district court correctly granted summary judgment on the unfair competition california statutory claim that statute as a consumer protection statute and the district any case in which that is the only connection to california where there are no residence and no activities within the state of california so joyce of all in a contract without any residence involving motivation dimensions for some quick background six dimensions provides services related to the adobe marketing cloud and miss braiding was effectively the liaison between six dimensions  of that contract for servicing those products for its customers i think one of the key important points in this case is there is no dispute related to miss brady's breach in fact her conduct was particularly egre ous related to the non solicitation she admittedly referenced her non compete non solicitation in contacting employees even use what terms such as calling in message a ghost message when she contacted an employee name air price when she contact an employee named dan kelso she said i can't do this because of my non compete but if you ever want to job there's one here for you and again she contacted eric price and said we are hiring like crazy i can't have this conversation because of my non compete when she face m o g ultimately she provided a list of contacts from six dimensions to profession and profession hired seven different employees so there's never been a dispute as to whether breaking breached this particular agreement instead the only issue is most of law and whether it was valid and now what's been raised is whether there are trade agreement on this question about the and whether there were two separate contracts i've got hopefully it's the right pleading me i've got the amended complaint in my hand it's thirty three pages and you tell me where in that complaint did it alleges or describes two separate contracts i don't have the complaint from me your honor but i do know that it specifically refers to the terminations agreement at several places as an obligation that mis braiding owed and separately refers to the two thousand and fourteen employment contract i know that the complaint also uses the phrase agreements and contracts at multiple places and in the summary judgment motion that six dimensions former counsel filed it's a significa moved on the two thousand and fourteen agreement in the two thousand and fifteen agreement there was never a pleading argument raised until after judge hitler entered summary judgment and in fact these six dimensions partial motion for s very specifically asked him to enter separately a breach for the two thousand and fourteen provision and noted that the two thousand and fifteen contract didn't even include a choice of law it was treated as separate agreements and in the two documents as separate agreements so what's it what is your view on so i think there's two points in answer to that is st via cruel for the non solicitation period was two years however because the nd agreement was signed after her terminations it includes an additional eight days of non solicitation term so there is actually an additional eight days that she can't solicit employees under the nd agreement and while there are some differences and in the terms of the agreements as well when under texas law a separate contract is analyze whether it's a separate contract or not we have to simply analyze whether it meets the terms of the contract offer acceptance consideration a twenty four to do something different than the th the only other thing i could say that it does differently is it also releases her from her obligations under the other contract so that she now has it confirms the contracts terminated she now has ownership of any intellectual property for example she also has the ability to go work for a competitor because before she had a duty of loyalty in her contract to not be able to do that and so to that extent it confirms that that contracts completed and she now owns her intellectual property but the terms are generally similar outside of that additional period of eight days that that would be in the nd contract so mr avery going back to this question of  notice we talked about the complaint you also mentioned that the summary judgment motion i mean for my review at best there may be a few sentences you can point to to support your view that you were asking for two separate contractual analyses but i just don't think anyone can claim it's really was super clear about that and so then the district court issues its ruling that really treats them as two separate contracts that require separate analysis and then miss braiding comes in writing comes in and says i want i want reconsideration because i didn't i wasn't on that understanding and i just didn't see that's that's exactly the role reconsideration why shouldn't she have then been able to make these challenges to the idea that there were two contra well i think in the motion for partial summary judgment sixty is former counsel did ask for relief  an issue for appeal by this court and i think the th circuit has held that raising new issues in a motion to reconsider doesn't generally preserve those issues for appeal whether was particularly clear or not i don't know as far as the summary judgment besides a summary judgment specifically asking for relief based on those those two items and it was an affirmative summary judgment that did that and i believe also the former issue in the motion that you do asked whether california or texas law applied only for ringback the two thousand and fourteen contract which included a specific choice of law provision applying california law in two thousand and fourteen as well six dimensions argued texas law would control both even though the choice of law provision only applied to the two thousand and fourteen contract and no i'm not being clear my colleagues have the same problem with me a made in that way better way no doubt in the motion for summary judgment i believe it was your honor and i don't have the specific site i can provide you a letter brief but i believe that the former counsel did identify texas law  judgment related to the two thousand and fourteen contract and then later says also should be granted related to the two thousand and fifteen agreement mr richter that health or no law is unsettled related to this particular issue the edwards case only addressed restraints on soliciting former customers and clients not related to soliciting co employees and even the am men case which is the same level as the the moya's case which irreverence is there just competing court of appeals cases neither has been overruled the california supreme court in and i don't recall off the top my head if we cited one after and then i believe there is one or two out there but i do acknowledge that barker and other cases of followed that type of language and that the holding of and then but i i do think it's important to note that both barker and and then were both related to staffing agencies where actually not soliciting co employees goes directly to restraint of trade because their job is to hire employees even though we are guessing we don't have a lot to guess on you and your direction there hasn't been a ton of cases since edwards that have addressed us i agree we are arguing that similar to a provision that prevents an a former employee from using a trade secret which i think edward said was reasonable you can't use confidential information in the future that's no different than not soliciting a rating a former employee there has not been a case since  that has addressed this at the supreme court as we discussed and there have been some cases that gone the other way but i do believe that this is different than edwards and i think i am in healthcare actually while it definitely said that moira is it contradicted moya's it also said we have a different basis for upholding this particular agreement because there was a staffing agency and barker is the same exact thing it's a staffing agency client i also do want to point out that the it applies extraterritorial in order to prohibit or in order to invalidate this particular contract quickly moving on to well one other point i do want to make your honor is the related to the waiver issue is consideration is presumed under texas law so the extent that that is the one element of of the breach of contract claim that braiding is now disputing you know when it comes to offer acceptance consideration that's the only one that they're claiming doesn't exist it's presumed they didn't they didn't present any argument that it wasn't met and she actually did receive some benefit in that it allowed her to now have her own intellectual property and and use things that she created and also go and work for profession i do want to trust the court's question related to trade secrets and acquisition i don't believe that there is a case that says disclosing the entire disclosing  the substance of a trade secret to an employee is acquisition i don't know that there's been one that's addressed that in quite that detail the texas uniform trade secret act is still relatively young it was only passed in the last five to seven years i can't remember off the top of my head so some of these cases that are cited too are not touch the cases and as the court noted there is a difference between acquisition and use in texas legislature had specifically said that misappropriation includes the acquisition through improper means it doesn't require that the profession ever use that particular argument and jury instruction formation such as we heard today that acquisitions not good know that this case while saying that was not good enough i apologize your honor could you say that again was or was there an argument at the time and giving all favor which the jury certainly was entitled to credit mr price related to everything he said in his testimony and everything in the documents we do not dispute that at all but mr price admits that he acquired the trade secret and that in a discussion with m sumner who's a director at proficiency he disclosed in revealed the contents of that trade secret and their only excuse is well we realized that proficiency system was actually better so we decided not to use it that doesn't mean that under texas law that is a misappropriation and while that may be a decent argument for damages the jury never got to the damages question because it ignored that particular evidence the great weight of the evidence and instead answered  the question was predicated on that finding your only evidence from that text exchange of text messages and whatever the it is is what is the evidence that of the detail it was given to  of the trade secret the text exchange certainly goes to it however the the details of the conversation is from mr prices testimony where he says he revealed the substance of the contents of the trade secret to mr sumner and told him what it was and based on that evaluation up there toto when in a separate communication or in those text messag s i apologize your honor in a separate communication the next day that was undocumented mr price said there was another call and where these just claimers of ever actually using it were made to add that the the denial of the use of it also included though them discussing the nature of what the trade secrets were which is what mr price testified which is undisputed he told sumter mr sumner here's what the nature and the contents of what they were and based on that analysis they decided that they didn't that proficiency content was better in comparing it to then the six dimensions trade secret that they to but regardless at that point that mr price is talking to mr sumner about it he has the trade secrets in his hand working for per fish and at that point looking at them talking to him about it and certainly that the jury was entitle to say well maybe they didn't strip off the names like they talked about maybe they didn't cleanse the material maybe they didn't steal it maybe they didn't use it but they admitted to at least talking about it and revealing what it actually was and i think under texas law while there isn't a case that talks about acquisition its plain terms that is what acquisition means profession has the trade secrets and even though they decide hey maybe we don't need this material they still have the knowledge of what the material is which mr price is contract prohibited from doing so mr description that six the mentions gibbs of the conversation in which the nature and content of the training materials that there's a lot of work being done there there was no evidence that he discussed the actual sessions enough if in fact we do agree that under acquisitions whatever that word most really would mean that describing content of the trade secret in some detail is really significant i don't want to say you leave your case on that but isn't that an acquisition if it's insufficient it could be if the detail with sufficient but i don't think we have evidence here that it was and the jury heard b evidence and rejected the idea that her fission ever acquired the trade secrets we may be well right that there was something there but wasn't explored enough we'll have to say i would like to address with just a couple other things i'm looking at the terminations certification that was attached and it has become called the two thousand and fifteen agreement and there's no release language in here that frees ms braiding from doing anything it's simply a reaffirmation of her previous obligations it says that she by reference that's at least one way to get there it did not if it's strictly a standalone piece of paper that says i agree i have these restrictions and i agree to abide by that's that's one thing that this practically speaking doesn't make any sense to me in this case your honour's that the parties with it are into two separate agreements one of which expressly calls for the education of california law the other of which is silent on the issue and somehow because by virtue of the venue in which the lawsuit was brought applies texas law this case was originally filed the new york federal court it was dismissed on venue grounds and we filed in houston as one of several options that the plaintiff contemplated following this case in ohio  so if if this case of been filed in ohio six dimensions would be here would be not here they'd be in a different circuit but arguing that the certification is governed by some other different state law that just seems like an absurd result to me when when everything else points to the idea that the certification is a reminder a reaffirmation of existing promises made not to create a new or different obligation but to avoid employee who works someplace for years and then leaves and then says oh i didn't remember what my obligations were i didn't know i could reach out to my former colleagues but there's nothing new or different here and nothing given to her for sure that would support under texas law consideration because under texas law for the consideration to to to be valid to support a restrictive comet it has to be interested restraining competition and we did not we know we did in our motion to reconsider on the consideration issue but because of the way we saw the case and because of the murky nature of the plaintiff's multiple amended pleadings and the plaintiff's summary judgment motions we didn't read it like two separate counts of breach of contract we responded to it like it was one and as soon as we became aware that the court believed that there were more than one agreement we responded immediately in raised all of these issues that we think that we've addressed or i counsel all three of you here helped us today in understanding this case it is an interesting