[00:00:00] Speaker 02:
I would like to make rebuttal, Your Honor.

[00:00:01] Speaker 02:
I'd like to reserve six minutes for rebuttal.

[00:00:03] Speaker 04:
OK, so try to watch your time yourself.

[00:00:07] Speaker 04:
If you forget, if I'm able to, I'll remind you.

[00:00:12] Speaker 04:
But of course, if you get peppered with questions from the panel, you'll be allowed to take time to answer fully.

[00:00:24] Speaker 02:
Thank you, Your Honor.

[00:00:30] Speaker 02:
So it's parking right here.

[00:00:34] Speaker 04:
Yeah, please proceed.

[00:00:35] Speaker 02:
May I please the court?

[00:00:37] Speaker 02:
In early 2020, early April 2020, as the COVID pandemic ravaged its business, RBC initiated the first in a series of company-wide layoffs and furloughs to cut costs.

[00:00:49] Speaker 02:
Richard Mooney was one of the employees laid off in that first wave.

[00:00:53] Speaker 02:
He was an expensive employee with an extensive history of insubordination and middling results.

[00:00:59] Speaker 02:
The prior fall, RBC had even considered terminating him.

[00:01:03] Speaker 02:
before going on fml i leave in january 2020 mr mooney knew that his days were probably numbered based on the feedback he'd gotten from his employer his extension of leave changed nothing he'd have been laid off in april whether he returned as originally planned or whether he extended his leave he always met the three

[00:01:22] Speaker 01:
Can I clarify?

[00:01:23] Speaker 01:
There was another issue that was briefed, and that's the issue of reversal based on alleged misconduct.

[00:01:31] Speaker 01:
That issue's been conceded, so now we're talking about sufficiency of the evidence?

[00:01:34] Speaker 02:
That is correct, Your Honor.

[00:01:35] Speaker 02:
We're talking about the CR 59, sufficiency of the evidence, the weighing of the evidence, and the district court's order.

[00:01:44] Speaker 01:
On sufficiency of the evidence, you're swimming a little bit uphill because now we've got a jury verdict and the district court analyzed it and said, well, there's some evidence to support the jury's verdict.

[00:01:56] Speaker 01:
Can you address that directly?

[00:01:57] Speaker 02:
Yes, Your Honor.

[00:01:58] Speaker 02:
And the fact that there is some evidence or that the jury could have believed is not the proper standard under federal rule 59.

[00:02:06] Speaker 02:
The standard requires the court to weigh the evidence.

[00:02:09] Speaker 02:
And when you look at the objective evidence before the court, when you look at the overwhelming weight of the evidence, Mr. Mooney was terminated because he was expensive, because he was insubordinate, and because he failed to perform.

[00:02:23] Speaker 03:
Now you just said, what's the right standard under which we judge this now that we got a jury verdict?

[00:02:30] Speaker 03:
How is that standard articulated?

[00:02:31] Speaker 02:
Well, the standard under Rule 59 is different from the standard under Rule 50, which provides that if there is, you give deference to the jury verdict.

[00:02:41] Speaker 02:
Under Rule 59, the court is to conduct an independent review, and here the court, one, we don't think it really conducted it.

[00:02:48] Speaker 02:
You don't mean de novo.

[00:02:52] Speaker 02:
It is an abuse of discretion standard, but where the court's order evidences an error of law, this court evaluates that part of the court's order under a de novo standard, because an error of law is always an abuse of discretion, and the court determines whether there was an error of law that then leads to an abuse of discretion.

[00:03:13] Speaker 03:
How is this an error of law?

[00:03:15] Speaker 03:
This is really a question.

[00:03:16] Speaker 03:
Is there sufficient evidence to support the jury verdict?

[00:03:19] Speaker 02:
throughout the court's order denying the request for a new trial, the court said the jury could have believed, or the jury could have thought, or this could be.

[00:03:30] Speaker 01:
I don't think that's the standard that the district court did.

[00:03:36] Speaker 01:
talked about what was required to prove the claims, and the district court noted that circumstantial evidence can support the jury's verdict, and then the district court detailed some of the circumstantial evidence that could have supported the verdict.

[00:03:50] Speaker 01:
I think it was April when he was terminated, he was the only one.

[00:03:54] Speaker 01:
There was a PIP in place, but that had been some months earlier, I think almost a year earlier.

[00:04:01] Speaker 01:
Why aren't those facts sufficient circumstantial evidence to support the jury's verdict?

[00:04:07] Speaker 02:
Well, they're not because the court in its order said Mooney had not been disciplined after the expiration of the PIP.

[00:04:14] Speaker 02:
Well, he hadn't been subjected to another PIP.

[00:04:17] Speaker 02:
He had not been suspended.

[00:04:19] Speaker 02:
But the record shows that there was a consistent pattern of discipline.

[00:04:23] Speaker 02:
In September at ER 471, Mr. Mooney was told it is unacceptable to make 50 calls without writing a single report of call.

[00:04:31] Speaker 02:
That is a reprimand.

[00:04:33] Speaker 02:
That is a form of discipline, even if it did not result in termination, suspension, or another performance improvement plan.

[00:04:43] Speaker 02:
In the call with the company president, the company emphasized the importance of writing reports of call.

[00:04:50] Speaker 02:
Mr. Mooney, throughout his entire employment at RBC, disagreed about the importance, variously describing them as stupid, redundant, and a waste of time.

[00:05:00] Speaker 02:
When Mr. Mooney's review was finished in January of 2020, at ER 396, RBC told him he got no raise, either merit or performance pay, or merit or COLA, because it was due to his performance or lack thereof on the PIP and his continued failure to consistently rewrite reports of calls.

[00:05:22] Speaker 02:
So Mr. Mooney was being disciplined all throughout the period after the PIP, reprimanded, cajoled, instructed.

[00:05:30] Speaker 02:
and he continued his insubordinate behavior.

[00:05:34] Speaker 03:
You know, if I were a juror, I might be very sympathetic to your argument, but I'm not a juror.

[00:05:42] Speaker 02:
Correct, Your Honor.

[00:05:43] Speaker 02:
But the fact that the court is even sympathetic to this argument suggests that the trial court in evaluating the motion for a new trial should have weighed the evidence and the weight of the evidence is against it.

[00:05:56] Speaker 03:
The trial court said... You know, we're having a problem, or at least I'm having a problem with just what our standard of review is.

[00:06:04] Speaker 03:
I owe a considerable deference to what the jury did.

[00:06:10] Speaker 02:
The court owes some deference to what the jury did.

[00:06:14] Speaker 02:
But there must be more than the possibility that the jury got it right.

[00:06:20] Speaker 02:
Both the trial court and this court, under Rule 59, are to weigh the evidence, evaluate its sufficiency.

[00:06:28] Speaker 02:
And we suggest that the objective evidence here and the extensive evidence is that Mr. Mooney's discharge in April of 2020 was coincidental with his return from FMLA leave, nothing more.

[00:06:43] Speaker 02:
and that the jury and the trial court, to some degree, seems to have bought into Mr. Mooney's argument, post hoc proctor hoc, that since this occurred after he extended his FMLA leave, that it must have been beforehand.

[00:06:57] Speaker 02:
But if you look at the evidence, you look at the testimony, you look at the documentary evidence with his performance compared to other

[00:07:04] Speaker 02:
sales engineer's performance, Mr. Mooney was at the bottom of the barrel and he satisfied all of the three objective criteria that RBC had set out.

[00:07:15] Speaker 02:
In its order, the court pointed to the fact that Mr. Mooney was let go when other employees with less seniority were retained.

[00:07:23] Speaker 02:
While the memorandum identifying the criteria on which Mooney and other employees were to be evaluated, seniority had nothing to do with it.

[00:07:31] Speaker 02:
nor was there any evidence that RBC had ever used a last hired, first fired test in implementing layoffs.

[00:07:40] Speaker 02:
Yet the court said this is evidence that Mr. Mooney was let go because of FMLA leave, and it's simply not supported in the record.

[00:07:48] Speaker 02:
The court pointed to his 4% bonus in the fall of 2019 as evidence that he was performing well.

[00:07:56] Speaker 02:
Well, that 4% bonus was out of possible 15%

[00:08:00] Speaker 02:
suggesting middling performance.

[00:08:02] Speaker 02:
There was testimony that no sales engineer had ever gotten a zero discretionary bonus because part of the bonus was based on the company's overall performance.

[00:08:12] Speaker 02:
So that 4% bonus based on the objective facts, based on the testimony, was despite, despite Mr. Mooney's performance, not because of it.

[00:08:25] Speaker 02:
There are two elements I'd like the court to take a look at, and those are found at SER 612 and then ER 425 to 450.

[00:08:34] Speaker 02:
SER 612 is Mr. Mooney's summary, one page of blended sales data, showing him as the number three sales engineer at RBC.

[00:08:46] Speaker 02:
With his two, it doesn't show how much revenue he brought in.

[00:08:49] Speaker 02:
He brought in $2.7 million worth of revenue.

[00:08:52] Speaker 02:
But in Mr. Mooney's view of the world, he was more valuable to the company than Chris Stricker, who brought in $17.7 million worth of revenue.

[00:09:00] Speaker 02:
More valuable than Brad Kyneth, who brought in 9.5.

[00:09:04] Speaker 02:
More valuable than Dave Marchant, who even after a 25% hit on his productivity that year, still brought in almost three times Mr. Mooney's revenue.

[00:09:14] Speaker 02:
If the court had looked at the objective facts and weighed the actual evidence before the court, it would see that Mr. Mooney was at the bottom of the barrel and that RBC discharged him precisely for the reasons that were set out in its April 2 memo.

[00:09:30] Speaker 02:
Now, the court criticized Mr. Ross's testimony based on a demonstrative exhibit.

[00:09:35] Speaker 02:
But the demonstrative exhibit wasn't part of the record.

[00:09:38] Speaker 02:
It's not evidence.

[00:09:40] Speaker 02:
The reports at ER 425 to 450 detailing and comparing Mooney's performance to other employees, other sales engineers, are evidence.

[00:09:50] Speaker 02:
I suggest that the court failed in its obligation under Rule 50 to evaluate and weigh the evidence

[00:09:57] Speaker 02:
independently.

[00:09:58] Speaker 03:
I know that you're concerned about the issue that you've been arguing.

[00:10:02] Speaker 03:
There's a tiny point in this case for which I would be assisted, and that's the question of interest rate.

[00:10:09] Speaker 02:
Could you address that?

[00:10:11] Speaker 02:
Yes, Your Honor, and then I would like to reserve the rest of my time.

[00:10:15] Speaker 02:
Mr. Mooney brought his case under the FMLA leave statute.

[00:10:20] Speaker 02:
As a tag along, he added the Washington statute as well.

[00:10:25] Speaker 02:
Mr. Mooney's

[00:10:27] Speaker 02:
Council proposed the jury instruction that is at issue here, which uses an and or.

[00:10:34] Speaker 02:
And where there is an undifferentiated jury verdict that has both federal and state claims in it, the rule is that the federal rule applies, not the state interest rate.

[00:10:44] Speaker 02:
Thank you.

[00:10:45] Speaker 03:
Is that established in this circuit?

[00:10:48] Speaker 02:
It is established in other circuits, and there is over a decade.

[00:10:51] Speaker 02:
One other circuit.

[00:10:53] Speaker 02:
I believe it's both the Second and the Eighth Circuit have both adopted it, Your Honor.

[00:10:56] Speaker 02:
And there's a decade's worth of district court decisions in this circuit adopting that view.

[00:11:03] Speaker 03:
Thank you.

[00:11:15] Speaker 00:
Good morning, Your Honors.

[00:11:16] Speaker 00:
May it please the Court?

[00:11:18] Speaker 00:
My name is Mark Middaw here on behalf of Mr. Mooney, who's present in the Court today.

[00:11:24] Speaker 00:
This court has made clear that a district court's order denying a new trial motion based on sufficiency of the evidence is virtually unassailable on appeal.

[00:11:36] Speaker 00:
The district court's order denying the new trial motion was thorough and well reasoned, full of citations to the record, and it included specific findings about witness demeanor.

[00:11:47] Speaker 00:
There's no legal basis to disturb these findings on appeal.

[00:11:51] Speaker 00:
Unless the court has further questions about the sufficiency issue, I'd like to turn to the two issues raised on cross-appeal related to prejudgment interest and attorney's fees.

[00:12:02] Speaker 01:
On the prejudgment interest, is it a discretionary determination by the district court?

[00:12:08] Speaker 00:
I don't believe so.

[00:12:09] Speaker 01:
I believe it has to be a matter of law because this is fundamentally deriving- Different district judges have chosen different ways to approach that, so I'm not sure how that's a question of law.

[00:12:22] Speaker 01:
They're bound by it, so all the judges who basically went for the federal rate are just wrong as a matter of law.

[00:12:27] Speaker 01:
That's your position?

[00:12:28] Speaker 00:
Yes, Your Honor, because this court has consistently said that when there's a state law claim that's before a district court due to the exercise of diversity jurisdiction, the state law interest rate applies as a fundamental application of the Erie Doctrine.

[00:12:41] Speaker 01:
When there are these concurrent claims... You have a federal claim in here and an equivalent state law claim.

[00:12:49] Speaker 01:
Correct.

[00:12:50] Speaker 01:
There's no way of telling that I can tell from the jury instruction what really, which claim drove the jury's verdict, right?

[00:12:58] Speaker 00:
Well, they're identical legal standards, Your Honor, so there could not possibly be a difference.

[00:13:02] Speaker 00:
They were instructed in the same jury instruction on both claims.

[00:13:07] Speaker 00:
But that's not dispositive to this issue because this court said in Oak Harbor Freight that the question is whether

[00:13:14] Speaker 00:
the jury's verdict is based on federal law alone or state law alone, and you only apply the federal interest rate if the claim is based on federal law alone.

[00:13:24] Speaker 03:
And I understand that the Second Circuit... I just don't think in this circuit that we've got any case law that resolves the question.

[00:13:31] Speaker 00:
I agree with you, Your Honor.

[00:13:32] Speaker 00:
I believe this is a matter of first impression in this circuit.

[00:13:35] Speaker 00:
The Thomas case in the Second Circuit, I'd like to address briefly... Could the court have used the blended rate?

[00:13:42] Speaker 00:
No, Your Honor, I think that the court had to apply the state law rate to the state law claim.

[00:13:46] Speaker 00:
I don't believe that there was wiggle room for the court to apply a blended rate.

[00:13:50] Speaker 00:
If the court

[00:13:52] Speaker 00:
for example, on a post-judgment interest claim, the court is bound to apply the federal rate that's established by statute, section 1961, and the court has the option under section 1961 to do a plus-up above the federal rate if it determines in the exercise of its discretion that the federal rate is too low.

[00:14:14] Speaker 00:
So in circumstances where the

[00:14:15] Speaker 00:
post-judgment interest rate applies and the federal rate applies, the court does have the discretion to add to that rate if it believes the equities require that.

[00:14:24] Speaker 00:
But on the question of whether federal or state law applies as a matter of impression, that is a question of law that I think has to be reviewed de novo, and I think it is a question of law that simply has to be resolved by this court.

[00:14:36] Speaker 00:
I understand the Second Circuit in the Thomas case said that the federal rate has to apply under these circumstances, and it did resolve that as a matter of law.

[00:14:45] Speaker 00:
indicate that there was discretion.

[00:14:48] Speaker 00:
I don't think the Thomas case is particularly persuasive for a couple of reasons.

[00:14:53] Speaker 00:
The first is the Thomas case did not contain a significant amount of analysis about

[00:15:01] Speaker 00:
the eerie doctrine, the application of federal.

[00:15:05] Speaker 03:
I think that's an understatement.

[00:15:06] Speaker 03:
They gave you no analysis.

[00:15:07] Speaker 03:
They gave us an answer, but no analysis.

[00:15:09] Speaker 00:
Well, and then if you go even deeper, kind of peel the onion back another layer, they cited a bunch of district court cases.

[00:15:15] Speaker 00:
And if you go and look at what those district court cases say, those district court cases just say, well, this is the way that we've always done it.

[00:15:21] Speaker 00:
And I don't think that that's a legal rationale that carries a lot of persuasive authority in this circuit.

[00:15:28] Speaker 00:
So I do think, and I will concede that they're not directly on point, but the statements in the Exxon case and the statements in the Oak Harbor Freight case really do strongly imply that when there's a state law claim at all that's before the court as a result of diversity jurisdiction, which this one was, there was also, of course, a federal question jurisdiction issue before the court, but Mr. Mooney was here even if he had dismissed the FMLA claim, the federal FMLA claim,

[00:15:57] Speaker 00:
because there was diversity of the parties, and it wouldn't have done him any good if he wanted to be back in state court to dismiss that claim.

[00:16:04] Speaker 00:
So it is an issue of first impression in this court, and I think the maybe most intellectually consistent way to say is if you have a federal claim and a state law claim, then the court simply applies the federal interest rate to the federal claim, the state interest rate to the state law claim, and the plaintiff just gets to pick which one they wanna collect on.

[00:16:24] Speaker 00:
That would, I think,

[00:16:27] Speaker 00:
be consistent with the animating principles of... Would like that.

[00:16:30] Speaker 00:
Plaintiffs would absolutely like that, Your Honor.

[00:16:32] Speaker 00:
I'm sure Mr. Mooney would, yes.

[00:16:35] Speaker 00:
But I think it also is kind of intellectually consistent.

[00:16:40] Speaker 00:
And certainly, if you look in criminal law, if a plaintiff brings a case in state court and federal court and gets convictions in both for the same conduct or for the same crime,

[00:16:52] Speaker 00:
Defendant serves the longer sentence.

[00:16:55] Speaker 00:
They don't serve the shorter sentence.

[00:16:57] Speaker 00:
So it would be consistent with that area of law as well.

[00:17:01] Speaker 00:
Unless the court has further questions, I'd like to just briefly address the attorney's fee issues.

[00:17:05] Speaker 04:
Counsel, I have one question on the last issue you addressed.

[00:17:10] Speaker 04:
If our panel decided to resolve this case in a precedential opinion, what should be the rule of law, in your view, that we would adopt when there are concurrent federal and state claims?

[00:17:31] Speaker 04:
And the jury hasn't differentiated.

[00:17:36] Speaker 00:
I believe that the federal interest rate should apply to the federal claim, the state interest rate should apply to the state claim, and the plaintiff should have the choice as to which judgment to collect upon.

[00:17:51] Speaker 04:
Okay, thank you.

[00:17:52] Speaker 00:
Thank you.

[00:17:54] Speaker 00:
With regards to the attorney's fee issue,

[00:17:59] Speaker 00:
The district court made a finding that a reduction based on the quality of counsel was appropriate.

[00:18:07] Speaker 00:
This court has said.

[00:18:09] Speaker 00:
that reductions based on the quality of counsel require a showing of abysmal performance.

[00:18:14] Speaker 00:
And there is nothing in the record of the court below that this case was litigated abysmally.

[00:18:19] Speaker 00:
Just looking at the docket, you can see that there was a motion practice that was thorough and professional.

[00:18:26] Speaker 00:
Reading the trial transcript, you can see that this case was competently litigated by the parties.

[00:18:31] Speaker 00:
There was no abysmal representation here.

[00:18:34] Speaker 00:
The only issue that was raised by the district court with respect to attorney's fees was purported misconduct in opening and closing.

[00:18:44] Speaker 00:
And that is not a recognized basis for reducing attorney's fees.

[00:18:49] Speaker 00:
The court added to that this idea that there was a lack of success, citing the fact that the minimum wage act claim was dismissed

[00:19:02] Speaker 00:
and that Mr. Mooney was unsuccessful on his WLAD claim as well.

[00:19:08] Speaker 00:
I just want to point out for the court, Mr. Mooney did not submit any bills related to the Minimum Wage Act claim, so citing that as a lack of success, as a justification for reducing attorney's fees, is not really supported by the record.

[00:19:21] Speaker 03:
He'll remind me, how much was the fee request reduction?

[00:19:25] Speaker 03:
Not very much.

[00:19:26] Speaker 00:
10%.

[00:19:29] Speaker 00:
And while a smaller reduction does not require the same type of justification or explanation by the court as a larger fee reduction, this court does have an obligation to ensure that it was consistent with statements that this court has made about impermissible double counting.

[00:19:46] Speaker 00:
And when the district court reduced the fee by 10%, it first went through Mr. Mooney's time slips.

[00:19:54] Speaker 00:
with really a fine tooth comb.

[00:19:55] Speaker 00:
It's a very detailed order and excluded a substantial number of time slips for work that it found was not related to the successful claims.

[00:20:05] Speaker 00:
Then the court separately said, because there was an overall lack of success, I'm going to reduce the fee by an additional 10%.

[00:20:14] Speaker 00:
And I think that generally speaking, this court's precedent stand for the proposition that

[00:20:19] Speaker 00:
The court gets to do one or the other of those tasks, but not both.

[00:20:24] Speaker 00:
That's the impermissible double counting that this court has cautioned against.

[00:20:29] Speaker 00:
And this court has consistently said that a lack of success is going to be subsumed into the load star calculation.

[00:20:38] Speaker 00:
So our position is that the court, when it went through and excised those time slips and specifically noted

[00:20:46] Speaker 00:
that no time was expended on the minimum wage act claim, that that was sufficient to account for the overall lack of success.

[00:20:54] Speaker 00:
And the additional 10% reduction was not justified.

[00:20:57] Speaker 00:
And while I understand that federal law is clear that taking cases on contingent fee basis is not a basis for an upward multiplier under federal law, it is consistent with Washington state public policy to frankly reward attorneys who are willing to take cases on a contingent fee basis

[00:21:15] Speaker 00:
who are willing to vindicate the rights of individuals who have been discriminated against by their employers, and the jury entered a well-supported finding that he was, in fact, the subject of unlawful employment discrimination and that he was entitled to damages as a result.

[00:21:32] Speaker 00:
So while there was a lack of success on the WLAD claim, the court's finding that the WLAD work and the FMLA work

[00:21:42] Speaker 00:
was based on a common core of facts that was inseparable, should support the full attorney's fee award in this case.

[00:21:55] Speaker 00:
Unless the court has any further questions, I'm happy to.

[00:21:58] Speaker 00:
I have none.

[00:21:59] Speaker 00:
I have none.

[00:21:59] Speaker 00:
Thank you.

[00:22:00] Speaker 00:
Thank you.

[00:22:00] Speaker 04:
Thank you, counsel.

[00:22:03] Speaker 04:
So we'll hear from appellant on rebuttal.

[00:22:18] Speaker 02:
Okay.

[00:22:20] Speaker 02:
A couple of points, Your Honors.

[00:22:22] Speaker 02:
With respect to the modest reduction in attorney's fees, Mr. Mooney had less than complete and less than full success.

[00:22:32] Speaker 02:
He abandoned his Minimum Wage Act claim?

[00:22:35] Speaker 02:
Yes.

[00:22:36] Speaker 02:
He prepared his complaint, including the Minimum Wage Act claim.

[00:22:40] Speaker 02:
There was also extensive testimony during the trial and during the briefing in this case regarding Mr. Mooney's non-economic

[00:22:47] Speaker 02:
harms, the stress that he felt while working there, the stress that he suffered after being discharged.

[00:22:54] Speaker 02:
The jury awarded nothing on his assertions that he suffered any non-economic damage.

[00:23:00] Speaker 02:
The court's modest 10 percent reduction for lack of success and quality of representation was amply, amply supported by its order.

[00:23:10] Speaker 02:
It suggests to the court that repeated violations of court orders and directions during the course of trial are not within the norm, are not within the standard of practice, and do not represent the quality of representation that the federal courts expect from counsel.

[00:23:25] Speaker 02:
Simply put, the court's reduction of 10% in the fee award was appropriate.

[00:23:32] Speaker 02:
Mr. Mooney contends that the court should award the state interest rate on a federal claim.

[00:23:38] Speaker 02:
this case was not simply brought as a diversity case.

[00:23:42] Speaker 02:
Mr. Mooney elected from the outset to raise the the federal family medical leave act as the basis for his case and in doing so he was able to access and rely upon a vast vast supply of law in the federal courts under that statute in comparison to Washington's dearth of authority

[00:24:06] Speaker 02:
under its Family Medical Leave Act statute.

[00:24:09] Speaker 02:
And in doing so, he obtained a benefit by pleading his federal case.

[00:24:15] Speaker 02:
This is not simply a diversity case.

[00:24:17] Speaker 02:
This is a case involving federal jurisdiction and a federal claim and an undifferentiated

[00:24:25] Speaker 02:
jury verdict.

[00:24:26] Speaker 02:
Mr. Mooney's counsel is asking the court to go behind that jury verdict and figure out what it is that the jury awarded.

[00:24:32] Speaker 03:
Should the district judge have discretion?

[00:24:35] Speaker 03:
Is it a formal rule that it has to be federal?

[00:24:37] Speaker 03:
I mean, what rule should we, I mean, it's an open question in the circuit.

[00:24:41] Speaker 03:
So what should the circuit rule be?

[00:24:43] Speaker 02:
I would suggest, Your Honor, that where a plaintiff brings a case invoking federal subject matter jurisdiction before this court, that the plaintiff has elected the federal rate.

[00:24:56] Speaker 02:
If it is simply a diversity case as in Exxon Valdez or other diversity cases where the state, where the court is to apply state law under the Erie Doctrine.

[00:25:06] Speaker 03:
Now those are the two easy cases, federal case or state case.

[00:25:09] Speaker 03:
This is a combined case.

[00:25:11] Speaker 03:
So what do we do with the combined case?

[00:25:13] Speaker 02:
I think with a combined case, Your Honor, the rule is that if you bring a federal claim under a federal statute and seek relief under federal law, federal law applies across the board.

[00:25:26] Speaker 03:
So why is that so?

[00:25:27] Speaker 03:
I understand you want to pick that one because it gives a better number, but you could just as easily say, well, I brought a state claim.

[00:25:33] Speaker 03:
I should therefore get the state rate of interest.

[00:25:36] Speaker 02:
Well, because the plaintiff, Your Honor, has the option in deciding whether to proceed under diversity jurisdiction.

[00:25:41] Speaker 03:
Well, they proceeded under both.

[00:25:43] Speaker 02:
and the jury awarded and undifferentiated.

[00:25:46] Speaker 03:
That's the jury awarded under both and you'd like to choose the one rather than the other but they're both in there.

[00:25:54] Speaker 02:
I would suggest the court should not try to get behind the jury verdict and decide which claim it was and what entered into the jury's decision.

[00:26:00] Speaker 03:
Well you're trying to get behind it and say well we should pay attention to the federal.

[00:26:04] Speaker 03:
I understand why you do that but I'm trying to get to the rationale.

[00:26:09] Speaker 02:
Well, one rationale is it is a clear rule of law.

[00:26:15] Speaker 02:
I don't think that Mr. Mooney has given the court a good reason to reject the Second Circuit.

[00:26:21] Speaker 01:
Well, I mean, could the parties have proposed a jury verdict that differentiated between the federal and state claim in anticipation of the fact that there's a dramatic difference in this instance of the rate under state law versus the federal rate?

[00:26:37] Speaker 02:
Absolutely, Your Honor.

[00:26:40] Speaker 02:
And the jury instruction that is at issue here was proposed by Mr. Mooney.

[00:26:45] Speaker 02:
And if there is an ambiguity or problem that arises as a result of that, Mr. Mooney should bear the brunt of that problem, not RBC.

[00:26:53] Speaker 04:
Counsel, I think your time is up, but I do have a question, so I'll take you a little over time.

[00:27:05] Speaker 04:
Do I understand correctly that your proposed rule to cover an undifferentiated verdict is that if there's both a federal law and a state law claim, that the federal rate should apply?

[00:27:27] Speaker 02:
It is somewhat more nuanced than that, Your Honor.

[00:27:30] Speaker 02:
It is where there is an undifferentiated federal and state law claim.

[00:27:33] Speaker 02:
And this problem could have been solved with a separate jury instruction saying, did Mr. Mooney's rights get violated under the federal statute?

[00:27:41] Speaker 02:
Did Mr. Mooney's rights get violated under the state statute?

[00:27:45] Speaker 02:
But he did not propose that instruction.

[00:27:47] Speaker 02:
And so the court is left with guesswork.

[00:27:49] Speaker 02:
And the court should not guess, particularly in a presidential-type decision, on what the jury was thinking.

[00:27:56] Speaker 02:
This problem could have been avoided with a proper crafting of separate instructions on the state and federal law at issue.

[00:28:03] Speaker 04:
OK.

[00:28:04] Speaker 04:
Thank you, counsel.

[00:28:05] Speaker 04:
The Mooney case will now be submitted.

[00:28:10] Speaker 04:
And I thank counsel on both sides of the case for their excellent arguments.

[00:28:18] Speaker 04:
You will hear from us on that in due course.