and why is that what the jury was instructed in this case was that good faith meant that the plaintiff had an honest belief that environmental violation occurred and that he did not report it either to seek an unfair advantage or to try to harm his employer or another employee a good faith belief was also be objectively reasonable we don't have an issue with objective the reasonable or what i mean what instruction  unconscionable in vanished and there is no you know there's no absence of malice here with respect to that supervisor i mean according to what your argument i mean that was  agreement the absence of malice and here they proved to the satisfaction of the jury that your clock had not us toward this supervisor well and so there was no absence of j p really vs and search which was a defamation case it talked about malice and what malice is and isn't ok so if he had a good faith belief that the law was violated and he hates everyone that he works with and wants to bring the company down because he hates working there and so he reports it both because he believes there's been a violation but also because he wants to bring the whole company down including every coworker he wants them to all be unemployed and have bad lives does he file aid is he still with in good faith i think good faith is an honest belief and if we ask a jury to get into the intention of the individual making a whistleblowing claim you will not have any whistleblowers because if you do you have a louisiana doherty for that i agree that under texas law they have a pattern jury charge that says it's exactly what you just said but i don't know we just we just had a whole argument that louisiana is a unique place you know it's louisiana unique in this area but i wish there were more cases on good faith but what we have is the share me case which is the only louisiana supreme court case to deal with this environment whistleblower statute and chairman is very clear that when we when the courts interpret in that environment a whistleblower statute it has to be done in a way that gives effect to the act why is that chair and he says well there's a constitutional mandate in louisiana article nine section one says that the environment will be protected and that the legislature will enact laws to protect the environment so what are the legislature do according to sharon in acted the environmental act that's thirty thousand and twenty seven so that's one part of a comprehensive scheme and in the share me in the shammy case i believe it involves somebody who saw a pelican nesting or something so this or being run if in the in the fork of the company's claim as well this isn't the environment you know these are these are birds and the court said no given the constitutional mandate given this legislative scheme we have apply this law in a way that gives effect to the act to protecting whistleblowers there's a third circuit case that we cite also that says specifically that this whistleblower protection is designed malice whatever malice made mean but you've got to you've got to combine them and you can read out the statute that made it to prove your public duty we've got bigger purpose and good rare unusual but this is overt yes and your honor in but in this case the jury was instructed that it could mean that the company was true that the whistleblower is trying to harm his employer or another employee that's what was argued to the jury that he didn't like his bosses he didn't like one boss in particular who it might work but your objection to the whistleblower reports of violation of environmental laws there's potential harm to the employer because there's a potential for consequences in responsibility for think it makes sense is what they're saying is that you can't you can't go out there just for the for the purpose you can have an honest belief that i know it's there i know it's a violation of that long but the reason i'm gone file a complaint is because i'm mad at my supervisor i'm mad at my employer and i want to bring him down and that i don't know why that's in the low but it could be that came out of the legislature and somebody in the legislature going to be on the up and said look what they will do just uses environmental law to bring down the employer every time they can they say relish put this little are i mean it's it's you know it is like sausage being made in the legislature i mean it comes out not quite as pure as you might want i understand that you're going to but what the jury was charged with in this case went far beyond that it's talked about an employee who might want unfair it's a it would be an honest belief and not seeking an unfair advantage which ties back into definitions of fraud and so forth but to say that ensuring no it's an unfair advantage being a misrepresentation or suppression of the truth to seek an unjust advantage or to cause a loss or inconvenience so i mean we're getting back into an employee if he honestly subjective believes that he's not committing fraud essentially while he's doing it that is much different from intent to harm the company there's always a possibility that the company will be harmed if he makes is out let me ask you this question yes this is n i would say that it's an honest belief and not not a company by trying to seek an unfair advantage i think it's a subjective honest belief and not trying to seek an unfair advantage but i think in terms of trying to the conduct reported was a violation of law and his belief was reasonable in light of his training and experience so it just has to do with whether the whether his beliefs is reasonable and it's in it really true that he believes it it's so it's an honesty and a reasonable miss yes and that's what good faith is center of the whistle blowing statutes for all the environmental for texas i'm trying to figure out of mississippi is a different animal and i'm still not sure and i don't know about mississippi i know there is i mean i'm i'm sorry i'm sorry i'm excited louisiana apologize yeah i but i know we do cite a texas case in here that basically tracks that in our brings it's a texas supreme court case where there's a subjective element of the good faith where that's an honest belief essentially and then it's has to be reasonable i mean i can i can say hey you know i think they're killing sea turtles over here but if the company isn't has nothing to do with the sea that's not going to be objectively reasonable here the jury found the belief to be objectively reasonable when they got to the good faith part of the iraq it's henri that's where the wheels came off so we know this had an impact on the case we know it was this jury instruction and you know your honor as we we just cannot have the jury instruction or the law be that to harm his employer or another employee because every claims to begin with and that doesn't make them any less valuable claims we want to make the claims we don't want to them to to make it up that's for a jury decide see my time is up here thank you very much mr landry entire appeal as a smokescreen based on tases with with strikingly different facts than we have here this was a case about about good fa th but it is brought by man mr borsak who by his own testimony said that he systematically and methodically polluted the environment for three years without witnesses but it's what he said and it was an contradicted he took five gallon buckets of oil and dumped it overboard while the vessel was underwriting under what it always struck me as a difficult case for this man to carry his burden of proving that he was in good faith when the when he proposed to be the whistleblower of his have an honest belief that he and that reporting it was  antipathy against the supervise he is relationship with his captain was declining he complained that the captain used a cell phone in the wheel house he designated examiner and he was not going to advance any resentment the captain because of that he ultimately went to the h r manager and complained about the man using a cell phone and looking at the laptop and he made  these a safety concerns and will turn it over the safety department and we'll give you a transfer mr borsak admitted that all he wanted here was a transfer he wanted to go to a better position one else's position in because he is taking someone else's position if he wanted if there had been a position for him he could have he would have transferred the normal course of things saying as you he's use in the environmental law leverage yes exactly to his and then each yes that's unfair advantage yes it's unfair if it involves fraud or deceit but if it's just i'm going to use something in the facts to help me that's not unfair it has to be it has to involve fraud or to see it to be an unfair advantage under the definition ok the evidence in the case was that nobody else was instructed to dump oil overboard the evidence in the case was that this captain and all the other captains said if i wanted anyone to do that i would lose my license i would pay a fine i would go to jail i would lose my livelihood why would i do that we pa contractor to meet us at the dock periodically every month and and empty this waste oil tank so the evidence in the case was it was to no captain's advantage to give this water the testimony from all of the other crewmen on these boats was i never got that water and i never did it now there was a factually there was much to do about the practice of periodically draining oil excuse me draining water not dumping oil but draining water from the bottom of the of the tank things like we're getting far afield in the facts of the case when it's too we're just trying to figure out what the louisiana law requires for the definition ok the only real authority i think we have to look at there is the decision of judge kern recent a bench trial in the civil district court for the parish of orleans in the overton case in which judge race i imagine he considered that there wasn't a lot of jurisprudential suit but precedent for the definition of good faith he looked at the dictionaries he talked about the different things judge jolly hit on several and then he looked at what happened in over ten where a report was falsified where mr overton made a report to protect the environment and resisted doing the things that he was reporting and and in that case judge ri said that under these facts what this man did was in good  based upon what the evidence in the case is well is that what you're saying i'm saying i think take race i think over ten is a pretty good case for us i think judge race was correct so are you saying to tell us should be that definition i'm sorry you're on so what does overton tell us should be in the definition of good faith and that that that that is the criteria that should be considered and advantage or to cause harm whereas harm harm is not in any of this definition but the whole paragraph of the overton case where does the word harm come in that's what's being challenged and add don't see that anywhere in that whole paragraph in overton which you said is the only thing we have to go by inflict harm to defraud and inflict harm are two different things aren't there and you can you can harm someone through defrauding them but harm in the abstract is broader than defraud harm could doesn't be reasonable why isn't that a better definition of good faith that's not what the legislature well that's what i'm asking what did the legislature of louisiana tell us to be helpful did they tell us the word harm what did they tell us to be helpful well they they they they didn't really tell us that they did make a good faith requirement and i also point out it's not your speculation that the jury even considered that that particular prong of the two prong disjunctive requirement that is seeking an unfair advantage or causing harm and if if we consider as we must be doing the evidence in the light most favorable to protecting the verdict since it is the jury's province to consider all of the evidence the jury very very well might have simply come to the conclusion that this man was with was seeking the unfair advantage he testified for the most part he was he was  g and never got to the cause harm there was no objection by the plaintiff in this case to the part of the instruction with respect to obtaining an unfair advantage and that instruction is all part of one sentence sense disjunctive well but if you if you can't tell whether they used the improper part or the proper part and it was objected to then why is it that reversible error was not aiming argu assuming argue indo that they did properly preserve an objection to harm it's written in a way that you can't tell and that and also assume argument though that harm is wrong then you can't tell whether they to view their the result in the light most favorable to protecting the bird what kay says that we're dearie instruction has error in it you have to suit that they didn't use the air apart if they have a different reason altogether but if they're wrapped up together if they're it's intertwined what kay says that that that is and if you don't have it right now i don't want to take your time so because your argument to us today is that because they could have decided on unfair advantage and that would be ok that we have we can assume that they did decide on that and that they didn't rely on the harm which may or may not be ok is that correct here do we have any indication that when they go oh i thought you just said he could provide them i apologize were you given him now i thought it would be happy and i thought you said you were going to provide  i'm happy for you to give a mail or provide them at the end of the argument i don't want to slow this down what do we know that tells us that text that the legislature in louisiana meant something unique about good faith as opposed to just that it was a violation of law and that it was reasonable which is a standard definition that's used to good faith been lots of context of edmund in whistleblowers situation  sense application i don't know how a criminal act can ever be in good faith a methodical polluter over three years i think the jury had a big problem with that in this case and i think that there in lay their focus and in the two iraq of tory's they answer i think they were compelled to answer in the way they did by that evidence but on page eight of the jury instructions it refers to activity being the the act of harming the environment and the jury found that eric reasonably believed that what he was know that the jury ever got into the niceties of the distinction between intent to harm versus intent to defraud and even again in that charge they didn't if they the case of sharon me vs a j when plays aunts was alluded to by and by my opponent i would point out that in that case the plaintiff whistle blower refused to participate in the work he believed violet violated environmental laws and was consequently fired for it in the overton case m overton's report of the of how we set the gauges on the equipment in question was torn up while he was off duty a falsified report by contract was substituted for it  and later on a second occasion when he was asked to do something he wasn't sure was violet of or not of the law he initially did it but then blew blew the west's hope and  in both cases mr sharon mean mr overton were motivated clearly to protect the environment i think that's what the statute is all about that's not what this case is about this case is about a man who buys own admission dumped oil for three years didn't take it to the government didn't take it to the louisiana department of environmental quality but it's some point when he was sufficiently  you know the jury can figure it out and we assume the jury figured it out but if the jury gives it but if you give a definition and that definition is objected to that's why we're here today a part of the definition a small part of the definition was objected to it and the rest of the definition was not objected to and i think the more compelling instruction was that  the act has no no application to an employee who dumps or oil or acts without direction from his supervisor and deliberately commits an environmental violation i think assume is the jury tories where they could apply that instruction they did so and that's what was so compelling about this case the the uncontested testimony by this man that  his his colleagues his coworkers that the captain is in deep trouble now somebody from legal was taking notes and he had a series he didn't get along with the captain the captain didn't let him water in the wheel house he thought of the border in the wheel house instead of doing his work that he could get credit cards a better spot to have to g he says he was ordered to do it by the captain if he was ordered to do it by the captain and by the wheel men who was the brother of the captain and the record is replete replete with testimony that this activity was ordered on the vessel aborted testifies about it at record page twenty seventy four captain the blow testifies that he gave orders to empty what he said was mostly water from what was labeled  waste oil tank which is in that the jury decide the case against you on the basis of the e mail that we've been referring to here that he showed that he was satisfied with vengeance against the captain for in some way is that what the moore chick made his report it's plaintiff's exhibit eleven it's from the number two person in the company the owner's daughter who says we were were sorry for the delayed response i've spoken with personnel they'll be calling you to discuss which in bes addressing your other concerns is report and i appreciate your honesty you were you are correct you did do the right thing by addressing this that was then and we get to trial what their position was when they argue to the jury to answer your question judge in closing argument defense counsel argues harming his employer is not a basis for good face if he wants to bash running in a blow like he did when he went instruction was going to be given that harm equals bad faith and i sincerely believe that that is where the jury came off the tracks after finding reasonable belief now i thought that you were also arguing that unfair advantage does not mean something that's apart from falshood that just wanting something bad to happen to someone is not not malice for unfair advantage that is correct or wrong because because the opposing counsel says well the unfair advantage part is ok it's just the harm part it's an issue i thought the whole thing was an issue because you say based upon your objection to the jury charge number eight in writing where you complained about unfair advantage or harm and said that he talked about wanting to hurt advantage is honest belief is on a subjective belief i think that's fairly clear so yeah honest belief and no one fair advantage in that is defined and we've talked about that in our what unfair advantage means under louisiana law we get into that does it mean that you want something bad to happen to somebody does not mean that it certainly does not mean that and that's not what the law the talks about malice or unfair advantage talks about a do want to comment if i made regarding mr bork chick you know this idea that he reported his own violation that he did this on his own he was a polluter for all this time he was ordered to do it and  the record is replete we cited in the brief others were also ordered to drain this waste all tanks through the stuffing box if your honour's will look at photographs exhibit plaintiff's exhibit eighty eighty three one two three and four you can see how they did this down in the bottom of the vessel my point though is that he was ordered to do this and under the louisiana environmental whistleblower statute thirty twenty seven some part employee who is not order to engage in the activity engages in it is not protected by implication if the employee is ordered to do it yourself is protected would you settle in this case far beyond an instruction that says this must be done in good faith and i'm not going to tell you what it means i mean good faith is what you ordinarily think opposite good things and whatever you if you think the man acted in good faith you think if you think you acted in bad faith you think you just use your everyday common sense as to whether you use good faith at least some of them i think if we're using a legal definition we need to give that information to the jurors that they can make a decision right we are using the legal definition in the ok thank you very much that completes their arguments that we have here