properly granted ace's motion for summary judgment and deny these these most for summary judgment it seems to me that the most important thing is the understand the appropriate burden and standard that applies in order for a step or bail on summary judgment it must show as a matter of undisputed fact and law that there is only one interpretation of the policy at issue the reason why is because this is an exclusion in ace's insurance policy let's assume it's right in the motion had been denied what would the trial here look like who are the witnesses and what are you going to say excellent question  case what will be tried is an allocation of liability with respect to these these policy and ace's policy basis paul c is required to provide in coverage and an illinois national will also take the position that because these policy responded and therefore the course would be which paul c is all good pay what portion of the underlying so what is the jury going to hear that's going to enable it to make that determination fair enough what the jury will hear is because we have a settlement as opposed to a judgment a jury will hear what the relative fault and responsibility and the liability of the underlying understand that but i think the question is you are saying there should not have been summary judgment with respect to the meaning of the policy right that you're saying there's a factual dispute about what the policy means and i think without speaking for judge kogan my question would be what will the jury hear by way of extrinsic evidence about what the policy means that would enable a trial finder of fact to reach some conclusion whether the same or different than what judge draco reached what are the what's the evidence on that question sure our position is that in the alternative there's a question of fact as interpretation but if that is how the court so concludes the first inquiry that the trier of fact would be did the parties intend to have a specialized legal meaning ok there was a declaration submitted by the underwriter for a cease and connection with this case in that declaration the underwriter said in no unequivocal terms that ace intended to use the ordinary usage of the term customer there's an old learned hand case that says you really can't do that you can't put in contemporaneous expressions of what was in someone's mind in order to construe a contract if the parties exchanged e mails or letters saying you understand this means this and that means that that's admissible evidence but to have someone take the stand and say here's what i thought it meant at the time that unexpressed intent isn't even admissible and communicated subjective int communicated subjective intent is not admissible to prove the meaning of the term that's a different question than whether or not the parties intended a term to have a specialized legal meaning or the ordinary use the factual question is whether or not the declarant statement is true they intended to use the term in an ordinary sense as opposed to a legal sense that's a factual question that's not a state of mind i say as a p if the polls he's ambiguous agreed but that's not the factual issue the factual issue is the predicate the predicate under hugo boss is whether or not there is any express evidence that the parties did not intend to use a specialized legal meaning answer yes there is the underwriter for ace himself testified in a declaration that that was not the intent the intended ordinary  of whether or not a retail investor is a customer of nasdaq that can be ultimately a question of law but there are predicate facts that have to be determined first first did they intend to use a specialized legal meaning that's a factual dispute ace is the only underwriter said they did ok too there is a history in course of conduct between the parties both atheists and nasdaq had a separate policy a crime policy that had a definition of customer in that policy it requires a direct contract the that's the ex that would be putting aside whether the declaration of the case underwriter qualifies as expressed intent or unexpressed intent or something else you're saying this history  of the other policy is evidence of the intended meaning that is public objective evidence and when you say exactly that cuts both ways you're saying that's why you need to have a trial in effect want to decide that because you could interpret that history one way and you could interpret it a different way absolutely correct you know and what i'm saying to be absolutely clear what i'm saying in the first since is it's ace's burden to show that beasley's interpretation is not a reasonable interest it's not whether or not aces interpretation in a self is reasonable multiple reasonable interpretations means beazley wins lose but here's what i'm trying to understand what exactly you're asking us to do and it seems to me there are two possible levels at which you can say there's ambiguity one is there is a fission ambiguity given the history or given different evidence about how the legal terminology is used to require a fact finder to pass on what these parties meant it to mean and then separately there is an argument based on cohen for prefer and says this is an insurance policy if the ambiguity rises to some level then it could actually be decided in your favor as a matter of summary judgment that's and which level is this are you still are you are you arguing that are you asking us in the first instance to say actually did recover got it exactly backwards and there should have been summary judgement for you or are you only arguing there are disputing the fact that have to be result now i'm arguing that judge rake off got it backwards that a reasonable interpretation is the interpretation proffered by beazley as a result of contra perform rule applies and in the alternative in the alternative if somebody was to ever look at whether or not the specialized legal intent doctrine applies there are factual issues in dispute there that could not be resolved in summ judgment the first factual issue is did the intent a specialized legal mean second of all even if they did you have to look at whether there is an invariable definition has the issue been specifically decided and then even if it has all whatever gets ace is a presumption at the end of the day a specialized legal meaning only gets a presumption when you have a presumption that presumption can be  extrinsic evidence which would have to be admissible and here at the extrinsic evidence is admissible because it's course of conduct between the same parties prior to formation of this contract along with the accommodation plan and the other evidence so at a bare minimum at a bare minimum before you could ever get the specialized legal doctrine there are factual issues that would have to be resolved in ace's favor and against beazley and at a minimum those would have to be tried good morning your honor is may please the court i'm john hacker counsel for be arguing for eight minutes focusing on the issues and my colleague mr lorenzo will address the issues specific to illinois national judge poor i think you had it exactly right  the question of who qualifies the customer in this context is a legal question we don't quarrel we don't quarrel with beasley's proposition that as a general matter customer refers to someone who buys goods or services under the meaning of the policy the question is were what happens when you apply the policy to a particular context to answer that question who does a retail investor who's trading on the nasdaq platform is that person a customer of nasdaq that could go to e bay or amazon and buy something on that platform you can't go to the nasdaq platform directly you have to employ an agent to purchase stocks on your behalf the broker so you're the one utilizing the services as the purchase things from the seller of the stock just like as somebody using e bay or amazon a platform is purchasing the product from say under armor but they're also a customer of amazon nobody would disagree with that for a customer of amazon and under armor because there is often a fee that goes with that to the to the platform so there are fees per transaction that are paid by the brokers is it out and pass through usually to investors one way or the other if there are per chance actually basis if you get your statement aloft and say here's  a member of the exchange and is to have that privilege i suppose that's part of their overhead and therefore in some way that's going to be passed along to their customers course but you know in in retail customer doesn't directly by goods and services from those deck and doesn't have an account with nasdaq it seems to me why isn't that an issue of fact as to whether there is a kind of relationship that qualifies under the ordinary english definition no technical fancy stuff about securities law because i think there is a special securities law definition of government why isn't that just the issue for a jury to decide  do we treat this person as a customer within that meaning well citigroup itself of course was applying it in a situation where the whole point was the investor wasn't getting anything at all from citi u k from cit new york they were getting from citi u k the point was you got nothing from sit in your you never listen to it at all here i'm not sure that's exactly true i mean there were people in new york who were working as part of the citi group empire and presumably cit group has some way of figuring out and there may have been have been some bonuses paid to the people in new york for the work they did on this transaction on behalf of citi group u k so if you're going to say you can be an indirect customer that might apply there services i'm hiring you as my broker and when you purchase something it's in my name remember when you purchased stock on the nasdaq when john hacker gets stock through joe's brokerage house the title goes directly to john hacker it's not a job isaac and then turns around and he sells it to me the title is in the directly in the investor and so you're the one utilizing the services as the complaint here itself said paragraph two thirty five said the class is complaining about what they were complaining about was the fact that they wanted to quote u tilize the nasdaq stock market to purchase and sell shares of facebook stock but they didn't receive the trading services they expected a needed to receive that they were the ones seeking to utilize the service through brokers as their agents on their behalf and they didn't get what they wanted that's what the you know policies are about that's what they're supposed to cover is flaws in the professional services of the platform training to trading platform that nasdaq provide that's what those policies are all about and they covered all of the losses here one hundred the losses are covered you have two issues number one you want to probate as a matter of law and you have to convince us that there is no fact and number two you have to convince us that you are the one that you come out on the lot not your adversary doesn't the fact that the district court did nine to twelve the six motion and handed take into account a lot of extraneous material to come out differently on summary judgment it isn't the biggest case against you just records will be that could be covered and at that point he didn't have before him three separate things that he later said in this in the summary judgment opinion might have actually made a difference to him one was all the federal securities laws decisions that uniformly uniformly  treat retail investors as customers and never say the opposite front of him on it will be six i'm sorry why weren't those decisions in front of him on the twelve the six their case for whatever reason and his attention i understand for whatever reason that there wasn't you know brief lawyers come up with new the motion to dismiss states lawyers represented not do it at that stage they did later there's no question of waiver nobody thinks there's it's like the summary judgment opinion is wrong because those opinions weren't cited in the duty to defend stage judge rick i was happy to get them and he said it changed my views as often happens in the course of litigation the other facts were the two statements from the exchange officers treating retail investors as their customers the ones who utilize their services through brokers that was new information  that was provided and the third thing was the computer crime policies which bees now tries to rely on because the computer crime policies unlike the d n o policy here specifically say that you're only a customer if you a written relationship a written agreement with nasdaq that's what those policies say and they say that because if they didn't customer would be more broad as it is here and it's ordinary meaning an investor who wants to you've emphasized several times that you are relying on the ordinary meaning of customer as somebody who purchases services and that that's true of retail investors ease of the nasdaq so does that mean that this whole thing about specialized legal meaning is a red herring at the end of the day it's just customer means with customer means in every possible context it's an ordinary english word it means someone who purchases services and the question before the court is whether that definition applies unquestionably as a matter of law with no factual disputes to the relationship between a retail investor in those days the way i would put it is either as a matter of law or as a matter of fact there's just no dispute there's no  source of authority is this a technical legal term of art specialized meaning or is it just a dispute about the application as i think you started out your argument saying of the ordinary common language meaning of customer i think that's basically right we don't have to establish a specific specialized meaning here what we're saying is that wherever you look in the law or in the factual record everybody agrees that a retail investor can be is a customer all beazley ever set is all of their evidence case law says is that members are also customers which of course is true but their customers so that they can represent their principles purchased stock on behalf of the people who want to be using nasdaq services but can't do it directly so they hire an agent with providers and it's just one technical question that not related to the merits of both sides have filed redacted briefs he you and then the reply brief on the other side i take it the direction is because the settlement with the quote the settlement agreement between has deck and the class action plaintiffs which is confidential i believe that's right and i think that's all that's quoted so i'm having trouble understanding why we have to have big black bloggers on the public record when i don't see anything secret maybe you don't want to answer that right now but i'm wondering if if the international joins in the arguments are basis clear in our brief if the court is inclined to consider remanding the case we want to raise an additional issue unique to illinois national and that stand and he there was a bit of confusion at the complaint stage in the motion to dismiss decision about what the actual assignment was paragraph five of the complaint suggest to the court that nasdaq assigned all of its rights in the d n o tower to be easily however when we actually received the assignment after the decision on the motion to dismiss it was revealed that the sign was actually up to a fixed limit the amount of the payment the beazley had made which is expressly set out is fifteen million dollars and what that means is and it's not on appeal here our policy is not triggered until he says fifteen million dollar primary policies extinguished your payment and that's by virtue of that fifteen million dollars limit there is no article three case or controversy as a relates to my client illinois national has an argument of somehow this being interrelated with some other policy the international has on the other side of the the somehow so our sister company charter specialty insurance was the primary you know carrier and paid out the full amount of its policy but that doesn't impact standing as against the international a separate company that issue separate policy on the do you know is there any reason why we should do or even have to resolve that issue on appeal so if in other words if ace wins on its argument then this issue is moot right because of the  you know if it's possible and part of the part of the argument is we really shouldn't be dragged back to the district court because there isn't standing and there really is no dispute here the burden is on beazley to show the facts under luzon they have to show specific facts of the summary  yes think you all start with the i and i see standing issue because that's probably fresh is on everybody's mind the issue is that four point nine million dollars was paid by a on the ino tower of easily and they are can they get an offset in there for only ten plus million is available under their palsied which means that after ten plus million the would exhaust in the eye and i see policy would be up from b s this perspective doesn't matter whether it's ace that pays or i and i see that pays but that issue is right in the underlying proceeding which is why in my view the correct answer is to send it back down we'll talk about a minute and then if ace wants to can see that is not entitled to a set off fine we don't need i am i see but as it stands now in the record and the record is what matters in the record aces stated that it's position that they are entitled to the four point nine million dollars settlement which means that its policy will exhausted i and i c's policy will be up before fifty million going to the customer issue back to that my counterpart said that we always agree from a factual standpoint that under ordinary use an ordinary use that a retail investor is not a customer of nasdaq that's absolutely not true the accommodation plan by nasdaq could be not could not be more clear it says there is no contractual relationship or otherwise with the retail investors the contract between eighty six and nasdaq in the crime palsy had a definition of customer that definition of customer required a contract between the two parties the ordinary definition adopted in the securities contacts in the finra contacts by citigroup bank in all those cases requires something very specific either a contract consistent with the crime policy members and that's that's what the fine is the logic so in the finra in the securities context customer means a contract between two but under an insurance policy it means something completely different and that's why i started with the burden the question isn't whether aces interpretation is reasonable the question is whether or not be easily interpretation is a reasonable interpretation in its your question on the tension if you look at judge  on the summary judgment he concedes that there is a tension between the combination plan and how he rules and he just concluded that the evidence that is presented was more probable of of his conclusion tension that's not something you get to do on summary judgment at the trial court level and only this last point if you look at the citigroup decision two thousand and fourteen that's when these policies are issued last page it talks about how finances done in today's world it says it involves a number of technologies a number of people but just because involves a number of people in a number of technologies that does not mean that a customer relationship is necessarily entered into between them all and that's the exact point that's two thousand and fourteen with a policy issued when this happens not every situation with multiple parties in a financial transaction creates a customer relationship amongst everybody so at a minimum you would have to try you would have to figure out whether or not there was a direct buy of goods and services and there's nothing in the record  suggest that the members were somehow an agent and they had full scope and full forty that's not in the record reason why it's not on the record because ace argued specialized legal meaning not ordinary use they