i would like to address the issues that relate to mine field in the initial fifteen minutes and then reserve my points in response to the crossing for the ten minutes that i have later that's ok good faith and due care now there's a fundamental problem with any public company it's been referred to literature as the problem relating to the separation between ownership and control it is the shareholders of the company only and then you the insiders of the company management and the directors who essentially control the activities of the company and the question becomes who is it that is going to monitor the future areas of these companies dispute the court's recognition i dispute the court's allocation of the founders ultimately the court identify the factors and even recognize that the benefit achieved is the most important factor and i think that when a court is looking at the complexity of the case for example or the time and effort that was expended in achieving the result both of those factors would directly relate there should be an appropriate the awarding when there is a benefit achieved and there are some cases where it's appropriate to make a demand and there are cases where it is not your definition of abuse discretion the exercise of discretion relative to the judgment pronounced and that is the facts and so if the facts are different then cases are not precedential they're fairly persuasive and if the facts  but the bottom line was that the the board entered the house through a window or through a side door instead of coming in through the front of the back so the benefit that was compensation that he did based upon your representation that it was of your art mr to him or her the c e o of the company did not in fact receive the same compensation that  was canceled and in terms of talking about the underlying facts are going to go out in style remount i'm talking about it actually i'm talking about both in terms of the fast there's a minute at the  moment in four of five or six years they've done it every year and we brought a case and within a matter of months as you noted the border took remedial action and says that there is a right of offset or that the court in assessing what the benefit is engages in netting analysis and there are very good policy reasons for that let's just let's just take these facts as i noted these plants are conclusion that the trial judge here do admittedly consider all of the proper legal factors assuring factors you have to come to the conclusion that no reasonable person would have agreed with his analysis of the facts here and i don't see how you can come to that conclusion in this case and that's true even if we assume that there is this two point one million dollars benefit and of course we dispute that that was the benefit but even if we assume that the sugar land factors required the court to consider in addition the amount of time and effort the plaintiffs put into the case reasonably put into the case the complexity of the so and one of the things that is that you know counsel has said it's twenty five percent or maybe twenty percent but the delaware supreme court recognized they are that if you look around at the chance decisions there's a broad range that's also based on how soon the case is resolved and what is quite savvy as they tend to be ten fifteen percent when they resolved it at the beginning without much work being done so you kind of start here with ten percent or ten fifteen percent and then look and see is there a reason why we should go even lower just by saying that aren't you kind of conceding that there is a bit of the formulaic analysis here well there could be i think you know there are cases where something is resolved right away where courts go much higher where they go much lower it's just sort of what the supposed to be applying the same rules people tend not to because they don't have the same kind of arguments so i think you just have to look at every case and decide whether it's really so far off the yes the options were considered to be x where boy did but the board made a decision within its discretion to make mr hamburger hold of course decisions properly and they're right there was a mistake the more it fixed the mistake made mr hamburger whole so what should they be paid for that they really didn't infer any real to grant compensation are they may have been negligent here but under delaware law directors are not liable unless they're grossly negligent not unless to act in bad faith it's no bad faith here it's clear that it's an stay fixed in fact plaintiffs council has made a cottage industry of looking for precisely this mistake and we cited another case where mr pfeiffer is a pla shareholders the shareholders it proved it is a violation of that contract but the point i think is that he's the only violation here it is in the manner of doing it in could have been done in a different way than the replacement compensation to whether the plaintiff had cost the entire benefit so the court said well i'm going to apply a lower percentage because i have doubts well here we also have doubts about the size of that benefit and discretion because here you have on the sugar land factors which plaintiffs would like to totally you know more the time and effort could be and we don't know how much time and hours in your honor so we don't know how much time it has their expenses about twenty thousand dollars eighteen thousand dollars is doubtless for a consultant or an expert we don't know what that was morning we can we can make good decisions you can make that yes you do know that after the fact but they themselves allege that this was such a clear violation that that's why they didn't have to make a demand thirty four page complex to appear short complaint here there was a lot of effort that went into it we ask how much risk in one of the cases where a court gave us seventy five thousand dollars fee for  disclosure settlement if it doesn't they didn't claim to create any out the corporate benefit instead they got something in a merger context to disclose additional information and the court says this is a ready made settlement opportunity so there's no risk we don't like what you did with the replacement compensation there are other issues involved you just said no it's moot and they came and found motion to reconsider so we had to go back and and re america but in any event the white you have here so those are all unique factors in this case which would make it different the better if you could exist at all he is illusory there is some to slog to the fact that there doesn't have to be an immediate monetary reward to come to break the macro i think worldwide is one of the cases so it's not as if you're looking for a and that is simply that i think you could look at this and say if you conclude if you agree with us that there was no benefit here because the net benefit contrary to what counsel said is the proper standard under delaware law reply brief and our cross appeal cites i think four cases delaware cases in which the court said you look at net benefit including a very recent case  eliminated but i have to look at the other compensation plan that was substituted there was a difference there wasn't any give me the difference but i understand very correctly so if there is no causal benefit there should be no fifteen or even more what i would say is this that if the court was awarding fees based on not based on this benefit but rather based on an intangible good governance you did a good thing for the company if you could do that the problem was in that case our view is it has to be based on the value of the services and they didn't provide any evidence of you know what about the concept that with out that compensation because you made a mistake in what the banking you took out took it out doesn't make any sense is there a case that you're aware of even though you mention a similar because you're going to have these different all of these different elements you know the fact that the plaintiffs kept fighting have to make one a case that makes this difference the fact many of these cases some of which in paul wife and others do not and that the common thread is the proposition that when you have a compensation plan that's approved by the shareholders directors are all going to comply with it and there i think it's very important recognize that there is no regulator yes you see any other body that is looking at whether or not the grants so that when they're sitting on very positive information they grant stock options to themselves and to others they then release the information and the start price automatically goes up that is inconsistent with the latter scared many of these and again at the time we identify this case we saw that in four of five years they have gone way over the limit in awarding the c e o the options and i believe counsel said that you know this is an error in you know you should have brought a demand letter that the key point on this is that it is precisely the fact that the violation was so clear and that the plan provision that was issued was completely  proposition that this particular instance the man was clearly excuse but there are situations where you do need to demand in some states actually require to make a demand as a precondition to commencing in florida venture and what can and does frequently happen is that no situations the four points non independent member to conduct an investigation and bottom line is still then refuse the demand so when you go in to poor on a demand refusal you have a much higher standard to meet because by making the demand conceded the independence of the board and it's much harder to recover on behalf of the company which is why i don't make a demand case where  involves the question of whether or not any other reasonable person or any reasonable person could agree with this and i just made this important to qualify a reasonable first standard with a reasonable person applying the case  talking about a job so it's a reasonable judge who's applying the inflatable case law and what we have here is the judge recognizing this is the sugar land test where the benefit which he found was two point one million is the heart of the analysis that's what the case appropriate it's a departure based on the judge's subjective impression that seventy five thousand dollars in fees is a lot of fees because you know this case was mooted promptly after his file we never heard in any time time and effort and i think it's important to focus on this really is more about after first of all you can infer how much time was spent on a case like this that you have a complaint it's as long as it is it was a straight or violation and now we find a violation oftentimes you find more if you go back in time as we did here you find more you look at whether or not they really screw not just the bottom line is there's a lot that goes into the monitoring and it is very strongly the public delaware to encourage this monitoring activity because no one else is going to do it so you're trying to accomplish three things when it comes to attorney's fees in these cases the monitoring of the activities of the future is of these companies identif is something that takes on significance in a case where you don't have a common fund because it has what else are you going to look at it laster says the time and effort is more important in the effort it relates to corporate therapeutic yes the problem with everything that is let's assume that you would file the demand letter and they've done exactly what they did that would infer to me at least that they were independent or if they were not independent they were acting in a very strange irrational way so when you fail to file a demand you have to assume that you're going only going to get one result from their demand letter which is if they're consistently not after a demand is denied that that is exactly wrong and that they were exactly the opposite of what this concession was detached what the wall has to be i mean i think i'm having a problem with  simple layman's logic of what you're suggesting you can see independence with respect to the demand the underlying activity that's a concession that's clear however the consequence of that is that going forward you subject to a different legal standard when you bring in the redaction when you bring a derivative action you are essentially challenging the investigation of the demand and you're not allowed to  say that you know the the underlying transaction wasn't wasn't handled by by nonie and people you're able to still attack the activities of the board but you do concede independence by making  demand and the case law clearly supports demand excusal the cases that i mentioned to just discuss previously those cases all fully support to me so does that then means that if a demand is not necessary because of futility the downside is but i just wanted to point out to counsel i did say what they wanted to be paid for here was on the benefit and that goes directly to our cross appeal which if there was no benefit they made a choice that they didn't want to tell the judge how much time me put into the case so if there is no benefit they should not getting paid and i think you have to remember here that the fees are coming out of the corporations that whose whose whether you look at the net benefit is a question of law and whether you should have to net out things that happened later on out the patient of that standard would be a question