thinking about this case and what and boiling it down to its essence the essence of the case is that the insure the insurance company here evanston insurance company says that it doesn't matter in terms of valuating a prior litigation exclusion that is is that is case number two based on arising from or in consequence of the same wrongful act is case number one they say it doesn't matter what the claims are that is claims are demands for money based upon wrongful acts in every case every single case that has ever been decided that both parties  based upon these prior litigation exclusions start with the with the their analysis with the wrongful acts they say we're going to take a look at all of the wrongful acts that are potential claims in case number two and compare that to the wrongful acts that are alleged in case number one and one of the problems i had with your we'll have your i think is that the the language for this particular exclusion of the same title as other exclusions you refer to the cases you cite referred to is that this one is quite a bit different here refers to language in any cases but you have similar language in all of the cases for example in the financial management case which is this court's case which we think is controlling authority in the case they used the term instead of  substantially similar they say related and they're they're saying the same thing in a different way they're saying you keep your the whole idea what the insured has a reasonable expectation of or doesn't have a reasonable expectation of is to that he can get insurance for a house already on fire that's the analogy that they use go you think your position is that the language quote substantially similar fact circumstances  situation superfoods no not at all your honor that order is the equivalent of related it's equivalent and in some cases they say similar in some cases they say related in other cases again i would have to go back and look at every case but they all have very broad language they are these the arising out of based upon in consequence of you see that language in virtually every look any claim that's based upon arising from in consequence of any fact or circumstance related to these other prior lawsuits that's excluded so so so i get that and that that accords with the pla reading of the exclusionary language as well but here in this particular case the big school the specific matter exclusion has all of that language based upon arising from in consequence of any fact or circumstance that's alleged in these specific matters and then it goes on to say or any substantially substantially similar fact circumstance or situation so it contemplates a broader exclusion it can be related to these other matters or it can what is just the mean the plain reading of that language is that it can be also be similar to the factual circumstance and here is there dispute that the  matters that you're seeking coverage on are similar in circumstance to the matters that are intended to be we do not believe there are similar we do not believe there are substantially the same in that exclusion before you get to the based upon arising out of in consequence of language what you have is it is it's tied to a specific claim it says that the exclusion applies to a loss on account of any claim based upon arising out of or in consequence of it is tied to the claim so you start with the claim in the claim as we all know is based upon in this case it's an officers and directors policy so it's based upon what are the wrongful acts that these officers and directors are alleged to have done so that's where you start and then it has to be based upon arising from in consequence of whatever the wrongful act was that's alleged in case one if that is is the case to wrongful act based upon ar ising from or in consequence of the case one rising the case one wrongful act or substantially the same wrongful act that is the best example that i can think of is the financial management case which does say related instead of substantially the same or substantially similar but if there was a case where the financial advisor is giving the same advice to two different people and the insurer said it's the same advice about the same security that that was wrong therefore the wrongful act is the same and the court said no because you're giving it to two different people at two different times and under two different circumstances yes the actual advice is the same but the wrongful act is different the loss is different investor number one has a different loss than investor number two and so even though the exact same advice is being given the courts are saying that doesn't get you there because it's not the same house on fire that's the basic proposition here has to be tied to the same wrongful act the wrongful act in case number one which is the n c p case remember let me back up a nd ocean towers as a cooperative housing corporation one of its essential functions one of the things  daily basis is it has to participate in the lending process for people to buy a unit or buy a lease hold or refinance a lease hold it requires ocean towers as the cooperative as the as the cooperative owner of the building ocean towers has to participate and they do that in the regular course of business so in case number one which is the n c p case it all it involves a loan to a shareholder or three loans to three and the shareholder says no you don't that was a wrongful foreclosure so that you have a dispute between the lender and the shareholder ocean towers is alleged to have come in on the side of the shareholder and said we think the shareholders position is appropriate we are not going to give the keys we're not going to give the right of ownership and possession we're not going to recognize the lender as the owner and that is what gives rise to the claim in the n c p case in all of case is so similar to financial management no what i would say your honor is i would make the assumption let us make the assumption here that even though it doesn't that it involves the exact same people that it involves them it involves an allegation both of them involved both cases involved allegations of a fraudulent scheme you don't see that in the n c p case by the way the n c b case also is not alleging cause of action against the specific officers and directors that are alleged to have done the wrongdoing in the us bank cases but let us make the assumption that it's the same that it's a fraudulent scheme being alleged against the same people in both cases which is a very which is unsupported but it's even broader than what supported by the facts here make the assumption also that the fraudulent scheme allegations is wrong that is ocean towers can disprove it can disprove that there's a fraudulent s there's a potential liability here the potential liability is still the same they are alleged to have engaged in a fraudulent transfer that is selling a unit after they took it back after ocean towers took the unit back because their fees weren't being paid their rent wasn't being paid they took it back and sold it and they're accused of selling it for less than fair value so that the lender was deprived of the opportunity to get its money back through the unit that's a completely different then taking sides in a fight over possession where a lender foreclosed so even if you assume for the sake of argument that there is this fraudulent scheme allegation or ocean towers is still potentially liable on a covered claim that is completely different than the coverage claim in case number one and that is essentially false forswear into the potential ritual which is that if there is any possibility of coverage the insured is covered the insured gets a defense this is defense coverage we're not talking about indemnity coverage so this the allegation is that there is overall a fraudulent scheme that they that you see in case one and in case two you see the same thing in the courts said we're not interested in themes we're not interested in in allegations the difference they allegations are the conduct the allegations here in case number two is a wrongful act because yeah legations by that i mean because of the fact i don't understand how that would control anything it's that it's the conduct yes the conduct but the specific conduct that the cases are looking at and they draw they use different names if you look at the different cases some courts say we're looking at the essential facts of the of the wrongful act some say we're looking at the facts some say we're looking at the determine to facts but every court is saying the same thing and it all goes back to what i said initially which is that it's high it has to tie to the claim when you're talking about the facts and allegations you're looking at the claim you're looking at the wrongful act and they all every single court including this court in the financial management case start with the question what are the essential facts of the wrongful act that the insured is being accused of and then is it substantially the same or related or similar or whatever words the policy is using does it tie back to the st clip to the st case because you're going to have a lot of fluff you're going to have a lot of things that are essential to the wrongful act to the claim itself and the courts are of what the courts are saying is we are going to focus we're going to look at this thing in a way that is most beneficial to the insured which is is the wrong are you trying to get insurance for the same house on fire is it the same wrongful act and i think that if i'm going to reserve some time for rebuttal i'd better stop thank you point the essence of this case really blows broyles down to three things first of the clear and broad language of the specific matter exclusion providing that evanston is not liable for any claim based upon arising from  or in consequence of any facts circumstance or situation underlined or alleged in the specifically identified matter the n c b action or any substantially similar facts circumstance or situation that language is different far different than financial management that lane which does not suggest as ocean towers argues that there need to be determined facts or operative facts and that language is in the disjunctive that means that any of those clauses if satisfied put those cases under the exclusions so if the claim is based upon or arises from or is in consequence of any facts circumstance or situation underlying or alleged or in any substantially similar facts circumstance or situation the main case that ocean towers relies on financial management is dissimilar as the court recognized it's a much narrower phrase st of all it's in the plural it's not in the singular secondly the facts there were far different as the different court correctly found here there is a common scheme every single one of these claims is based on the same thing it's based on a three party recognition agreement that agreement happens every time ocean towers at ocean towers resident finance the purchase of a unit each time the bank otherwise the bank would make a loan and if ocean towers theory was right there never be any loans each time the bank gets a security interest that is superior to the housing association every single one of these cases is based on the same facts there are little small changes but those essential facts are as follows after almost immediately after one of these pocky relatives or friends or entities omar spotty who then sends up magically with twenty units then that shares are transferred to a spot he relative after that ocean towers refuses to recognize the bank security interest all of this in violation of the same agreement the recognition agreement that the banks wised up in the us be actions and eventually got there before they could complete the transfer is of no moment there are the same basic facts my opponent made several argued other arguments that i think are bear rebutting first of all he argued that the facts have to be substantially similar or the same again that's not the language of our exclusion that is closer to the language of the court's exclusion in financial management but what's missing in the argument is any discussion of this court's seminal decision in l a lakers that cases on all fours it interprets exactly the same language and interpret it much more broadly then ocean towers would like but that's the law any substantially similar fact circumstance or situation means that if there's a relationship incidental or not if that's sufficient but we again we have much more here in the end the argument that somehow these activities are in the normal course of a homeowners association is ludicrous homeowners associations do not in the normal course breach recognition agreements or defraud the banks that are their security interests if that was the normal course we'd all be in trouble the idea that the potential liability argument or rule applies i don't think that works either and it doesn't work because potential liability is invoked where there are multiple claims and exclusion is based for example the breach of contract exclusion if there is a claim a complaint that contains a breach of contract claims and negligence  there may be potential liability or it if there are disputed facts where there is a complaint and involves potentially negligent conduct which would be covered and intentional conduct there wouldn't be covered there's potential liability there here the facts are undisputed the allegations of the n c b action and the allegations of the four u s b actions and the th reach action which is almost totally ignored in ocean towers groups those are all excluded we argue and we believe based on the specific matter of pollution and the similar single claim provision because they are all based on the same or similar militia which ocean towers also relied on is not similar to the st of all the language of the policy in the us was there different and also there the underlying facts weren't similar there is no relevant case that been cited and i don't think a relevant case exists where under the is this language the courts use determine of facts operative facts for court facts that's totally d into the language of this very broad exclusion as this court several decision in los angeles lakers the federal states again considering identical language the exclusion only requires a finding of a quote minimal causal connection or incidental relationship that is more than present here freely ocean towers appeal in our view is an exercise in legal fees till it tries it may ocean tower simply can't fit the square peg into the round hole by conflating the language of exclusion an issue here you now you're just making me sad so let's examine that language more more in detail so i tendered matter is excluded if it's based upon arising from or in consequence of any fact circumstance or situation underlying or alleged in any specific manner or any substantial or similar fact circumstance or situation again that broad  language as it's read and as the court is bound to consider it should be read in the destructive because it's using or so that means that if the underlying actions and the n c v s actions have any fact any circumstance or any situation in similar or it's based upon or arising any of those things or any substantial substantially similar fact circumstance or situation made the distinction that all of the claims were similar because they were based upon arising out of relating to and in any way involving the standers the district court directly we believe said wait a minute you don't need to satisfy each one of those clauses you just need one here we believe we've satisfied all of them but we've certainly satisfied arising f meant that either of the terms in the sentence were sufficient to apply the exclusion there it was within a products completed operation definition the exclusion was broadly applied to exclude claims alleging either bodily injury or in the insurance work so again it got your argument to use counsel's analogy doesn't have to be the it's cover there's there there just is no way to go with this language and i think the district court correctly analyzed the cases and i think that if you look at the multitude of similar facts that the application has to apply i'm happy to answer any additional questions the essential case here is this for the insurance company if you can say that case number one and case number two both allege a fraudulent scheme  that's what they're saying and the answer to that is the language of the contract itself and none of these got by the way none of these or your cause and i actually know where i'm looking at it claim in terms of the policy language which is similar to a cause of action but not identical the policy dispute defines a claim as a demand for money based upon a wrongful act in a wrongful act is basically something the officer a director does in the course of his duties  representing ocean towers so if if what what is the wrongful act here the wrongful act in case two and by the way it is a fraudulent transfer ok and that if you are going to find that the for that coverage for a fraud or the fraudulent transfer is negated by case one you would have to find the essential elements the essential facts of the fraudulent transfer in case one fraudulent transfer doesn't have to be an intent to defraud it can be is the court knows a transfer for a less than fair value that deprives the creditor of recourse that he otherwise would have to get his claim paid so if you hear the out the insurance companies say that the fraudulent transfer the wrong the claim for fraudulent transfer is uninsured and in fact any possible claim that you might have is uninsured in this wind in this particular aspect of the insurance business as long as the plaintiffs put in a fraudulent scheme allegation no court no court no has ever gone there in fact the raytheon case which the insurance company relies on is dealing with the same wrongful act that is an assumption of the case you've got a securities an f c c action and in a action based on exactly the same the same allegations and the question they have is does this fall within the policy and they say no even though you have some peripheral allegations that are different because requires different allegations than an s e c action is essentially the same wrongful act and you can that's that is coverage for the same house on fire and they say you can't do it we got all right over time thank you very much