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Case 14-7079.

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Kathy Ratke et al.

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B. Maria Kinsheta.

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Life Care Management Partners et al.

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Appellants.

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Mr. Lesh for the appellants.

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Mr. Sahl for the appellee.

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May it please the court, my name is Alan Leshtom here on behalf of the appellants.

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In this case, the administrative exemption to the FLSA should apply.

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The work done by each of the appellees was quintessentially back office overhead.

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When you say that, do you see a legal error in the judgment below or factual error in that how the facts just don't add up the way?

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Well, we'll both.

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No reasonable jury.

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Which one do you want us to, you're asking us to reverse, which one do you think we can reverse on?

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Because it's pretty hard to reverse on fact findings by a jury.

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Right.

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Well, it's obviously, I'm going to address the legal area.

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The legal area here is that the evidence in the record shows that each of these two people were operating independently, making decisions that were related to money.

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The coding

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of these claims was integrally related to the budgeting of both Walter Reed and in the Pentagon.

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In the case of Ms.

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Cunningham, she created the entire department.

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It was the first time that Walter Reed was going to have a third-party coding department.

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She trained the doctors.

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She created the coding and billing requirements.

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She essentially created her job.

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Ms.

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Radke did the same thing over at the Pentagon.

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Each of them were hired because they were very experienced and very seasoned medical coding professionals.

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That's your view of the evidence.

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And the other side had a different view of the evidence.

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And so it sounds like you're back to arguing about evidence rather than legal error.

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Well, the legal error is that no reasonable juror, hearing the evidence in the record, could find that these people were entitled to overtime.

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There was no evidence in the record.

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And that's the standard that we should apply?

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Well, the court should find that they were administratively exempt and that they also were exempt under the professional exemption.

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What I'm trying to figure out is normally, in our Geico case, the question of whether someone falls within the administrative exemption, the professional exemption, is a question of law that we review de novo.

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Juries find, or judges find, judges in a fact-finding capacity would find the facts, but whether those facts add up to administrative or professional is supposed to be a question of law.

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But it seemed like that question of law was given to the jury here.

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And you didn't object to that.

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So now I'm trying to figure out, do we review it like a jury verdict, or do we follow our review as a matter of law from GEICO?

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Well, I believe that you do both, because remember, if there was a summary judgment motion here, then in our view, it should have been granted in our favor.

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I know, but the Supreme Court has held that once a final judgment's entered, we don't go back and ask whether summary judgment was properly granted or denied.

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So we can't do that.

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Well, there is no evidence in this case presented in a trial other than the two plaintiffs contradicting their prior statements about what they did in those trials.

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That's not accurate.

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I mean, there were time sheets that were in here too, right?

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All the time sheets did was pick a coding number to say that they spent time coding.

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The only testimony, the only documentary, the only documents

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that came in evidence about what these people did was from their resumes.

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Three separate resumes Ms.

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Cunningham submitted, each of them substantially similar, stating that she was responsible, she was in charge, she created the department, she made decisions, she trained doctors, and she overrode the decisions of doctors.

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These decisions that she... What time frame was applied to determining what their duties were?

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Looked from the time sheets, it looked like they covered about a year, or what is the relevant time frame that we should apply in determining what their primary duties were?

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What would be during the time that they worked there?

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The entire time they worked for the company?

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Well, during the time that Cunningham worked at Walter Reed, and during the time that Radke was overseeing the coding services over at the Pentagon.

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What were those timeframes?

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It's like 10 years ago.

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10 years ago?

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I mean, you're supposed to look for 10 when someone's job is, where their primary duties are over 10 years.

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Is that what you argued below?

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No, what we argued below was that my clients came and testified what they did, what the customer, in this case the customer, was the federal government.

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The customer came to my clients and put out an RFP for professional, responsible coders who could operate independently.

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My clients went and located these two people based upon their representations as to what their experience was.

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Radke had some 15 years doing this work and was certified.

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Cunningham was even more certified and more experienced.

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They hired these two people because

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the government asked to send somebody who could operate independently, make judgments.

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You're talking about people who are responsible for millions of dollars in budgeting, right?

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The medical coding decisions that each of these two people made on their own impacted directly the budgets and the money that these institutions would receive.

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Medical coding inherently lived and exempt

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No, I wouldn't say that.

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Just like there are lawyers who are doing document review and getting paid by the hour, and there are lawyers who are paid by a salary depending upon the type of work that they do.

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Are you suggesting that lawyers that are doing document review and paid by the hour would be non-exempt?

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Well, they are, and there's thousands of them in the district that looked through documents, circled, and named Smith, and then they handed them to their supervisor.

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I mean, that's not what these people were doing.

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At the trial, one of them was... They were doing medical courses.

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Well, they were doing medical courses.

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That's really a recognized job that lots of people do.

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And you're not saying that inherently that is a profession that would take them out of the right to overtime.

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Well, it depends upon their level of responsibility.

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I think the circumstances here... Finally, this comes down to the jury question.

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Just as you were asking him, this is not illegal.

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Well, the legal error, too, I will point out is that right after my cross-examination of the plaintiffs, where I pointed out all of these resumes and all of these misstatements and perjury because there was discrepancies between the testimony of deposition and the testimony of trial,

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their counsel on redirect, over my objection, the Judge Facciola, he sustained my objection, he told him, do not ask her how she was being paid at the subsequent job.

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Them, the plaintiff on this stand, having seen the case head in south, have worked out this answer.

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And the judge instructed the jury to disregard what was taken.

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That was meaningless.

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Well, under our law, we... The judge instructed the jury to disregard what was murdered out, right?

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He did.

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I asked for a mistrial right there on the spot.

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The judge instructed the jury or not?

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Yeah, of course he did.

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Yes.

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Okay, so is it not the norm that we assume the jury to follow that instruction?

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I mean, this is not even unusual.

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Well, this is unusual.

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In the 75 trials I've done,

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I've never seen a party take the stand and ignore the judge's instruction not to testify about that.

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In the 75 trials you've done, have you seen one where we reversed the case on the basis of what a witness blurted out when the judge gave an instruction not to?

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I haven't seen that in the cases I've done, and thankfully I haven't been here.

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where we said the case is reversible where the judge has expected the jury to ignore what the judge said.

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I can't point to any, but in this case, the central issue is whether these people should have been paid by the hour.

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That was it.

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That's what the jury was listening for.

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Did you have a question, because it's interesting that you were talking about what their resumes said, but you all were the employer.

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Did you put in evidence somewhere of your description of what their position was?

[00:08:52] Speaker 06:
Well, the two individuals, Kishada and Malina, testify at one trial as to what the work is.

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Not what the work is, how their position was described.

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Surely you had a position description, every employer does.

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Was it described as medical coder, supervisor,

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I believe that the only description in paper was in the government contracts that were put in.

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I believe it said coding professionals.

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Coding professionals.

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The reason that there was no position description, and I think Melina can testify to this, was these were new jobs that, in other words, at Walter Reed, they wanted someone to come in there and tell Walter Reed what needed to be done.

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So there was no list of duties.

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Miss Cunningham was sent there to figure out on her own what needs to be done and to do it.

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And that's exactly what she did.

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That's exactly what she represented that she did in her three resumes.

[00:09:45] Speaker 01:
So can you give some examples of types of jobs that are deemed to be administrative and exempt?

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What about a file clerk?

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someone who's setting up a filing system for a new office and who is, you know, the ad for the job says, we want someone very professional.

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And they don't mean professional in the sense of having an advanced degree, which is what I take the Fair Labor Standards Act to be, you know, referring to professional knowledge.

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But they mean professional in the sense of dressing neatly, being polite, acting like an adult, taking responsibility for your actions, right?

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So is that file clerk exempt?

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Well, file clerks, I'm not going to say are exempt, because they're not.

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They're peed by the hour.

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Lots of discretion of the very close to the kind that you're talking about here is vested in file clerks.

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How to set up topic categories, where to store things, how finely to dice categories of how separately information is going to be kept, how to retrieve it.

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And in an office that deals with lots of money and expensive services and products,

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you know, like within your business or in your client's business, you know, it's important.

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But I don't think that makes it exempt as an administrative requiring judgment.

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A person operating as a CFO or a high-level person in the accounting department making decisions that result in thousands, tens of thousands, millions of dollars

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as discretion.

[00:11:12] Speaker 01:
Absolutely.

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That's what these people were doing.

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They were acting as CFO.

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No, they were making decisions on coding and determining whether or not a procedure should be reimbursed at a million dollars or $10.

[00:11:23] Speaker 01:
Well, they're really just trying to decipher what procedure did the doctor do.

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Did the doctor do a scan?

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Did the doctor do a biopsy?

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Did the doctor do splinting?

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Did the doctor bandage?

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And just to translate that and say, in fact, what happened.

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Not setting up a new scheme of pricing.

[00:11:41] Speaker 06:
Well, that's worth... Well, if the code is wrong... Right.

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Okay, that's what I'm talking about.

[00:11:47] Speaker 01:
Those codes are in the budget.

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And if the key contract is filed in the wrong place, the whole commercial real estate deal could go south.

[00:11:53] Speaker 06:
Well, if anyone loses documents, you know, you can say that for everyone in writing office.

[00:11:58] Speaker 06:
Each of those people, though, are not making decisions whether or not the code should be charged at a million dollars or at ten dollars, and then also not training the very doctors

[00:12:07] Speaker 06:
how to do it, and they're not telling the facility how to set up their systems so that they can capture this money, and they can go to Congress and get more money for their budgets if they need it to treat the returning soldiers.

[00:12:19] Speaker 02:
That's exactly- All right, thank you.

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I think we'll hear from the appellee now.

[00:12:34] Speaker 05:
I need to see my notes.

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May it please the court, my name is Micah Salb.

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I'm joined by my colleague Dennis Chong.

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We represent the plaintiffs.

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Your honors, the defendants lost at trial.

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They're unhappy about that.

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That's understandable.

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They want a do-over.

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Also understandable.

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That's what we do here.

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We give people do-overs.

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Sometimes.

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We decide whether to give people do-overs.

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That's right.

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And when this court makes decisions based on do-overs, it does so

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in a jurisprudential way, it looks at the rules 50B and 59A to determine whether the conduct at trial was appropriate.

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In this case, the issue is not really whether our clients were exempt employees.

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There was evidence presented to the jury.

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The jury made a determination.

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That determination, those factual determinations reached by the jury are done.

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That's the end of the case.

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My colleague can point to evidence that shows that no reasonable jury could have reached that factual determination.

[00:13:57] Speaker 02:
So can you help me sort this out?

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Because my understanding of our Geico decision is that the determination whether someone is administrative or professional is a question of law reviewed de novo.

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The facts of what they did are facts to be decided by a jury.

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But it seems to me here the

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trial judge gave that legal question to the jury.

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And the other side said, oops, no, that's not how it should be.

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And so given that no one has presented that problem to us, does that mean we now just ask

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the factual question of whether it was sufficient evidence to allow a rational juror to make this determination that was supposed to be decided as a matter of law, or do we have to go ahead and still determine as a matter of law, without the benefit of any fact findings, what their status is?

[00:14:52] Speaker 05:
Your Honor, I don't think that this Court has put in that difficult position, because this case is a fact-driven case.

[00:15:01] Speaker 02:
There are always fact-different cases as to what someone's status is, so I don't think that distinguishes anything.

[00:15:06] Speaker 02:
The question is, we have no fact findings, and then we're supposed to review a legal determination that wasn't made.

[00:15:13] Speaker 02:
But everything seems to be waived.

[00:15:15] Speaker 05:
Well, in a sense, it was made.

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That is to say that in the defendant's motion for judgment, not extended verdict,

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the judge was very clear both as to the factual determinations and as to the implication of those facts.

[00:15:32] Speaker 02:
Yes, but was the judge doing that under a de novo legal determination, or was the judge doing what most judges do with a JNOV motion after a jury trial?

[00:15:42] Speaker 02:
Ask himself, could any rational juror have concluded that A, B, C, D, and E, taking the evidence in the light most favorable to the verdict, add up to administrative exemption or professional exemption?

[00:15:52] Speaker 05:
It's an interesting question.

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I'm not sure that I could answer that without looking very carefully at the judge's decision.

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But I'll point out first that,

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we were satisfied to have the jury decide that.

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If it's a legal question, certainly either side could have said, Your Honor, we want you to decide that.

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But the conclusion, the outcome of the case is not invalid when the jury decides it, particularly in a case in which the conclusion

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When we take the factual determinations that properly reside with the jury, when we take those factual determinations in place, those are the rules.

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We're guided by those factual determinations.

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Then the outcome in this case is not subject to debate.

[00:16:47] Speaker 05:
There really is no reasonable question as to whether these

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these employees were exempt when we look at the facts and how those facts were determined by the jury.

[00:17:00] Speaker 02:
Do you litigate these kinds of cases?

[00:17:02] Speaker 02:
So how does this normally happen?

[00:17:05] Speaker 02:
Do you normally actually ask the jury to find the facts and the judge does the law, or do you send questions to the jury, or does it all turn out in jury instructions?

[00:17:12] Speaker 05:
This is very unusual, Your Honor, because the judge, not quite in respect to that, but because the judge in this case actually posed questions to the jury.

[00:17:24] Speaker 05:
After the jury made a determination, the judge sent them back for the next determination.

[00:17:28] Speaker 05:
And that happened multiple times.

[00:17:29] Speaker 05:
That was very unusual.

[00:17:31] Speaker 05:
But ordinarily.

[00:17:33] Speaker 01:
I was just wondering, do we have the jury instructions?

[00:17:36] Speaker 01:
I assume that the judge made legal determinations and instructed the jury on what the Fair Labor Standards Act required for putting people in either the administrative or the professional category.

[00:17:46] Speaker 01:
But I don't see them.

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I may have missed them.

[00:17:49] Speaker 01:
But they're not in the joint appendix, the jury instructions on the legal

[00:17:53] Speaker 01:
Well, that is... Or these verdict forms.

[00:18:00] Speaker 05:
If the...

[00:18:02] Speaker 05:
The judge is correct, which really should never be stated as an if.

[00:18:07] Speaker 05:
And indeed, that was elapsed.

[00:18:10] Speaker 05:
The jury instructions should have been entered.

[00:18:12] Speaker 02:
The instructions are available in the record that's shown on the journal.

[00:18:14] Speaker 02:
Right.

[00:18:15] Speaker 02:
They're just not in our journal.

[00:18:16] Speaker 02:
I don't know about this verdict.

[00:18:17] Speaker 01:
Was there enumerated jury fact findings then?

[00:18:22] Speaker 01:
Is that what you're telling me?

[00:18:22] Speaker 01:
There were some.

[00:18:26] Speaker 02:
There, there, yeah, right, there were some, I don't- I might be able to go to the court if, if after argument you could just to make things easier.

[00:18:32] Speaker 02:
It's hard for us sometimes to find things.

[00:18:34] Speaker 02:
Send in a copy of the jury instructions and if there's these specific jury fact findings or whatever the verdict form was that answered these questions.

[00:18:43] Speaker 05:
The, the, um,

[00:18:45] Speaker 05:
There was a detailed, at least one, if not multiple, detailed jury instruction forms.

[00:18:51] Speaker 05:
I mean, sorry, jury decision forms.

[00:18:54] Speaker 02:
OK, that would be helpful to see.

[00:18:55] Speaker 02:
Yeah.

[00:18:55] Speaker 05:
So we'll provide them.

[00:18:56] Speaker 04:
We don't have them here in the JA?

[00:18:59] Speaker 02:
No.

[00:18:59] Speaker 02:
I don't think so.

[00:19:00] Speaker 04:
They're better prepared than I am, Your Honor.

[00:19:02] Speaker 04:
I'm asking that as they quit, so I don't know if they're better prepared.

[00:19:06] Speaker 04:
Oh, no.

[00:19:06] Speaker 04:
Do we have them here in the JA?

[00:19:07] Speaker 05:
No, I do not believe that they are in the JA.

[00:19:09] Speaker 05:
They're in the record on field.

[00:19:11] Speaker 02:
I don't think the jury instructions aren't there either, so.

[00:19:14] Speaker 05:
Correct, yeah.

[00:19:15] Speaker 01:
But as I understand it, you've correctly stated the standard on review, which is essentially you read the facts of record and allay most favorable to the verdict, and you determine, given that, can the determination stand up on the law?

[00:19:29] Speaker 01:
And I guess my main question to you would be about the arguments that

[00:19:35] Speaker 01:
Palants are making about discretion and decision making and judgment and also the training.

[00:19:39] Speaker 01:
What are your most succinct answers to why these are super coders and why their status as such doesn't really put them into a category more like a chief financial officer, as Mr. Leschk would have it?

[00:19:56] Speaker 05:
Well, preliminarily, I'll say that the determination as to what

[00:20:02] Speaker 05:
the plaintiffs were actually doing was decided by the jury, and the jury decided that the work that was done did not meet the definition of exempt.

[00:20:13] Speaker 05:
So that's part of it.

[00:20:14] Speaker 05:
Much more substantively, maybe the best illustration

[00:20:20] Speaker 05:
Frankly, I think a file clerk is the best illustration, but there are so many of them where the outcome of the work, excuse me, the performance of the work demands using your brain, thinking, acting responsibly, and being detail-oriented, and indeed making decisions that does not convert it to exempt work.

[00:20:43] Speaker 02:
What is the time frame that was used here and what's the time frame that should be used?

[00:20:48] Speaker 02:
Because it seems like aspects of the work were doing the coding, but there were moments, at least in time, when they actually had a lot of organizational or supervisory activities to undertake as well.

[00:20:58] Speaker 02:
So we look at, for a year, do we look at the full statute of limitations period?

[00:21:03] Speaker 05:
This is going to be determined ab initio by the plaintiff's lawyer, who's going to draft his or her complaint and say, you know, we're... I couldn't tell from the complaint here though what the time period was supposed to be.

[00:21:17] Speaker 05:
Right.

[00:21:18] Speaker 05:
In this case, it was the full period.

[00:21:22] Speaker 05:
As a legal question,

[00:21:24] Speaker 05:
Neither the plaintiff's lawyer nor the defendant's lawyer can say, I'm just going to look at this one segment of time.

[00:21:31] Speaker 05:
I believe that the way the regs are written, which track the statute itself, is that you look at the job in toto.

[00:21:39] Speaker 05:
Now, that's the job in toto, probably at any given time, but also over a period of time.

[00:21:46] Speaker 05:
In other words, if- I think courts haven't been clear about what that period of time is supposed to be.

[00:21:50] Speaker 05:
I don't think that the courts have been clear.

[00:21:52] Speaker 05:
I don't know that there's guidance on this.

[00:21:54] Speaker 05:
It seems to me, Your Honor, that if there were a period of time where somebody's work was clearly exempt, let's just say that for more than a mere passing period, more than a matter of weeks or even months, let's say somebody works for three years as a full-fledged lawyer.

[00:22:19] Speaker 05:
making all the sorts of judgment calls and discretionary decision making and the like that's required of a full-fledged lawyer.

[00:22:28] Speaker 05:
That would clearly be exempt.

[00:22:32] Speaker 05:
Perhaps then the lawyer has a family issue or a personal issue of some sort, which causes him or her to decide to change the work that they do, and they become

[00:22:45] Speaker 05:
somebody who's doing document review, whose task solely is to look for the word hypochondriac, or whatever it may be.

[00:22:54] Speaker 05:
At that point, the work has changed.

[00:22:58] Speaker 05:
There was no indication in the record here that that was the case.

[00:23:04] Speaker 05:
In fact, as Your Honor has pointed out, the time records show, in a consistent way, that 75 or 92%

[00:23:16] Speaker 05:
of the work done by each of these plaintiffs was rote prosaic medical records voting.

[00:23:27] Speaker 05:
And in that regard, the defendant, Ms.

[00:23:32] Speaker 05:
Cachetta, testified that making those rote prosaic decisions is an area where they do not have discretion.

[00:23:44] Speaker 05:
Now if in a case in which there are occasional tasks given to a non-exempt employee that do indeed require judgment, discretion, and matters of importance, that sort of thing, and if that would convert the job into an exempt position,

[00:24:09] Speaker 05:
That would be a mess.

[00:24:10] Speaker 05:
It first would run afoul of very clearly written regs.

[00:24:14] Speaker 05:
The regulations on this make it very clear that you look at the job as a whole and that you look at the work that comprises the primary responsibility.

[00:24:25] Speaker 05:
In this case, even if it were true that the plaintiffs had worked

[00:24:32] Speaker 05:
which called on the exercise of judgment and discretion, which we do not conceive, even if it were true, it obviously is not their primary duty.

[00:24:43] Speaker 05:
Their primary duty, and it's undisputed, was medical responsibility.

[00:24:48] Speaker 05:
It is how they spent virtually the entire day.

[00:24:52] Speaker 01:
Can you give us just a tiny bit more granularity?

[00:24:54] Speaker 01:
What do they see on the doctor's notes, and how do they make a decision?

[00:24:58] Speaker 01:
Just examples of

[00:25:00] Speaker 05:
So the first task that they have is to try to translate the doctor's handwriting, sometimes or very often their forms.

[00:25:08] Speaker 05:
And the doctor will check off a box identifying the task that he or she completed.

[00:25:15] Speaker 05:
But the medical reference putter has to look at the narrative as well and make sure that whatever decision the doctor might have made matches with the actual narrative discussion of the work.

[00:25:27] Speaker 01:
So they're kind of proofing, because if it's those forms at least that we all get at the doctor to submit to the insurer,

[00:25:34] Speaker 01:
The boxes are correlated with codes.

[00:25:37] Speaker 01:
Indeed.

[00:25:38] Speaker 01:
Indeed.

[00:25:39] Speaker 01:
So sometimes the doctor sloppily checks, and you're like, is it this or this?

[00:25:42] Speaker 01:
And you're trying to decide.

[00:25:44] Speaker 01:
So it's a little bit like a proofreading of a determination by the doctor.

[00:25:47] Speaker 01:
I guess it depends.

[00:25:49] Speaker 01:
Are they using those forms?

[00:25:49] Speaker 01:
Are they using just notepads?

[00:25:52] Speaker 01:
Are they doing?

[00:25:53] Speaker 05:
You're highlighting an aspect of the case that the defendant has focused on.

[00:25:58] Speaker 05:
There were certainly times that our clients would have to go to the Dodgers and say, look, doc.

[00:26:03] Speaker 05:
You can't keep checking this box because what you're doing is actually more sophisticated.

[00:26:10] Speaker 05:
And it's the wrong box to check.

[00:26:12] Speaker 05:
So if you don't want to get a raise, keep checking the box you're checking.

[00:26:16] Speaker 05:
It's the wrong box.

[00:26:17] Speaker 02:
It sounds like quality control.

[00:26:19] Speaker 05:
Yeah.

[00:26:19] Speaker 05:
Sure.

[00:26:20] Speaker 05:
A lot of quality control.

[00:26:21] Speaker 05:
Which isn't exempt.

[00:26:22] Speaker 05:
They have these very thick books that list all the codes.

[00:26:28] Speaker 05:
There's no question that

[00:26:30] Speaker 05:
the job of the medical records coder is to figure out which of these codes apply by looking at what the doctors... No, but I think the regulations list quality control as a type of job that might typically be exempt.

[00:26:46] Speaker 02:
Quality control is definitely on the list.

[00:26:48] Speaker 05:
It might be exempt, it's true, but it isn't ipso facto in saying it is true here.

[00:26:52] Speaker 02:
No, but then that description of the process, to the extent you said it's a lot of quality control, sounds like it cuts against you.

[00:26:59] Speaker 05:
Well only if the job of quality control is one in which the employee is exercising judgment and discretion in matters of importance.

[00:27:14] Speaker 04:
Yes, Judge Santel.

[00:27:19] Speaker 05:
So that if I'm doing QC on a factory floor and I'm watching for paint drips and I'm watching for ragged edges of the metal, I'm very clearly not an exempt employee.

[00:27:31] Speaker 05:
So again, you don't look just at the title of the job, but at the substantive work that was done.

[00:27:37] Speaker 02:
And one last question, because I know you're out of time.

[00:27:39] Speaker 02:
I know there was an issue about

[00:27:42] Speaker 02:
be a statement about exemptions happen to be made demonstrated by clear and convincing proof.

[00:27:48] Speaker 02:
And then there was an objection.

[00:27:52] Speaker 02:
But in fact, the law in this circuit is unsettled as to whether it's clear and convincing or preponderance.

[00:27:57] Speaker 02:
Do you know, do you have a view on what the right one is?

[00:28:01] Speaker 02:
And do you have a view, or can you tell me what courts general you're doing in that area?

[00:28:09] Speaker 05:
Well, I'll say this.

[00:28:10] Speaker 05:
Our district court, of course, lacks guidance from you folk, and it would be terrific in the FLSA realm if this court could address that.

[00:28:21] Speaker 05:
The district courts have been using the clear and affirmative evidence standard.

[00:28:30] Speaker 05:
I'm not entirely sure what that clause means, because it's not the same as clear and convincing, I think, except that if we look at

[00:28:40] Speaker 05:
I think I remember the name of the case.

[00:28:42] Speaker 05:
One of the very first cases in which, yes, it was the Roney case, 790 F sub 23.

[00:28:49] Speaker 05:
That case introduced, as best I was able to determine, the clear and affirmative evidence standard.

[00:28:57] Speaker 05:
And in that case, the district judge relied on the Fourth Circuit.

[00:29:02] Speaker 05:
Now, the Fourth Circuit is one of those circuits that uses clear and convincing.

[00:29:07] Speaker 05:
My read is that the district courts have, I think, uniformly, therefore, used the clear and convincing standard.

[00:29:16] Speaker 05:
I believe that that's the appropriate standard, particularly given- Does that matter in this case?

[00:29:21] Speaker 05:
I'm sorry?

[00:29:21] Speaker 02:
Does that matter in this case?

[00:29:23] Speaker 05:
No.

[00:29:24] Speaker 05:
No.

[00:29:24] Speaker 05:
No.

[00:29:26] Speaker 05:
The evidence is overwhelming in this case.

[00:29:29] Speaker 05:
So we clearly meet the standard in a way.

[00:29:31] Speaker 02:
All right.

[00:29:32] Speaker 02:
Thank you very much.

[00:29:32] Speaker 05:
Thank you, Your Honors.

[00:29:34] Speaker 02:
Mr. Lash will give you two minutes for rebuttal.

[00:29:36] Speaker 02:
No time left, right?

[00:29:38] Speaker 02:
Right, I'll give you two minutes.

[00:29:41] Speaker 06:
I'll just pick up on what you pointed out during both of our arguments that it seems that there was plain error here.

[00:29:49] Speaker 06:
in the court.

[00:29:51] Speaker 06:
Judge Facciola should have ruled as a matter of law.

[00:29:54] Speaker 06:
We had moved for summary judgment.

[00:29:56] Speaker 06:
The case was then before magistrate Judge Robinson.

[00:29:58] Speaker 06:
The case had started out with Judge Sullivan.

[00:30:00] Speaker 06:
It got bounced around and bounced around.

[00:30:02] Speaker 06:
We had moved for judgment as a matter of law before Judge Facciola.

[00:30:06] Speaker 06:
We objected to various of the jury instructions.

[00:30:09] Speaker 06:
that Your Honors here have an opportunity to... Do you, anywhere in your brief, tell us what instructions you're addicted to?

[00:30:15] Speaker 06:
Well, we'll supplement with the instructions in your... Never mind supplementing.

[00:30:19] Speaker 04:
Do you, anywhere in your brief, raise the instructions of an issue?

[00:30:23] Speaker 06:
I don't believe that we did, Your Honor.

[00:30:25] Speaker 06:
Okay, thank you.

[00:30:26] Speaker 04:
So you can't raise it now, can you?

[00:30:27] Speaker 06:
Well, plain error can be raised, as I understand it.

[00:30:31] Speaker 06:
Your Honors can identify plain error when you see it and correct it, whether I raise it or you determine it on your own.

[00:30:38] Speaker 06:
And in this case, the decision that Judge Faciola made to put this to the jury appears to be plain error.

[00:30:45] Speaker 02:
Does plain error apply in civil cases rather than criminal cases?

[00:30:48] Speaker 06:
Sure it does, as far as I know.

[00:30:50] Speaker 06:
And I believe it was plain error here.

[00:30:53] Speaker 04:
If it's all that plain, why didn't you notice it and put it in your brief?

[00:30:56] Speaker 04:
I'm sorry?

[00:30:57] Speaker 04:
It wasn't very plain to you when you didn't put it in your brief, was it?

[00:31:02] Speaker 06:
I agree with that, but but your honors can continue.

[00:31:05] Speaker 06:
That's why there's oral argument so that we can talk about things that are not contained in the four corners of the brief.

[00:31:10] Speaker 06:
And you've raised it.

[00:31:12] Speaker 06:
I believe you should take it.

[00:31:17] Speaker 06:
It's a legal issue.

[00:31:20] Speaker 02:
Thank you.

[00:31:23] Speaker 02:
All right, the case is submitted.