outlined and set forth in detail in our brief today because the court's standard overview of the district court's decision is to novo i want to take the limited time that i have to highlight the evidence that was abused by me in annie's in response to cruz motion for s advised until time to email by cruise principal proximately caused leonid he's to lose what might have been a once in a lifetime business opportunity was sam's club the evidence that we presented was not limited solely to the timing of events there was a wealth of circumstantial evidence that this email and not issues with the product itself was a factual cause for sam's club suspicion what's your best direct circumstantial i don't know that we have direct evidence your honor but i would say that the wealth of circumstantial evidence allows us to meet that burger we did cite the case of what about the comment that kind of make an argument remark that he did not think he eat does say that the e mail was not the cause and so there you are his actions and other statements that he made with respect to the e mail could be inferred as circumstantial evidence however i guess now evidence it was all well there was the whole thing if it is the i can understand maybe the negligence so i don't see how it hitting reply all is going to be actionable negligence in almost any circumstance particularly among negligence of the email email and there's a professional like negligence claim which was was the principal claim and the e mail itself was negligent and that as a as a representative for a lien eddy's interfacing directly with that they would use information that was developed by their client or my curiosity with your with your best case on that and that they are who live only you know there isn't a case that's directly analogous in terms of all the facts but we situation here we've got here we've got teammates and want to make the mistake and the other one for spite or grief so it was right because the customer exercise was and in today's day and age that can be a serious problem and even if it's a joke it's mere really a lack of exercise of professional judgment that's an important thing to consider you know this is a a  record i think it's pretty obvious that a lot of the communication that went back and forth was by e mail so it's not as though you have a one off situation where he sends a joke e mail you know completely inadvertently it has a devastating impact you've got a lot of different than confidential in other words if if sam's club had learned about the about the representation of cosco property it might have said i don't want to do business with someone who's doing business the doing the same kind of business with my principal competitor i'm looking for unique products to beat task over the head with and they did they did say that and that was one part of the problem was would use a product that was developed specifically for them with cosco was a big problem that was what mr hawthorne test and i didn't say i didn't see the same product they're making this the they don't want the same family up for this the are well i don't know about the relationship with cosco but with sam's club it was it was a stromboli product to make in a pizza of which is probably right but technologically the goalie's to begin with if there and then and then apparently somebody says to hawthorn well we wouldn't we werent we aren't presenting the same ingredients to cosco well sure they're not not the exact same product but maybe sam's that that was the case well there's no evidence in the record that it was because mr hopper and points the product issues not that they were developing a product that happened that that they may also a similar product might also be pitched the we certainly wouldn't we certainly wouldn't present the same product to a competitor certainly not your number one competitor so everyone in the league and that is crew family of team knew that  they were pushing they were they were tempting to get get business understandably because it would double the pot from competitors who might not want to deal with someone who's dealing with the other and that's that's a fair point although our power did testify that he understood that you know vendors could be pitching similar ideas to other to other companies whether he knew specifically at the time that cosco was in the running i don't know but they did disclose that cosco that they were that they kept piggly represented lee and at ease with respect cosco robert paso admitted that in the year prior they had pitched a similar product not using the same ingredients but your point is also important because it does demonstrate that camp a cleaning crew understood that just that singular e mail was a big deal and it could cause them to lose business they apologized for it they realized it was a problem they realized it was a problem that it was the number one competitor that there was a  advance doesn't get that for you what what does in terms of the standard of care one one member of a team releasing information that is not confidential or trade secret it was not for known and is saying and i realize i'm running out of time popcorn saying that this is a this is something that he considered an ethical they were supposed to move forward and every moment up until when they passed that final test until that e mail happened i mean they meet proof with proof when the summary judgment motion was supported counsel they don't have to meet proof with proof we take all the proof and interpret the facts favorable to them write a summary judgment you agree i don't agree you don't agree that's a standard summ required to fail to drop by our well established rule fifty six jurors prove us wrong that's not been that's that they didn't need proof with proof that's just wrong and that argument gets nowhere your honor what they did was raise issues challenging the credibility of mr hall for well that happens all the time in summary judgment of course it does there's it's a legitimate credibility issue and it's and it's but it's a material  there are always credibility issues with any witness who testifies of the reasonableness or un reasonable of their testimony can be evaluated by the right to fact and if you can't you can't defeat summary judgment just by saying i think a jury to disbelieve that guy well that's what they're doing or i know it's not what they're doing they're saying they thing he each said enough inconsistent things and made enough did enough things and that like like telling his boss when he promised he wouldn't he wouldn't do poor attempt at humor counsel what if he's not credible what if a fact finder finds him not credible well your honor there has to be some evidence of causation simply saying  witness is not credible is not evidence of causation it is that simple counsel you're familiar with tolling the cotton are not so important case and they've had several recently where per curiam they reversed courts of appeals for deciding a don't you think there's a there's a whole series of things that take place ray but till the last test in this e mail and then all of a said the world changes right it isn't that sufficient evidence enough to give rise to a question of fact for the finder  in terms of reaching a final decision but the decision was based on all of the product experience going in the past if i could address each of these points and then s example it was it would be unethical according to the testimony of mr hawthorne mr hawthorne was asked if they used these slides and presentation for costco would that be wrong he said yes it would be that  right why it's unethical going yeah it would be unethical to use it it's not right and ethical grievous mistake go in and out in or in other words if they did use the information used in the same to testing for a cosco presentation that would be unethical but he doesn't believe that they did he believes that was a poor attempt at humor a joke a sarcasm and did not factor into his decision on that wait a minute the day after or that the same day of it being humorous it's be it's consistent with the corporate structure and reporting to your boss information that develops for example grow to you can't you just made that up there i thought because mr horn's his boss and because mr horne would need to know if the topic came up later discussion for example as your honor mentioned and i'm sorry go ahead and it was purely humorous he would that that that explanation doesn't wash the fact that this company does business with costco its major competitor is a fact that he would need to know and if that came up in later discussions ok as you telling you he's telling his boss where we're about we're about to do business with someone who is also presented to our major competitor not that significant these very powerpoint slides as well will use these very powerpoint slides to slides two to five correct yes that's what they typically e mail say is right we could even use the slides in our presentation to cosco and that puts a smile next week right next week next and it turns out hawthorne knew about that and didn't tell him that it better hoskins on the street it's essentially i think what mr hawthorne meant so i've lost needs to not know so it's so it's nothing but humorous come on but it is not a fact that doesn't pass  face test your honor is it a factor is the e mail a factor in his decision not to go forward with the project with well that's for a fact finder in that note your honor not on this record it is not based on  like that when was your next scheduled test when there was no next scheduled test well so so it's not true that that the product hadn't been cleared because it had the no it would necessarily your brief that well knowing that they hadn't they hadn't passed all tests they had to go to a test panel i just said ok when was the next planned test panel was there one between january fourteenth and february second no your honor b a next one scheduled mr hawthorne concluded that there was no merit enough in the product to take it to a test i hope before they would market the product it would have to go through a test there are so that was not schedule credibility determinations at that point and i don't believe that the judge makes credibility determination i think well he's not supposed to let's let let's go ahead and step back to something that  in the profession was it something other than that i think it's a standard of ordinary care based on a person in that industry your honor agreed so now the question is when one looks at this e mail did it in fact setting aside causation because that's where you're focusing i want to know do you think there was a breach of that duty in this particular e mail absolutely not true ok would you explain why yes your honor first  informing sam's club that they did business with the cost co was not any secret it wasn't a trade secret sure say about the presentation next week was that a secret but i don't think sam's club case because well first of all in this day and age of reply versus a reply all and that that is an exacting standard which someone who is a food broker should follow i don't believe that to be the case i don't think that a court could accept that your duty is to always scrutinise recipients of the mail and make sure you're hitting reply or reply all lloyd juried be good on that one thing you have to understand  would of course now we're getting into duty and breach of duty which were not the subject of the summary judgment motion of the district court's ruling it certainly would have been the subject of a directed verdict motions if this case were to have proceeded to your skepticism with mr hawthorne's testimony but it is the only testimony we have when i am defending a case or prosecuting a case and i am presented with a summary judgment motion that has a deposition or an affidavit and i need to contradict it i believe that the rules require that you do more than simply raise questions about that affidavit or testimony it requires evidence and it certainly would have been ability to subpoena order all all of the sam's club records were subpoenaed there's not a document anywhere suggesting that the e mail was cause all of the documentation is the contrary and mr hawthorne is the decision maker i would like to conclude with the causation allegations of the first amended complaint and see if there is evidence to support the four paragraphs sixty two of the first amended complaint states upon information and belief sam's clubs buyers were furious when they received the e mail no evidence of that paragraph sixty three they those allegations in the first committed complaint and ask if there is evidence of that there is not my time is concluded i very much appreciate the opportunity to argue in the opportunity to present honor i only have a couple of minutes and so i want to circle back to the standard of care issue which judge ericson and judge loken raised and to which mr donovan just responded ordinary care would be the standard of course within the industry and the problem is not so much that he made it that they were that he was working for lee and that he's on a product with cosco but more so that he suggested that they would use slides two through five in a presentation to cosco hawthorne testified that exclusivity with respect to the product that leonidas was developing for sam's club that wasn't just that then just go without saying in fact often said no it was said i told crew that so the breach of the standard of care in the industry is suggesting that you're going to use slides that were taken and developed when developing a product exclusively for sam's club and use them in violation of that agreement mark that there's testimony from hawthorne or mr author to that effect or i can understand why the normal way of doing business but they had no they had no contractual relationship there was no contractual relationship oh ever  understanding that between lien eddy's and stance club that the product they were developing was going to be exclusive to sam's club that it would not be shared and used for another for other purposes including perhaps most importantly in a presentation to their competitor so and furthermore mr camp piggly admits that what he did was a mistake it was a mistake because he knew he should have done what he did you should have exercised greater caution when sending an e mail suggesting that he was going to use exclusively develop product information with a competitor for that for that reason for the reasons that are briefing that we already discussed and ask for the reversal of the district court so we can have the jury decide factitious thank you thank you c