right you could proceed good morning iran as they please the court my name is paul williams i represent the appellant's in this case expedited video conferencing services which was the employer of the plaintiff and larry roar which was the who was the majority shareholder and the president of expedite the primary issue on this appeal we believe concerns the enforceability of a particular term of the employer's sales incentive bonus plan we don't think there was any dispute certainly up to the conclusion of the trial that the plaintiff knew about this particular almost immediately after the adoption of the play and he admitted on his cross examination and i believe his direct standard of review that's factual finding we believe it's a novo review we're not i don't believe there's any fight over what the factual findings were we believe the dispute is what the court did with those findings and the legal conclusion the court drew from them lauren the state of new york is very clear that if you are aware of the term of your employment and you're an at will employee and you continue your employment you've been deemed to accept that particular term you didn't you didn't what you just said and what point does the acceptance occur i believe the accept and in this case occurred in december of two thousand and nine within three months of the adoption of the plane when the pla acceptance not quitting is the acceptance on the new york law yes the magistrate judge though said that it's a factual matter the record sufficiently ambiguous on this issue there's no clear point which can be sent to represent acceptance or an agreement by the parties because they kept on discussing and debating what with the two percent well and that's where we've had nearly nine wards and so on that's what we believe the court made its st major error what the court said was the topic was quote continually under discussion and reconsideration of the party between the parties was not a factual finding that we would have to differ no because we don't dispute courtman making that conclusion referred to a section of the plaintiff's brief which referred to a number of e mails between the plaintiff and two fellow employees curan kill car and a guy named thomas talley we don't dispute that those communications took place but it's the legal conclusion the court basically imputed those discussions with fellow employees of the plaintiff to negotiations on behalf of expedite those persons were not authorized representatives of the corporation the testimony at the trial was very clear the offices of the school operation the plaintiff was talking to the janitor i mean what that constitute a renegotiation we don't believe so and what would you say then what was the last communication between mr van it might work unfairness in certain situations i think what happened here was the plaintiff in this case had a number of customers who lived or resided outside the state of new york so for those particular customers the the cost that the company bore for let's say delivery men delivery vehicles they weren't used for some of his sales because they were going out of state but that doesn't mean a corporation has to have a separate bonus program depending on where a customer resides how large was the management group it was three persons and then down to two once bruce and his actually passed away so this is a closely held company with twenty five employees so it's not quite so unreasonable to look at the continued objections raised by mr van de corps over time as communicating with the company but  company the company always applied the two percent deduction there there is not a single item in this record in which mr rohr or mr jenner equivocated on the subject you may have a point we'll revisit it down the road to continuing to work and is continuing to work means that in an at will capacity means you're working at the term set by the employer that's that's our position yes even if the employer is willing to discuss i'm sorry to hear even if the employer is willing to discuss them willing to discuss it does not constitute a renegotiation if they were going to discuss at a future date it would depend on what they discussed and what they agreed to it that day so that there was a march five two thousand and twelve e mail from gena to mr vanocur that says i recall your point especially as it relates to services i believe larry said we could discuss the difference once all the numbers were in line and if need be work something out once we have a clear picture we can discuss as well as costs not least in the jobs doesn't that demonstrate continued discussion i don't believe that was  statement that at some point they would address it they never did the company never changes position and it never all that well with but the substance of the e mail is we'll talk about this once we have all the numbers they didn't have all the numbers then doesn't that invite continued calculation of his commissions for the year two thousand and eleven afford the seventeen thousand dollars which was canceled the customer contacted the company that it was not ready to take delivery and it cancel the order he testified  that there was no rebuttal testimony really off the trial and the lower court just ignored the issue just adopted the plaintiff's damage calculation we think that was an error we think that should really be remanded for further consideration is that where the core necessary or is that something that can the court found and that commission plan did not have any kind of a two percent adjustment and said that we were going to adjust for unbuilt freight so the plaintiff has to show the part of the defendant has to show that the plan was amended said that management reserves the right to charge back any returns unbilled shipping charges and any other expenses they have not been accounted for so on the face of the of what you end of the word actually a moment you know the actual shipping charges means they'd have to calculate the shipping charges with respect to every every a delivery record and my calling when did that for them but the contract call for a new bill shipping charges they didn't say we were going to do an arbitrary two percent reduction unbilled means you don't have a bill for it meaning these are expenses that the company incurred that they did not build a client for not that not that the company didn't know what expenses  again those were pretty easy to track and mike klein in fact did that let me ask you this question let's say that the plaintiff was working for the company your your client was working for the company for two months and they're arguing about whether it's two percent or not he continues working for another twenty years he remains disgruntled gets a gold watch and he leaves is there any point  which he became an at will employee well he was always an at will employee i don't i don't know if there was a point with that where he accepted the two percent the issue in this case was there was only six commission statements given the amount he was an at will employee when you're saying that there never was a point i mean there are a lot of people who are disgruntled employees but if you ask most people they don't think they're getting sufficient payment for what they're doing many of them are white but you don't that's not a basing contract at this point he was told to be twenty percent and and they never backed off it and he continue to work and this is new york law i mean it's not it's not federal law we can't i respectfully disagree i think i have shorted every time they mention the two percent he said hey that's not the plan and then they came back and said let's talk about it and it wasn't as mr williams tried to represent the janitors that he was talking to he was talking to the five separate controllers that were there over five years and each time the controller said hey you make a point and there are internal e mails because we did the controller have the authority really to bind the company well the controller was the only one who was speaking to mr waller was ignoring his e mails and and the controller was the one that was figuring out what the commission dollars were the controller was the one that was sending the report to the controller has the authority to bind the company it's a different question  the controller did have the right to bind the company in the sense that there was a written commission plan and defending it saying it's the controllers that communicated the amendment to the plan that was never on a separate issue so the two percent commission deduction was on every commission report right now was not know it was the st two in two thousand and nine did not since since june two thousand and eleven i go right so nine and ten right so then in two thousand and eleven and then my client said i don't know we're talking about two percent and they said oh we'll look into it and they worked with him and he got the actual commission dollars and he sat down with the controls no one ever said you have to accept this two percent amendment to the plan i thought you can order to keep working you just said when he sent repeated messages to his boss they were ignored no they said that they will they will look at it they will work on it and they continue to work on the dollars that the controller will look at it but that the mr moore at the end of the ignore and ignore them at the end of my client's employment when after working with the th controller and coming up with the right commissions pursuant to the plan where no one ever said if you don't accept a two percent you can't continue to work here ever that's interesting and my question and its you said he sent repeated messages or e mails i think to mr moore and then you said you nor them at the end of two thousand and fourteen at the end of his employment when he after working with the th controller he said this is what we figured out the commission dollars are and he sent that to mr or mr or did not respond to either of those e mails and m then my my client's and point was terminated following that so it was the final two e mails in two thousand and fourteen before that he was working with who the company represented for him to work on his commissions with and with respect to the authority issue my brief shows all over the place that mr war is in on these e mails he's copied on these emails and nowhere does he say what do you negotiating with this guy for we ended this plan for the two percent they're saying we think it's unfair it's its service contract there is no freight or the client has been billed for the freight within the bill wasn't unbuilt shipping charge and the wires mr rohr said they stopped that we mended the plan it doesn't exist anywhere until trial where they where they try to say well we communicated that with him and they don't call any of the individuals that they claim communicated the two percent men into my client nobody testified to it anywhere in the trial would you you can test it happened i  think that in the in the in the plan when he got the commissions all of a sudden there was a flat two percent reduction and the company because they were only giving him statements instead of monthly once a year it became problematic for them to go back five years and four years to look at all the commissions state and so they did this flat two percent my client said hey that's not fair and at every point they said you're right we agree it's not fair we'll look into it we'll talk to larry we'll figure it out and my client they asked my client to give them information person john general whom mr williams admits was an officer of the company talks about the initial commission plan and by the way just mr warren made it under oath trial that the commission plan was never amended so you know with that in the spectrum and he says i do recall your point especially it was relates to service and believe larry mr moore said we could discuss the difference once all the numbers were in line and if need be work out something once we have a clear picture we can that they're trying to say that the contract was amended and that certainly wasn't done in writing it certainly nobody testified it was communicated to my client and when my client objected to the commission reports they say we're going to look into it there was no clear amendment ever in the damages who ward and there was no rebuttal to that claim what's your what's your position on that there was no document mr rohr made an oral statement at trial that this was cancelled he produced no documentary evidence no bills no anything it was never mentioned in the sky over he didn't talk about it in his deposition at trial was an afterthought and it so lacked any specificity or backup if an order was cancelled they would be a document that it was canceled that the court correctly factually determined that to be inaccurate actually spoke to that directly and said i was in adequate proof of cancellation well the magistrate said that there were minor i don't have his exact language but he said there were minor disputes in terms of the of of  dollar figures and he i believe he justifiably ignored that i don't think he specifically wrote in his order that he was ignoring it but it was literally backed up by nothing and again never talked about before trial not that positions not  discovery and he didn't he didn't have any cancellation order he didn't have he didn't have a document or check that went back nothing like that so i believe that there was just so little evidence to support that bald assertions made for the st time a trial  this i'm just finding plaintiffs in ten of liquidated damages and that's one hundred and ninety eight thousand then before and i'm not seeing any discussion directly of the hopkins and i was concerned about the cancellation because that was a significant amount was a poor one hundred and seventeen thousand dollars sale i  testimony saying there was cancellation but it was not supported by documents and so you think the magistrate judge was justified in ignoring that assertion correct insulin and was never made in the you know discovery all right thank you very much mr williams you have two order was cancelled he referred to the commission report for that year that was there any documentation yes he referred to the two thousand and eleven commission report there was a column at the very end of the report which included for most orders a p which means the company had been paid for the water he pointed out this testimony that there was no p next to the johns hopkins sale it was and they were never paid for that water and the commission plan itself stated specifically that commissions would not be paid when i turned and still the company actually received payment from the client what that means just as of the time the report was prepared they hadn't been paid that seems strikes me as a little different from the one who was cancel all the rip the the report was to confirm that there was no payment on that sale for at any point time in twenty a limit to the magistrate judge address it specific not at all i don't believe the judge address it at all ok thank you very much to go to the other subject  can i understand that he was the plaintiff was hired with the understanding that he would get a commission that would be adjusted for unbuilt shipping was that the contractor you'd be paid a commission that would be adjusted for unbuilt shipping shipping and related costs of course he was hired long before the plane was adopted is all right in two thousand and two all right but when the plan was put into effect erect that was the rate as the employer took the position or that it meant an actual worked out dollars and cents figure correct correct when was that when was that dispute resolved from the point of view of the employer so that his continued working ratified the employer's understanding be admitted during his testimony trial that by the time of his december t thousand and nine e mail that said you're kidding about the freight that he had been specifically told of the two percent deduction so we claim what's he told that that was the position of the company yes and he and then the employers and will will work about room will work around it will think about it will adjust you know it's not and i can't point to any actual communications to that effect with the people who mattered being in the offices of the company his entire theory of his claim against larry ror is that larry was the guy who made the decisions he was he was in the band larry never varied on that particular point and he never had a conversation with larry or