chief judge gregory minute please the court my name is mark sigman and i represent the appellant just the issue here is whether there is any limit on employers ability to make clear official and false representations to its employees fully only hearing non contractual representations in another document in the pile of documents in the case the answer to that question should be no and the court should reverse my client's main claim here was fraud the statement that was entirety of i beams summary judge there so and honestly like that's all really asking for here is discovery because i it's going to support our claims and i can go outside of the record like i know that because we've done discovery in all the other cases and if you look at the complaint trouble i'll tell you this in every other case we keep in touch with all of the deposition so the latest case has fourteen depositions attached and the reason why is because they keep saying the same thing over and over again not changing their testimony they admit that all the testimony about reliance equally applies between the cases there is no difference and we're proud of all of those depositions we're not we're we're right on and so are your orders and the reason i like to judge brinkema as opinion is because way it did was because that allowed i b m to change the commissions up until their pay that opinion mentions were paid twenty five dollars times literally until i even wrote a check that could change what johnson said absent that language the situation might be very different instead relied on the language so in schwarzkopf basically ruled the same thing well guess what the i p l is here don't have that like they don't allow you to change the commissions up until the latter two don't say anything they just see you can change the st i p l actually we can change the conditions up until they're earned under the terms of the player does that mean the plan to finance earned later as after the measurement of the business results what does acknowledged we're not running away from the i p o i mean the reason we're not running away from it is because i don't think like george swofford tell if you can have two arguably country representations and then just say you know what you just can't leave this one because of this i just i don't think that the law nd and this is my point about johnson is that even if that's true we still there are still two things to say one is the one i just said which is as as pled feste mr fessler earned that under the terms of the o when he was caught and so this is what you know if you look at the vinson opinion that's what judge schroeder he said you know what mike jensen said might be a different situation absent the right to to change the payments up until they're paid arguably mr  they have a deal ten percent of revenue that's all they're going to pay and they go to the highest earners because they're making the most books they come down they get to the number they're not applying the significant transactions provision which you know there's something about your territory  provision under that whole relative contribution there's never any analysis about their performance relative to another person and maybe as importantly they don't overly take commissions from one person and shift it to somebody else which is what you think of it relative it your position that it's reasonable for him to still rely on the power point for the two thousand and seventeen commission issues even after what these alleged happened in two thousand and six say it's a great question st just to be clear the power point is issued every time the i p l is so every six month period but your honor's question is still a fair question i admit that's a harder case perhaps to make to the jury but i think that's a jury i think we definitely should win on the two thousand and sixteen but yeah i could hypothesize that you're saying you were truly right to believe it in two thousand and sixteen but when you know you should have known better once there are new ones i still think it's enough to go to a jury i still think that when i feel gives you a power point the clearly says that you're entitled they've they've not conceded that that is not their primary argument for their primary argument has become you know what you can rely on that but what we're doing is not a cow so they're saying that what happens here isn't the cow the problem with that horse is the older equal cash because that yeah i have to the point you just said they were arguing it looks to me like those are issues that result in less than five percent of missions but i don't understand how you say percent yes it's a term of our most most and this isn't the complaint i mean most similar software sales people sales company use pay uncut commissions and they do that because it's kind of expected and standard in the industry and so yes if you get five percent of that supports us and that's also a common language i would say and again i i've never in my life been so tempted to go outside of the record i'm not going to do it but we've asked in other places what is happening and it's favorable to us and the thirty six dollars witnesses  that was inconsistent with prior written representations by i b m specifically in this case as we know mr fessler is relying on the power point presentation which states that payments are on captain earnings opportunities  kept in the jensen case mr jensen was a little less high tech back then and he had a glossy brochure which also said that we will not cap your commissions so both mr jensen and mr fes both argued that i b m kept their commissions and that was inconsistent with the prior representation by the commissions with the uncapped mr fessler mr jensen both had written commission plans which contained hundred percent rule in that case it was an issue about a two hundred percent rule and what happens to your commissions when they exceed two hundred percent panel said the two hundred percent rule isn't really a cap which certainly is consistent with what i view and would argue happened in this case but that's outside the pleadings so argue that now but the court said this is not a cap but it didn't stop there the panel held even if it was a cap i b m you still win because the disclaimers in mr jackson's commission plan made it clear that i b m could make changes to the commission payments in the commission plan itself even after the sale your statements and your commission plan give you the right to impose a cap on commission even though there was a prior represented representation of the country that's what the panel held gens that is applies with equal force to the that was the primary basis that judge schroeder distinguished the jensen decision in that case but what i believe mr fessler is overlooking here and what judge schroeder overlooked in the vinson decision thousand and sixteen it said that i b m could make changes in the same right to modify or cancel provision i b m could make changes to the plan or to payments up until their current in two thousand and seventeen the plan said hundred and sixty two thousand and seventeen commission they make it clear that commissions are not earns even when they're paid they don't become earn after their pay in many circumstances and i'll point to the specific provisions in the commission plan say that one dollar is the earnings section cell earning section say are to be considered it dances only after the end of the plan period and only after i view measures the business for the commission plans go on to talk about with respect to corrections adjustments for errors make it clear that adjustments may be made before or after the affected payment has been released so mr festers commission plans are clear that changes can be made even after the payments are made a commission sales people like mr fessler are told by i b m we're going to we're going to give you pain we don't want you to wait until we finish our business measurement of business results and finish the review of commissions to pay you we're going to go ahead and pay you but just not there's a chance we might change that and if we do there is a definite balance recovery section  all of mr festers commission plans say if we pay you more than you're entitle to we reserve the right to come back and claw that back from out of your future commissions or otherwise so the commission plans are clear that if anything  party's respective rights and responsibilities as it relates to commissions similar to an employment employment ops it is a statement of policy that spells out the responsibilities between us it d contract for either party it's a disclaimer type doc that's correct i would just to be clear it is not a contract under the common law contract principles there is an open issue in california about whether it satisfies a particular statutory definition of contract but i believe that's a different issue than common law is this a contract between the parties and every court that has addressed that issue has even we would argue that what happened was not a calf but it medically that is that is beyond the scope of the record before the score as this were held in jensen the the incentive plan precludes an employee from relying on a statement likes like is in the power to believe that that means i b m can never make adjustments their commissions it would not be reasonable for an employee to believe that and we certainly believe th and deposition transcript should not be considered by this court every other court to address that has helped the same way including the th circuit just last year in the middleton case but even if the court and i'll just move may not be a cap question of what if it in effect becomes a camp as opposed to when it is not a factual question it would be if that were the question before this court but that is not question the question before the court is assuming everything  his complaint is true which we obviously would disagree but right now we have to assume that everything he says in his complaint is true even believing that if you look at this court's prior decision and jensen mr festers claims fail because there are exactly the same allegations that were asserted in that case and in on the chopping depositions even if the court were to look at those if you look at the context of the other testimony of what's cherry picked by the plaintiff in this case it's clear that every single one of those witnesses testified that an adjustment is different than a cap and that's what happened and so that is in the record their maybe a letter trying to even though we've got a copy of it here on you why is it why do we not have dueling representation in this situation you know i've got t the incentive plan letter all three of them in the general information sections define the plan as including including both the incentive plan letter and all of the incentive all of the educational materials found at this particular website which is where the power point is they're all part of the same thing so the disclaimers in the incentive plan applied it all up they apply to the plan not just the incentive plan left held statements by employees that an employee can rely on the power point is nothing more than a legal conclusion that isn't binding on this quarter d and the other court it's effect if you read the actual factual testimony from those cases it becomes clear that those witnesses consistently testified that i b m does have the right to do what it did in this case if you just look at the cherry pick statements where witness did not consider the chopan test no pork has actually considered the chop contest money and to your honor's question about this being a twelve b six and we don't have other documents i would also actually read the hitachi case in its entirety that actually helps i b m because it talks about how in essential element of fraud is someone exercising due diligence to discover the truth potential truth about the alleged misrepresentations mr fessor had to do no more than read the very document that he signed and the disclaimers addition to toci were of a different nature they actually express said you can't rely on what we say you've got to do your own investigation and that's not that's not at all what the disclaimer say here but certainly the legal process principles from the touchy case support i b m s position as a whole in the power point it won't be can was one of them it means in the industry don't you think the person who commissioned salesperson to me that means can i mean there is no limit to what  you might make adjustments to some but making adjustments to those commissions didn't impact mr festers ability to go out and earn commissions on other deals just like in all of these other cases but that it may diddly that he answer is i see him over time so unless there's any other questions thank you dismiss she just deny them so the author of the very opinion doesn't think that it controls so i can mr barnes was talking about this earned versus paid like in mr byrne so that it's possible for payments to be made for their earnings that is true the i  judge schroeder held in vinson there's a possibility that it could be earned and once they're turned on at that point they can be changed and again if you look at the i p o here look at the two thousand and sixteen it defines full plan earnings and it's after the measurement of complete all the non can in that situation great question we addressed this in the brief you know we have we have always argued that the i p l and the power point are connected because it helps us it doesn't hurt us if you're a sales person and you  one sort of set of documents and one says we're not going to copy right it says it right there that's all the more reason to think that representation is true and the fact that it's followed up by one that has language and arguably it's contradictory but maybe not just burns talked about how you know the test when you if you can rely on this as a legal conclusion i just don't understand that the idea about whether salespeople in this industry given all the facts given everything else is they were alliance reasonable i mean to me that is not a legal not apply in this case and ultimately if you have discovery and they can prove that that provision was was applied i have strong and great legal arguments against but that you know what that's an argument they might be able to make on summary judgment i think they're going to lose but they can't make a right now because we believed it doesn't apply just like in the plug in chocolate and finally just the last point made about you know what is happening i would just i would i would fall back on this the ambiguous enough for them to use it then surely you know we in this position think that what happened here was a cow i don't think there's no way that i b m can win at this stage on the argument about whether or not it was corrupt and finally we also have the other you know as i do even mention today one of which quote we can no longer how folks stand in the room and say there are no caps yes literally saying we can't do this because it's not true and paying are up fifty percent of what are your and with what he expected because we are over budget just does not seem fair internal evidence here is going to support the plaintiff all we're asking for at this point is the right to do some discovery maybe i b m can make some arguments i've not thought of a summary judgment i'd love to argue against them but right now we're seeking discovery