insurers it would also undo the case law that's been expanding the protection afforded to attorneys under anti slapp laws and litigation privilege for example in the mailing case well if if what if with alleged here turns out to be true it doesn't seem like this is something that should be affected your i would disagree and i believe that the case law that deals with attorneys conduct supports this case began when your client sued the plaintiffs in this case if you will for more fees write write an arbitration correct for the honor and then pay responded by saying bring a lawsuit which said we don't  anything in fact if you're if you want to fight about it i think you owe us something so i don't understand how they were trying to chill g m if you never brought the arbitration the case never begins right so sort of your honor's yes mr her she filed the suit that initiated the action and they respond they're responding by filing a different suit in federal court alleging broader conduct than just responding to the fear issue the problem here honors is that the court against mr hersh saying that the the conduct was not protected activities under the problem one of the anti slapp statute the court thing goes into a long footnote footnote eleven and explains that even if the facts ma to protected activity and then it cites allegations in traveller's complaint that the claim is the fact that her father's petition in the first place is what caused travels to then sue in federal court well of course he did a he thought he had an arbitration claim to get more fees they thought he didn't have the right to bring in arbitration again to get more fees so they they brought a lawsuit and the contract claim plead a better against hersh and goes on to say the court kind of get determine the extent of the protected activity even though the footnote and the body of evidence the record fifteen the court discusses that it's retaliatory conduct for mr her filing his lawsuit and that's the herein lies the problem because you have the case law mostly developed at the state court level like malan which protected attorneys who allegedly gauged allegedly engage in civil explosion you have the peregrine case that protected attorneys who allegedly used tactics to illegally disrupt litigation you're flitton that protected attorneys who allegedly obtained criminal evidence you know change evidence criminally information against her own client including privileged information e mails and her core set of records and then of course if they're with protected attorneys who allegedly and frighteningly concealed settlement mere incidental about i'm still having to face difficulty in years we have to help me if you hadn't called the arbitration a lawsuit for second because for all intents and purposes it is if if you hadn't brought a lawsuit saying travelers you owe me a bunch of money  and they had brought this suit i think your arguments would make a lot of sense to me and more sense but you follow a lawsuit saying you owe me a bunch of money and they responded by saying no we don't because you did all these bad things and they also made a claim for money  but that aside for a second are they they can't raise those defenses once you sue them for for for money some of the claims they cannot you know if the declaratory judgment i mean i take issue with that but the  activity and i also want to mention that when mr hersh the appellant filed his his sloss it was actually just a petition so that he can go to arbitration dispute his fees he didn't intend in the end the pleading is clear in the record that he intends to allege other things other than owed duties to travelers under california law of course he did and they have dan ledge to breach those duties by going off and and and without notifying us acting in a way that prejudiced us i don't have no idea how they're damaged by it since everything went away but put that aside for a second ok there's no form in which they can assert that well i think that that gets to print two because problem one is he was petitioning you know he was acting as v d s advocate and was he petition he was negotiating the un peace settlement because there was a diversity there and he had the issue with mr korat showing up at the court hearing i mean there are there are a lot of cases where humans counsel and carers get along and work well together but there are other cases which is why the humus law was created was there have been insurance carriers abusing in short that's how the q miss case law came about and the issue here is that when mr hirsch's is acting as  counsel he owes some statutory duties to the carrier but he's not their attorney and in anything coverage related to cuba statute and the case law developed from it state that he can keep as confidential  as privileged his coverage here's my frustration with this and i'm going to take a page from judge kozinski book all of the judge said was he didn't dismiss any claims here all the judge said was go try these suffer the ones i dismissed along the way that they don't meet federal standards so you make new have a terrific case on the merits but we're trying to figure out what whether the case should have been dismissed without a trial on without a judgment hearing under the slab statute so tell me why the slap statute entitle shooter release and i slap statute yes it should have been dismissed on the anticipate statute because hirsch's activities every single one of pleadings here clever or not we don't have we haven't had a factual right what they're trying to do they're trying to plead around all the case law that this is any slap by saying it's not about the conduct the litigation conduct but it all is i don't think you answered my question the way the way mean you you have brought the claim and they say look you have responsibilities under california law that you i mean you mean your client didn't comply with why is  best reason let's let's let's let's start with that ok for the four hundred fifty thousand dollars the best reason is that miss wasserman travels attorney wrote an e mail to mr hersh before the mediation saying we don't care what you get amount of money in the cross complaint and then it mediation travellers in their own room negotiate the settlement without her participation that's for that if aspect goes to prague two two probability of success it doesn't go to whether or not the activity was protected does it well i'm trying to answer judge because it's not what i'm asking a desk i was just a different question which which my argument is that his activities were advocacy they were in furtherance litigation to settle cases so when you ask about that question i'm addressing prompt too because the court acknowledge in several footnotes in the evidence you record that even if the activities were protected here's why it doesn't count you know here's why it's not barred and i'm saying it's barred by the litigation privilege because his activities were privileged as litigation but also based on the record that the traveller's parties said that they don't want to know the settlement agreements amount and it was agreed that that was the case in the record but then further the amended settlement agreements the fact that was negotiate the best reasons why that is separate and the slap in should be barred on the litigation privilege is because travelers told her in the record go settle the cross complaint yourself we're not addressing it and their issue with the recitals section four twenty one twenty four twenty five point one six recently hearing the same arguments that mr bush can do whatever he wants because he was representing his client p t g and that's simply not the appropriate obligation of the  point here and what the appellate misses is it traverses not suing her for protected speech or conduct under the first prong of section four twenty five point one six first up and i slap statute analysis is the term and whether or not the kind of complaint up even arises of protected speech or a right to petition the assert that it does not so we get he he settling a lawsuit a potential lawsuit with a cross with potential other claimants correct correct i mean that nobody disagrees about settlement discussions subject to litigation pretty much what i think we need to break the settlement discussions into the two that transpired it took place while the underlying action was pending the first was with cohen sure where travelers had contribution rights and had  places insurers on notice and was attempting to get them to participate in the defense and ultimate settlement of the case dealing with those insurers and entering into that cohen sure agreement that is not protected conduct that has nothing to do with advancing the interests of the d g in defending the claims that were asserted against it and how to deliver now if you look at the other aspect of it the settlement with the underlying plaintiffs that would arguably be protected conduct that obviously has something to do with advancing the interests but where we get but the problem is that it which you're saying is that the settlement with the plaintiffs because it said all the activity occurred during this period  effectively prejudiced you and going against the other sure is right it absolutely did ok but but if his conduct in dealing with the other parties was privilege how do you get to sue just because that contract had a bad side effect on you well the way that we're looking at it is it's not so much that we're suing him because he entered into the underlying point us the issue that we have is we had a dispute before that over whether or not the underlying agreement should include this operative period tended to limit the injury and damage to the travellers policy period we object to that mr hersh knew we objected to it he knew that my client was not going to find one point one million dollars under a settlement agreement that included that language without us knowing he went and changed it and then he didn't disclose it to us and now he had an obligation to disclose it d t g had an obligation under the policies there's a cooperation clause  other policy require that to be disclosed mr hersh has an obligation to disclose it under insurance because section twenty eight sixty as an independent counsel is really can't be any legitimate dispute that he should should have told us that he changed the agreement that the traveller's was was paying one one point one million dollars under so it's that that concealment that we say is protected conduct that has nothing to do with with advancing the interests in the underlying litigation and colleague and it is true that this case is a result of mr hurst petitioning for further fees traverses already paid him an enormous amount of fees to defend the d g in this underlying action as  independent counsel and now he's petitioning for an additional two hundred thirty thousand dollars or so that he says are outstanding and so but i understand that you're also making it depend claim that you were damaged by his activities in some way what we were because first of all with respect to the debt relief and also the twenty eight sixty claim well strike that with respect to the deck relief and the breach of contract claim we think that some portion of that to sixty five that was recovered from the other insurer should be allocated to mr hersh for defense and then there is no dispute over the two thirty he's already been fully compensated so that's one way that we've been damaged that's more on the relief side of it with respect to the other issues we never would have paid the one point one million had we had known about that operative period ok that would not have happened in the first place so the way that we've been damaged is because now we're having a difficult time we have no rights frankly to recover contribution from the co insur pay wouldn't participate in settlement and help us actually resolve the case we could have gotten it done for something less than one point one million dollars and then the other way is by breaching twenty eight sixty and not disclosing things all along the way we've been damaged because we paid her all of these fees to defend the claims against v g a but there really was no defense going on here it was all just this elaborate scheme to try and get insurance money get a kickback from the underlying settlement and then manipulate the settlement of the claim in a way that would just protect all of this and so they end up getting a windfall recovery the other is how cells judge gould if i could interject a question places of course tell me if i'm misunderstanding this but is travelers litigation matters or are they just sort of business conduct your honor we would submit that that's a business conduct travelers and hers were not in litigation against one another  in theory travelers and hers had an obligation to cooperate with one another and so we view this not we view this as conduct that was separate and apart from the actual defense of the litigation against fiji in our view the the concealment and the actual elaborate what i'll refer to as an assurance milking scheme is separate and apart from the defense of the underlying litigation we would agree that it is a business dispute call because if the slot that motion is not granted is going to chill attorneys like her like other q miss counsel and other adversary attorneys that are in the business of litigating disputes and that's what her she's doing as the g s attorney litigat disputes and now he's being sued by the caribbean because of the outcome of certain events all of which they actively participated in every step of the way just again could you answer the question that i asked your coll they basically challenging business conduct as church as opposed to a legal communications no your honor mr hersh no fiduciary duty to travelers he was beaten g s attorney and he had a statutory duty to report certain events to travelers so they don't have a business issue in the pleading or in the record what if he didn't report those events now you  contend that the record makes clear that he did but i think the record shows to dispute assume for a moment that he didn't report those events is he then being sued for litigation decisions or business decisions he's still being sued for litigation decisions in that particular instance it's not business decisions because his conduct is as the attorney not as a client he's not the insured he's the attorney for the insurer and he zealously representing his client zealous is the operative word here he received settlement money for his client who is being sued they got money on the cross complaint and they got money from other carriers and then their allegation is and he kept some of those settlement monies over and above the amount that they paid him  agreement was something that traveler said they didn't know because it wasn't on the bills that they received and the amended as they are the record is clear at page two forty two the third paragraph that hers was fired on so she disputing th human she just it's not it's not in the record when his record clear that the money came out of the funds that were paid to settle yes you're talking about the four hundred fifty thousand dollars yes yes absolutely and travelers was aware of that are people put aside i asked you to assume that they weren't aware it isn't there's no disputing this record that the money that he used to pay him self for something came out of the funds paid by travelers is there no ok you're the one million one point one million dollars was offered by travelers from their own mediation room and then mr caster point goes in his declaration says he then went to v g and her in a separate room and though she had the cross complaint settlement and all long travelers was aware this was happening and when the settlement paperwork was prepared these are the handwritten one that can be found around record six seventy five few pages into that as well that was clear that money from travelers settlement to the p