contract issues and first on the standing issue there are some important facts that i would just like to briefly recites and then move into the argument the damages in this case are express mid to attorney's fees and royalties that were paid in connection with separate underlying patent losses there are no other damages sought in this action there are no consequential damages that were requested and none were available damages don't you start with the notion as to whether they come within an dems if occasion clause and therefore they are in asserting a kind of ok and it could be liabilities claims damages are one of the things but there are exclusions from damages they can get attorney's fees that  cost isn't that correct under the indemnification and that there if there was a cause that they incurred that's right the entity one of the buying parties recover i don't you you can test all that but i'm trying to tie together the standing issues because you seem to be arguing in nova is the only one who paid these claims and yet they're a buying party so i'm having a little trouble integrating or dealing with your standing arguments and fitting them into how they fit within the  i read the what's going on here and i'm just wondering why it is that someone who comes within this indemnification cla nominally at least doesn't have standing to enforce it initially article three requires injury in fact yes so that the first threshold is not met because this party i o c has accept the allegations of withholding critical information about a pending or threatened claim that then wound up costing them substantial millions of dollars directly or indirectly and that's with the languages of the dems for cation directly or indirectly it seems to the theoretical consequential damages loss value of stock in what not even if there were such losses and we contend there are not they were never sought in this action but they're seeking what they think the contract calls for so say this contract had a liquidated damages clause so it said that if there is any misrepresentation then any buyer or party can get a million liquidity damages would you be here saying they don't have standing because they were injured even though there's a liquidated damages caused that seems like what you're saying you're saying there's some other requirement other than the fact that they're claiming a right under this contract that they're coming here to enforce now only look at the damages that were claimed in the case and the only damages claimed in this case were indemnification for those attorneys fees and those settlement royalties that were paid in those patent losses there is no claim he about those other types of damage so why does there need to be like so what's the difference between if there were a liquidated damages clause that said if there was any misrepresentation there's a liquidated damages clause for a million dollars would you be saying they don't have standing to enforce the liquidated well i guess it would depend on how that cause was drafted and which parties were entitled to recover and what if it said the exact same thing any any buyer indemnified party but i think that's what makes this case different is that we have a phrase in this case moving beyond article three said and we also have the shareholder standing with the phrase never vides that a shareholder may not sue for the damages suffered by the company which it hold shares and here the damages were suffered by this in city area in over one hundred percent  indemnified party under the definition of the contract right yes wrong so i think it comes back to the same thing if the contract gives them the right to enforce the contract we have to decide on the merits whether they a contract claim but you're back to standing again i'm still not sure why but only because i want to mention the shareholder standing rule which provides that you have to make sure you have the right party suing and here we clearly have is a parent suing for the injury there is been some non disclosure about some claim that's going to devalue the asset for which they have paid your client millions of dollars if they've withheld information though your client allegedly knew about it and so they're coming to the indemnification clause and saying we're entitled to recover under the damages or its costs or it's a czerny fees that's the economic value we're putting on what we need to be recouped direct fine i'd like to hear your arguments in that regard certainly and let me let me then address your issue by moving the devastation issue section six point one of the stock purchase it provide parties can collect under this clause and it defines them either individually or collectively and then it goes on to say that what they can get is the losses from any buyer and democrat party if your interpretation is right why does it say collectively the buyer and on the side parties rather than just a buyer indemnified party because you seem to be saying that it can only be a buyer indemnified party getting its own damages instead of collectively any of them contract need to say collectively the byron genocide parties instead of just saying individually any you could just say individually any biran done if i'd party and then move on it contemplates there's some general rule in california is that it is the community market rate of the court and not council that applies and if you're going to apply the rate of council in out of town council it is their burden to prove  not at this point so now we're all right so i mean right can't we just say we have we could affirm on any ground why can't we just look at this and say they're not that far apart it's not unreasonable the view southern california always won and said that th services should receive a rate for corporate transactional and that was error because the report indicated that the transaction rates did not encompass litigation matters by contrast the litigation rates d course this is a simple breach of contract case there is no dispute that the but a geisha is between contracting parties there's no dispute the sellers breach the contract they're not contesting that on appeal there's no dispute that breach led directly to our client spending millions of dollars to settle a pap c c p three patent dispute and there's no dispute that those millions when you say our client you mean i'll see here in nova i mean i'll see your honor and in what sense did they pay that the amounts were paid by an elder as because a noble was the defendant and the plaintiff  so this six point one it was structured in the way it was so that the buyer by l c could recover if buyer indemnified party including a nova suffered hurt or paid those damages in the reason why it was structured that way is because this lawsuit is exactly the very lawsuit that this provision is intended to guard against because most overwhelmingly most likely scenario is that there was misrepresentations about the intellectual property and nova has an innova subsequently faces a lawsuit and is the problem that couldn't easily sue on its own because it would have been accused of making some of those misrepresentations so you really needed a different playing to that is well that is exactly what the fans would have argued if another the who wasn't the buyer but was the company being sold brought the lawsuit one of the first arguments defendants would make is a noble made their misrepresentations that nova is now suing is for they can't sue  recover from misrepresentations that the self made to the buyer so i also i hope so it seems like you could have contemplated this when drafting this contract you could have imagined that this is the situation right and n intellectual property they used to be the ones making the representations now you've got the situation why don't the contract say something clear of like you know even ask the dire indemnified party doesn't pay directly you can still recover something just a little clearer than what we have here i can see through the discovery your honor it was never that issue never came up i thought six point one by using any instead of a vat and by defining it collectively instead of merely individually was about a good an effort as drafters could do to make it clear that this very scenario is what the parties intend to capture and as far a deal that the lawsuit  reciprocal that way so they didn't matter who physically cut the checks the real issue is if you're buying a company you shouldn't buy a lawsuit that causes millions of dollars of damage so if we  equable is if we just really look at this and we say we can't tell there's a good argument that this covers the situation and there's a good argument that it doesn't who wins we still win was that because article three standing in prudential standing  question so how do you will prevail on that argument if there's some ambiguity in the clause well i would point to a few things number one it was not contested that it think there was an opportunity for defendants to decide whether they believed it was ambiguous and present extrinsic evidence why would that meet their burden though instead of yours i mean you're the  statutory construction modules to tell us what this means i think the reasonable interpretation of the the parties are reasonable expectation of a party that's what six hundred fifty four  you relying on their expectation or the plain language i mean if you start to rely on their expectation then don't we need extra is a competent no i'm relying first and foremost on the plain language of section six point one and specifically the broad and collective definition of byron byron dema five parties the broad definition of damages and then the specific use of suffered sustained incurred or paid by any if i'm right in the middle can you tell me more about who wins and why well because indemnification cannot enter all the case was inside the party cannot be looked at in a vacuum indemnification itself the word doesn't mean anything he has not had lost or damaged hasn't well it's had damage in the sense into sense in the first sense is that under six point one damage is described party beneficiary they're not a third party beneficiary but the way this clause is structure is and this is not an unusual clause i think judge fisher mentioned noticed that this this is a pretty standard indemnification provision on the ninth circuit's call it very broad the point of the clause is we've got a buyer the buyers buying a company and if that company is not what was represented then the buyer can recover any amounts paid five parties and that's a specific term of this agreement firing down the five party which the parties clearly just defined broadly capture any anyone i take it the so in my experience with these these are the wadleigh encompass broadly drafted and broadly interpreted so that you don't have a company being purchased that isn't as represent not being able to recover for a lawsuit but i don't know of a specific case that is interpreted this language any versus that and it is the other point i would make is that i will see as the  alternative basis that i believe the court could affirm on notwithstanding across appeal because all it is asking for the judgment to be upheld is not for a modification or alteration and the damages for the record i don't think it's  clauses is phrased that we could win if the court were to determine that the attorney's fees incurred by all see in prosecuting this lawsuit in paid by l c constitute damages under thought the plain language wasn't clear enough right but you chose not to i mean is there any reason we can hold it against them that there's no extra in the confidence in this case it seems like if we think we need expensive have a sense it's against you that it's not there no i don't think it's against us it's whatever party believes this clause is ambiguous and when it was presented to the district court both parties said it's not ambiguous and it should be interpreted without extremes of governance and so we didn't  if the court decides that it's impede us i believe that there was a decision made by defendants that they are held to by claiming this was not an ambiguous provision and they did not offer an instance to why isn't it against as part of your complaint i would assume something that's not a put is issue but that's that's that's the practical answer is that from the very beginning to the very end and through summary judgment both side recognized this was not ambiguous and that there was no extensive governance necessary to interpret it and so we wouldn't necessarily offer any extrinsic evidence defendants never claimed it was in big us and subject or the underlying c c p three damages and attorneys fees paid to those lawyers in the litigation about lawsuit yes as well as the attorney fees incurred in paid that's correct were you not entitle to any attorney fees or you could say as i'm trying to figure out if you're trying to salvage if you lose on the six point one saying is that he payment of the legal fees in this case and establishing a breach of the agreement by defendant entitled i shall see as an element of damages to recover the fee spent in this case have volunteers for those fees because you didn't actually lose you didn't actually pay the royalty payments but the attorneys fees were incurred to a stablish the while they were they were they were incurred to establish the defense the fandom's breach of the agreement by making this representation can be made the true volunteers it could be made i don't think it's a hasn't been made and i don't know in establishing the breach and as the buyer of the agreement which is our right i don't know that we would it would fall within the thing here i want to initially correct one factual mis statement i'll see is not the buyer i'll see was not the buyer sent buyers to find in the stock purchase agreement i'll see that ask any received it's right after indemnified party you don't get some special standing by virtue of being a buyer if there was some there in worse and shoes for purposes of this right so why does it matter whether there were fender them since they have an assignment from w  need to read it in context and to read all of article six i've mentioned you need to avoid an absurdity where you have a vast network of fifty different companies each of whom will now claim that they can sue for one another's damages without any injur fraud this isn't a fraud case it's a breach of contract so i don't know that issue comes into play this isn't a trap we're not saying so it's in state court and we're going to pull a fast one we're saying that the right party should have sued not the wrong party so that's