once you guys are settled no hurry as to whether you can proceed at your leisure yes i was ok thank you both lawyer and witness i'm sorry both lawyer and witness well that was actually addressed below you want to thank you very much very good we are here your honour's obviously seeking reversal of the entry of order entry summary judgment on behalf resolution of the issue was in fact procured through undue means undue economic influence and whether or not you actually had any reasonable alternative but to pay the five hundred sixty thousand dollars and then to pursue its claims in  carolina alleged accounts of negligence against two there were no allegations of new negligence against cable view nor time warner which would bring it within the defense obligation of the indemnification provision and so a quick question so it sounds like we're talking about your honor the gateway is the the duty of defense you can't get to indemnification once you have defense there was no duty of defense as per the four corners of the complaint that drove the indemnification issue as such to the extent that that they have to show they have to show the indemnification obligation your honor in my view simply because it is ultimately what drove this whole matter to begin with as it does that mean just so i'm understanding does that mean that if if it's determined on the merits that they are wrong about their position on of them for creation then by definition they had no right to bring the action in the first place i don't know just just just seems like not the way litigation works we don't require plaintiffs really ever to be like lock solid certain right before they bring a cause of i know your honor if you're up to question your honor is absolutely correct they would have been one hundred percent justified in bringing their action had they chose to pursue the action that is had they continued with the were there to action if there was a mclarty negligence action against two power which drove  indemnification claim and then there was a subsequent action brought by time warner against cable view likewise in north carolina that was that was actually filed or yeah it was it was filed after the consummation of the five hundred sixty thousand extracted payment but your honor you are exactly right they would be one hundred percent justified in pursuing that claim that would make perfect sense that would have made it right for everyone that would provide a forum for cable settled this case and it does seem to me they had enough reason to make their mclarty claim against you and if you did settle  payment in the sentiment was induced by do read us would you dress well you rotter we will we would we would submit to the court respectfully that the inferential construction of a settlement agreement by the discreet district court was was being cracked moreover to the extent that the district court ruled as a matter of law that the creation of this settlement agreement somehow barred independent tort claims and establish how would it not you know you had you knew all of the things that you now know when you agreed to pay the five hundred fifteen thousand well your honor again i would suggest that you are quite correct the quote the court is quite quite correct in that no reasonable alternative existed for for cable view but to pay that money at the time what the been already taken place before they were twenty eight it was done your honor in fact there was a dry closing a week before as my understanding it was ready to go to what did that what did that entail trying for the contracts are executed between f t s unitech and time warner in the ohio operations or if they had simply assigned them it's it's not determined but they were ready to go the contracts for in place the only snag the only snafu the only the only bottleneck in the transition of flipping the switch on the on the close date was in fact the greensboro operation and that snafu did not cable view demanding that as a condition of the close of the transaction your honor that cable excuse me the f t s unitech to assume responsibility for not only the mclarty action and liability for the five hundred or whatever they claim they were owed but for all all of cable news ongoing contractual obligations viz of the obligations of easy to prove to us you would have to believe misconstrued or failed to properly weighed the evidence of the operational pandemonium that would occur as a result of of not going forward with the operation of cable you didn't have any employees left if they were they were not able to move forward the result would have been time as kids became you would not have been able to perform there would have been fall down as a service resulting in significant back charges to cable view which would have indemnification issue it's very interesting we did not put significant is that time warner when the initial demand for indemnification was made on behalf of do not only have the time warner it was forwarded to cover as counsel in entirely settled their disputed indemnity claim with time warner expecting its insurance company to foot the bill for that settlement when the insurance company said no we're not going to do that cable who turned around and sued time warner to try to get its money back and i think it's important to point out that that's not our characterization of the events that's what cable the c e o testified to in his deposition multiple times let me ask you this and we get it out and it seems to me that there's a very strong illustration full page twenty one of the brief and it reads i'm paraphrasing as an example of duress leslie promises to vacate premises for ten thousand dollars at the landlord to demolish the building however at the last minute the lessee refuses to do so unless the landlord baz's worthless furniture for in front of you although the landlord could delay and pursue  ahead and complete almost complete substantially transfer asset and then if the bear last minute just like in the restatement say no you gotta pay me five hundred fifteen thousand to again to respond as your honor first i think i respectfully i disagree with the characterization of the record time where it didn't lead cable for you to believe that it was going to execute a written assignment and that's a confusion of the record  news persisted and in this case but there is no there is no document in the record or anyone at time warner says we're going to give you this written assignment at the two thousand and eleven agreement it doesn't happen and that the reason that's important is because representation by sierra is that you pronounce his name as far as the transfer would be approved he called in to some e mail and i can't remember right now but an important distinction your honor because there's a big difference between bringing in a vendor as a new vendor i mean you see that the form is called the new vendor form that that he sends over huge difference between bringing in a vendor as a new vendor and getting them a pre negotiated contract with a different vendor with its pre negotiated terms of favorable terms honestly to f t s and when you have a meeting and you talking about meeting between cable  sierra answer yes and then it is also clear that sierra and there the regional managers knew that they were proceeding with the transfer to go forward in til the day before two days before the closing it is not true i don't think it's quite accurate your honor i think again a transfer is not necessarily an assignment operating agreement with particular terms in the agreement such as you know price for services and things like that again the critical distinction is whether or not there was a promise by time warner not to sign the distinguished between the agreement that it can actually be transferred all of these assets all of these employees can be transferred  t s will be able to take over and what strength the wires and so forth that cable t v has previously been straining but you making the technical distinction between the actual agreement that it can be done transfer it can be done and saying yes we will yes your honor but i don't think it's a technicality i think again i think there's a distinction between promising to us basically the theory that cable news advances that time warner said we're going to give your written assignment because you need a written sign or we're acquires a written assignment and then at the last minute yank the rug out from under him that just didn't happen  you one question about this before you move on to point two so in thinking really about the negligent misrepresentation piece of this case you know it dawned on me that there was a reliance component of that cause of action is that i don't know frankly if you're talking about  s is there any sort of reliance component to address claim and if so does the same argument you made with respect to negligent misrepresentation sort of apply here that that no matter what sierra said you simply wouldn't be justified relying on it knowing that the two thousand and eleven agreement requires written consent it's a similar argument your honor it's not it's not technically reliance but i think it did ducktails into the no reasonable alternatives aspect of the dress argument so when we're talking about reasonable alternatives what the district court found was that as i think as your honor pointed out and my adversary's argument that the when wendy when the a p a closed cable he was on notice of all the facts that it needed in order to determine whether i had to make this payment or whether i wanted to not make the payment and there was a reasonable alternative for cable b to pursue here cable he could have said to f t s look we're good we're just going to carve this two thousand and eleven agreement out this instance what what cable you would say and i think cable you as admitted that f t s does not need did not need the assignment of the two thousand and eleven agreement in order to perform work for time warner so cable you could have just said let's do this the situation is resolved to art to our satisfaction and so one way that it could be resolved to time one satisfaction of course is to have cable be you able to l way it says time f t s is not presently authorized to perform work on behalf of time warner under any such contract meaning we haven't assigned the two thousand and eleven agreement over yet they're not presently authorized time warner will not consent to the that assignment until the situation is resolved to time warner's benefit so what blackwood is saying is that we have this indemnity claim against cable due we need that to be resolved or at least to know that will be able to  proceed on our claim against some sort of company that has assets otherwise f t s is not authorized to perform work under that contract she didn't say f t s is never going to be authorized to perform work for time warner and in fact as you pointed out here  are the the c arrow email that attach new vendor form for f t s so that gets back to this distinction which i think you are focused technical i don't feel it's technical at all i think that the distinction between performing work for time warner under the the two thousand lebanese needs to be authorized to somehow in or some sort of agreement with tom time warner i believe that's probably correct i don't know that there's a record evidence suggesting what f t s required as part of that deal but i think it's reasonable to assume that that was a presently authorized to perform work under any such contract again that was that there was a contract with favorable terms for cable that late that day i think you get a strained interpretation because another either in this same letter or matter i'm not i'm not familiar with the e mail that you're referring to i'm sorry you want to if i can make one one other point though regarding the issue of the settlement as we  argued in our papers the what what happened before the settlement it again i'm not making much headway on that issue i understand but whatever happened before the settlement is ultimately immaterial because there was a settlement there was an a p a and then there was the joint wiring instructions where cable be clearly consented to the payment of the money to time warner from the proceeds of the sale under full knowledge of all the facts that that existed and ultimately came to exist so for cable now say that we can get our money back without number one restoring any consideration to time warner that was given as part of that contract which undisputedly cannot be given back it is a little beyond the pale and all ultimately that settlement thank you your honors i don't believe that i'll need an entire five minutes thank you again but with regards to the assignment issue the assignment seems to be somewhat of a red herring and as much as we all hyper focus on this one assignment of document that blessing of the deal and the transition now the again the assignment issue there's no disputing that the two thousand and eleven cable view caroline agreement which ultimately was the document that was a sign or the consent to assign was executed to transfer to cave to f t s unitech is no doubt that had language in there that requested any assignment had to be in writing so we get that but again to your honor they executed new agreements if not assigned those agreements that could be that they did execute new agreements so it was a transfer of the operations now to the extent that the contractual relationships that came of you possess but time warner constituted intangible asset that had value was certainly that's part of the valuation of the of the deal so that's with regards to the the assignment if you don't did cable view when when time warner says no  i know all you have transferred all the stuff but no you need to resolve this five hundred thousand dollars with us did cable of you ever communicate to time warner oh my gosh it killing us this is anything that time warner we all work together to kind of come up with the terms that would be acceptable to time warner to agree to disclose significantly one of the things that was discussed i will set the five at this point it started out three twenty and it went to four hundred but ultimately became five fifteen i got the exact number written down five fifty to change at the time that they the money was available for distribution from kept from f t s that number had there are allegations in the in the in the in below below that there was some sort of fraudulent terms for going on here where there was a stock sale was an asset transfer so you want to lock up the five sixty we could've done that so so i just want to make sure the judge branch gets an answer to a question of that's arc you've answered it yet she asked you was there is there anything in the record to to suggest that you or your clients said to them you're really holding a gun to our head here this isn't fair or did you just pay it your honor when we for when cable you first became aware of the of the lawsuit that is the indemnification claim it was pursuant to the application for extension of time to file the complaint that was  february seventeenth two thousand and twelve it was provided to cable view i got a copy of it and i spoke with with mr glen in north carolina my exact words perhaps a little bit more colorful time actually this was that this was the when the when the diam last would letter which was dropped on cable be my exact words were what in a what are you doing tortious lee interfering with my client's deal so yes we did object your honor a jack did but i guess did you you know judge anderson has pointed out that your strongest argument is direct and i'm trying to figure out like did you ever sort of complain about feeling like you were under duress and i think that's what judge branch is asking you i mean and this goes to the very last point i think that your adversary was making as he said you know look even sort of getting beyond sort of you know the supposed arrests in the end they paid it with full knowledge and that sort of a two thousand and nine came of you never heard anything back from time warner until such time as the day before the closing so your honor at that point there was a lot of education that needed to occur mccarty mclarty what happened here why did first mercury deny it what is going on here are the representations be made by time warner it's council with regards to the fall down by the insurance company in fact accurate over that period of time your honor we discovered that they were in fact not accurate got it thank you your honor sir thank you so much ok throwing a curveball to the judge presiding for the first time we have no lawyer here for the right well this is odd i think we're inclined mr jordan to let you say your piece if you'd like