honor thank you all right and i can see you and your you so all right this will run pretty much like it does when we're in the courtroom that's the miracle of doom there's always the potential for a glitch so if that happens if you get disconnected for whatever reason trying to get back on will wait a result there is a time for some reason you just disappear for more than a few minutes we're likely to spend the argument and then give up perhaps the next argument and if you get minutes now you may proceed thank you your honor if it please the court for the appellants members of the court the issue and the key issue in this entire case is whether liquidated damages clause in an employment agreement of an employer he was  employee isn't forcible or not we respectfully submit and i would go after that in a minute that the district court respectively fully decided that the clause was unenforceable but applied the wrong legal analysis in doing so the plaintiff here signed her employment agreement willingly and did so so as to have entree to the united states and employment markets there no one cursed coerced her into doing so you knew about the liquidated damages cause there's nothing hidden about the cause there's no deceit brought none as alleged with suspect t hat the plaintiff knew the employee knew that she was beholden to this provision and because of the expenses and future expenses that would be incurred time of the contract and that is the key i respect we respectfully submit the court did was to look at what the actual damages were with the spec to the expenses incurred in connection with the actual employment of the employee at the time that was a look back and say well here are the expenses and therefore it was disproportionate to what the liquidated damages provision of twenty five thousand dollars were the misses amount of it's a free shit the point that you're making but of course the what the actual damages will be is in a sense always not as certina bl at the outset of the formation of the contract the question is whether you know at the beginning of the contract whether the damages will be calculable at the appropriate time in other words it's clear that no one knows at the beginning how much in the way of legal fees may be accumulated while trying to shepherd this through but one dollar knows at the beginning that is that's the kind of expense you're going to have and one knows that the lawyers bills will be there at the end so that you will be able to ascertain the  into and was a fluctuating number and that is exactly what this court's decision in the leasing court case was we are talking about the cost of replacement of a nurse in a nursing home and affidavit of one of the defendants a principal who said in his affidavit what the overhead actual overhead recruitment cost was per employee it was twenty six thousand dollars that is not experts  testimony which at which i could comment on that was the actual affidavit and based on knowledge of one of the principals also then i ask your counsel was there was there any contrary evidence from the pla appellant's the employer to determine what those course were and to make its case to say that oh they could not have been determined at that point it was  that a replacement for this employee was forty two dollars absolutely forty or forty two dollars per hour for instead of the twenty nine dollars or thirty dollars per hour that the employee was getting an astronomical increase at the time of contracting everyone knew that in the nursing home if an employee is going to leave saddle and this is an elite you can't leave patients abandon to have someone in the and breach the contract that was totally on no yes but you see what you're saying what you're saying strikes me again as as the same in any contract if if you have a contract that someone is going to supply you with widgets as many as you need at a certain fixed price and then they breach the contract the cost of cover is always not knowable at the beginning there could be market spikes and market drops and all kinds of things could happen between now and whenever the b occurs it's no big deal to figure out what it is it is what it is in this case it was forty dollars an hour at least for a while it's not clear how long that that is away that matters but you know what the cost was of replacement and you know in advance that you will know what the cost of replacement is whatever it happens to be the damages will be calculable well you know that was actually we didn't know what the makes illiquid they would liquidated damages because that was entered into years before unenforceable because the critical period of time to look at that is when the contract is entered into and at the time the act is entered into an dollars replacement cost for and nurse was a lot more than was even contemplated but that was to the benefit of the employee because they think it's any certainty the amount of money that the breach would cause as a loss that's why you fix it with a reasonable measure of twenty five thousand dollars not a one million dollars a five hundred thousand dollars twenty five thousand dollars because that was what the principals and that's what  quantifiable costs is there anything else that's missing from that this recruitment included in that four thousand five hundred the actual no recruitment it's not because the actual cost of a person signing a piece of paper and somebody billing for that yes but the overhead of maintaining a recruiting office for all employees which is what was the situation here turned out to be twenty six thousand dollars per employee so that overhead is have but is that it worked no they're not but i think what judge parker is asking is the contract lists the kinds of damages that the liquidated damages will be in lieu of but it does not list as a category recruitment  does not do so just wants to list me no now and then because we don't know what's going to be in the future you have to have a reasonable estimate of what those damages are that's a very quick question we've done way over but the recruitment a forcible liquidated damages provision gives rise to liability under the law isn't isn't the question you really ought to be spending your time on if you want us to address that issue our appellate jurisdiction over those issues street here if you had appellate jurisdiction over this issue it would be necessary to decide the validity of the liquidated damages clause in in order to  decide that issue but doesn't run the other way once we've decided if we decide in your favor for example that the liquidated damages is invalid then the district court can apply that to whatever other issues are relevant but we don't need to decide anything about trafficking in order to address the issue over which we have appellate jurisdiction we need to talk about trafficking at all we just talk about liquidated damages than were done so  i don't see why it's inevitably necessary in order to decide what we have to decide to talk about trafficking well the only reason i would suggest respectfully is that airs only one issue with respect to the t v p a and that is liquidated damages because there is no other one going to and why can't we trust the district court to sort that out when it goes back on on remand in other words there's no need for us to address trafficking in order to resolve  contrary appeal that is de forest is that rabbit you talk about the whole issue before and never mention trafficking once as something that was relevant to the issue over which we have appellate jurisdiction i  would agree with that you quote to secure employees performance of the employment turner close quote and we submit that the district court's decision was correct because all of the evidence is consistent with that stated purpose and because the twenty five thousand dollars does not reflect a reasonable estimate of potential damages that was made at the time of contract at the  appellant's put in their contract a description of what would be included in the liquidated damages and they identified cost for recruiting the employee cost for sponsoring the employee for views and costs for training and orientation of the employee and those costs were were known at the time at the time of contracting and they were back out four thousand dollars so those costs do not justify a twenty five thousand dollars liquidated damages cause now as for replacement costs replacement costs are not mentioned as a basis for the liquidated damages clause in the contract and equally important may be more important bent philipson one of the owners of the nursing home does not mention replacement costs when he testified about the basis for the liquidated damages he testified that the liquidated damages clause of twenty five thousand dollars was an estimate of the cost to recruiting the nurses from the philippines and that can be found on in the appendix at page one thousand six hundred and forty seven dollars so mr phillips since testimony is consistent with the language of the contract and under the york law a liquidated damages clause must be based on a reasonable estimate that's made at the time of contracting this means that the court should only consider the costs were actually contemplated and actually estimated at the time of contracting to the southern district of new york in two thousand and sixteen which goes through new york case law on this point and those cases hold that a liquidated damages clauses cannot be defended when there was no attempt to estimate the amount of potential damages at the time of contracting and in this case there is no evidence that the nursing home estimated or even contemplated replacement cost at the time of contracting now due to the appellant also argued that there are other recruiting costs involved here that do not show up in the  testified that the employer that find the contract which was a nursing home had no recruiting costs other than possibly part of the four one thousand dollars and that can be found in his testimony in the thousand six hundred and forty six dollars now prompt nursing may have had recruiting costs we we don't know they may have had recruiting costs but prompt was the ass in need of the contra and have been recruiting verses from the philippines for more than a decade and they they should have been able to calculate an average per nurse recruiting cost at the time of contracting but they didn't do so  and for those reasons we believe the district court's decision on liquidated damages close should be affirmed and as for all of the other issues that the opponents which w raise there is no need for this court to decide any of those issues which are admittedly interlocutory issues not independently subject to appeal in order to decide  one issue that is subject to an interlocutory appeal which is the liquidated damages clause and i would submit to this court that it should allow the district court to address those other issues based on the it's for two minutes every ball thank you your honor there is no law that requires one to list the specific items of amaj is with respect to a breach of contract and this is a matter of contract law the remedy with respect to liquidated damages takes one step from the regular contract under contract law amateurs are recoverable if they are for the contract never has to specify what is meant by perceivable it is just a matter number one common sense number two the circumstances and the facts of the particular situation we're not talking about lost profits we're talking about costs as a potential avenue were not written down the plaintiff's is a nurse in a nursing home whereas a responsibility by law to take care of patients that employee knows that if she leaves suddenly as she did someone else has to take care of the patients it can't be left in a vacuum and the department of health regulations require that there be a replacement immediately has to be aware of that it's just part of cost whatsoever it's just not a matter of reality in this industry and in the health industry in general and as we've all experienced it is a matter of fact that there has to be a incentivize the employee to continue working through the course of the contract and i think his point was that that in effect is itself illegitimate that is in contract law we assume there is such a thing as a potential efficient breach and that sometimes it's better for one party to breach the contract and pay damages actual damages and it's better for everyone all around the  party suffering the breach gets damaged as the party breaching bettors for circumstances and everyone comes out ok but a penalty for a vision that is designed to compel damages it doesn't matter what matters is the substance is the are the damage that are liquidated proportionally related to what the actual damage