[00:00:01] Speaker 02:
The final case on calendar for argument today is Mercer Global Advisors versus Hewitt.

[00:00:48] Speaker 02:
Council for Appellate, please approach and proceed.

[00:00:52] Speaker 00:
Good morning and thank you, Judge Rawlinson. May it please the court, William Donovan on behalf of Mercer Global Advisors. I'd like to reserve three minutes for a battle if I can.

[00:01:03] Speaker 00:
In our view, this case, despite the rather complex briefing, is actually quite simple.

[00:01:09] Speaker 00:
Number one, the misconduct by defendants in this case clearly created an issue of fact on liability.

[00:01:16] Speaker 00:
Number two, actual findings by the district court necessitated a trial, gave Mercer the right to a trial. And number three, as I'll get to in quite a bit of detail, the district court applied the wrong standards in granting summary judgment against Mercer.

[00:01:33] Speaker 00:
Boiled down to its essence, judgment should be reversed based on actual findings the district court made in its ruling. First, the district court properly held that it was undisputed that defendants had saved data, data on at least 150 Mercer clients, and not just name and address, but tax information relating to those accounts. Undisputed. Statement of fact 64. It's in the order twice at page 7 and 21.

[00:02:05] Speaker 02:
Was that the data that was saved on the cell phones?

[00:02:10] Speaker 00:
It was saved on cell phones. Yes, Judge Rawlinson.

[00:02:12] Speaker 02:
But weren't those phones issued for their use? In the business?

[00:02:17] Speaker 00:
The information was supposed to be used solely to advance Mercer's interests. It's undisputed, and that was my next point, so it's a good segue.

[00:02:25] Speaker 02:
Before we go there, but it was not improper per se for them to have that information on their phones.

[00:02:30] Speaker 00:
It was not expected that they would have the information, that level of detail on their phones, tax information, those kinds of details. But what's undisputed is that it was not deleted when they left Mercer, and that is a clear violation of California law. and it's a clear violation of the defendant's agreement with Mercer. And Your Honor, addressing that specific point, that was plaintiff's statement of facts 66 and 67, also at the order at page 7. So even if somehow this accumulation of client list data on the phone could have had a legitimate purpose, it stopped having a legitimate purpose when the Hewitts left Mercer.

[00:03:05] Speaker 00:
And it's also undisputed for these purposes that the Hewitts used this information to unfairly compete against Mercer and and to solicit the client base. There's no way, and it's really undisputed on the defense side, these were not tombstone announcements. Referring to someone as your tax advisor when they had left Mercer is clearly an improper solicitation. For at least 69 of the Mercer clients, Ms. Hewitt didn't even announce that she was no longer at Mercer.

[00:03:36] Speaker 01:
Similarly, the conduct by Charles... If I might ask you, my understanding is that really the...

[00:03:42] Speaker 01:
Another argument is being made. Let's take cuts, for example, that there must be proof of causation and damages. Would you address that? Because that doesn't seem to be dependent on the facts that you're talking about.

[00:03:52] Speaker 00:
Sure. Let me get to that right now. It's axiomatic that if a plaintiff wants to recover damages, they have to prove the right to damages. We can see that that's obvious, right? The case that's clearly closest on point, the applied medical decision is goes in a lot of detail in an analogous situation as to why, because you can get attorney's fees and you can get an injunction as separate and viable relief, you don't necessarily have to show causation or damages to survivor summary judgment motion.

[00:04:24] Speaker 00:
That, Judge Fitzwater, is a critical point and maybe the most critical point. So there's this lobbying back and forth in the briefs as to what the cases say. In our view, if you thoroughly read the cases, they say the same thing. They say the same thing. An applied medical is recent. It's comprehensive. It cites the practice guide, which is on point, obviously. If a plaintiff has a right to get attorney's fees or an injunction, and as the evidence was overwhelming in this case that the Hewitts, for purposes of summary judgment, had engaged in wrongdoing, Mercer was entitled to a trial.

[00:04:57] Speaker 00:
The Saragossa case is one of the two California state court cases we cited also for the proposition that causation is really not an issue in that should be addressed on summary judgment.

[00:05:08] Speaker 00:
And there's even more. This is, you know, I've got my list of things that the district court said, so I'm going to go down to also further address your question, Judge Fitzwater. This is what the district court held at page 27 of his order. I'm directly quoting. On this evidence, a rational jury could find that some of defendant's communications went beyond announcing a change of employment or a competing business and were instead active solicitation, which defendants acknowledge would be a violation of CUTSA.

[00:05:41] Speaker 00:
The other shocking fact in this case, because I was not counsel below, is defendants' statement of undisputed fact 126, theirs, not Mercer's, in which they said, and I directly quote, some of MGA's clients became clients of Hewitt Advisors by responding to Ashley and Charles' announcement. That's an admission of causation to the extent Mercer needed to show that, for purposes of summary judgment. They admit the solicitations worked. They admitted that the solicitations brought clients over.

[00:06:13] Speaker 00:
So returning to my list of things that the district court found, all you have to do is look at what the district court found and the admissions that the other side made, and we can avoid some of these thickets as to what the elements really have to be. It's obvious in our view that it was clear error by the district court. Mercer was entitled to a trial.

[00:06:33] Speaker 01:
If we reverse on cuts, would that also lead to reversal on breach of contract?

[00:06:37] Speaker 00:
Yes.

[00:06:38] Speaker 01:
And would you explain why?

[00:06:39] Speaker 00:
Sure. The district court erred in saying that the claims were duplicative. We cited the plain language of the statute, which says it's not duplicative. California Civil Code Section 3426.7B1. This title does not affect enumerated item number one, contractual remedies, whether or not based on misappropriation of trade secret. So the applied medical case got it right. The Angelica textile case got it right. The statutory language is obvious.

[00:07:10] Speaker 00:
There's different proof. There's different elements. The statute of limitations may be different. The court properly held that at least with respect to paragraphs 2E and 2F of the restrictive covenant agreement, there was no violation of BNP Code 16600. So the contract claim clearly survives. The Kutza claim clearly survives. The duty of loyalty claim clearly survives at a minimum.

[00:07:32] Speaker 02:
So, counsel, was the breach of contract claim based on the restrictive covenant agreements?

[00:07:39] Speaker 00:
It was based at least in large part, Judge Wilkinson, yes, on the violation. Sorry, I apologize, Your Honor. That yes, it was largely based on that conduct. And there was a dispute of fact as to whether the engaged in conduct violated the contractual terms. Our view is clearly it did.

[00:07:57] Speaker 02:
Were those agreements enforceable under California law? The district court found that they were enforceable under... Asking you, as a matter of law, they were enforceable under California law?

[00:08:07] Speaker 00:
Yes, Your Honor. It's our position that Sections 2E and 2F, at a minimum, which are anti-solicitation provisions, are fully enforceable under California law. In this case, the evidence was overwhelming that a tombstone, which could have been a legitimate notification to clients or potential clients, was well exceeded in this case based upon what the defendants did. By referring to themselves as a tax advisor, by lying to these clients and saying that they had pre-scheduled meetings, which Charles Hewitt did, and that was just a bald lie.

[00:08:38] Speaker 00:
There weren't pre-scheduled meetings. By not announcing that they had left Mercer, right? What they're entitled to do under California law is send out a notification of their new address, new contact information. That would have been okay.

[00:08:52] Speaker 03:
Is your duty of loyalty claim coextensive? I mean, I know there's a different thing about the trademark, which I'll ask in a second, but doesn't CUTSA preempt at least part of your duty of loyalty claim?

[00:09:02] Speaker 00:
Potentially part of it, but not all of it, Judge Sanchez. And Mercer put in significant evidence that both Hewitts, for different reasons, unfairly competed against Mercer while they were still employed at the company and in violation of their duty of loyalty. Mercer was entitled under California law that the Hewitts, while they were getting paid by Mercer, should advance Mercer's interests and not their own personal interests.

[00:09:26] Speaker 03:
And the evidence in our view... But aren't you alleging the same nucleus of facts for trademark?

[00:09:32] Speaker 03:
I mean, not for trademark, for the trade secret issue?

[00:09:36] Speaker 00:
No, there were activities like contacting the Secretary of State, setting up a website for Charles Hewitt for advising Ashley as to what to do on the trademark when he was still at Mercer. So, Your Honor, I would say there were overlapping facts, but there were additional facts that Mercer introduced that were undisputed on liability on the duty of loyalty claim. So that claim should also survive.

[00:10:01] Speaker 03:
What about the Mamou case that says that you can prepare that an employee who is anticipating that they're going to exit with a company can start preparations in setting up another company? In our view, that seems to that would seem to me. I know there's a dispute about whether there was help with creating the trademark or not.

[00:10:19] Speaker 03:
but why doesn't that case foreclosure claim?

[00:10:23] Speaker 00:
We think this case is much closer to Western Air Charter, Your Honor, in terms of the extensive activities that were done while these folks were still employed at Mercer, that it's a couple, right, who are coordinating with themselves, which raises more significant issues. But there's no set of facts.

[00:10:40] Speaker 03:
Why? It's two people that are co-founding a company. And so whether it's one person co-founding a company or two doing it together, why is it any different?

[00:10:49] Speaker 00:
Well, because he was encouraging her when he was still a Mercer employee, which is an unusual set of facts. I'm not saying them being related is dispositive, to be clear. I think I'm agreeing with you. But basically, the reality is both of them took steps on lawful steps while they were at Mercer to unfairly compete against Mercer. Mercer is not afraid of fair competition. But what happened in this case was unfair competition. And the district court found it for purposes of summary judgment. that the conduct that had been engaged in was improper, that Mercer had raised a triable issue of fact as to whether or not there was protectable trade secrets.

[00:11:26] Speaker 00:
And I didn't get to all the items on my list, but essentially on liability, the district court agreed with Mercer on every single issue that Mercer needed to get to a trial. And all I am asking on their behalf is they get their right to a trial because the evidence showed that there was at least a disputed fact, if not undisputed items, which in our view prove the liability case, to give Mercer the right to recover attorney's fees, to get an injunction, and it's probably time for me to move to the damages issue, right?

[00:11:59] Speaker 00:
In our view, there are multiple reasons and multiple ways in which Mercer could approve damages at the trial, even if their expert was not allowed to testify.

[00:12:10] Speaker 01:
On that point, would you explain your position on on what happens if we reverse, let's say, as to cuts and breach of contract, but we affirm on the exclusion of the expert. Can you still survive summary judgment without that expert testimony?

[00:12:23] Speaker 00:
Absolutely. And let me give you a site because it was one of the examples where the district court even said it. It came up, Judge Fitzwater, in the discussion on the Daubert motion. So it's 2ER-126 and 127.

[00:12:40] Speaker 00:
So one of the things that Mercer's counsel at the trial court said is we can call the clients who came over live and get them to admit that they came over as a result of the unlawful solicitation. The district court indicated that would be proper.

[00:12:56] Speaker 00:
All we would have to do is also put in front of the jury mathematical calculations. So for at least 69 of these unlawful solicitations, there was no mention that Ashley had left Mercer. We could add up just fact testimony. We could add up the number of fees that the Hewitts recovered from those 69 clients. We could calculate with simple math the lost profits or lost fees that Mercer lost as a result of those clients. So there's the 69 number, the 150 number, the 804 number.

[00:13:27] Speaker 00:
There are very many ways in which on factual testimony, irrespective of what the experts said, Mercer could easily put credible, rational, overwhelmingly impressive data to a jury and get the jury to decide that, yes, damages also accrue to Mercer. So in our view, the district court stepped well beyond the bounds of what he should have in terms of disagreeing with the 30B6 witness who Mercer offered who had relevant testimony.

[00:14:02] Speaker 00:
We do think the expert should not have been excluded. We think at trial, because he clearly had the expertise... He could have observed the fact testimony coming in and then offered an opinion. But even if none of that worked, fact testimony, admissions from the other side, testimony from the clients could prove Mercer's entitlement to damage.

[00:14:22] Speaker 02:
All right. Thank you, counsel. You want to save your remaining time?

[00:14:24] Speaker 00:
Yes. Thank you very much, Your Honor.

[00:14:25] Speaker 02:
All right.

[00:14:43] Speaker 04:
Good morning, and may it please the Court. Benjamin Scheibe for Apple East and the defendants.

[00:14:50] Speaker 04:
The briefing in this case focuses on the issue that Mercer would like the Court to look at, which is whether or not causation is an element of a cut to claim. And on that issue, admittedly, the California Courts of Appeal have come to inconsistent results. We believe the AMN Healthcare decision which is supported by the jury instruction in various other cases, is the proper reading of the statute. We don't believe Gerald's really addressed the issue. The factual context was very different. It was determining whether someone was a prevailing party for purposes of a fee-shifting provision in a contract, having established the existence of a trade secret and misappropriation, but no damages or unjust enrichment.

[00:15:30] Speaker 04:
We also believe it's addictive because the court in the Gerald's case actually found that the plaintiff had been improperly prevented from putting on evidence of actual damage.

[00:15:40] Speaker 03:
I mean, applied medical is pretty strongly against you, though, and it seems to me to be the only published California opinion that really addresses this issue.

[00:15:49] Speaker 04:
Well, I don't believe it's the only published opinion. I believe the AMN Healthcare decision from 20 years ago, that was a case where a person in a medical visiting nurse placement center sent a list of nurses, traveling nurses.

[00:16:05] Speaker 03:
But did that case talk about, I don't remember if I read it or not, but did that case talk about whether causation and damages are elements of the claim? Yes, it decided the case on that basis.

[00:16:16] Speaker 04:
She had sent this information to herself before she left. She then, she said she didn't use the information. The Court of Appeal assumed for purposes of its opinion that the information was a trade secret, and it nevertheless affirmed the grant of summary judgment because there had been no showing that the information, use of the information had caused any harm to the plaintiff. So it was not only the court's finding or statement that causation is an element, it was integral to the court's holding, unlike the Gerald case.

[00:16:47] Speaker 03:
So let's say we agree that there's a muddle in what the elements are. Even if causation were one of the elements, why isn't there enough in the record to take this to trial? You know, with the admission that certain clients did actually move over after the contacts and And frankly, just the numbers.

[00:17:04] Speaker 04:
Well, the word after is the key word in Your Honor's question.

[00:17:10] Speaker 04:
The fact that somebody moved over after a contact, which we don't agree there were any solicitations here, but I'll assume that for the sake of the hypothetical. The fact that they moved after they received the communication from one of the defendants doesn't mean they moved over because of that communication.

[00:17:26] Speaker 03:
Well, that's why it's a tribal dispute.

[00:17:28] Speaker 04:
But there's got to be evidence. We have in the records. overwhelming evidence that these clients moved for other reasons, including because Mercer deliberately drove them away.

[00:17:40] Speaker 02:
Not every single client. You don't have evidence about every single client that moved.

[00:17:45] Speaker 04:
No, we don't, but we're the defendant in the case.

[00:17:47] Speaker 02:
I know, but if there's a material issue of fact, if you don't have evidence about every single one.

[00:17:53] Speaker 04:
Well, under the Nissan fire case, we meet our burden of proof by establishing evidence. either that the plaintiff has no evidence to support an essential element of its cause of action, or by presenting evidence ourselves that negate that element. And we did both. As the district court clearly found in its order, Mercer did not present, and in fact, deliberately adopted a strategy of not attempting to present evidence that any specific client left because of any conduct, whether it was lawful in terms of an announcement, tombstone.

[00:18:27] Speaker 03:
But you're almost asking us to sort of think of the evidence in the light most favorable to the moving party as opposed to the non-moving party. And if there are reasonable inferences that can be drawn and circumstantial evidence that a number of, a large number of people moved from Mercer to Hewlett and there are some people that admitted that they moved after this contact, maybe not because of, Why isn't it reasonable enough to infer for purposes of summary judgment that some of them may have been – some of them may have moved over because of a solicitation?

[00:18:59] Speaker 02:
Because there's no basis for that, particularly in light of the overwhelming – I don't know about that because some of the solicitations kind of gave the impression that the Hewitts were still with Mercer, didn't they? I don't think so, really. Because they didn't say – I mean, they implied that there was an appointment, an existing appointment, and that would have only have been with Mercer's. Isn't that correct?

[00:19:28] Speaker 04:
No.

[00:19:28] Speaker 02:
Why not?

[00:19:29] Speaker 04:
Well, let me address two points.

[00:19:33] Speaker 04:
One is solicitation in the context of misappropriation of trade secrets has a very specific meaning. It's been established over the course of decades with the Aetna building maintenance case, the American Credit Indemnity case. It requires someone to, you know, the words are somewhat archaic, importune, entreat, implore, ask earnestly for them to move their business. All we have here is a one or two line text saying, hi, it's Ashley, your tax advisor.

[00:20:06] Speaker 04:
Give me a call. Some of them say I'm no longer with Mercer. Some of them don't.

[00:20:11] Speaker 02:
The ones who the ones that didn't say. No longer with Mercer. You don't think those were solicitations?

[00:20:17] Speaker 04:
No, there's nothing in there asking them to move their business. And the evidence was undisputed that anybody who called or responded to those was told immediately that Ashley was no longer with Mercer. She didn't want to be affiliated with Mercer. So I don't believe any of those qualify as solicitations. They don't meet the definition where the courts give those terms there. normal dictionary meeting. She wasn't asking them to switch their business. She wasn't imploring them. She wasn't entreating them.

[00:20:44] Speaker 02:
Well, she was asking them to come to her. To call her. To call her. Yes. And she was no longer with Mercer. So implicitly, that is a request to come to someone other than Mercer, correct?

[00:20:59] Speaker 04:
It's a request to call her, at which point when they did, she said.

[00:21:03] Speaker 02:
What's the purpose of calling her though? I mean, realistically, what's the purpose of Asking them to call her.

[00:21:10] Speaker 04:
The purpose of any announcement.

[00:21:11] Speaker 02:
Not to just say hello.

[00:21:13] Speaker 04:
No, it's the purpose of any Tombstone announcement as counsel calls it. You want them to contact you. You then tell them, as she did undisputedly, I'm no longer with Mercer. And of all the client declarations that were submitted, each client said, they immediately said, we want to go with you or can we go with you? We don't know anybody else at Mercer. We've been with you for years. So it's not a request that they move their business. It's a request they contact them.

[00:21:41] Speaker 04:
And then with respect to the pre-scheduled appointments, the record as described by Mercer is very misleading. There was evidence of only one pre-scheduled appointment email that was sent to somebody who had not already signed on with Hewitt Advisors. That was a man named Ronald E. Myers. Mr. Myers had the exact same name down to the same middle initial, and their wives' names were like Catherine and Kathleen. The email was sent to him erroneously, and there's no evidence that Mercer's information was used to send it because he was not a prior client of either Ashley or Charles, so they didn't have his contact information in their phones.

[00:22:24] Speaker 04:
Mr. Myers was deposed. He said, and he's admitted to having some senior moments, He said he may have called Hewitt advisors, mistaking it for Mercer, and given them his contact information. So there's no evidence, first, that his information was used by the Hewitts. Second, he admitted he may have called the Hewitts. Third, he didn't switch to Hewitt anyway. Once the confusion was resolved, then he stayed with Mercer. So there was no other evidence of any Similar emails being sent to Mercer, any Mercer client, and certainly not any Mercer client that had not already contacted the Hewitts.

[00:23:08] Speaker 04:
What they do is when it's tax season, they have seven or eight clients they have to book a day. So they send out these things that we've slot you in for this time frame, and if it's a good time frame.

[00:23:20] Speaker 02:
Counsel, do you dispute that your clients had client information for Mercer on their cell phones?

[00:23:28] Speaker 04:
No, I do not dispute that.

[00:23:29] Speaker 02:
And do you dispute that they should have deleted those once they left?

[00:23:35] Speaker 04:
No, I do dispute that.

[00:23:36] Speaker 02:
You dispute that. Tell me why it was appropriate for them to keep that client information that they obtained from Mercer once they were no longer employed by Mercer.

[00:23:46] Speaker 04:
Because California law makes absolutely clear that the public policy of the state is in favor of employee mobility and the ability of employees to compete with their former employers. the Arthur Anderson, Edwards versus Arthur Anderson, Reeves versus Hanlon, they all say, and California may be unique in this regard, you can actually use trade secrets to announce your change of employment to the employer's customers. And I don't think a contract that requires them to return that information or delete it is enforceable under Business and Professions Code 16600.

[00:24:23] Speaker 04:
Retirement Group versus Galante makes clear that the Prohibition in Section 16600 is not simply on agreements that prevent you from competing. It's anything that restricts your ability to compete. And requiring you to return information that you are allowed to use under California law is a violation of 16600. I think the line of cases that I've cited make that clear. Now, could they have gone in and stolen a list that they didn't use during their normal business?

[00:24:58] Speaker 04:
Responsibilities for merger? No. But the information that was lawfully in their possession, I don't believe California law allows the employer to prevent them in any way, shape, or form from using that to do what the law permits, which is to announce a change.

[00:25:11] Speaker 03:
Council, can you address the breach of contract issue and if the district court erred by dismissing it as being duplicative?

[00:25:18] Speaker 04:
Well, again, we don't agree with that characterization. If you read the district court's order, it focused on the unenforceability of of the confidentiality covenant because the prefatory language to the covenant, which the district court pointed out, ran the better part of a half a page, single spaced in a run-on sentence of 200 and something words was exceedingly overbroad and prevented them from using information they would lawfully be permitted to use.

[00:25:48] Speaker 03:
But then it went on to say that it's enforceable insofar as it would restrict the misuse of the information and for trade secret purposes?

[00:25:58] Speaker 04:
The district court went on to, first of all, it noted that the language that it found over brought infected all of the remaining clauses because they were based on the use of confidential information. The district court then discussed the question that's never been answered by the California Supreme Court, which is whether the so-called trade secret exception to 16-600 survived the enactment of the Uniform Trade Secrets Act. It sided with the cases that suggest that it hasn't.

[00:26:27] Speaker 03:
So are you saying that the district court did not say that part of the contract was enforceable?

[00:26:35] Speaker 04:
I don't believe it said part of it was enforceable. I believe it said if we assume that the trade secret exception continues and that some part, if some part of it remains enforceable, The only part that would remain enforceable would be coextensive with the remedies available under the Uniform Frazier Act, and therefore it would be duplicative.

[00:26:57] Speaker 03:
But do you agree that that's not the case under California law, that Kutza contemplates parallel claims for breach of contract and a Kutza violation?

[00:27:08] Speaker 04:
I do, so long as the contract doesn't violate Business and Professions Code 16600.

[00:27:14] Speaker 04:
And if it does, I believe it is completely forbidden and there is no – But that's not the analysis that the district court is giving.

[00:27:20] Speaker 03:
I mean you're – it's interesting.

[00:27:23] Speaker 03:
I appreciate you sharing that perspective, but that's not what the district court was saying was that a breach of contract claim would not be viable because permissible information that someone can use to announce a new venture cannot be enforced. I don't remember reading that in the district court's decision.

[00:27:44] Speaker 04:
I think what the district court was saying, if you can find a reading of this contract that doesn't violate the law, it would only be to protect Mercer's trade secrets, and therefore to that extent, it would duplicate the remedies available under CUTSA. I don't think the court was finding that you cannot have contract and CUTSA be coextensive at the same time. I don't think it ever made that finding, and I think it's been...

[00:28:11] Speaker 04:
sort of overstated and with focus on the word duplicative as opposed to the actual finding, which is that this contract is so overbroad in terms of its definition of confidential information, it even went on, as the district court noted, to create an irrebuttable presumption that if Ashley or Charles contacted any client they had previously serviced at Mercer, they could only have done so by having downloaded or copied or taken trade secret information. So I believe the court as a whole, the court found that the provision as a whole was unenforceable and that if there was any ability that it could be enforced, it would not add anything to the inquiry.

[00:28:52] Speaker 02:
All right. Thank you, counsel.

[00:28:57] Speaker 00:
Thank you.

[00:29:01] Speaker 00:
Rebuttal. Thank you very much, Judge Rawlinson. I'll be brief.

[00:29:06] Speaker 00:
Judge Sanchez, in terms of your questions you just asked my colleague on the other side, you're absolutely right. The district court found on page 22 of his decision that the information at issue could be found by a jury to be a protectable trade secret. It is entirely incorrect, as my colleague was suggesting, that the court somehow found the restrictive covenant agreement unenforceable. For paragraphs 2E and 2F, the district court was absolutely clear, consistent with California law, that the anti-solicitation provisions were enforceable.

[00:29:38] Speaker 00:
Judge Rawlinson, in response to your thoughtful questions, the problematic solicitations that went out clearly were intended to take the business, or at least the inference, your word, is absolutely correct. If you're referring to someone as your tax advisor, when they're not, they've left Mercer and many clients weren't told they left Mercer, or a pre-existing appointment that didn't exist, that is unfair competition, it's solicitations. If the Hewitts wanted to play fair and in conjunction with California law, what they could have done is simply sent out a notice indicating that they had moved from Mercer and let the chips fall where they may.

[00:30:18] Speaker 00:
Because they didn't, because their conduct was egregious, it was misconduct, it violated California law, and the district court properly found that there were disputed facts, at least with respect to this conduct. Some of it was undisputed. And Judge Sanchez, as you said, Mercer is the non-moving party, was entitled to the inferences. So for all the reasons I've talked about today, your thoughtful questions, and in our briefs, we respectfully ask that the district court decision be reversed. Thank you very much.

[00:30:46] Speaker 02:
Thank you. Thank you to both counsel for your helpful arguments. The case just argued is submitted for a decision by the court that completes our calendar for the morning. We are in recess until 9.30 a.m. tomorrow morning.