irrespective of the work at issue here that's absolutely right you're here yes here to talk about liability attorneys fees if they apply or anything like that we're just on that issue just the want to share your honor  protest with the s p l you're talking about liability i just want to hear about damages the measure of damages and whether you can base damages on the work of employees that wi that the two federal cases cited convoy and done both address this very precise issue of whether salaried employee time can be compensable as an element of damages one of the cases involve contract one involved tort but the holding was functionally the same that the district court awarded in both cases damages for salaried employee time based on the premise that  you know you're you're paying the employees for the time but you're losing the services that you're paying them for and the court the court in this case specifically found that to be the case that s employees spent hundreds of hours contesting the protest and during that time sunk or lost the services it was paying them for and that's precisely on all fours with the two cases convoy and gun and i would also submit it's precisely in line although there does not seem to be a california case that addresses this specific issue the california cases cited in and state of policy that tortfeasor doesn't get to escape liability just because damages are tricky to calculate or are not you know don't follow a precise formula now it's of submit that that policy also militates in favor of it's ok and what you're saying is that under california law they would probably found something similar to what we did under oregon law absolutely magistrate judge was wrong as a matter of law absolutely right i think we understand and ohio law as well why don't we hear from the other side and you can respond to your heart's content in rebuttal thank you thank you well the i believe that these cases the convoy case dunn case and perhaps even the california cases were all cases where it was demonstrated to the trial judge that these companies lost money they actually lost money there is that there was an economic harm demonstrated and the evidence pointed point to that and our case there was no evidence presented dealing with the the actual economic loss of the company or the what money they lost in dollars amount that was apple evidence i suppose of of time spent by employees but did not was not taken from there to show that they lost other opportunities or there were things that fit happened with the current conduct of the business that show that during the time a convoy doesn't apply the issue is not what a convoy would have paid the supervisor salary of the defendant had not reached the contract but whether the breach deprive convoy of the services it paid for isn't that exactly what happened here how can you distinguish convoys it does apply to contract case where the the mcconville i had purchased some computer equipment paid money for this equipment wasn't functioning properly they had to do some work to get it up and running and to do the things that it had been promised and warranted to have done using its own employees yes well they did use their own employees but they i magine they had that's the measure they were seeking and it turned out successful for damages right but they had to remedy a problem that had was considered to be the responsibility of the seller the seller did not perform seller did not provide the the repairs they they had to do it themself using salaried employees using salaried employees who would otherwise have been paid the same money do you have any reason to believe that the law the law would not support this theory if if sufficient evidence were tender i agree with that i think it's a question of why don't we have to send it back and say  now we might well you know you might argue about the evidence standard but but really the whole theory of this appeal as i understand it is that the law does support the  your legal position that the company cannot recover damages measured by the effort and time of salaried employees i don't recall them ever making that statement it  the roughly that not particular no i really just approaching it from the standpoint of the amount of damages awarded and whether or not that's clear air that that it was only thousand dollars versus the sixty four thousand dollars that they're claiming that should have been paid which is an amount of money of it's only brought forth in their brakes not not in the way of the evidence your position here to this day is that the magistrate judge did not tell suncor that he could not recover damages for measured by the time and effort of salaried employees not without connecting at with with some other what that  relates to us and in terms of their actual out of pocket our our economical last rights certainly there's information about ours last there were some information about employees some time but no evidence as to what you know what's the final bill what is the amount of money that they're seeking for their damage amount will appears to be sixty five thousand dollars yes but that is presented in the impellers and i apologise brief that's not so there's nothing in the record on on that issue that the bad district judge came to say total he said totaling about sixty five thousand dollars lost compensation salary plus that the state was present other officers and employees totaling about sixty five thousand knowledge of the time they spent by no protest plus a fifty percent markup i mean i think it seems to be we can and and you either accept the fact that's a recognizable damages but is that not a question of fact for it's a question of whether or not there was clearly proved that there was that that's what their damages where i think i understand your argument that's what's the closest case that you have from california to support your position the closest case for california just i would just argue that if there's a distinction the question is what is the closest case you have from california to support your position so i just need a name i don't have a case for that thank you ok i think we understand your position thank you for your argument is there something you're going to tell us briefly i think that the panel seems to understand the issue very clearly but i'd just like to reiterate that we do see this patently clearly as an issue as a legal issue where the court specifically said it didn't buy the theory of damages and didn't attempt to calculate it and so if we think it's a legal issue as to entitlement the damage is not a calculation issue thank both sides with their argument the case just argued will be submitted for decision