x had the right information generated by this employee the district court implicitly and explicitly adopts the view that employees have the right to that information but there's no basis in law in fact for that final section three point two b counselor me ask you a question that comes from the in korea that the court sent to counsel earlier and that's the threshold issue of whether or not we have a follow order in this case and we got your supplemental briefing so i'm assuming that your position is there is a final order with respect to the breach of contract claim for under section four  employment agreement and that your position is that the district court did address that issue and it's failed  soon from the apple lease brief that their contention would be the court found that you abandon that claim and that you your position is that no you did not abandon and that was an error on the district claim for return of property all you get is sheets of paper to write no well we get the attorney's fees and forensic evidence caught collecting it we also get the  we get the cost of redoing the software that we did we had sort of software that we provided to alaska airlines we had to change it because it is you is that it on your contract cla right and also unlike the seven point two section of the conference you out there were to not solicitation provisions that were originally bought and the court explicitly rejected stated that council a bit abandon the seven asking a party whether they're going to whether they're going to drop a plane a four point two claim the court should just ask are you mr bromberg dropping on behalf of your client section four point two rather than asking a question do you have any other allegations that you intended or any other claims you intend to pursue in your breach of contract claim and then calling that an airing of the claim of what it claims better you well i understand that judge and i understand that but pulmonary injunction orders that required the return of the documents which is consistent with four point two the extensive testimony was presented during the course of the case on the efforts they went to to recover the documents that were there the first twelve pages o the closing argument all addresses the recovery of the documents well if we if we agree with you that you did not abandon your client that issue or ironically determine the that  back i think that they answer to that is if you find reasons to send the other parts back you send them back if you don't because your answer to my first question was that you thought there was a war because the district court even though it did not rule on the merits had ruled on the crying because it had found the claim to be abandoned and you consider that to be legal error yes that would be a final judgment as to that claim but on a rania's point correct what if we found that that there is no final order of those who did he she did not that when there's a failure to make a fifty four b finding the court has traditionally sent the case back for the court to make that finding so there's no factual predicate for the abandonment decision in the here and therefore there the court you have to send it of our position is that the court should send it back on that piece and quite frankly i can't in our position is if there's other errors we'd like you to be like is  the abandonment claim and which case you we would address the other issues but it seems like to me those are only two choices so i understand the core presenting to the two choices as the court back after that and then the second choice is that there's no jurisdiction if we're presented with those two choices we would ask that you send it back to you what interest of time want we just assume there's a file a judgment and you tell us about the other violations for reasons that were improper application of the facts to the the way the agreement is is framed the court said the court said that well you perform auditing services your company and not refund services but we do provide refunds services it's part of the audit process and that you calculate refunds as part of the osce audit process the same way an american does and in fact miss fullmer who was the american representative mid that was pearson testified to furthermore the the process of audit of providing refunds was established by the to be the same the defendants a lawyer admitted the process of calculating refunds was the fullmer acknowledged in her emails a refund is a refund and miss former acknowledge that the refund is a refund in the context of a travel agency refund which is exactly what our client does so the evidence is clear a refund is a is a refund it's all calculated the same way that my client did that work at it or fax and now is doing it it american and accordingly it's the similar service  alaska airways the port also acknowledges that the defendant does work we travel agency audit department at american the district court erroneous we concluded cuz air fax wasn't providing those exact services for american while he was employed that it wasn't covered by the agreement but the greenman says if air fax is providing that service at all at the time that he was employed to any customer he's provided for a year from doing it for american so we believe and furthermore there was evidence that my client and furthermore the court's argument that it wasn't for the same purpose is imposing a new term in the agreement it just says you can't provide similar services but here the court said it has to be similar services for the same purpose that's adding a term to the agreement furthermore the court appears to read the requirement that it be both similar services and they be in competition the agreement says or in competition so those are two reasons that we believe the court misinterpreted the agreement implied the it's correct incorrect i'd also like to turn now to the question of the crits we believe the court was made was it was erroneous because one the court said it was all public information well during the course of his testimony the defendant testified that those flow charts were constructed of the a o rules and his own ideas and that's on page seven fifty six of the of the record and of the reason i want to point that out is because we had the incorrect cite are brief so it's his own ideas were part of those documents so it's not soley public information and that's one seven fifty six furthermore the information isn't generally available to the public it's information that you have to be a subscriber for and have to purchase but more importantly the court made the heir at law by failing to recognize the comprehensive technologies case which provides the trade secret consists of a combination of information in the public domain as long as the combination itself is a trade secret judge trial she was in the best position to judge credibility and she clearly did and she clearly in her opinion discredited much of what it will pearson had to say and that was because able pearson 's testimony was filled with hyperbole and sometimes flat out false statements for example claiming that her facts had a complete and finished product at the time for proration when it clearly didn't have any such product in use at the time trying to apply it here facts had spoken with american airlines about proration when in fact those discussions were with us airways before the merger ever occurred with have jurisdiction that is our position that the first of all it was very plain i'm the only one of the city that was sitting there that day that the judge repeatedly asked air fax counsel explain your breach of contract claim and and then even at the end of that when he was ready to move on to the count two misappropriation claim under trade secret act he said will summarize your claim under under count one and he never mentioned paragraph four point two he said strictly paragraph eight point one does dismiss all the claims but i like the conversion claim or there was an expressed description as being waived or abandon you know have exactly the same quality of disclaimer of the explanation that was his chance the all in all he said was eight point one day and we want to extend the injunction that really we had basically entered by consent  and the discussion that counsel here alludes to in the first part of the closing by mr bromberg at the trial really he wasn't addressing account under paragraph four point two he was talking about credibility he was trying to patrol mr oms i've had as lacking in credibility because we both knew that that's what this case was about and trying petroleum as having done the ferias things with these documents and the judge in a nutshell didn't didn't buy that and the other piece of this is that  the we're really dealing with a finite group of like five documents we were trial he's narrowed it now than we had three here and the judge made specific findings about each of those documents under the marilyn trade secret claim so she actually didn't make the findings that she would need to make even if they hadn't abandon the claim because she found that as to four of the five they were based on public information that everybody in the industry knew and there is a different way as far as he's concerned it's they had if if mr amazon walked off with a brochure that described what air fact does that property there to get back well first of all that's not a correct reading a paragraph four point two which  pertains to documents dealing with confidential information so by definition here the court would literally have the court have to enter orders telling your client to bring a bunch of stuff back well not book about in the  and computer give it your forensics person let him clean off whatever they want here's his log in his password do what you want and by the way you're going to find on there some documents  provision is if you leave the employment you take documents with you with their paper form or electronic form whatever they ask for breach of the contract and because of that breach we're entitled to prove damages that maybe they can maybe they can't i don't know but look at the question it is if the court w simply a question of this report never addressed well what i'm saying though is that under paragraph were point two the only documents that could be found to have been retained would violate it are ones that had confidential information that's what the paragraph itself says and the judge in the context of the trade secret act claim had to deal with those documents by the way that in their brief to this court they don't mention which documents they say are the ones that would violate paragraph or point to the but assuming the universe is the five things that the court dealt with at trial she made specific findings about each one and why they really couldn't why they were trade secrets but the same rule same facts apply to why they weren't confidential information as to the flow charts they would have a breach of contract without it being a breach of the trade secrets  you can only have a breach of a contract if the documents contain confidential information and if you didn't have implied authority to have it which is the case with the homeless for a violation of trade secrets act which the findings or would be the same whether it was under the trade secret act claim or under the contract claim if the documents dealt with he p c you know airline terror publishing company information that everybody in the industry had used it couldn't be confidential information either under the contract or the trade secret act and if he was entitled to it he had applied to thor to take the think answer questions at the request of three of the senior people at your facts and he didn't answer questions after he left then all that you know terminations of fact credibility  things for the district court term and in the first instance the never did it did it but i'm saying it did do those things because it had to for the very same for the trade secret act claim even if it didn't do them specifically under the the breach of contract clause you're saying that the finding of trade secret out that this was information that was protected because of its commercial reasons she's saying is the functional equivalent of what she would have  of the confidentiality in this case if it is i must say would be in every case but in this case in this case yes this case was tried sensually as not compete a trade secrets act is that right that's pretty fax at closing arguments that we're not making a claim about this so we were down to just basically these five documents again only three that are even applicable here and the court  said not only made findings about each of those documents based on the credibility of witnesses but in her final order in the case said that she granted she ruled in favor of  complaint so you wouldn't have to go back to the district court she's ruled and she's ruled and the facts are in the record and in her opinion in detail whatever the theory of your case she will be on the breach of contract ones and the the flowcharts basically just took that information and said this is the way it works trying it was used as a teaching tool amazon good to try and show the air facts people this is how it works in fact that's what he did for eighty p c s for the six years he worked there he was a trainer he was an expert in the rules and went around training people both inside the company and within the airline industry so he explained how that worked out things work using teaching tools and this was just another of those i would note that and i would say that the  fact that the flow charts incorporated his knowledge from having worked in the industry for out for years prior to coming to air facts doesn't make that knowledge  any more a trade secret than a doctor's knowledge medical knowledge that he acquires in his profession before he goes to work for some practice it doesn't become the trade secret or of the practice on that basis the  done by the fed that nut case was something anybody in the industry would have to do and so same here i mean that's everybody has to apply the same way that's you know it should doesn't matter whether you're american to determine if they were properly issued under these rules of a t p c e o and if they're not if they weren't the airline clients that pay or facts are told about it and they issue a debit memo and then to the travel agency and they get paid whatever they're properly entitled to the refund process at american is where they all they do is they get a contact from one of their customers usually online who says i'm entitled to a refund for this ticket i bought an air fare for their american and then goes through a process to determine  went to work for american so that department does not get involved with ticket a lot of thing there's a separate department of american who deals with ticket orders in america air fax has a contract with with them to facts that he wasn't doing anything wrong before before he even went to work at american he took his employment contract from air fax to the legal department through to the people in america and a letter from the air faction lowered the reminder to him and said you know i hear look at this i can't be doing any of this stuff and they had him sign something say he understood that he wouldn't violate it had violated it and then they even sent his supervisor friend a former send out something to all the department managers that he might have to deal with an american warning about this and saying don't deal with him on any of these topics and but american has not stolen any customers for america x is not competing against air facts and hasn't caused air facts to lose any business they didn't even make a lost profits claim and as far as any dollars of didn't have to do anything to change anything because of anything that amazon could do so there were no damages they did try and assert a claim for two million dollars of damages under the trade secrets act with an misappropriation lester's career they were seeking damages of unjust enrichment a reasonable royalty you can get those a list has been commercial use whatever was taken and their evidence is clear that there wasn't  this is this case should be sent back for the court to address the issues regarding four point two mark attention going to be the the confidentiality is something different contract claim his argument is well it's the same in the courts already decided that's what i think the trial court house to address so i would ask that the case be sent back for the purpose of deciding the four point two case with regard to to address the exact issues the claim paid seven fifty six did you use air fact document to create this flow chart no this is based on a t p oh processing and my own ideas and the under the agreement that he entered into an agreed to upright provides that all inventions created by the employee during the employment are the are the product of the company's information and the court run initially stated that well since he created it he had the right to take it and that's true with regard to flow chart also with that we make the same argument with regard to the peroration framework data base model that's not a credibility determination it doesn't of credibility that  that da the court again nor four point two if you if it doesn't require use or intent to use under the trendies court decision rather all we have to prove is that the acquisition was three improper means here it was in violation of four point t