[00:00:00] Speaker 03: I will ask the court clerk, are we ready to go to the third case? [00:00:05] Speaker 03: All right, then the next case on the calendar is Culver versus 3M. [00:00:51] Speaker 03: All right, counsel have 15 minutes aside and whenever you're ready. [00:01:14] Speaker 01: Good morning and may it please the court. [00:01:16] Speaker 01: Ryan Takhooper on behalf of Appellant Jake Culver. [00:01:20] Speaker 01: I'd like to reserve five minutes for a rebuttal if I may. [00:01:27] Speaker 01: This is a case about 3M using void non-compete agreements against a set of laid off workers. [00:01:35] Speaker 01: Jake Culver works in a specialized field of self-healing paints and films. [00:01:41] Speaker 01: In 2023, 3M laid off Mr. Culver alongside roughly 6,000 other employees. [00:01:48] Speaker 01: 3M gave the laid-off employees a standardized severance agreement, conditioned on them abiding by their employment agreements, which included standardized non-compete clauses. [00:01:56] Speaker 01: 3M also sent out form letters explicitly reminding employees of their obligations under the non-compete agreement. [00:02:05] Speaker 01: This behavior by 3M is a little curious, because three years earlier, the Washington legislature had declared these kind of non-compete agreements void and unenforceable. [00:02:16] Speaker 01: Indeed, the legislature went so far as to provide a cause of action against anyone who tried to enforce the void agreements. [00:02:23] Speaker 01: Statute in hand, pro se, Jake Culver went to 3M and said, hey, either pay me the salary that you would owe me [00:02:33] Speaker 01: in order to enforce this or agree that it's void and don't enforce it. [00:02:37] Speaker 01: Those are the two options that the legislature gave to companies like 3M. [00:02:41] Speaker 03: So even if the statute is retroactive, which is a different question, but assuming for the sake of argument that the statute is retroactive, that [00:02:52] Speaker 03: In your view, enforcement means 3M saying, your client said, I want to go work for X, and 3M, I want to go work for a new company, and 3M saying, tell us who it is, that that's enforcing the agreement. [00:03:08] Speaker 01: Judge Bennett, what 3M told Mr. Culver was that he had to disclose the duties he would be performing for each new potential competitor. [00:03:16] Speaker 01: That is the core problem with what 3M itself called, quote, a limited waiver of the non-competition covenant. [00:03:25] Speaker 00: But it allowed him to accept the job that he presumably wanted to accept. [00:03:30] Speaker 01: That's right, Your Honor, provided that he tell 3M and agree to continue to tell them in the future the services he would be providing to 3M's competitor. [00:03:38] Speaker 01: And the problem with that attempt to leverage the non-compete agreement to gain information about Mr. Culver's future employment is that those employers didn't want to tell 3M how they would be using Culver's services. [00:03:50] Speaker 01: He's in a very specialized and narrow field of specialized materials. [00:03:55] Speaker 01: And when he goes to work for 3M's competitors, his competitors and he would rather not be telling 3M exactly what he's going to be doing. [00:04:02] Speaker 01: But he did tell them something. [00:04:03] Speaker 03: Yes, sir. [00:04:04] Speaker 03: And for 3M said, go forth and work. [00:04:08] Speaker 01: Go forth and work provided you continue to agree that you will tell us about any services you provide for them that are different from the duties you've already disclosed to us in this or any other job that you take with them. [00:04:20] Speaker 01: That's the language that they put in there in what they termed their limited waiver. [00:04:23] Speaker 03: But they said you are free to move forward with the operations manager role at United Supply, which is the only position you've brought to our attention. [00:04:33] Speaker 01: That's right, Your Honor, but again, subject to this obligation that they continue to enforce under the non-compete about disclosure of duties. [00:04:41] Speaker 01: So imagine that this 3M competitor, three months later, decides that they want to have Mr. Culver start selling self-healing paints to a different industry that they see as a business opportunity. [00:04:55] Speaker 01: If under 3M's view, he would then be obligated to go back to 3M and say, hey, my duties have changed. [00:05:01] Speaker 01: I've got this new responsibility that I need to disclose to you. [00:05:04] Speaker 01: And ultimately, the reason that he lost that position is that his employer didn't want to be obligated to be telling 3M about how they were going to use Culver services. [00:05:13] Speaker 03: So, for example, a company can't say that you can't use our, when somebody goes to work for 3M or somebody else, the company can't say, this is all confidential and if you leave for any reason, you can't use any of our confidential information. [00:05:35] Speaker 03: No, Your Honor, I think they can say that, and there's no dispute in this case that the confidentiality provisions... So they can say that, but they can't say, we want to make sure you're not using it, can you tell us what your job duties are? [00:05:50] Speaker 01: They can't leverage the non-compete in order to get that information. [00:05:54] Speaker 01: It's 3M's position that it would have been a violation of the non-compete if Culver did not agree to continue to disclose the duties. [00:06:03] Speaker 01: The Washington legislature has not voided confidentiality clauses. [00:06:07] Speaker 01: Those, as you say, are important in business. [00:06:10] Speaker 01: What the Washington legislature has said is that non-competition clauses, especially as applied to laid-off workers, are something the state doesn't want unless the employer is willing to pay the wage. [00:06:21] Speaker 02: So your client's position, as I understand it, is the leverage here consisted of 3M insisting on this continuing duty of disclosure. [00:06:32] Speaker 01: Yes, Your Honor, both the initial disclosure of the duties he'd be performing and the continuing duty to disclose those. [00:06:40] Speaker 02: What evidence is it? [00:06:41] Speaker 02: I'm sorry. [00:06:42] Speaker 02: No, go ahead. [00:06:43] Speaker 02: What evidence is there that that's the reason he didn't get the new job? [00:06:50] Speaker 01: So I think that's precisely the sort of thing that if he had had counsel, it would have been better articulated in the First Amendment complaint. [00:06:58] Speaker 01: And on this posture, the question that this court would face is, are there conceivable facts he could have pleaded? [00:07:06] Speaker 00: Well, he did plead. [00:07:07] Speaker 00: He says that he was [00:07:08] Speaker 00: quote, forced to turn down the United Supply Distribution Offer because 3M was asking him for information, but I don't understand why that would force him to turn it down. [00:07:25] Speaker 00: Without some explanation to tie that together, I don't understand that. [00:07:32] Speaker 01: Yes, Your Honor. [00:07:33] Speaker 01: The explanation is that the employer was uncomfortable hiring an employee who would have to have an ongoing duty to disclose his work to that... What specific paragraph in the complaint alleges that? [00:07:46] Speaker 01: Your Honor, it is not particularly... [00:07:49] Speaker 00: Well, that's my problem, I guess, because I didn't see it. [00:07:53] Speaker 00: And what I read to you is that he was forced to turn it down because he didn't want to give information, which is quite different than saying that he could not obtain an offer. [00:08:06] Speaker 01: And so I would say two things. [00:08:08] Speaker 01: One is there is an obligation to liberally construe pro se complaints. [00:08:12] Speaker 01: I think given the attachments to the complaint and the wider context, it's not an unreasonable inference that that's what was going on. [00:08:18] Speaker 01: But even apart from that, it would be improper to dismiss that complaint with prejudice, given the clear possibility that there's more that could be said there. [00:08:27] Speaker 01: If the court's question was, it's not clear to me. [00:08:29] Speaker 01: What you just said, Your Honor. [00:08:30] Speaker 01: If the court's question was, it's not clear to me [00:08:34] Speaker 01: the limited, what was reserved in the limited waiver, why that would prevent the employment. [00:08:38] Speaker 03: But the provision that Judge Graber just read said to me the opposite of they wouldn't hire me. [00:08:49] Speaker 03: It says I wouldn't take [00:08:53] Speaker 03: the job. [00:08:53] Speaker 03: Are you saying that was false, that your client made a false representation in the pro se complaint, that he didn't turn down the job at all, that they never offered it to him? [00:09:06] Speaker 01: Respectfully, I don't think that's a charitable reading of what he was saying. [00:09:10] Speaker 01: What he was saying was, I would not agree to a job. [00:09:14] Speaker 01: They would not agree to offer me the job. [00:09:15] Speaker 01: But it doesn't say that. [00:09:16] Speaker 00: They did offer him the job. [00:09:17] Speaker 00: That's what all that exchange of emails was about. [00:09:20] Speaker 00: And in the complaint he says he had to turn down the job offer. [00:09:25] Speaker 00: It seems to me the only reasonable way to read the attachments and the complaint is that he was given an offer and he turned it down. [00:09:37] Speaker 00: And his reason for turning it down was he didn't want to abide by the requirement, as you say, to provide information into 3M periodically. [00:09:49] Speaker 00: But I don't understand how we could read it to say that he didn't receive an offer. [00:09:56] Speaker 01: So Your Honor, it's a sequence of events over time. [00:09:58] Speaker 01: It begins with an offer that's not completed. [00:10:01] Speaker 01: Not all the terms are there. [00:10:02] Speaker 01: They haven't started to hire him and paying him. [00:10:04] Speaker 01: But a job arrangement where you're going to come and take some kind of position with us. [00:10:09] Speaker 01: And therefore, he goes to 3M because 3M is telling him he needs to abide by his non-compete agreement and says, hey, there's this position. [00:10:16] Speaker 00: And they say, go take it. [00:10:18] Speaker 00: Well, no. [00:10:19] Speaker 01: Initially, they say, OK, tell us what the duties are and agree that you're going to continue to do so in the future. [00:10:25] Speaker 01: When he takes that information to the person he was talking to about the position, they mutually decide, this isn't going to work. [00:10:32] Speaker 01: It can't be the case that I'm going to tell 3M about my duties for you so that they learn what their competitor is doing. [00:10:44] Speaker 03: I if somebody asserts and I know you're going to disagree with my characterization but if somebody asserts in a pro se complaint that the light was red and then their counseled argument is well [00:11:00] Speaker 03: You know, what really happened is the light was green. [00:11:05] Speaker 03: You know, I don't think that's the kind of area where we need to apply liberality to a pro se complaint. [00:11:12] Speaker 03: And respectfully, the language that Judge Graber read to me is the light is red and you're telling us the light was really green or vice versa. [00:11:24] Speaker 01: So Judge Bennett, I agree with your legal premise entirely. [00:11:26] Speaker 01: I think it's correct that one category of thing that's carved off from expecting future amendments is to contradict the facts that were alleged. [00:11:35] Speaker 01: What I disagree with is just is your surmise that it would be a contradiction. [00:11:39] Speaker 01: I think an amended complaint would make this clear and it would be consistent with what was said in the first amended complaint, which is that he was in the initial stages of receiving this job offer as a result of what 3M told him he would need to do. [00:11:52] Speaker 01: He was unable to take the job. [00:11:54] Speaker 01: He characterized that in the language that appears in the first amended complaint, but the facts are that he took this information to his potential employer [00:12:03] Speaker 01: And they mutually decided this was not going to work because he could not be in the position of having to tell 3M what their competitor was doing in this very narrow and specialized field. [00:12:15] Speaker 01: Let me just take a moment on the claims apart from the non-compete claim. [00:12:23] Speaker 01: There are two other claims that are independent from that claim in this appeal. [00:12:28] Speaker 01: The first is the Consumer Protection Act claim. [00:12:31] Speaker 01: In that claim, Mr. Culver alleges both kinds of CPA claims, the rarely alleged anti-competition claim and the separate unfair or deceptive business practice of that claim that the court and state be black clarified. [00:12:47] Speaker 01: And the district court simply didn't consider the anti-competition claim, nor did 3M and their opposition in this case. [00:12:54] Speaker 01: That's a claim that can rise on its own apart from whether you think there's a violation of the non-compete statute. [00:13:00] Speaker 01: And it would arise out of the allegation that what 3M was trying to do here was get information about its competitors. [00:13:07] Speaker 01: It was a win-win for 3M. [00:13:08] Speaker 01: Either they prevent their employee from competing against them, or they learn what their employee is going to be doing for their competitors. [00:13:13] Speaker 01: And we think that's an anticompetitive practice. [00:13:16] Speaker 01: It's also a non-per se violation of the CPA, even if it's not a violation of the non-compete legislation. [00:13:25] Speaker 01: And the other claim is torsious business interference. [00:13:28] Speaker 01: And it's the same. [00:13:29] Speaker 03: I'd cancel on that second claim. [00:13:31] Speaker 03: A potential answer to a question, the generic question that 3M answered, I'm not suggesting it would be the answer here, would be let's say the 3M had been in the business of selling proprietary widgets. [00:13:50] Speaker 03: A potential answer to their question would be, [00:13:54] Speaker 03: Well, I'm going to be selling United's variation of the widget, right? [00:14:08] Speaker 03: What he did for 3M was sell proprietary widgets, and a potential answer to 3M's question, what are you going to be doing for the new company? [00:14:16] Speaker 03: I'm going to be selling widgets. [00:14:18] Speaker 01: Your Honor, I think you're right to put your finger on the question of [00:14:22] Speaker 01: how much detail was required in the disclosure, and that to some extent the extent of interference with his employment would depend on the detail that's required. [00:14:31] Speaker 01: But I think if you read the email exchange that appears in the attachments to the first amended complaint, it's clear that 3M was asking for quite a lot. [00:14:39] Speaker 01: And I would just say that the framework that the legislature set up was to give employers an option. [00:14:44] Speaker 01: Either you agree that these are void, [00:14:46] Speaker 01: There is no leverage to be used for them. [00:14:48] Speaker 01: They are void and unenforceable, and you shouldn't be telling employees anything about them. [00:14:52] Speaker 01: Or you pay the employee for the period in which you want to enforce it. [00:14:55] Speaker 01: The legislature did not permit this middle ground of, well, you can use it to leverage your employees to give you information about what jobs they'll be doing for your competitors. [00:15:04] Speaker 03: All right. [00:15:05] Speaker 03: Did you want to reserve? [00:15:06] Speaker 01: Yes, Your Honor. [00:15:06] Speaker 03: And we'll give you some extra time. [00:15:07] Speaker 03: I appreciate it, Your Honor. [00:15:31] Speaker 04: Your honors, may it please the court. [00:15:33] Speaker 04: My name is Annie Rubin and I represent Appalee 3M Company. [00:15:38] Speaker 04: Here, the district court correctly dismissed Mr. Culver's amended complaint with prejudice and without leave to amend. [00:15:45] Speaker 04: There is no need to remand this case back to the district court because the issues here are pure legal issues that cannot be remedied by further amendment to this already amended complaint. [00:15:57] Speaker 04: Now, to be clear, 3M does not dispute the liberal pleading standard that applies to pro se plaintiffs here, like Mr. Culver. [00:16:05] Speaker 04: But that's not the issue. [00:16:07] Speaker 04: The issue here is that Mr. Culver cannot state a claim for relief under any set of facts because the undisputed record shows, which was just discussed with my friend at the other table, that 3M didn't enforce or leverage this agreement against Mr. Culver. [00:16:25] Speaker 04: In fact, it did the opposite. [00:16:28] Speaker 00: Well, clearly it didn't enforce it. [00:16:31] Speaker 00: But what does it mean to leverage? [00:16:34] Speaker 04: Your honor, that's a great question. [00:16:35] Speaker 04: And I think Judge Bennett kind of alluded to this at the beginning of the other side's argument. [00:16:42] Speaker 04: The only way that we get to leverage, first of all, is if the statute is retroactive, is determined to be retroactive. [00:16:50] Speaker 04: And the legislature did not define what explicitly leverage is. [00:16:55] Speaker 04: So if we determine, [00:16:58] Speaker 04: that the 2024 amendment applies to the conduct of 3M and Mr. Culver's allegations. [00:17:05] Speaker 04: The plain meaning of the term explicitly leverage would apply. [00:17:10] Speaker 04: You'd apply the statutory, you know, the basic tenets of statutory interpretation. [00:17:16] Speaker 04: And, you know, if you look at Black's dictionary... It's a practical matter. [00:17:18] Speaker 00: What would it involve in a situation like this? [00:17:21] Speaker 00: What would it... [00:17:22] Speaker 04: I mean, I think it's such that 3M would get a positional advantage. [00:17:27] Speaker 04: I mean, that's how black law defines it. [00:17:29] Speaker 04: And 3M is not getting any positional advantage from asking Mr. Culver to provide very basic information about his subsequent employer, which he has raised as a competitive employment. [00:17:43] Speaker 02: Let's try a hypothetical. [00:17:44] Speaker 02: Let's say that the individual leaves 3M, lets them know that the individual is going to work he or she for XYZ company. [00:18:00] Speaker 02: And a year after joining XYZ, XYZ and 3M approves, says, [00:18:09] Speaker 02: We're not going to enforce any non-compete. [00:18:11] Speaker 02: But XYZ merges with a direct competitor of 3M. [00:18:16] Speaker 02: Could 3M enforce? [00:18:21] Speaker 04: I'm sorry. [00:18:22] Speaker 04: Could they enforce the non-compete agreement against her? [00:18:26] Speaker 04: Yeah. [00:18:27] Speaker 04: If we're defining the term non-compete to bring an action, if they have a valid non-compete under Washington non-compete law, yes, they could. [00:18:36] Speaker 02: And would that constitute leverage? [00:18:40] Speaker 04: If they bring in, well, this is the issue here, Your Honor. [00:18:43] Speaker 04: I mean, the initial statute defined being enforced, well, it didn't define being enforced. [00:18:49] Speaker 04: It said that if an individual had an agreement that was a pre-2020 agreement, like Mr. Culver's, a 2013 agreement, it said the only way that he can bring a declaratory judgment action here would be if 3M was enforcing the agreement. [00:19:06] Speaker 04: And lower courts in the Sowa case in the Western District defined being enforced as one thing. [00:19:12] Speaker 04: It defined it as essentially bringing a cause of action, right? [00:19:16] Speaker 04: Bringing a legal action against the individual. [00:19:19] Speaker 04: The legislature in 2024 turned around and looked at that Sowa case. [00:19:24] Speaker 04: and said, we recognize the fact pattern in SOA. [00:19:28] Speaker 04: And the fact pattern in SOA was they provided a laid-off employee a reminder of the agreement, handed that individual the agreement. [00:19:39] Speaker 04: They recognize that SOA case and they said we want to provide individuals an additional avenue of relief and we're going to amend the statute to provide that additional avenue of relief which is explicitly leverage if the agreement is being explicitly leveraged. [00:19:57] Speaker 04: Before, the only way an individual could bring a cause of action is if the agreement was being enforced, right? [00:20:07] Speaker 04: And I think what Mr. Culver is trying to do here is to say that being enforced, that term in the statute, was in some way ambiguous. [00:20:22] Speaker 04: And it's not. [00:20:24] Speaker 04: And if you look at the plain meaning, which the SOA court did, and which the district court did in this case, and apply the basic tenets of statutory construction, [00:20:33] Speaker 00: Council I understand his argument to be slightly different and I may be wrong but regardless if you'll address this it would be helpful to me. [00:20:41] Speaker 00: I understood him to be saying that the requirement to essentially report back to 3M is a form of leveraging the agreement. [00:20:53] Speaker 00: We're waiving enforcement in a limited way [00:20:59] Speaker 00: limited in two ways. [00:21:01] Speaker 00: One is you can accept this job. [00:21:03] Speaker 00: We're not speaking about other jobs, but, you know, feel free to accept this job. [00:21:08] Speaker 00: And secondly, we want you to give us information in the future. [00:21:14] Speaker 00: So I think their argument is that the requirement to give information in the future is a form of leveraging the agreement. [00:21:22] Speaker 00: What is your response to that? [00:21:24] Speaker 04: I agree, Your Honor, that is their position. [00:21:27] Speaker 04: I would disagree that it is leveraging. [00:21:30] Speaker 04: If you look at the terms of the agreement, it requires that 3M also determine their rights and obligations under the agreement. [00:21:40] Speaker 04: And part of their rights and obligations under the agreement is that if they're forbidding him to engage in a competitive employment, they're required to continue to pay him. [00:21:50] Speaker 04: It's the same requirement as under the statute. [00:21:52] Speaker 04: in RCW 4962 0201 they have to pay him and they can't determine whether or not they're required to pay him and whether or not they're actually going to leverage the agreement unless they know what position he's holding. [00:22:09] Speaker 03: And counsel as I understand it if I'm looking at the right document which is the September 27 letter at ER 71 what it's saying is you have to give us certain information [00:22:22] Speaker 03: that you have reason to believe may violate your employment agreement. [00:22:27] Speaker 03: So it doesn't look to me like it's saying, you have to tell us everything. [00:22:32] Speaker 03: If you think you're going to violate your agreement, you have to give us some information. [00:22:37] Speaker 04: I would agree with you, Your Honor. [00:22:38] Speaker 04: I think that the other side may be blowing this a little bit out of proportion that we're requesting. [00:22:42] Speaker 03: But whatever that means in 3M's view is it's not leveraging. [00:22:47] Speaker 03: It's requesting information which may be extensive or not extensive, but 3M's view is even if the statute is retroactive, this is not leverage. [00:23:01] Speaker 04: Correct. [00:23:02] Speaker 04: What they're asking is nothing more than what would be provided in a regular old job posting that you can find on LinkedIn. [00:23:08] Speaker 04: The description of the duties and the title. [00:23:15] Speaker 04: But again, I would go back to the position that in order to get there, this statute has to be applied retroactively. [00:23:25] Speaker 04: And under the basic tenets of statutory construction, the amendment is not curative. [00:23:31] Speaker 04: And that's what their argument is for retroactivity. [00:23:35] Speaker 04: So in order for an amendment to be curative, it has to be clarifying or technically correcting an ambiguous statute. [00:23:43] Speaker 04: And the term being enforced in the initial statute was not ambiguous. [00:23:50] Speaker 04: And this is further clarified by the legislature's, the terms of the legislature's actual amendment, which included after the words being enforced, quote, or explicitly leveraged. [00:24:02] Speaker 04: That phrasing and the use of the disjunctive shows that the legislature meant being enforced to mean one thing and explicitly leveraging to mean something else. [00:24:14] Speaker 04: And they did this with the information of how the SOA court was defining being enforced. [00:24:20] Speaker 04: So if they were clarifying that statute by this amendment, that's not what they did. [00:24:28] Speaker 03: Council this may be in your brief and I apologize if for not remembering but does the Washington legislature have a practice of ever saying This particular statute that we're passing is retroactive Do they have a practice of either saying it or not saying it? [00:24:49] Speaker 04: Your Honor, first of all, that's not in my brief, but it's a good point to make. [00:24:53] Speaker 04: And yes, there are statutes that say, yes, this is retroactive. [00:24:58] Speaker 04: And arguably, the non-compete statute applies here, right? [00:25:04] Speaker 04: Like the RCW 620804 gives a limited retroactivity to the statute that was enacted in 2022 if the agreement was being enforced. [00:25:16] Speaker 02: In most states, and I'll plead some ignorance of the law of the state of Washington, I'm from Arizona. [00:25:23] Speaker 02: But in Arizona, the courts have explicitly said to the legislature, if you mean this statute to be retroactive, here's what you must say and express words. [00:25:35] Speaker 02: Is that the case here? [00:25:38] Speaker 04: Washington courts do not do that that I'm aware of. [00:25:41] Speaker 04: But I would agree with you that [00:25:44] Speaker 04: One of the methods in which a statue can be determined to be retroactive is if the legislature explicitly said so. [00:25:55] Speaker 04: Yes, so. [00:25:55] Speaker 02: And here they didn't. [00:25:56] Speaker 04: Here they did not. [00:25:58] Speaker 04: Granted, I will say that [00:26:00] Speaker 04: the Washington courts, there's a strong presumption against retroactivity, and there are three, you know, limited exceptions to that presumption against retroactivity. [00:26:10] Speaker 04: One, if the legislature says so, just like you said. [00:26:12] Speaker 04: The second is if it's curative, and the third if it's remedial. [00:26:16] Speaker 04: This amendment here is none of those things. [00:26:20] Speaker 04: It doesn't explicitly say so. [00:26:21] Speaker 04: It's not curative. [00:26:22] Speaker 04: and it's not remedial. [00:26:24] Speaker 04: What it does is it provides individuals with a new substantive right, a new way to bring a deck action under the non-compete statute for agreements that predate the statute. [00:26:37] Speaker 04: So what it's essentially doing is saying agreements that were legal at the time they were entered into, [00:26:44] Speaker 04: and employers conduct that was legal at the time it was done are now considered to be, if it applies retroactive, now exposes the employer to a new lawsuit. [00:26:59] Speaker 04: And in those circumstances, Washington courts do not apply these types of statutes retroactively, these types of amendments, excuse me, retroactively. [00:27:08] Speaker 04: And so what we're faced with here is Mr. Culver [00:27:12] Speaker 04: attempting to bring a lawsuit under the non-compete statute where it's not being enforced, where no legal action has been taken by 3M and he can't allege otherwise. [00:27:23] Speaker 04: Now, I'd like to turn very briefly to their argument under the Consumer Protection Act. [00:27:30] Speaker 04: And I raise it because [00:27:35] Speaker 04: I'm a little bit taken aback that there is an argument that the district court failed to address a claim and that we failed to address it in our briefing. [00:27:46] Speaker 04: And I looked at this in my preparation. [00:27:48] Speaker 04: I said, how could that be so? [00:27:50] Speaker 04: And it's because it's not. [00:27:53] Speaker 04: The CPA claim that Mr. Culver asserts is on ER [00:27:59] Speaker 04: 68 paragraph 38. [00:28:01] Speaker 04: It states, 3M conducted unfair business practices in violation of RCW 19.86. [00:28:09] Speaker 04: That is the only cause of action that he brings under the CPA. [00:28:15] Speaker 04: And he now appears to be claiming on appeal that he's asserted a second distinct claim under the CPA for, quote, unfair method of competition, and that that district court failed to address it. [00:28:28] Speaker 04: And that that claim, unlike the unfair deceptive treaty tractors claim, doesn't require the five elements that are set forth in Hangman Ridge, which was discussed with the previous case. [00:28:39] Speaker 04: And that's just not the case. [00:28:42] Speaker 04: That position is not supported by law. [00:28:45] Speaker 04: And they rely on a case from 1982, State v. Black, that was brought by the Washington attorney general, not by a private litigant. [00:28:53] Speaker 04: Two years later is when Hangman Ridge was decided in 1986. [00:28:58] Speaker 04: And in that case, they set out the elements for a private individual to bring a private cause of action under the CPA. [00:29:06] Speaker 04: And it included those five elements. [00:29:08] Speaker 04: They drew no distinction between an unfair method of competition claim and an unfair and deceptive trade practice claim. [00:29:16] Speaker 04: And Mr. Culver cannot cite any case in which a private right of action did not apply those five elements. [00:29:24] Speaker 04: or applied a separate, distinct claim for an unfair method of competition. [00:29:28] Speaker 04: Granted, there are other issues where Mr. Culver cannot meet those five elements, but I want to clarify for that for the court now that there is not a separate claim and they cannot cite to one where a court in Washington did not apply the five elements or recognize a separate claim for a private litigant. [00:29:47] Speaker 04: Further, the district court [00:29:51] Speaker 04: correctly applied those elements and found that Mr. Culver cannot allege the elements necessary to bring a CPA claim. [00:29:59] Speaker 04: This is a private contractual matter that does not impact the public. [00:30:03] Speaker 04: There is not a single case in Washington in which the CPA, it has been found that an individual employee and an employer who enter into a non-compete agreement, that that set of facts [00:30:20] Speaker 04: qualifies for a CPA claim, enforcement or otherwise. [00:30:26] Speaker 04: Further, he can't allege that 3M [00:30:34] Speaker 04: in any way engaged in any unfair or deceptive trade practice, in practice or unfair method of competition with respect to what it did and what he alleged they did with respect to his non-compete agreement and simply asking him for a job title and job description. [00:30:51] Speaker 04: It released him. [00:30:52] Speaker 04: So to close, in order for Mr. Culver to prevail on appeal, [00:30:59] Speaker 04: and proceed in district court, either the term being enforced means explicitly leverage, which it doesn't, or the amendment is retroactive, which it is not, as we discussed. [00:31:13] Speaker 04: And it's important to recognize that when 3M actually was confronted with a competitive position, it released him so that he could accept employment. [00:31:24] Speaker 04: And he opted not to. [00:31:26] Speaker 04: Instead, he opted to sue 3M to seek pay continuation. [00:31:30] Speaker 04: Respectfully, 3M requests that this court affirm the district court's dismissal. [00:31:36] Speaker 03: All right. [00:31:36] Speaker 03: Thank you, counsel. [00:31:37] Speaker 03: And we'll put three minutes on the clock for your rebuttal. [00:31:48] Speaker 01: Thank you, Your Honors. [00:31:49] Speaker 01: A few clarifications. [00:31:51] Speaker 01: Taking Judge Bennett's hypothetical about the red light, green light contradiction, I want to say I went back and read paragraph 23 of the complaint. [00:32:00] Speaker 01: And if I were drafting the second amended complaint, that paragraph would still appear in its entirety, because it's correct. [00:32:06] Speaker 01: He was forced to turn down the job due to the intrusive nature of the requests. [00:32:10] Speaker 01: That's what paragraph 23 pleads. [00:32:12] Speaker 01: What would be added is exactly why he was forced to turn it down, what his employer's response was to those requests. [00:32:19] Speaker 01: So I don't think it's a contradiction of what was pleaded in the first amended complaint. [00:32:23] Speaker 01: And I would add that paragraph 32 of the first amended complaint also references other opportunities that were interfered with. [00:32:29] Speaker 01: I think it would have been appropriate for the district judge perhaps to say you've not pleaded that adequately, bring it back to me, but a dismissal with prejudice was not the appropriate way to deal with that. [00:32:41] Speaker 01: Second, on this issue of the separate CPA claims, my friend on the other side is just wrong about the doctrine. [00:32:48] Speaker 01: If you follow the progeny of State v. Black, it is very clear that these are two distinct claims that can be brought by private litigants in Washington [00:32:55] Speaker 01: It is absolutely true that the anti-competition claim is much rarer than the other claim, in part because Washington has very generous standard for the pleading of an unfair or deceptive practice, but in a case that is directly about interference with competition. [00:33:08] Speaker 01: non-competition claim it is straightforwardly also an anti-competition claim under that statute and Mr. Culver pleaded it in paragraph 3 of the complaint he says anti-competition and unfair or deceptive acts and practices that's the provision that we that we cited in our in our briefing and that the district court in liberally construing the complaint should have treated it that way [00:33:32] Speaker 01: So let me spend whatever time I have left on this issue of the meaning of enforce and whether it's a curative amendment. [00:33:39] Speaker 01: So the only way to consistently read the word enforce and enforcement in this statute is to read it in the sense of the party to a contract telling the other party they must comply with a provision. [00:33:52] Speaker 01: For example, the key provision that voids these says that if it's not voided, you must pay the person during the period of enforcement. [00:34:02] Speaker 01: Well, that doesn't refer to the period of a court action. [00:34:04] Speaker 01: It doesn't refer to the period of the arbitration. [00:34:06] Speaker 01: It refers to the period in which the employer is telling the employee they must abide by some part of that agreement. [00:34:11] Speaker 01: Enforce just means the contract party is saying, you must do this thing under your obligation under the contract. [00:34:17] Speaker 01: So I think a correct de novo interpretation of that word doesn't even require you to reach the question of retroactivity. [00:34:23] Speaker 01: You can just find that the correct interpretation of enforce includes what 3M did in this case. [00:34:27] Speaker 01: But if you did reach retroactivity, Washington courts are very clear, including in McGee, [00:34:34] Speaker 01: that it is not necessary for the legislature to expressly say we are making this retroactive. [00:34:39] Speaker 01: The biggest category where that's not necessary is where you have an amendment in response to incorrect court decisions. [00:34:46] Speaker 01: And we know that's why this amendment happened because the Senate bill report says we are doing this because of SOA. [00:34:52] Speaker 03: Council I normally don't ask questions during rebuttal but but unless I'm missing it the way I read that report was it said we're summarizing public testimony and Your honor, I don't think it's a summary of public that section I don't think it's a summary of public testimony that the section that we're referencing is the [00:35:12] Speaker 01: the final paragraph of a staff-prepared provision. [00:35:15] Speaker 01: Now granted, it's not legislators saying this was their intent. [00:35:18] Speaker 03: Is that part of the document that said nothing in here should be taken as legislative intent? [00:35:25] Speaker 01: That's right, Your Honor. [00:35:26] Speaker 03: And you're saying that that's legislative intent? [00:35:28] Speaker 01: Well, Your Honor, the Washington Supreme Court has said when you're interpreting legislative intent, you can include staff reports like this just as you include the timeline, right? [00:35:37] Speaker 01: You would just look at the fact that so it was decided. [00:35:40] Speaker 01: And then in the next section, they changed so as decision, right? [00:35:44] Speaker 01: And so even if you ignored the Senate bill report, the context is the same, which is this was clearly an effort to fix what they thought was a misinterpretation of their original legislation. [00:35:52] Speaker 01: That kind of fix is treated as retroactive under Washington law. [00:35:55] Speaker 03: All right, thank you, counsel. [00:35:56] Speaker 03: We thank counsel for their arguments and the case just argued is submitted. [00:36:00] Speaker 03: I'll ask the question.