fiduciary duty to burn away here for season says and the district court agreed that it had no duty to burton way at all even though it had one hundred percent of the relevant information about the region change why did the district court say that it said it because it said well you were adverse burton way four seasons you were adverse therefore there was no before it happened earlier but i'm wondering whether you are also arguing that really the breach happened earlier like so the it seems like the arbitrators thought that the fiduciary duty claim was about the negotiation of the new age of my agreement but are you trying to argue that really there were fiduciary duties maybe before the actual negotiation or are you agreeing that the right understanding of when this future duty came into play was during the negotiation itself no no there were about what they knew that was relevant to the negotiation of the one nine hundred ninety eight amendment to the hotel management agreement and are you saying that the breach occurred when you were at the table negotiating or are you saying that the fiduciary duty occurred as the four seasons was managing the hotel and there was stuff going on with the other hotel and they didn't disclose kind of along the way in the lead up to the negotiation i think we didn't know what was going on before the negotiations they knew and they were obliged to disclose that information to us as our agent and that's the duty of candor they also breached all sorts of other duties they competed with us which they could not they did not maximize our profits which they were expressly obliged to do by the hotel management agreement so it's the combination of all those things their basic position is we can go breach our agreement with you out the door and it ceases to exist and that as if it cannot be the law if you look at other situations where their fiduciary for example in the vag case which we cite the california supreme court case there the court said that partners when there is a partner dissolution have to do cherie duties to each other well obviously at that time they know that they're adverse that's why they're having the dissolution and the court also said that there's a fiduciary duty when a husband and wife divorce well plainly at that time when the divorce is going on they know there's a dispute and yet they still have to do cherie duties to each other it simply cannot be the law that because part reverse the fiduciary duty goes out the door now there are other arguments that four seasons raises foresees and says well we were negotiating about our compensation so we owe you know for do sherry duty but the negotiations were not about four seasons compensation four seasons had not come to burton way and said we're not making enough money off of this we want you to raise what you're paying us what had happened was four seasons had breached its duty to us by running a competing hotel within one mile of our hotel that clearly breached the radius cloth so the negotiations were about what was burton way going to get from four seasons to compensated for this breach but it wasn't about four seasons coming in the door and saying gee please pay me some more money if compensation means what they say it means which is a change in the economic relationship then again fiduciary duty goes out the door because there are always changes in the relationship and most of those are going to be economic between a principal and an agent certainly in circumstances like this four seasons also says well our agreement with you does not cover the negotiation the changing of our agreement that's not part of our duty but their duty to us was not to compete and to maximize our profits that's what the negotiations were about how that could be lessened because they wanted those duties lessened so it was squarely about the heart of the agreement that's what the negotiations were about the terms of the agreement they weren't about something that had nothing to do with the agreement like could we operate a second hotel in chicago they were about how this hotel was going to be operated could you explain the relationship between your fiduciary duty arguments and your fraudulent inducement claim are they connected you know they're different well they're connected on the facts but different on the legal theories that is we claim two things on the severe sherry duty we say they had a duty of candor and disclosure of all material relevant facts period and they had to disclose those to us and the failure to do that be reached duty and what would be the recovery for that i mean what are you seeking in response to that argument well that might take us to another issue which is recession is one possibility and then the alternative is  damages for breach of the agreement that is that the nine hundred ninety eight provisions do not control only the prior provisions control they breached those provisions so what are the damages for breach of those provisions to further answer your question on the fraud claim we understand that it would be a misrepresentation claim and we'd have to prove fraud and misrepresentation but the elements of that are not the same as a breach of a fiduciary duty claim which is simply did they breached the duty and the so there's some difference there certainly they're closely related they're closely related on the facts that is what information do they have what did they tell us and so on but the difference if i could ask you a very similar question to judge friedman so we have our first yes under that car case or car chase case we can basically say summary judgment was proper let's say hypothetically we agree with you that the panel got that wrong right but that was a misuse of the scott versus harris case right what happens to the rest of this case if you win that issue there are a number of issues in this case this coffee could kind of just explain to me the chain reaction that occurs if we agree with you on that issue what happens next in the case  to that we would ask the court to remand for trial on that question that is the interpretation of the agreement who want the trial be before another arbitration panel and how do we know it's another arbitration panel this california law says expressly that if you or we mandate you get a different arbitration panel letter that was in the reply brief i believe i thought it said nay though i thought california law said maybe before and i could be wrong but i don't think so i then there's other claims in the case with they we have to i know you probably want to send them all back but that's in the chain reaction or are those still independent or were those are those in some way dependent on the ruling on the first issue you know if we believe they're independent ok it's a maybe i can short my question with the other issue of whether to manage or operate include the other of the other considered that extra provision to be a part of contract and management and you say that three separate provision that's not included within country rams correct we say what and what the agreement calls the four seasons operational benefit yes we say those are different than operate and manage because they're both in clause twenty six and so they cannot possibly mean the same if manage an operate covered the four seasons operational benefits then there'd be no reason to refer to them because they would already be covered and the all the provisions which are fairly extensive us defining what the operational benefits are would be surplus they shouldn't be there at all so we submit that if you just look at the face of the agreement it cannot be that they're the same and if they're different when you go to v then what the says is well you can manage your operate and it says you can use the operational benefits under certain circumstances but it doesn't wipe out the general prohibition on the use of the operational benefits it simply says you can't use them or wait a second in b you can use them under these circumstances risk for season's position is that the prohibition of use of operational benefits and ceases to exist entirely because of pete if that's what the parties had in mind it would have been simple they put in one sentence says you can use operational benefits but they didn't do that we submit that's not the law i did not mean to line up the declarations with the negotiating history and there's someone named andy cohen that who did who is eddie cohen do you know who he was representing or who what his role was because i can't figure out who he is and he appears in a lot of these documents about when this language got at it and so i don't know the answer to that i could provide the answer to the court but i don't have the it looks like your opponent no idea from him  of action but they did it without any trial whatsoever and we said no you just cannot do that that it's not appropriate at all just ask you the question back on this i may be the only one who's worried about this your duty overlapping with fraud but i have another question about that so the oakland raiders dispute that you have about what the oakland raiders case means is that just if you control both the fiduciary duty claims and the fraud claims not because it relates to the two thousand and two men not the one thousand nine hundred eighty i thought it was the twenty ten i thought it was r s twenty so but but the twenty ten ok so the i thought the issue was did the twenty ten amendment ratified the one thousand nine hundred eight and if it did would it ratified in a way that gets rid of the future duty claims and the fraud claims i mean i may not think it did get rid of it but if it did i think it doesn't cover both of those types of claims or only one or the other i believe that's four seasons position that covers everything but you have to ask them but i think that's their position so i understand why you say oakland raiders doesn't apply but so we say oakland raiders it does apply if you have a reason evaluated separately i believe such i think thank you your honors may please the court william j for four seasons we begin by agreeing with mr hankey that yes each claim stands on its own bottom and i think that you have to take each one on its own terms a rebound on one doesn't entail rebounds on the fiduciary duty claim focuses prospectively on what four seasons allegedly should have told them about the value or importance or probabilities about the amended radius restriction that was going to be put into the nine seasons was managing the burton hotel and why why wasn't there a duty to disclose as the fiduciary in that capacity what four seasons knew about how the beverly was going to be run or what the i mean was there is this third entity so it's not just a negotiation really over compensation there's also sort of what's going on with his beverly hotel and what his four seasons know about it and i wonder whether those obligations kind of a rose apart from even the renegotiation but just generally in the fiduciary duty can you respond to that concern well again i think it would only be looking forward to what was going to happen once the radius restriction was put in because everything before the nine hundred ninety eight amendment is released so  if they're if they're allegation is you should have told us you know because you are our agent in running this hotel what are the consequences of allowing you to do these other things when allowing you to run this other hotel in this way to use these operational benefits or not that is that goes squarely to the scope of the agency you know the simplest analogy i can give is that when an agent bargains with the principal agent has been the exclusive agent and wants to have a negotiation about whether going forward you will be the exclusive asian anymore you can take other clients that is not a fiduciary transaction the agent is not representing the principal in that negotiation the engine isn't go shooting for himself without an obligation not to make affirmative  misstatements even if there's not a fiduciary duty yes and that's not that's not the basis of this claim but but i thought they had alleged so haven't they alleged that that there was a statement by four seasons that the beverly wilshire would not harm the the burton hotel and then when in fact even beneficial that sounds to me like potentially an affirmative statement and i think it's an e r five fifty to five fifty one where that's alleged and i wonder if that's sort of  apart from the fiduciary duty anyway yeah i think that that's that allegation doesn't then come back in the allegations under the under the if you look at the amended complaint in the list of force in effect except as modified in the two thousand and ten and then that's exactly the kind of language that precludes a party from then bringing a suit to invalidate the prior agreement that is thereby reaffirmed you can't you know the princip california law is you can't affirm and sue and it's that language the express a statement that the nine hundred eighty eight amendment shall remain in full force in effect that we think has the relevant consequences here and the next sentence goes on to say that other matters matters not addressed in the in the two thousand and ten amendment are reserved but that doesn't reserve you know that doesn't undo the consequences of the immediately preceding sentence that's why we think that that points clearly to the answer in this case because the reasoning of the cases is that you can't take the substantial benefits you know if you look at oakland raiders it's the benefit of the significant concessions made in that case which the court of appeal said were sufficient to justify the all that part of oakland raiders was about the idea of kind of keeping secret the idea that you thought there had been fraud it did they ever tell you before the two thousand and ten agreement that they thought there were either didn't have anything i want so why did they ever allege a an affirmative fraudulent statement before the two thousand and ten agreement all i can say is i think there's nothing in their records saying that they did i think it is significant that so they signed the twenty ten amendment th a few days later they filed a complaint but that complaint didn't actually have the full john duesler count in it that came you know later on in the litigation so i think the answer is there's no record evidence that they told us that they were trying to preserve that the only extrinsic evidence they tried to bring in about the twenty ten and then that is to kind of knock down a straw man they say we wouldn't give you a release of everything we're not saying they gave us a release of everything we're saying that they put it that they agreed to language that knocks out one kind of jury duty theory is based on the concealment of the alleged concealment and that they are seeking damages from that and you don't ok ok you seem to know who was already cohen go on mr mr cohen and this is i think if you look at page five sixty three of the excerpts you'll see the first at the very beginning of his declaration he says who he is and he was holding of the panel on the interpretation of the contract doesn't really turn on the expense of evidence at all because it is that the contract is not reasonably susceptible to the meaning of the other side tried to give it by bringing in this extensive evidence and because mean i think that you're certainly right that the court is to receive the extrinsic evidence the court is not to just say myopically i can see this document this document is unambiguous to me therefore i won't even look at anything else but the court is to this is this is the language of the california cases like wolf receive provisionally the extrinsic evidence look at what construction the proponent of that evidence is advancing then look back at the document and decide whether it is reasonably susceptible of that construction if not if it is all that instruction then there is no work for the experts of evidence to do and there's no need to resolve any fights about the expense of evidence it's just decided as a matter of law so you're certainly right that you that you don't decide whether there's ambiguity until you've taken a peek at the extr evidence to see what construction is being advanced and whether the meaning is reasonably says that the documents reveal to settle that meaning but no further than that the panel did that but ultimately concluded correctly in our view that the agreement is unambiguous and that's because he's turning to the amended radius restriction twenty six point zero one there is no restriction in the other than the specific ones on how four seasons will use the operational benefits at the second hotel which at the shore that for this period was the reason beverly wilshire so i think the the allegation that we've made that our construction makes a contract or a light is it sure makes the reference to the four seasons operational benefits surpluses in the first subsection subsection a i think that's dealt with completely by some words that mr hankey didn't quote when he was going over the three parts which is  tractor or license or a hand of the restrictions in a r four seasons may not own leads manager operate or contract or license the benefits you could take away the power to manage or operate without also taking away the power to contract or license and we submit that this is put in so that four seasons could not license out its intellectual property or or other access to other operational benefits without managing or operating the hotel blue brief so this is the definition of second hotel and about half almost exactly the middle of the page there's a subsection b such hotel does not have such time or there after user license north or mid to use relations any of the four seasons operational benefit so we've gone through one two and three in subsection a you know leases manages operates you know or you know owns leases managers or operates but then we contract goes on to say and you also can't use the operational benefits in at the beverly wilshire if you're going to have a second hotel in other words it's perfectly clear that there are reasons to restrict the contract or licensing of operational benefits  but ultimately what the what power is given to four seasons in subsection b is the power to manage or operate subject to a couple of restrictions on specific operational benefits like the use of the name like the use of the centralized reservation system but for things not expressly addressed in b such as for example the centralized purchasing system that's plainly within the scope of management or operation deciding which purchasing system you're going to use at the hotel your manager operate is to use the force to use for example the four seasons central centralized purchasing system at the second hotel not in any other place within the radius where to be that's governed by a but the second hotel and the second hotel only is governed by b now a so they can use the four seasons operational benefits within the power to manage or operate except as that's taken away now for the reservation system that power is taken away in part you can't they can't use the centralized reservation system at the second hotel unless certain things happen and that really is what the whole trial was about whether those things had happened and you know whether four seasons had used its best efforts to you know and as as necessary trigger that and the arbitrators found in our favor but so the  be applies only the second hotel and gives us the power to use those four seasons operational benefits except is taken away within the red the radius except at the second hotel including at the regent beverly wilshire if it seeks if it ceases to be the second hotel as defined by i see that my time has expired or there are other other questions that the panel wish to put thank you very much will discipline me when i get back on the on the question here of the operational benefit our position is really fairly simple in the in the spite the there is a lot of language there that you have to parse through our position is simply that in a all use of operational benefits was prohibited second hotel third hotel any hotel in b or was allowed to use operational benefits at the second hotel which is the beverly wilshire but only under certain circumstances it was not given the right to use all operational benefits under any circumstances whatsoever and i think that is the key thing here and the key difference between our position and four seasons position that the for the f o f s o b s could  be some way to say that the four seasons operational benefit our client insisted that be put in the agreement it would have and the other side doesn't say that they objected to that because they didn't agree to it and we told them at the time that our interpretation of the agreement was that by adding that to pay all they could use the second hotel in b was what was specifically set forward they do not do this they don't dispute that that is they don't offer any evidence to show that's not the case and so we submit that that frankly not only should have not been given summary judgment but in fact on the face of it we submit that it's clear what the meaning is here seven years and i go back to the fraud the first second how did you alleged fraudulent conduct whether omissions or affirmative misstatements prior to the two thousand and ten agreement we had not because we did not know there had been a fraud we didn't know the information we learned it wasn't in our original complaint because we didn't learn it it was in the amended complaint when we did learn it how did you eventually learn it well because there were there was discovery and we learned through the discovery what information four seasons knew from the region hotel chain and what it knew from the beverly wilshire because of course we didn't know those things we had no no role with region we had nothing to do with operating the beverly wilshire hotel so we did not know all the information the four