good morning i'm paul shoemaker the lawyer for the appellant more fix company limited more fixes a small british company has four employees it was founded by mark newman who was its managing director more fix provides consulting services to help businesses operate more effectively they call it business transformation they provide consultants who help businesses become more efficient productive reduce costs introduce new technology and so forth now more fixes biggest client at that time period an issue and over the years has been british  petroleum you may recall there was a disaster called deepwater horizon one of british petroleum as well as in the gulf of mexico exploded and oil leaked into the gulf for a prolonged period of time after that b created the b p w a which was the british petroleum well advisory project and this is where more fix became involved they hired numerous can tell consultants up to as many as seven at one time from more fix to help with their attempt to make their business operations in regard to safety and security of their facilities more effective now the defend entered into a consulting agreement in twenty twelve and then embarked she embarked on working at b p and fast forward she left yes she fixes she went to work for p well she did i just want to mention one interim thing there were three years there were three good years where she worked b p was happy were there services more fix made much more fix and she did also they more or less is roughly a split for each year they made approximately five to six hundred thousand and revenue more fixed kept half and she got half so she was making two hundred fifty thousand a year she got six hundred thousand and she got half how come she only got two hundred fifty well there are some other expense judgment against ms mora and i'm on the question i have for you is how does that thirty three thousand dollars last suffered by your client causation which we argued one was she needed the income she needed a job she would have continued working but for the fact that she got the job offer from b p that's what caused her to suddenly say i'm leaving i'm doing no money or he would have she would have kept working for your client and your client would have continued to make money off her expertise and services and therefore you had a right to have her continue working for you you certainly had a right to have or not go to b p but i don't know understand where you get the right to continue to have her work that's not the argument we're not arguing the that we have the right we're arguing that we lost the revenue we would have had that she independently of her own volition would have continued to work for us because she needed the income and she had nowhere else to go now  was the revenue coming from b p yes b p which had the right at any point in time to say i'm not going to pay you they did but this is a forward looking measure of damages customers can always leave if your business is burned down you can say to the arsonist and say well you have to prove your customers would have kept coming while the jury can infer all right it would have continued the existing business relationship was sound and would have continued that's all we were arguing doesn't need a witness  please don't you need a witness from b p essentially to say and a person in a position with the gravitas to make this statement look if she had remained with you guys we would we would have continued to have to hire you well there's i don't see that anywhere in the record and tell me where it is there is nothing in the record about her specifically but you're asking a question that doesn't apply to computation of damages if you're if you're operating a tried a lot of cases and if you're operating up if you're operating a fruit stand by the road and somebody runs it over with a truck and it's destroyed and you sue for lost profits you don't have to bring in customers to say oh we would've kept buying his fruit if it hadn't been go away because you don't have a thirteenth consultant but that brings me to the other theory of damages which is that she by abruptly leaving and refusing to cooperate with transition she alum unaided was more fixes he had to help transition it's in section the section that requires her to protect more fixes commercial interests which would literally include assessment and i cannot transition so use me for nothing and no she he offered to pay or but she had an obligation under the consulting agreement to provide services that would protect more fixes commercial interests at will employee no she was not an employee she was an independent contractor through her consulting it's around a four sixty or sixty two is the beginning that four point two is on the next page in the performance of its duties here under consultant shall act so as say you can have its duties here under consultant that is ms more right she conceded she was bound by this yes that was to safeguard the intellectual property commercial and contractual interests and more things and she'll comply with the reasonable requests and directions of more facts or it's a nominee when she left which she had the right to leave and to quit she had the right to leave but you have and you have the right to compel her if you pay her i guess to to do transition work yes our position is that contractually under this proviso she was required to protect more fixes contractual interest the consulting agreement did not and when she quit the consulting agreement is an overarching agreement it was in effect with respect to each of the work orders and until one part of the other terminated it continued in effect it would govern additional work orders if there were any if not it did a word on that mister newman testified that the firm's profits on her work in two thousand and fifteen would have been two hundred ninety eight thousand dollars and that is what we thought sought and damages which i found thought was relatively conservative we weren't saying this would have gone on forever we're saying there's evidence they continued using his consultants throughout two thousand and fifteen she would have continued now a jury only gave us thirty three thousand now you did replace her they did not accept the half a million dollars like low hanging fruit on the tree you would have pointed you would have gotten another consultant on board and just picked it up there was testimony by mr newman that he was able to make transitions earlier times when other consultants left but she deprived him of that opportunity by leaving with no notice and then refusing to cooperate in the transition and if i may just explain i think the thirty three thousand if you do the math that represents approximately six weeks out of the two hundred ninety eight thousand he said was lost for one year i believe the jury figured they would give us what a reasonable transition period would have been mr replacing an existing consultant this is that a three thirty eight and he said that it typically takes one to two months and he's testified that this had happened previously in the relationship with b p but it could not happen actually your argument to the jury is she owed more fix a six week notice before she left well we were we did argue i mean six weeks we weren't that specific we argued there was an obligation she had to give notice that there was an obligation either to give notice that would enable him to make a transition or to remain and cooperate after she quit to assist in the transition for free contract that she has to protect and safeguard the commercial and contractual interests and i mean that's not very specific is not very specific but i think it would clearly cover this type of thing that if you are going to leave you have an obligation to help more face protect its contractual  business relationship commercial relationship with b p and she did not do that and the jury awarded a very modest amount i believe reflecting that's what her violation of that provision as well as her violation of the non compete by interviewing behind his back with b p and taking a job with them that those either one of those violations is what caused him to lose some more fix to lose some of its profits it would have had with both hands argued to the jury yes as are you to the jury  you to the jury both were argued both were argued to the jury the two theories and on the theory of that she would not have left that's why the trial court decided it made up this fact that she had an offer from chevron because it was clear she would not have left all of this turns on whether she would have left which does seem to be a different argument on the way to go on the one theory there's two theories on the theory that she would not have left if she did not have the offer from b p and i mean i asked eric it's right in the transcript i said to drive an offer from chevron at the time just as i did not so the other theory was literally do you did you have an offer from chevron at that time yes  it was i did not expect to get an offer from chevron she might have and by the way that's why i think the jury awarded us a little i think they thought well maybe within six weeks she would have gotten an offer from somewhere else and then it would not be tied to her so the jury would was free to speculate how long she would say that she would have stayed and we speculate how long she would have stayed until they speculated how well it would take for her to get an offer from chevron and then figure out how much money you would have made her if she stayed on for between one and two months even though even though she had no obligation to lawyer your honor is using the word speculate i would use the word infer that they could was actively looking she was maybe close with chevron she would have gotten an offer relatively soon and so we won't give them the four year we'll give them something for what period is reasonable to assume that would have taken her to find a new job you reserved rebuttal i think yes thank you yes i d can i think the jury got it wrong the judge got it right the facts are undisputed that miss zamora was at all times an independent contractor she worked for specific work orders twelve in number and made the decision to leave after completing the work in the last work order there were no other work orders in the pipeline no sir there were no other orders ms normally mr newman and ms the more we would we find in the records that she left when her work on that work on her last work order was complete it was in her testimony but it would take me a while to find the precise transcript but she had testified that she completed the work on that work order number twelve and at that time she did not have a subsequent work order and that was confirmed  mr newman who said he had not given her a work order number thirteen so that was proof yes it is your honor ok it is in the brief and if i can try and find it but given that i only have ten minutes let me proceed bottom line she was an independent contractor it was undisputed that she was to free to decline future work orders it was further undisputed by mr newman she was free to decline those work orders she could go anywhere she wanted what strikes me getting to the heart of this is the court has asked was in december or sorry in november of two thousand and fourteen mr zamora was contacted by more fixes coun and encouraged to take an offer from chevron and to let them know no later than december first that's plaintiff's exhibit number twenty four which says we encourage you to take it and let us know by december first what you intend to do that begs a huge question if more fix is encouraging mr moore to go ahead and take the job in zaphon how can she possibly be expected to assist in the transition the fact is this is an afterthought there is nowhere in that letter from  somebody to accept an offer from chevron and hoping and expecting that they would stay on and assist in the transition before they leave people don't just blow out the door that's that's true and there is evidence that she did volunteer to assist in the transition but did not hear back from mr moore friends who made no offer to pay her or ever discussed any time of compensation for any part of a part time transition she might do the other thing that should be brought to the court's attention is the court pointed out in its ruling on the motions for a directed verdict that the argument that mr moore i had she not accepted the position with b p which was only a temporary offer that was revoked she would have continued to work for more fix through two thousand and fifteen the court soundly rejected that speculation and there is no evidence to support that what more facts dug in its argument was jump from not getting the offer with b p to continuing to work for more fix in two thousand and fifteen even though more fix conceded that this required several factors miss zamora's acceptance of the position mr newman's approval of the position a description of the work that was going to be  performed the length of the work that was going to be performed and finally b p s approval of this work none of those factors are there which leaves us right back to where we were with a speculative verdict that has no relationship to the evidence and i think the district court correctly set aside the verdict and said you can't speculate when there is real doubt as to any damages at all if there is a significant if there is some kind of damage then sure there's room to sort of guesstimate what it would be but this is not an inference here this is a speculation by the jury probably although i'm speculating now they were a little offended that she looked for a position with b p and there was a controversial provision that said you can't do that the law new york is very clear you don't get your judgment based on a technical breach which in this case was temporary you have to show damages and in this case no such damages were shown and it's a little bit up actors that you just took us through  the contrary that b p was winding down its operations they were bringing the work in house you combine that with the absence of a work order in the absence of any specific job and no testimony whatsoever there it could have been resolved by a simple question mr moore if you did have the job with b p isn't it fair to say you would have continued to work for more folks on a part time basis or any basis until you found another job never asked in the case because the answer would have been no it was never a she had every intention of leaving and the court in its ruling on the j n o v pointed out the testimony by mr newman who said i knew she was going to leave she had been telling me this for a while she was going to go it didn't come as a surprise this whole talk about a transition and the damages arising from that transition is not only speculation it is also an afterthought your honor as i said in the very beginning i think the jury made a mistake and that's what real fifty is for and the judge corrected it and we would ask that the judgment sta well mr newman testified with regard to the transition at page a one hour nine of the appendix his testimony was it would have been more fixes responsibility to pay her for additional work and we did offer to pay her for the additional work so mr kelley misstated the record there is testimony they offered to pay or clearly you and i had a duty to pay you for the additional work yes but he just said there was no offer there was an offer mr newman begged her to help with the transition and she refused and mr newman also testified that he had a conversation we're going to twelve right she completed the existing work order and now there's that they offer her another work order and b p addressed work orders to more fix not to her that's great so there was no further work order i mean more fix more fix could have offered a work order to any of its consult yes and they offer a new work order to her no because she had made it clear she's leaving and she's not doing any more work she wouldn't well and she never got thirteen yes and our position is from the record which i referred to at the beginning of my argument there was a record of three years of continuation continuous issuance of work orders all the rest and more fixes consultants continued to get work orders in two thousand and fifteen this would have continued except that she left abruptly and b p said well we'll bring that same house because you don't have anybody ready to step in and a page a one thirty six mr newman testified that he spoke with b p and they had already made a decision to assign the work that previously was assigned to more fix to an in house resource there was no opportunity to make a transition to find a suitable replacement and if if the basis of your damages is that b p would have offered a work order thirteen and more fix would have assigned it to her and would have made profit from that how does that relate to the thirty three thousand dollars judgment that you got from the jury the theory is what i described before that they would have felt well yeah but she was determined to leave she would have found something else within some time of less than one year which more fixes after asking for we would say estimate six weeks and we'll give them a little bit of the year but we won't give them the whole year because she it's not clear that she would have stayed through the whole year she was looking for other employment that assumes that you would have accepted work order thirteen and then left six weeks later what good would that done more fix it that would have caused damage when well that could have been a problem but i don't think the jury was thinking the scenario the judge jacobs posed to you the jury was equally free to speculate about as well all of these things are out there and we're just trying to imagine what they might have done yes and they might have said defenders one work order but will only will compromise somebody on the jury says give her that amount given that amount somebody has given nothing and they split the difference i i don't really know how they reached it i'm just saying that they gave us only a small part of the one year damages we were asking for and i believe it can be explained either that they felt a transition could have been made even without her cooperation within less than a year and number two she would have left anyway found some other employment even within less than a year and one last point i want to make clear the judge also misread the record or misconstrued mischaracterized the record regarding the notification given to mr newman mr moore only told mr newman november twenty first twenty fourteen the last day she said i've finished my work i'm out of here he begged her to help with the transition she refused there was no notification prior to that she may have expressed some dissatisfaction maybe i should look for another job but there was nothing specific where she said i'm leaving and if you look at what the judge cites she's citing questioning about that final conversation there was not an advance notice and i do want to reiterate the judge  relied on testimony of this witness kelso which she should absolutely not have been given any credibility she did allow our theories to go to the jury and i do not believe they are speculative when you have lost profits as some of the authorities state there's always an element of surmise and conjecture and they're projecting out there's always compromise there's always not that's not certain she would have stayed two months four months we don't know but the jury was entitled to make a reasonable assessment and inference of what the damages were thank you thank you both with their decision case united states versus barneys we're taking that on submission and the case of adams versus the