please the court counsel bruce campbell representing the appellant pacific seafood and with the court's permission i'd like to ask for three minutes for rebuttal thank you this case presents the question whether pacific seafood is entitle to relief when its former employee they'd be left without a remedy in their supplemental brief they ask the court if a court reverses that remand the matter to the district court for further proceedings before that court but then later on in the brief they also state that the case will be moot before that can happen which would deprive pacific seafood of a remedy well it's not necessarily moot because there is always the possibility of an equitable extension of the injunction which or which maybe organism ruled on yet but some courts have so our panel has addressed the message and so we don't waste your time or counsels on that for a peli we don't think the issues moo after leaving the company he started competing with well pacific seafood its prime competitors ocean beauty one week after he left the employ of pacific seafood so really the only question there is whether the nine compete isn't forcible under oregon law and in that regard the district court made several errors including that the agreement was not enforceable first of all the agreement is reasonable in terms of time and geography it's a one year non computer agreement which is well within a two year period let year duration what is it that you're looking for in the real world as a realistic mattie you want this person to stop working for three months it seems to me that is a reality aspect here that the you folks  the issue you're not asking for that in this surely initially you happy just to get a reversal and to do what haven't stopped working for two months i just want to get a sense of what you think is what your client really wants to accomplish well you that under the equable extension as accordance suggested it's a floor request of the parties to address in the supplemental briefs cases from all over the country really the weight of authority when courts have confronted this very issue haven't had one that say one year from the date of the court's decision have you we have your honor in fact there have been a number of of courts and have said from the date of the court issues the injunction that's when the date they will deem the non computer run from that date  in order to give the parties the benefit of their bargain and to to prevent the court to prevent the courts from being unable to award effective relief because realistically when you're dealing with a non computer agreement getting  relief is the only way to effectively enforce that so he says he's supposed to stop working now and he's working now and he's supposed to stop working that for years that what you're asking for we're asking that he just stop competing in the territories in which he's in which he agreed not to compete so that doesn't prevent him from working and the ocean view he has operations elsewhere he can work in other territories but he cannot work we ask that he should not be able to work let me ask you a question or two on that because i not current on the west coast seafood industry  but where does what where does ocean beaut have its operations now you know in my billet i think it was a beauty i believe is headquartered in the seattle area with that they have a very large scale operations in alaska i believe they also have operations in texas in along the gulf coast i was familiar with their work along in alaska with the bristol bay salmon run and in some of the west coast areas i didn't know they  operations in the gulf though i'm saying that on i guess on information of relief i'd ask my opposing counsel i'm sure can speak to that more directly let me ask you a different question of course any non compete has to be reasonable in scope and duration and i suppose the trade secret element here that's most of initially of concern to your client is  knowledge of customers and marketing plans and things like this all of which change rapidly in most industries so what is what is at this point what does mr close to know about ocean beauties customer base are plans that would have an impact on you if you continues to compete on the west coast one example your honor would be the roll out of the branding the brand premium product branding initiative that's just beginning now and so that's something that in mr costin's resume which is before the court was excluded by the trial trial success have we have where does pacific seafoods have its primary operations now its primary operation is in clackamas county oregon that's where it's headquartered but it has operations up and down the correct your honor especially western washington and and oregon but so is that pacific seafood as it is headquartered in the state of the when you say it the shrimp season is about to start where do they get ships on but second is when the record is sufficiently clear and i think it's the unusual case where you have no factual disputes but if you take but as i was preparing i was looking at one of the cases we cited in our original prefects called arc of california and it states record it's issue flipped around and says when the propriety of the injunction turns on intensely factual issues the matter should be decided in the first instance by the district court here i submit there are not intensely factual issues for this court to decide and if you look at the declarations there are some differences but if you take into account i think the most critical piece of evidence in the record here is mr information allocations rebates he wasn't as he states in his declaration he wasn't just you know didn't know how fish went from the ocean to a boat to a store as much more than that and so with that evidence taken into account there are very few if nt you think another minute now and then we'll have a couple minutes on your thank you so i would just say that this court does have based on its the presidents we've cited in our in our go ok and so that's the thing work i think we understand your opening argument why don't you save a couple minutes for they will will add another minute so you get three ok thank you very much have pleased the court good morning your honors my name is marcia elsewhere and i represent ocean county seafoods and michael colston i want to start my remarks today with following up with something coun said at the at the beginning of his remarks sipek seafood did receive and is receiving the benefits of their bargain mr question is not soliciting its customers and he is not said isn't that the state of the record isn't that the only conclusion any sensible person can reach on this racket no in fact mr colston in his declaration in the record in terms of customers clearly states to smart palmer the president through with you then there's no such thing as a covenant not to compete is that so no that's not so tell me why not well why not is because a covenant not to compete needs to be reasonable and it needs to be reasonable in the state of oregon and this one is not reasonable because it's not mehmet in as to the geographic scope the way it is written is and says anywhere pacific seafood does business and quite frankly that's arguably all over the world it's not just where they have offices for processing plants pacific seafood sources seafood all over the world and they sell seafood all over the united states eating so far as you can so that's a sensible reading that we have faced with you oh well quite frankly i have difficulty with a sensible reading of this particular agreement because of its multiple internal inconsistency is at paragraph seven different difficult of what you are concerned about is whether we have difficulty i think yes well yes i am concerned with that absolutely i'm concerned with that and i think the plain reading of that agreement and i think this court would agree with that is it is inconsistent in terms of drafting in addition the district court found that when you read all the agreements together it's questionable as to whether that non competing agreement even applies to any other position mr colston held at pacific seafood other than that first job in january of two thousand and eleven his food service manager of his  statement his statement when he said he would do what he said he would be well what misty i don't believe mr colson addresses that particular aspect of the argument in his declaration but what he has agreed to do in moving forward and that is in his offer letter from ocean beauty and that is his statement that he would agree not to contact the customers that he called on at pacific seafood and he would agree not to solicit employees and i think also in this case that and this goes to your question what is important is mr colston is working in a completely different market sector he's working in a different market and he's not working with the same customers he worked with at pacific seafood as counsel talked about these two companies although they do business up and down the west coast their principal places of business are in different always a fair question your honor but there are different covenants the ocean beauty about you is are the ocean beauty covenant is a i'm smaller geographic doraine scope covenant it doesn't say restrictive clause has to do with working with the same customers within a radius of seattle washington where he actually did business i think one of the issues that's gotten a bit conflated in this case i is suburban portland and he worked servicing customers in portland southwest washington which is just over the border and into northern california mr causton did not work in the seattle area well he started off as retail sales manager after the pacific company he's now the national sales manager with your company right then he became the assistant general manager sounds like he's an important employee and then do we not have to really look at the restrictive covenant clueless at the time that was entered into and at the time that he jumped ship so to speak is that looking at what happens over the last several months well it in response to that your honor yes that's a fair inquiry but i think what's also important to keep in mind here that the positions mr colston held at pacific seafood were not national both of these companies tend to do business locally so they will have they have their their home offices where the national policies are set and now national things are done but they also have local operations and then they have operations in other cities for example with ocean beauty it services seattle clients out of its seattle offices but its portland clients and its northern california clients are serviced out of its portland office and pacific sea foods has that same distribution model with respect to mr colston he was involved on the local level he was not an executive he didn't go to executive meetings he didn't create policy he followed policy he was a middle level regional manager it's not in the record but as a matter of curiosity how much money is he being paid at where out  before two hundred thousand a year one hundred thousand three hundred thousand over one hundred but less than two hundred i think both positions were pretty similar i don't those facts have not been developed because i think that both the jobs there is a  matter what with each other what what is the what's underneath them well i think what's really unusual and i i deeply appreciate those comments your honor and truly and i think we all take them to heart these are real people in the real world and what makes this case really unique and i think really special in the non compete context is mr colston is not your typical non compet violator he made the decision to leave pacific seafood go to a different state because he wanted to go home and live with his wife because they'd been living apart for three and a half years he didn't go for more money he didn't take and there's nothing in this record to even suggest that the reason why you folks can't come to a settlement agreement here i just don't understand it i just left the bad taste that you folks have going beyond the pale and the such animosity that you can't really come to a tragic resolution i think that's a fuck like a district court judge i have another question for you on the injunction issues if i may certainly be so these non competes  provisions can be very important in their economy as you said your company has one and now their company have one and usually courts give very careful attention to whether they're limited in duration and scope so as to be reasonable ok fair enough now you've argued that it's reasonable here that there's no violation because mr colson is agreeing not to call on pacific's customers ok well certainly that's that's an arrow in your quiver or whatever it helps your side worse than if you did but aren't there other things that are part of the competitive knowledge that are trade secrets that a person like colson at pacific would learn they could use to advantage at ocean beauty for example if you know those who are not the customers pacific and he goes to ocean beauty and he can come up with a competitive strategy to approach those people in certain ways knowing that the pacific isn't doing with them you can have an impact on how effective that would be or if he knows certain products like months or product lines that pacific is planning to develop i don't know if there's anything like that in his knowledge but for example if you knew the pacific had studied coming up with a frozen packaged salmon instead of the normal filets that you know some kind of way to market their product and you know as they've considered and rejected it they're not going to do them you know those that notion beauty if you says you guys should do that they're not to have a competitor so you know it's going to hard for me at least to look at a non compete and say it's satisfied by not calling on customers because there's so much more that could be involved so how do you how do you dress that well in my limited time i have left but it raises such interesting films give you a couple extra  it raises such interesting philosophical questions in general about non competes and their usefulness in today's commercial society in direct response to your question it's really important to keep in mind that mr colston is a salesman he has worked in sales his entire career he works for sales in sales in seafood and approaching products sales for us food since food services of america for twenty years before he went to pacific seafood pacific seafood competes with those vendors in the same marketplace pacific sea foods was satisfied when mr c to work for them that he would not inappropriately share confidential information with them that belonged to his former employees employers and that's in his that's in his initial hire letter and his agreement from pacific seafood and that same language is in his offer letter from ocean beauty he's not to share confidential information i think also what makes this case distinguishable perhaps from some of the other covenant not to compete cases is the product involved here is a commodity it's fish whether the fish ends up on pacific seafood struck or ocean beauty's truck it's the same fish from the same ocean branded products also here it's welcoming that argument has been raised about the branded products but quite frankly at this point the record  developed on that it's just a statement that oh there's branded products to so to that extent i don't think i don't think that's really a the evidence just isn't there branded products are a small part of what the work that both of these companies do but keep in mind mr colson is a regional sales person he's not setting marketing a national marketing policy he's not he doesn't participate at executive committee meetings said either of the companies and he never did at pacific seafood  and understand that position is that position yes is national food service sales which is a completely different market segments so but that means an ocean and i meant to address this earlier thank you for reminding me about that what that job means is they're selling to restaurants and hotels not to grocery stores and to restaurants which are large buyers of fresh fish in his job and pacific sea foods that last job he held he selling in the retail market to grocery stores and to restaurants so they're completely different market segments in completely different regions well which is that was me because you talk about so many they need to be reasonable mr colston has worked in this industry now for twenty five years to ask him to not work in this industry here's his choice he can stay and work at pacific seafood for the rest of his career or he cannot work for a year in seafood sales what about pounds suggestion that he can go work in the gulf or some other area where ocean beauty has an operations just not the west coast where he's in their market there well i think that that question is an open factual question at this point your honor the record is not fully developed on that yeshu pacific seafood quite frankly has operations and does business all over the world that source is fish all over the world and yet has an office in  processing in texas and in the gulf and in las vegas and in salt lake city it's not just a few plants along the western united states anderson and in the fishing industry that there oceans around the world  so much to say on this issue and it's a very interesting and important issue i will close by saying this one of the converse one of the issues that has been bantered about in this case is whether the district court erred by failing to blueline the the agreement to make the geographic restriction enforceable and it is our position that even if the court had done not even the coffee if the court had clearly blue lined up and said just for sake of argument organ in washington the problem is that would not have prevented the courts from issuing the denying the issuance of the injunction in the first place because  failed to demonstrate that irreparable harm was likely and to and the judge also had substantial concerns about pacific sea foods ability to prevail on the merits because of the other problems with the non compete with the agreement itself which could not be rectified by putting mining thank you thank you council ok mr camp johnson case that if a not compete is to broaden geographic scope the court needs to pencil and narrow it to what would be reasonable i would submit the given the caliber of the projects that mr colston was working on not computers and forcible in its entirety but certainly at a minimum it's in forcible in the regions of which he worked again that there's no ambiguity there he worked in the clackamas region which is not just one county in oregon but it's oregon agreement may have already in the alley you know your honor that's a fair question i feel like i'm fighting with one or two arms tied behind my back because i don't at this point you know the record doesn't show anything because it's been closed since since the appeal was taken but as i said on direct they're still rolling out this new brand of line of products so there is a lot a lot that can still be protected they're going into the two big fishing seasons there's a lot of things and every day mr colston is out there competing chipping away at pacific seafoods market share there still is quite a bit to be enjoying and and yes the barn door has been opened but it's not too late to close it so maybe the district court is in the unique best position to really assess all of the current issues and facts that have evolved it's an equitable consequent talking about and would that not be the y c to do we agree that the district court was incorrect take into account mr colson's declaration or and his resume and the job description that he filled the ocean beauty it's very clear that he was in a high level position had access to high confidence information that he can put it to use for ocean beauty and to some extent his detriment i don't think a court of equity should take into account the current state of affairs well i think but then we run into the problem and that's the second issue is that the case it becomes moot at that damages is exceedingly difficult and and so that's why we're suggesting that the court could issue an injunction on appeal that would last until the court has a full and final factual determination on the behave well i think we understand your argument and we've let both of you go over time because it's a very challenging and difficult issue you know it's important to both pacific seafood clients can pursue the competition they have a right to do ok thank you very much ok thank you both