mutual funds to pay him a double payment he got all of these attorneys fees if there was any shortfall he's entitled to the shortfall he's not entitled to get paid twice this is a one should profit more from the breach of an obligation than from his full performance so it doesn't matter where the money came from if he's being compensated for his attorney's fees he's being compensate also if you if you take their position and i mean i guess an example would be if let's say mr sladden was a corporate officer and he was on  entitled to keep that difference even if he gave a check and then the hotel clerk gave him some money back and he split the difference he would be allowed to come back against the the corporation and say here i here's my any losses and you're arguing that council he's reasonably included and not included council he's reasonably include occurred if they are reimbursed from another source but if they are reimbursement other sources doesn't appear  document trumps the first that the the language in the in the in the first doc in the declaration of trust saying reimbursement for attorney's fees which doesn't have language referencing losses or doesn't have language referencing but not for things to reimburse by somebody else that somehow and fine can't be operated for the benefit of a trustee i mean if there's no provision you've got to read the contract i think in the indemnity agreements there's nothing that says you get paid twice or you get you  trustees you get indemnify and i'm quite accustomed to various forms of insurance contract that provide that the insurance company will pay losses but if the insurance company wants to get out from under paying twice not paying there is no such language here well your honor it's true there's no languages if you get paid by somebody specifically in the parties i don't believe i was one of the people that wrote improper indemnification for payment or advance of legal expenses could constitute a breach of fiduciary duties involving personal misconduct under section thirty six the fact that you might also receive money from another source does not prevent you from receiving under the unification of name and i mean that's just delaware law well respectfully i just i think now bone makes that this and a tort situation that's true in a contract  i don't believe that it's true and state farm versus now bonus is that there's nothing to prevent the parties from voiding double recovery you've got a contract for the double recovery there's no contract here actually believe supports us and that it was a situation where the the director came in and basically under a subrogation claim on behalf of the the one of the parties that actually did pay was out of pocket was entitled to recover in order to pay the other corporation the tenant corporation that actually paid in this case that's not going on mr you're with they're asking you to do it here i'm  and pay me another million and a half dollars of pure profit for a loss i didn't sustain and i'll stick in my file well stick half of it in my pocket and i'll share the other half with my lawyer who's on a contingent fee who brought his case and nobody's getting paid back not like twice there's going to be an offset because your your employer has paid you and that's really a believe that's the law in delaware i know it's the law and in california if even if it was  particularly this release that we cited to you so you don't get paid twice you can't take advantage you are trustee you're a fiduciary you can't you can't take advantage of your own fund you can't profit your own funds expenses he's he's  watchdog part of the reason they won in the trial below was because we heard for three weeks how mr sloan was a watchdog how he used carrying out looking out for the interests of the shareholders when he fired my client and it cost the fun the lose two hundred million dollars he was a watchdog he was looking out for their interests soon as he wants a case he turns around now he's trying to make a million half dollar profit on lost as you know isn't sustained when the contract  contract so you have to sustain a loss and they cut the burden of proof there's all this talk about well we didn't we didn't really get reimbursed because someday the know it's been a years they might at some insurance company i come back and seek reimbursement we're going to proof is on them they're the ones that are making the damage claim and we cited your honour's to steal matter same same kind of situation somebody was gotten paid was trying to get paid twice and let me start first with some of the facts of this case that are easy to gloss over but are absolutely crucial first my client paid for every one of the bills in this case attorneys fees and costs there's no question about that that's established in the record second to the extent that he received any reimbursement for those payments that reimbursement either from charge or from fireman's fund came with a reservation of rights to demand full repayment for all the amounts that had been reimbursed those reservations were never relinquished never withdrawn never challenge never conditioned in any way by the insurance companies they're still out there today those are under speeded facts in this case there now are more than a theoretical question i'm sorry you're on the out there and anything more than a theoretical fashion well if you  theoretical meaning nobody knows what will happen that's absolutely correct making regular reports of the insurance companies that were in litigation stands no your honor but these are public records of the insurance companies are monitoring the case that i have only reason to believe that your honor i don't have i can't say that i have knowledge and there's certainly nothing in the record on that all that's in the record is that there were communications between my client insurance companies and what and when and if and when the insurance companies come after you for reimbursement say fireman's you don't have a good defense about us out on your rights and so on your honor there may be all kinds of defenses and whatever defenses we may raise we also have no way of knowing what a court will will do with those defenses and i think that's the important anything in the records from these insurance companies in particular fireman's was i think that the one that really standing the chance of getting to keep that money write anything in the record that from them in any affirmative way we're coming after you nothing more than the reservation your honor you don't make a reservation unless you have some intention to avail yourself of it ok and and if i could make a point here that i think really goes to this issue that is there is a speculative quality as to whether or not number one they will bring an action either of them or both of them and to whether or not they will succeed we can't resolve that here certainly not on the basis of anything that's in this record you want us to affirm on the ground ok there's a possibility that they come after you but if it turns out they don't you're going to give the money back i'm sorry your answer you don't want that that is to say what if we but what if the convincing argument is that the real possibility that this is not going to be a double recovery and what if we affirm solely on the ground that we make it quite explicit that if there turns out to be a double recovery you have to give the money back you know that's where your argument is headed do you really want to go there what your honor i think let me let me tell you exactly where my argument is headed my argument is headed that there's a risk out there understand and the point is my client ought not to face that risk that risk ought not to be placed on my client my client had a right to absolute unconditional indemnification from the defendant fun there's no question about that i thought of the risk problem without really giving you what you want which is as a judge what you're suggesting some of it came out with a disposition that winds up saying ok you've got this risk so for a given period of time we'll let the fun to in effect be an insurance policy against the risk but if the insurance carrier doesn't come back and and reclaim the money then you don't get to keep it either it goes back to the to the to the fund that's a creative idea but unfortunately it's not available at this point the fund the record shows the fund has been liquidated in the fund is gone all that remains is a two and a half million dollar appeal beyond that was there to secure the judgment and so that they could avoid enforcement actions while this matter was i want to pursue this much for the i think you understand the point and i think it's i think you've given us your best answer but i know i might then the answer is let me be sure that i have a clear again is the question is there's a risk out there who should bear that risk if the client if the insurance companies come back against my client then my client risks having a shortfall not a windfall we understand because my client still hasn't even received reimbursement for the chuck money so if in fact my client had received an reimbursement for both the child and the fireman's fund monies so that my client was completely whole and now if either of those came back then you might have had a situation in which you could have had some sort of word someone claims completely whole that's not your argument you client has been made whole and more so no no your honor just by the decision of the district court you're not made for your honor by a an advancement of money subject to somebody pulling it back later or back you're still on the rest but that is true your honor you know you don't get we're not made whole with respect to the six hundred sixty thousand i understand that ok ok and that's where we go back and the question is as a matter of you can't determine as a matter of fact what the insurance companies are going to do not even from that not from the record not from anything else ok i understand the rest point but what you can determine is as a matter of law who should bear the risk and that's the key i think i again please move well i want to refer to the deluca case which we had cited on our old twenty eight jason mission last week it's a very important case it really makes so many of points clear here that i think  were raised in the earlier argument that it's worth spending a little bit of time with that case in the first place and most importantly to look at was faced with an argument just as we have here there was no loss because somebody else already paid at case it's even a stronger argument if you will because they look at didn't pay a dime her company made the payment and the core treated that company as a third party said ok third party made the payment that was the argument that was being made by the endemic tor in that case a third party made the payment and that's not good enough you're entitled to your indemnification even if a third party makes the payment in that case she was given a right to full advancement of fees for the remainder of the litigation and for payment for the fees that had already been paid by that of the company but they don't have that helps you know that gets you where you want to get right fireman's fund right i don't think you get to where you want to get wh but your honor what they said what gets us there is the policies that that was based upon the court in that case said this is there's really two reasons why this is so important for us to not allow an inde obligation by citing the fact that some third party has paid two reasons for that one is that it's an equitable for an indemnity or to get essentially a windfall if a third party comes in and that windfall opportunity will discourage and demba tours from actually coming forward on their obligations we don't want that as a matter of policy in delaware and i don't think that's responsive to what the district judge did and his finding with and the massachusetts found was being paid by the fund who's now your adversary and therefore since the since the child policy was bought by the fund is now your adversary's sorry you don't get it inconsistent with look the district judge found addiction for this three judge found that the child policy was indeed paid for by m f s that's right your honor and that's inconsistent with the evidence that we offered there was that least a material issue of fact on that the precluded summary judgment on that point and  fund hired m f s right and he said that and the fund there for the funds paid the m f s payment to the child is attributable within the meaning of the dr and i don't think there's a dispute as to fact that if you'd  consequence i think i think your honor it was he didn't quite say it that way he didn't say it was just attributable he said in fact the pain that had been made by the fund to him and the way that i am insists that that he paid fireman's fund although it turns out there's not specific evidence on it but everybody knows the insurance company doesn't offer the coverage for free at the same thing really be said about shaab that everybody knows that child is being paid by the massachusetts organization and that massachusetts is getting money from the fund because it's now serving as the investment manager i hear these arguments on both sides and they strike me as being stretching reality the point where the rubber band breaks i mean don't we really know where the where or where the where with all comes from in each case well you we said we have the funds expense records here they are m f s his application for expenses it doesn't include any for insurance policy so that whatever m f s did it did on its own it did not do it on behalf of complicated than that your honor what happened is that our clients my client was one of the independent trustees who removed the naveh leer company from management of the fun and brought in m f s when they brought in fund they negotiated their arrangement with the fund and said hey i want to have clear insurance protection which they had from the beginning as well as the indemnification agreement they went to m f s and they said if we're going to take over for this something the question is whether or not it paid for that insurance slice of it and the answer is that the evidence that was a bit it said that it didn't seems to be alarm bells are going off all over the place of suddenly your clients negotiating for his own personal interests somehow contrary to the interest of the fun for which he's a trustee the idea that m s f is doing this out of the goodness of its heart because it's going to strike a deal with your client disregarding the fund altogether seems to me to raise enormous problems with oh your honor my client  have any obligation to remain as a trustee of the fund that any point he can resign he can leave the fund if somebody asked him to be a part of the fund he's entitled to say ok i'll be a part of the fund provided that you give me the protections that i  trustee these are not high paying jobs and so you don't want to have any risk that you're going to end up having a loss as a result of being involved in this at all i mean that to be would be a horrible thing so you really do get in this case to agreements t declaration and the trustee indemnification agreement and they had insurance on top of that until the fund and mr quorn houser in mr naveh leer allowed that insurance to lapse and that's how they got into that situation if there had been the fund insurance that cannot be known on trustees compensation has to come from the fun i'm not suggesting that what i'm suggesting is that my client could reach an understanding with m f s that n s a s would provide him providing him with insurance coverage under their policy although that's just quibbling paying him and providing a benefit what's the difference well it's no different than this fund having decided to pay him insurance pay insurance for him at the b can separate independent managed investment advice or can i understand your point now but the point is we will well beyond the record at this point what i'm saying is you know none of this is know we were not allowed to bring any of this out and  i'm so we are not the on the record as far as i'm concerned in terms of what i need to know and you maybe you can tell me why i'm wrong i think we have evidence in the record from which the district court could conclude that m f s paid for the d n a policy will you told me that was true right now no i said that we have in the record that m f s was paid by the fun no we don't have in the record that m f s was paid for it's insurance policy by the fund that's that's interesting you didn't hear what i said i said we have on the record that m f s paid for the d n o policy oh yes that's in the record and we haven't a record that the fund compensated m f s for its management and advice services there's no question i know this we do know that there were specific submissions for reimbursement of expenses and none of those included anything for insurance so that's where we are in the stores the records that i've got now i've got plenty of records ok refused to pay unless my client agreed to allow them to reserve rights under that insurance policy to take all that money back ultimately would they would he would have refused to pay all of my client's expenses which it did and that's in the record they only paid a portion of reimbursed and all of that was a conditional reimbursement and that was because child said our policy does not cover your claims because it's in the best agreement with us this is not under a policy this is an agreement between us and chubb as to what we would accept in order to get some payment they reserve their right to come back and recover the entire amount of what  argument that that is independent of the islamic state of reimbursement from from the fun it is is there notion that somehow this isn't covered by the policy because it's before our time that's not affected by anything that's going on in this courtroom that arguments going to be good or bad regardless of what we say right and if the child is successful in saying that they don't have any coverage and they're entitled to full review reimbursement they can get the whole six hundred six and sixty thousand dollars back plus interest plus attorney's fees let me ask you just so we're not talking about over a million dollars i believe they can let me ask you this because your time is running there's there's a lot of other issues in the case one of them is the fear ancient not for the original mclachlin case but rather for this case self yes and you're claiming and have been given by the district court your fees in this case in accordance with your contingency fee agreement which as i understand it was forty percent or fifty percent of d a declaration to that effect that that was a relatively common theory enjoyment for contingency matters forty percent after trial and then it goes up to fifty percent after an appeal and remember the  award took place after the appeal had already been filed in this case well yes but what i'm what i'm after is in a situation where the client is not going to be the one paying the fee and then the question is reasonable not the fear range  there's obviously going to be some reason why the district judges want to make pink particularly close attention to it and the district court was very careful about that we also submitted all of our time records in connection with that case and it's not a time records case is this part of  contingency fee right but weeks of but the court still has to determine that a contingency that they asked for is reasonable under the circumstances and the court did and the way you look at that is you look at the time records and you see what it would be on a time records basis and if you had a  situation where there was a lodestar analysis then you would add something more to those you know i read what the district court wrote on the point and ok and so the court recognized that our hourly basis was was not that far off from the fifty percent and keep in mind that fifty the court did not specifically say that it might recognized but it isn't certain say it right and the court went on to talk about the other lodestar factors the quality of the work that was done and the difficulty of the case and and so forth as to make the point that that was in fact a reasonable fee under all the circumstances and keep in mind that covers the appeal which is all the time we've been spending on this as well your honor so you know that that number that lodestar number would be probably in excess of the seven hundred seventy thousand dollars that the court awarded in that case let me go back if i can since your time has expired will save you or your client having to fill an extra minute or two very well you're on i'd just like to move to finish by saying i think it's extremely important that that with the way the delaware law reads it says we want to make sure that people's rights to identification is not jeopardized by the the policy suggests that that risk ought not to be borne by my client by the paid then i think that's a whole new meaning for the word pay and that's what that's what the contract calls for that we didn't this deluca case the luca has nothing to do with your case that's an accused of stealing clients oh firm had paid in advance those those the attorney's fees so she's saying i get to get reimbursed under the inventor advancement provision because through my firm not some stranger not some third party not insurance not somebody else i pay those attorneys fees and i should get reimbursed for the advancement and that's under one forty five either the delaware statu probably shouldn't say this but this is about avarice it's about trying to get more than you're entitle to we had another so we settled with simon he had exactly the same policy the exact same m f s policy chubb paid paid one hundred percent he was out eleven thousand dollars that's the same policy that covered mr slaton that mr aldridge was there for whatever reason he thing you know he didn't want  percent we didn't negotiate with them for one hundred percent but in the end chubb paid paid simon one hundred cents on the dollar and they came in and they think they came and they were trying to make the same argument to mr aldridge as making at first they filed a claim for indemnity and we ended up and after the court said no you don't get paid at least partially you get credit for you don't get paid for in short we settled that case we end up paying them what they were out of pocket and we would have done that we offered to do that with mr slack and also if he's out one hundred thousand dollars or two hundred thousand and he hasn't been reimbursed by insurance that means he suffered a loss and will on earth and we would and always