scene jude medical which in important respects seeks to distance itself from the reasoning and conclusions of the district court for the reasons we explain in our brief we think there are apparent reasons why st jude seeks alternative performance because we think the record here is abundantly clear that judge davis took it upon himself we suggest improperly to resolve a number of contentious fact disputes against my client and  then more seriously perhaps made some errors of law in his instructions to the jury which we think that impacted his analysis of the case i'm going to turn first to the first breach defense having to do with the breaches of contract we argued to the jury were committed by st jude because quite obviously were there not a breach of the counter claim itself would be moot fundamentally i would suggest that the district court in its decision reflects a basic misunderstanding of the trial testimony as to the manner in which mr tore me sold as one of the most successful cardiac sales representatives in the industry as we point out during his time at medtronic he wasn't just good he was great selling around ten million dollars of cardiac products a year he was able to do that because medtronic supplied him with a team of what are called clinical or technical support specialists and as mr turmel testified at trial when you go to physicians and hospitals with a cardiac product one of their expectations at the get go is if the cardiac rep is not going to be available to cover implant procedure are there a team of trained specialists around him who can cover the procedure that's specially important to them because a a sales person in this industry or a support specialist actually robes up goes into the operating room stands beside the implanting surgeon and makes actual product recommendations use this to febrile later rather than that this pacemaker rather than that and when you do that are the leads you need to attach to the products that is why when he negotiated his contract with st jude he specifically insisted that the representative agreement include a clear obligation on st jude's part to go out and hire not borrow but hire at least one clinical support specialist as soon as practicable and after that was achieved there was a cost sharing agreement support he was not provided with that support coming out of the non competing he continued to do so and as the record reflects he was not even offered technical support specialist until two years into a contractual relationship in the late fall of two thousand and three so fundamentally we suggest here that court when it said there was no breach because there was always enough support for the levels at which mr tor me sold got this backwards fact that they paid him a great deal of money the contract was of seven year duration and the quote unquote guarantee obligation extended only for the first several years of contract even then however say jude was protecting itself by including language in the contract that should mr torre me sell below target levels they could doctors compensation substantially and along the way that is what they eventually did all right moving off the there was no breach analysis by the by judge davis two of the things he he pincers decision on in finding there was no first breach first he says well eventually st jude did provide a specialist in late two thousand and three and this was somehow curative of the problem that had been going on for two years in making that suggestion i would suggest for the reasons i've just described that is too little too late to put mr gore me in a position to sell successfully but secondly it does not even meet the contract which requires that they hire somebody what they did in november of two thousand and three was to offer mr tore me access to a specialist supporting a nother st jude sales rep who was actually competing against mr gore me in the same market who lived at a distance and mr gore me for the reasons explained his emails to a company found that inherently unworkable the other thing judge davis said however is that there was a waiver of this contract requirement to provide the support specialist and i submit that examination of the actual record puts that to rest in september of two thousand and three mr torme did in fact provide a provisional ah suggestion to his st jude managers that while they continue to wrestle over a variety of alleged breach issues that they come to an agreement on unquot support issue and work through that and we can reach an agreement of the things what he got back from seeing june was an email recapitulating conversations they had with him over the past months talking about sales level but completely ignoring the suggestion that they put aside the technical support specialist obligation and in that same response to september twenty ninth two thousand and three they told him for the first time that they were actually going to set about finding him the support specialist that he'd been asking for for two years we have a look at this it certainly came to my mind and then my question is did you argue this to the jury any time that saint jude was well thank you it could have been seriously trying to guess getting mr tall way to come work for them or they could just be taking him off of the playing field for their other representatives that was there any way we wanted to your honor as we point out in the brief there are other cases where st jude has been the subject of rep lawsuits because reps were hired under similar agreements quickly terminated  on what eventually proved to be pretextual ground so we could start discovery here seeking to inquire into how st jude was treating other sales reps during this period of time it was our theory of the case that they were changing the business strategy these guys were very expensive that they were in fact motivated to cherry pick the best people from the opposing team and were relatively indifferent as to whether they sold or st jude they just didn't want them selling for boston or my tronic or the competition so hiring tore me achieve that we were hoping to develop a record through discovery that would enable a full argument about that to the jury magistrate leon gave us a very narrow discovery access on that point and so we made a very limited argument that was more in the nature of a hypothetical than something we could ground in the facts but we've always been of the belief that they had buyer's remorse they were paying mr toward me a lot they would prefer as they eventually did to shift his responsibilities for a to an employee sales person who they would compensate at lower levels the waiver argument we talked about in the brief we don't think it rises to a level waiver and if you're going to apply a waiver in this case we think the evidence is far stronger given the exchange of correspondence between mr torme in the company that in the early months of two thousand and four which is where they shrank their their defense in this case and he admitted he was not selling at high levels because he was caring for his terminally ill wife now the company gave him a pass on that encouraging him to look after her as his first priority all right as to the counter claims the district court did assume for the sake of argument that there was an oral agreement made between mr tore me in the company in two thousand and four in which they agreed to walk away from their obligations to one another mr torme can keep the six hundred fifty thousand dollars interest free loan had been granted in two thousand and one provided that he is non computer agreement and would not pursue the company for breach of contract while he did not pursue the company for breach of contract he did as we told the jury out of his nine compete at a time where he was desperate for new employment setting a resumes interviewed with nobody until the nine compute compute experience period expires there are all kinds of close factor issues in this case we think there are hung his decision ranting judgment against the counter claim that being his conclusion we suggest erroneous lee against the facts that mr torme conceded in his trial testimony that when he received a letter in october actually answered was that when he received a second letter in may of two thousand and twelve after his own attorney had protested to st jude into attempted to explain why the obligation was not own he blew it began to believe that the company might pursue him even at that juncture and however in may of two thousand and twelve we have more than a year and a half that goes by before the company sues mr tore me in an effort to collect the law and so we suggest under very conventional analysis that he was mentally entitled to wait as long as he did and even if he had an understanding that he might have t sue in may you are still within the two year window of time provided under the contractual limitations period a final word on what we would ask this court to do again we believe there are lots of close fact questions here th probably explains why the jury was hung in this case but but we suggest that one of the reasons the jury could not proceed to a verdict in this case it is because judge davis contrary what we suggest is clear hime establishes that not to be true and once you establish that it's not a modification what you then do is go to the minnesota case law that teaches you that the a political standard is the normal preponderance of the evidence standard for finding oral the record to support any claim by mr to army taking the record in white it's most favorable to mr tore me and what the light most favorable to mr to me means is whether or not there could be a reasonable inference based on any evidence in the case that is not based on assumption or speculation and the fact of the matter is that the trial record in this case was unequivocal and solid in every respect that there was absolutely no oral agreement between m medical and that mr to me at the latter part of his relationship with st jude medical had waived expressly wage any issue with respect to t s s support i want to address the issue of the alleged oral agreement company had allegedly read that he would not have to pay the promissory note back at the time that he was terminated in may of two thousand for the record is devoid of any evidence that any such oral agreement ever took place the only statement in the record that would support the existence of any such alleged oral agreement is the naked testimony of mr torme himself which was  for the first time in the counter claim with respect to the answer in this case that was filed in february of two thousand and eleven all of the other evidence in the case all of the objective contemporaneous evidence in the case is consistent with the fact that he was terminated in may of two thousand and four that there was no discussion with mr gans of any kind about any type of oral agreement all of the documentary evidence after the terminations of the accountant he continued to report the imputed interest with respect to the promissory note so in addition to the fact that all of the objective evidence is inconsistent with the existence of any s confront he was confronted with all of these imputed interest letters the airplane to succeed but number fifteen and he was explicitly asked on the record whether or not those were inconsistent with his position that there was moral with that there was an oral agreement with st jude medical and he conceded on the record that they were inconsistent so as far as any type of reasonable reliance on an oral agreement is concerned as of december of two thousand and five and for every solitary year thereafter until the time it was it was commenced he received one of those letters and he would knew that he had to report imputed interest which would have been inconsistent with supplemental appendix these are notes from mr two armies accountant and during the course of those communications in the summer of two thousand and seven the question of the treatment of the promissory note came up and the know which is negotiated and mr to me testified at trial that he never told his accountant that this note had apparently or allegedly been canceled or terminated or forgiven in any way this note from the accountant goes on to say tom to army was made aware of the fact in a july eleventh two thousand and seven meeting that this could be income to him depending on settlement results and as the  it's a basic rule that debt forgiveness gives rise to ordinary income so that in the event that the note were forgiven mr chairman would have been obligated to report that on his tax returns and he never reported that six hundred fifty thousand dollars on his tax testimony his behavior and his conduct itself in consultation with his lawyers and in consultation with financial advisors demonstrates that no such agreement took place the  only point that i want to make with respect to the accountants notice obviously a begs the question that if there were an oral agreement that had been entered into in may of two thousand and four there wouldn't have been any reason for him to be telling his accountant t that there were never any subsequent communications of any kind with st jude medical and after the latter part of may of two thousand and four so again the question arises mr to me was a sophisticated individual he was involved in a major business transaction with st jude medical under his independent sales rep agreement he admittedly received these ten ninety nine thousand letters of imputed interest every year until the time of the lawsuits commence and not at any point in time does he ever communicate in any way with st jude medical and say i think there's a mistake here this has been resolved the snow has been canceled why do you continue to send me these notices and so forth i do want to address one point also that and i would simply like to point out to the court a couple of things in his order granting judgment as a matter of law judge davis surveys all of the evidence in the case and one of the points that he raises is the fact that i'm self on cross examination admitted at myriad that when he received the letter he knew that there was a problem he at least at that point in time knew that there was no resolution or settlement of the of the promissory note and the way that that testimony go and it's taken out of context in the appellant's brief it's pages five ninety seven through six zero one of the trial transcript and this is the way this is the way that his testimony was that he then communicated with his lawyer mr couper to address the issue and at trial he testified that during the course of those communications he obviously would have notified his counsel of all of the reasons why he believed or all of the reasons why he thought there was some type of an oral agreement or no obligation to repay the know nothings ever in writing of course so mr chairman never writes anything we lawyers never write anything instead they telephone st jude medical and in response to those communications st jude medical miss miss gordon writes a second letter and she goes back and says you told me that you don't think there's any obligation to repay the no because the sales representative agreement quote is were never properly put in place and in connection with that she sends back all of the e mails and she sends back all of the quota forms and so forth that demonstrate that mr two or me in fact actively negotiated the reduced quotas in the fall of two thousand and three he executed all of the forms and he agreed to all of those quotas there's nothing said about any other issue there's nothing said about and there's two things number one we certainly do completely endorse the for the correctness of judge davis's ruling with respect to granting jame all in this case sure you do but what particular point to you on that particular point we absolutely do the reason that we raised the other issues is they were threshold issues with respect to the applicability of the credits it's easy for me at least not the more colleagues to get lost in the facts of the case what basically w theory of the case as outlined in his opening statement to the jury this is what's this of what's promised me and this is what he did not give me was that simple no actually your honor what his opening statement was was that we had this agreement and i had an oral agreement with mr  gans that was entered into on may seventeenth two thousand and four and interesting only we raised this in the brief is that during the course of the trial mr twenty conceded as he had to because the e mail exchange on that day demonstrated that there was no agreement or any discussion about the disposition of the promissory note had there been oral agreement what would it have said or what he climates or what he claimed was that he said that in exchange for not suing st jude medical under the sales rep agreement you're going to forgive the promissory note and i will have to repay it and if all this talk about not providing an assistant is one beside the point i think it's it's completely beside the point only only with respect to one issue they did raise the question as quiver call that he's saying that we're going to put the issue of the technical service support in exchange for greatly reduced quotas that came nowhere close to the kinds of expectation of sales that they had anticipated at the time that they entered into the agreement in september of two thousand and one and that e mail your honor is identified and our supplemental appendix  plaintiffs to go a bit exhibit eleven and number twenty seven and that's the e mail that appears in the supplemental appendix forty five and forty seven and mr to mr termes lawyer elicited the testimony himself at the time trial that mr to army had put aside that issue and i want to emphasize the point that mr mr raeburn just made the argument that judge davis found that he had waived that requirement with respect to the performance of the representative agreement and judge davis did make statements to that effect in his jame or water because it was clear and it was an rebutted on the record but what should davis actually found at the conclusion of the order was that as a result of the t s s issue they had demonstrated that there was no causation with respect to mr termes inability to meet those very modest quotas between november of two thousand  and may of two thousand and four that resulted in the terminations so the actual outcome although judge davis does discuss the agreement to the reduced quotas in exchange for waiving the t s s issue his actual ruling at the conclusion of the  that there was no demonstration of any causation that prevented mr torme from making those sales which which obviously would have prevented which would have prevented determination i want to make two other comments and i want to address judge riley's question booster there was a suggestion in mystery mr ray who said it again that somehow or other there was this plan at st jude medical was trying to hire competitive reps to take them off the playing field there was never any evidence of medical entered into a sales representative agreement and other agreements with mr tour me in september of two thousand and one in which it guaranteed him sales commissions of over one point eight million dollars over three years and also gave him an interest free notice six hundred fifty thousand dollars and after two and a half years of performance mr two army had received almost one point six million dollars in payments from st jude medical and during that entire period of time it generated revenues of just less than two million dollars so the fact of the matter is they were paying mr tour me in enormous amount of money they had every interest in mystery to me being a successful sales rep and he was ultimately terminated because he simply was an able to generate the sales that he had represented he would be able minor compared to the enormous amount of money they made of the voices well i guess that was the point in iran or is that they were making an enormous amount of money off the devices because they actually paid this detour me over half a million dollars more in commissions than he had generated in sales during the entire period of time out of the out stack up with their total assets about i mean we're talking about a large amount of it or is this just small honor just several things first consistent with how they briefed it mr fox's arguing for a firm and some grounds much different than those relied upon by judge davis and he starts making impassioned argument that there should never have been any finding that there was an oral agreement notwithstanding the court's assumption that there was but when he says the record was devoid of any evidence i think he pushes the facts too far what the record reflects and what we told the jury was that you know beyond mr unrebutted recollection of the conversations with mr gans preceding those conversations by several months were a series of emails he sent the company saying we really need to change the relationship here's a number of options i would put on the table and all the options he presented featured him keeping the six hundred fifty thousand dollar loan in exchange for changing his position and giving given up other rights so his testimony was that when he talked again scans was simply truly believed there was an oral agreement then briefly on the counter claim mr fox cites to the the handwritten notes of the conversations with accountant brown i think the jury fair draws a different conclusion from those at trial they try to suggest that tore me made up the settlement agreement with st jude but here you have notes from two thousand and seven and before where clearly tore me is talking with his accountant about a settlement with st jude you can argue about the think from a tax standpoint it will be plausible for st jude either to continue sending those or to send a to ninety nine saying we forgave six hundred fifty thousand dollars either one treats a tax consequence a thank you mr it well we