and those in the audience who coming later be aware of our lighting system red light is an important one to the court should be important one to you so long as the red was not on you free to run your own speed but you get the in your sentence wants to read like comes on and if you need more time we will consider giving it to you of the first case on the docket for the day signal and the motion to substitute beginning with rule ten it's very simple we were concerned that when we filed an instruction in the district court that contained an instruction with regard to indemnity which we appealed the you might conclude that that in some way only four minutes spending any of it on this e mail that's just me all right i'll move on to thank you josh this that opinion doesn't use the word agency the argument wasn't considered there was no consideration of the restatement with regard to this statement in particular breach of the duty is stated in this section of lack because i'm just really kind of puzzled about about your argument here i think it's true that agents are liable for their breach of duty that's why you brought a breach actually that was dealt with on a different basis not that they lacked a cause of action there rather that you didn't prove that different question that your colleague will address so the agent is liable for their breach of duty that doesn't mean that they are liable in in a special little animal so why should we take that little lady animal and try to make it fit here when you have other remedies like breach of history duty fraud whatever that would fit very fine except for the eviden maybe the answer to that judge haynes is the extent to which of the district court charged this jury on agency law there was an extensive charge to the jury on mississippi agency law to set a predicate for visiting liability on signal based on the conduct of its agents indeed we objected to the court's decision to use the disjunctive or in the subsequent verdict form is signal libel because of its own personal misconduct or is it responsible for the conduct of its agents but more importantly we were guided by your opinion and northrop grumman you said mississippi looks these issues through the prism of the restatement and in the great american case judge hangs the court was crystal clear on the mississippi supreme court it seemed to us  the purposes of erie the mississippi supreme court and great american stated we adopt the restatement third approach to determining whether there is a duty to indemnify between an agent and a principal i'm accustomed to dealing with louisiana law and louisiana law the rule that as set forth raise all of the causes of action that you possess i'd be surprised if the rule is different in texas bring forward everything that the law provides to you and let things sort of sort out the way they should but given the guidance that we received from northrop government by the way on the point we ourselves acknowledge that great american was withdrawn by the court we know that but you rely on great american to say that mississippi uses the restatement two years later in northrop grumman so it seemed to us that we were entitled to this charge and you have the big length of time i think you're the one who needs to deal with it tell us how we should sort out this is this case moot is it something we need to remand of this to court how do we proceed sure this is a matter that  of the tail end of the cross claims from the first david trial and just to the extent there's any ambiguity here to the extent there's prole evidence right that special  but the district court did not get to consider this on page sixty one there is a schedule three point five which identifies the claims litigation and disputes and when we see the david first signal international case specified and then we see i a transfer agreement that all of the sellers claims are being transferred and then we see in this officers jeff a kid saying we represent purchasers where we're they designate well we think that's ask one thing on that is or what is the state of incorporation of signal of incorporation because i'm just and the reason i'm asking is some states have no rules about continuation of cases after corporation dissolves by or against the original party unless the court on motion orders the transfer to be substituted does that have any play here or would we do think that single could continue in the name i mean we we don't under that rule or just in to deal with evidence to deal with that occasion ok and so it's a so we we really are the dispute with jennifer again what it is in your six minutes you would like to cover and we may be able to don't think that it's all that demanding to say if you're going to charge somebody for attorney's fees turn over what the attorney sent you to pay turn that over as you are put proffering that is your evidence of what the damages are me why is that so exacting in specific and hard i think that a lot of the cases say that that that's the type of evidence they want the words they use it that they they say they want the best evidence available here we had immigration filing  testify in her saying you did not have available the lawyers invoices no we did i are in need then why isn't that the best evidence available of those fees because the same information is contained in this accounting that that's what we call the bills with with backup where's the back we believe most of that information was contained in the testimony we we had a full four hundred workers we had me extensions had to be processed for all of those we had perm crossing processing that had been ok also that what you're talking about is legitimate it would show a fair amount of work that needed to be done but is there any quantification is there any financial information that the jury would have gotten through just expressing how much work a lawyer had to do how do we get any money charged and paid out of that  that this accounting line item was set up exclusively for these fees and not for the litigation fees not for other or her issues but exclusively for these and she said and she thought that's what it did and somebody else testified much in the event that anything else was included in that that was a mistake that's not what it was designed for a report of the rules used to be that the best offense evidence available must be offered is there anything in this record indicates why the actual billings or other more detailed information was not presented no i think that was a judgment call that we could that the that this were no you know you've already given your explanation why this is just as good if we decide there was better evidence which seems to be the requirement best evidence is there anything in this record to suggest that other evidence was unavailable and did not exist that's not in the record a about the imus did you know going ok i wanted to ask you about the damages for having to get the contract labor replace the h two b workers there was also evidence that si charged its clients more when it had these contract laborers so what evidence do we have that they had a net negative in other words if i have to pay now sixty dollars an hour instead of ten dollars an hour and i charge judge southwick sixteen dollars hour then i don't have any i'm not out anything because i'm just he's paying it instead of me whereas if i'm still charging the ten dollars an hour to my client because they will pay more and i'm out that six dollars and i have damages how do we know from this record who you're saying your expenses were increased but if your revenue was also increased by the conduct of your opponent then you have to net that out so what evidence do we have that shows that the was a loss on these workers you don't have the specifics of the will which workers were contract left and the reason for that is because of these in orders and what they said and this is a best evidence argument we were not allowed to discover or present evidence relating to any post single employment so we had to deal with the best information we could get the best evidence we could get on top of what would be in your files you lose mr x how for whatever reason and now you have to go hire mr y and mr mark cost you more but you bill your client more so that would all be in your files and where is that in the record to present that you would have to br down by which workers are working on which contracts because not all of the contract or do you not know this isn't your this is in your files you have workers that left and now you're saying that these guys should hear these guys should have to pay for that ok don't you know who left and where how you replace them or shouldn't you have to provide evidence on that we know who left we can not say that we're not allowed to present evidence of who went to james why i'm here or where they went buno they left and you know whether you replace him of contract labor and then you know whether you charge that extra amount to your clients where is all that effort in order to present fact in an exact fashion or in a competent fashion we would have to identify the particular kind of contract and protect the workers and we were not allowed to identify the particular workers because they're the ones who want you to know and that posting the employment evidence that they work for you john doe worked for you and left who replaced him and how much it cost you extra you don't know that we we do that that's something that we were not allowed to present because the interim because it was we were only reply going to where you weren't allowed to present your own information and i don't make  sense i understand you weren't allowed to enquire gene and all this although you didn't appeal that but i don't understand why you can't put on your own records of what happened in your own company but i think you've done your best thank you for this situation there is not much case law on it and the reason i don't think it a pause in the situation is because it's not a situation where there was in fact we know there was an assignment to somebody that's the problem here is that the documents that were final do not a stylish in my opinion that this cause of action was even considered once the signal ceased to exist and now they're trying to say oh wait wait wait wait if it's in one of these other categories and i believe that you have the right to determine as a matter of law based on what's in those documents whether this cause of action was included in the sale of the assets all was executed and i think there is no evidence that if you follow the rules of construction that don't think it's that kind of mutants that we're talking about what we have is an uncertainty about who if anyone stands in the shoes of signal at this stage what's the right way to sort that out well i think the right way to sort that out to start with is whether or not it does that in fact transferred to someone if it was not and signal ceased to exist without that was it not that that for whatever reason the bankruptcy court actually declared that as of a certain date saying no longer exist no longer has a corporate existence except for the possibility of the delaware law and may or may not allow for a cause of action to can tin you with no to deal as a complete package and that's certainly one way to handle it but i believe that there is sufficient evidence for this court to make determination as a matter of law if delaware law does not provide that even considered you note that for example another cause of action that they had on appeal was specifically reserved the not just the debt is but to their their heirs something they want to continue to prosecute this case wasn't mentioned that were they trying to get it under some general relevance so if this court determines that this cause of action was not addressed when signal ceased to exist and is no more corpus i think it is a disturbed with the whole group the young i grew it for your breeze makes you sound like you know mr burnett was just kind of vaguely involved in one or two thing i mean he's they find him part of the rico in the part of you know bringing people here for abuse and all this kind of i mean it is a very far flung verdict against your client that you try to make into kind of a he just really was basically uninvolved that's what the jury found and yet the district court basically said these guys had hired burnett who is part of this far flung rico conspiracy have no right of action against him when he was supposed to be the one advising them about all these immigration laws in avoiding all of this you know human trafficking whatever so how do you address that just in a global sense and a global sounds odd to believe that you're correct i think the jury was after five weeks of trollope with a lot of the evidence that was introduced that i was inadmissible in things that had absolutely nothing to do anything to drink was ma is a actual look at the record especially this record in this case the five in fact actually six testified another one testified i don't believe even him but these five and and signal all made it absolutely clear on that mr byrne became involved after the signal made the selection the signal was in india and hard these people that was not his job mr bingle testified he never he never was he did not advertise it did not recruit he did not select that was not his job and the only thing he ever talked to  one individual with zero damages and the court accordingly directed verdict in favor of mr burnet individually i think what it shows is that the jury was mare when it came time for liability when it came tom to just sort out the damages that was cooler heads at that point tom said well no it's not a personal thing but that's not before the court but before the court is the evidence in this case never seen this case mr burnett not did asking for names they wouldn't give him and they didn't want to give them a name he got in because the people came to him and he found one out of his way to find jobs to transfer them to keep him in this country legally that's what's in the evidence now as far as the damages what would signal is trying to do i thought and i gave them the benefit of the doubt that perhaps they just over looked their case in chief against mr barnett really kind thought that it was a tap the ball decision to present this before the jury but i'm convinced especially after hearing arguments that it was intentional deliberate and calculated they did not put in the signal and those that had been for other companies it was after that when signal fired more people still the next go around that patricia bowman took his followers and we know what she did we don't even know if in fact she did she did that part good to his because it was already in mr burnett files that she took over we don't know any of that when we do know is that your chief financial officer said oh no this is for the litigation we know that they have litigation expenses attorneys they had attorneys also litigating the e e o c claim against them over the top labor department we know they had just to try and get used this backdoor number with no says no back up the say oh that's what i damned result in the same way with the last relies on i'm  discussed the plaintiff's false claim to has failed to prove any damages at all most of it was best based on speculation other than the attorney's fees which i think we've we've got in hand that the notion that the invoices should have been put in what evidence should they have put in about this issue of having to hire the more expensive workers and all that what would you find sufficient to prove that i would find that haas to be there have to be records of individuals that they had to go out and high on a contract basis at a high rate rather than just ignore that and s matter whether or not they charge the clients more for those guys pass the costs on or not does that matter here i think it does and i don't think it's i do not disagree with signal i don't think it's a collateral source i think this is something that they were able to pass on to someone else but that we get but we don't even have proof of the loss itself we don't have proof of the damages we have speculation we have conclusions over you know what because of this we had to go out and and hire contract workers at a higher rate than the h two b workers we had to do all kinds of things and there's very little if anything in the record showing that signal did these things that would have mad e for a longer trial perhaps but you know one that it was incumbent upon signal to to make that to prove that in order to try to at least turn that stuff over in discovery but just forget to put it in evidence or was it just kind not there iran i have never been involved in a case where there has been so much discovery there would literally millions and millions of pages of documents there were the electronic discover it was to me this was mind boggling however having said that i don't recall a single instance of a trial where signals put in any evidence showing that you're saying because there were millions doctors you don't know if any of them were time records of contract workers or not whether that was out there in the ether and you don't know you know what you're on about i don't know if it was as you do know it wasn't brought up to try you just don't know whether it was in the millions of  their work for them but this is there had to be a summary exhibit with back up that would have been another way to do it this is federal but didn't have the name of you don't think in estimating saying you know look we had this many we thought we were going to have thirty months three times or ten months or in it three times wherever it was that's not good enough why it's not good enough because the jury needs to be informed that the jury needs to see with their own arms and ears hear with their own  exactly what's going on and how they arrived at these conclusions and that effort was not made a single cent simply came in with a lot of  particularly on a fraud case where the standard of proof is this is somewhat higher than poor news the general law in mississippi though certainly best evidence party can escape liability because a lack of a perfect measure of damages as some of the argument mostly know is an awful lot of this may have been hard to track and they did give was just changed with saying estimates of the number of workers estimates an increase wage costs as most whatever else went to the calculation  the fact that this is a fraud case is that somehow trump this more general language that the absence of a perfect measure of damages so long it isn't fatal so long as there's some using a clear and convincing standard as the standard of proof perhaps the that it heightens the the type of and quality of proof that you need to present to the with respect to my clients to do one defense there was no evidence for sent it by signal that my client committed any kind of fraud against signal to begin with there was evidence that the only evidence of damages came out once concerned immigration and immigration work that was that had to be done because of a breach of fiduciary duty or malpractise committed by mr burnett but to the extent that somehow they're saying that mr don't want is responsible and his company was responsible for those damages yeah i would say that the standard of proof is important and the other thing is i wondered mississippi law while it doesn't have to be perfect it has to be a reasonable certainty it can't just be a  speculative presentation of the evidence and they had to have had this evidence is there big a big corporation they've got documents they turned over zillions of documents in this case they had to have been able to show not even to perfection but reasonable certainty that these damages the reasonableness of proof of damages is it driven by what would tend to be available so for example with the attorneys fees we know attorneys send bills and they say on this day i work this many hours doing this kind of stuff and so that's why we're looking for that versus sometimes lost profits in the future can be a little bit hard to measure in this in that the vagaries of life so is that part of the analysis under mississippi law looking at like what is out there in deciding how perfect or imperfect the proof is and that's another good question i mean if on the plaintiff in a case i know that i have the burden of proof and i'm going to do everything i can to convince a jury by either or whatever the standard may be i'm not the least things out i'm not going to give something you know haphazard i mean we're not here to decide whether people employed a good trial strategy i mean the question is was there are sufficient evidence to avoid a directed verdict on the question of damages and it seems like we have these kind of two somewhat conflicting standards of mississippi of it doesn't have to be perfect just good enough but it needs to be the best available so help me with that ok i'll do my best judge morgan had had the discretion to decide whether the proof was sufficient and this judge decided that the of damages which is they don't have to be perfect you can have an imperfect measure however it needs to be the best available evidence how do we square those here and what is your position on my position on the judge changes  while the evidence does not have to be perfect it can't be speculative it can't be conclusory it's got to be based on something in in reality it's got to be based on something there's got to be back up i understand the attorney for you should certainly they're billing records billing records that's that's that's easy but you know it's not that much more difficult to show or to even hire an expert to go in and show hey look this is this is what we have this is the univers h two b employees we have this is the universe of contract workers that we have to hire and this is the difference this is what our projections were i mean that's that would be a satisfactory level of proof even if it was not but first of all no one has said that i am wrong about but mississippi indemnity law really does point one point to judge hands you will find if you look at page forty five six twenty five that's four five six to five of your record that when the jury was asked whether mr burnett had engaged in fraud they said he did either directly or through his agents judge haynes i cannot imagine the number of jury trials you supervised i didn't get the charge that i wanted i couldn't close the way i wanted to i couldn't characterize the evidence in the record in the way i wanted to with regard to indemnity the answer to mr cynically  charge that we did have done something wrong by fellow failing to argue the equities of what happened is that that sort of thing was interdicted by the trial court's failure to guide the jury properly with regard to listening to a presentation like that thank you  yes and just a follow up we've talked a lot about the quantity and quality of evidence that was introduced we have not talked about two categories that were wholly prohibited whether or not mississippi would allow the recovery of get to trial so in addition to that evidence we try to preserve that there are categories which we we we were not allowed to even try well known to the the quantity and quality of what was three two thousand and four when they were told by these workers on the day they arrive where's my green card through that that idea that they were harmed by that and that the six week trial where eight years of litigation about that harm now how