why why the foul is wrong which would mean that you're actually not in a worse position one way of saying why you have not been legally prejudiced is either you haven't lost anything or what you or the new york court will say you didn't do that and then you haven't lost anything either way you all of your legal rights remain to be determined by the new york court without prejudice for our clients or attorneys fees or expenses more uncertainty more to let if there's an obligation to pay idea of side it's going to have to come out of the direct pocket or implant direct it's going to have to go through the process of another lawsuit to to determine whether or not the insurance company is going to pay and that that outcome is a certain and it may never come to bear if this case was not dismissed we would be in a much better position is better than the option we have right now there are many things that the court could have done litigation could have gone forward we could have defended on the merits we hope you would be been successful and nothing would be out of the plaintiff or if there were damages for trademark infringement the insurance company would pay for another twenty five percent of of i d s i that is correct so the security situation there is a little bit is the owner of twenty five percent of the company is has a dispute with the company saying the was kind of continuing the business that was accused maybe only a small portion of what they agreed to pay c s is even arguably within your trademark only pretty twenty ten indemnification agreement do we know heerey what do you think should have happened in the district court and one of the alternatives he suggested was going try the case but that wasn't the only one he also said attach a condition either of those scenarios is when we go back and try which is in my might quite extraordinary or that the district court should attach some conditions on the basis of that it's really that they don't want to potentially yes your honor and this dispute that's going on between these two companies now is in the southern district of new york and this is a far ranging yes this is what i would say it's not a new york state court it's in federal court yes you ok but we had mentioned we mentioned one of the arguments that mr hurley made was that after they moved to ask the court to dismiss this voluntary dismissal and they objected to it that we made no arguments we had a hearing  in order to show cause here in at that hearing we mentioned this among other things which is this was a disputed seam between these two parties and we were caught in this and were being asked to to try this case  when in our minds we come to an amicable resolution so certainly in that hearing we brought up the issues of this insurance policy that no one knows anything about because it wasn't put into evidence so we didn't know if the proceeds are really wel to implant director implant direct cyprus it's very speculative can i just answer i think i know what your answer has to be to this but is there is there anything in the record about whether when you were negotiating a settlement i the topic came up that maybe i d s i could pay you more than they might otherwise because they're going to get a bunch of the money back from the third party making you really maybe not so completely a bystander here no your honor there's there's nothing of that in  record and what would the i think the evidence in the record that would be quite contrary to that is the fact that in this transaction agreement that implant direct of course willingly entered into with cybermen at the time they decided to sell their company is that they transferred over all of the assets in the liabilities of this company including the lawsuit and implant directs iraq took over everything they took over the litigation and as successor in interest would be liable for for the day but with what's going on in the court in new york your honor is the dispute between the two parties about this business deal that has gone wrong and what crimes argued is when you saw this the company transferred everything to us you transfer the insurance policy as well so i think the real argument here your honour's in the question that that the prejudice has to go to some legal claim some legal argument that they had in the case and that that is not the case here what we're talking about is simply this dispute these two companies had over th insurance policy and this clearly can be handled within the southern district if you're just to be clear again this is not your dispute but you are here trying to preserve a final judgment is the dispute between them and them just over insurance or is it also about whether the implant is actually on the hook for indemnification for some part of what d s i promise to pay you your honor i think that there are many many issues in that it goes much beyond what we're talking about today i don't believe that any demand for indemnification is made by only part my point is that they are having a contractual dispute that and the transaction agreement that they entered into said those disputes must be handled in the southern district of new york so i believe would judge curiosity is that that is the proper for discovery was not before him as to who will get this proceeds will any proceeds ever come out of this that should be handled between the parties or and the other point i'd like to make is that under the  other part of this plane legal prejudice it has to be as a result of the dismissal and i don't think that they can make that aspect of the the precedent as well because the fact that they may or may not get these proceeds doesn't come from the fact that this case has been dismissed and if we went back and actually tried the case and they lost and they made a claim for this there would still be a dispute between in their discretion of course can allow dismissal when the party requests that unless there is this legal prejudice which we don't believe this man if i might just for a moment address the other issue about the  expert reports the second issue even though it wasn't argued by them even though it was not presented during oral argument here what do you respond to oh i'm sorry i thought that he mentioned that quickly at the end of his ar please the court so much however what's happening in new york state court doctrine is nick was on the board of the joint venture the acquisition agreement left him as the manager of that company for a period of years and it had provisions that company b the joint venture i d s on my client yeah ok so the remember the structure he owns and it is that on twenty five percent of the joint venture and he is left to run that venture for a number of we didn't get joint to the joint venture did not get joint to it for years after the acquisition variant another bizarre twist so what happened was that there was the usual dispute about management control by the entrepreneur require and then there was an investigation unfortunately of potential sexual improper sexual conduct by dr nissen and a board investigation of that and dr nissen and submitted a resignation to the board to make potentially to forestall that investigation the difficulty is that that resignation of arguably triggered the right of the acquiring of kennedys to buy his twenty five percent stock at a lower price than with out the resignation keys i thought this was the cold war you just have no idea right and i want to make it clear that time and imperfect reporter about the state court proceedings i don't represent  nothing to do with insurance nothing to do with this at all ok dr resnick and his entities have sought to amend in the new york state court to add a claim that by settling this existing the new york state case or is it your view that any discussed any issue about whether implant direct is on the hook for some share of absolutely ok and and if it seems to me obvious that that is the case there is nothing in judge curios order that determine anything about the insurance proceeds of the transaction there was a reference i think that this ferry made that has a statutory meaning under the case law it means not speculative your honor kept asking it means it means concrete and then it also has to be legal remember not contractural not about to turn it's ok those those words have a real meaning before the dismissal here's what i plan to write face yes they had insurance that we bought right so i decided that owns the in charge policies and then the insurance company was coverage would seek reimbursement for the attorney's fees that is already paid and would deny any claim for any judgment with respect to the case so all of that was uncertain before and they also face the possibility that if the case went badly that they would receive a multimillion dollar permit and here i hate to say this because you might think it slightly contradictory your position but i cannot as an officer of the court represent to you we do not have arguments that they might have to indemnify us for coast acquisition conduct or damages which respect to the lawsuit for this reason there are arguments out there if you look at the indemnification agreement what it says is all damages that we suffer as a result of pre application conduct so there is a potential argument that point you judge is how uncertain all of this is right in other words if i'm a lawyer trying to decide whether to sue implant direct for indemnification which we haven't done i really want to make it emphatically clear how they cyber on arguments that you know the only indemnification we owe is for damages that might accrue before the acquisition in two thousand and ten i can tell you as a matter of math those sales are pretty small you know compared to zest was claiming with respect to post at least that's how you feel you're standing here telling us you're not prepared to limit yourself to that period so well but but not what i'm saying is realistically it's a tough loss and you know i mean we've got arguments they've got arguments or not the claim we still haven't made i really want to make that clear and there are good reasons arguably not to right again a matter of contract in the transaction agreement the transaction agreement says it must be decided by the courts of new york so there is nothing absolutely nothing about the settlement of this case that precludes implant direct as it is trying to do in the new york case from suing the cyber on  you wrongfully entered into a settlement that is hurting my interest and i want money from you as a result that is literally what dr nissen and his entities are currently trying to do in the new york on a case all of these clients in other words if we of the impact of what's happening in new york in new york we do need to understand is the extent to which the issue which is race here will be resolved but the decision in new york whichever way it goes so that would require us to bring a flame for indemnification in europe which hasn't happened yet so think that it would not be resolved or that it might do might not well if we brought such a claim of course it would be resolved in the courts of new york under the terms of the transaction agreement there is nothing in the settlement of this case and has not been with what you claim has not been grown it is there right now direct and so so the potential outcome of a party to that strategic decisions all i can say as an outsider is if you look at the expense involved and the potential recovery involved it is utter speculation to believe that it's automatic that proceeded they were to say if the insurance company stopped paying they pay insurance they pay the fees themselves there are all sorts of harms that imply a direct potentially would suffer from this lawsuit from when it wasn't if it hadn't been settled there are there are there is absolutely nothing in what judge curial did that is precluding them from bringing a case in new york seeking damages against us which respected any definition there's been a good reason for that as he says one of the reasons is that if they've made a claim for democrats we could bring it to the attention of this court and of course that would obviously strengthen our position here so that that's something to keep in mind that the strategic reasons for not making a demand while this appeal is ongoing but there's nothing to stop idea aside what's this appeal is decided the day after your opinion comes down whatever way it comes down from that immediately moving to to  did the first certain things as being speculative but the one thing he in his position he was quite certain on that whether there's a strong case or speculative case all of this belongs in litigation in new york but nothing in new york can bring back the insurance the insurance just that it's gone it's not going to be resurrect that well there could be claims for damages because of that there could be a claim for damages but we don't have insurance right now we have insurance we would have  could but couldn't implant directly putting your claim against ideas side claiming or alleging that idea of size contact conduct damage did a number of ways and one of the ways it before the special were defending a lawsuit we had insurance that was paying for the cost of defense we had potential for recovery of the damages up arising out of trademark infringement with the dismissal what's not what's not uncertain position that is correct