good morning your honour's may please the court and melissa are bashara here on behalf of clinical we are here this morning because f c am an ortho entered into an engagement agreement under which paid well over thirty million dollars and received very little in return the parties agreed to terminate that agreement and ortho agreed to a narrow and carefully negotiated release that was limited to claims that were actually known by one of three individuals and no other claims the complaint in this case allege multiple breaches a contract and the district court itself found that the facts underlying some of those breaches were not actually known at the time of the settlement agreement the district court nevertheless dismissed all claims relating to the engagement agreement that categorical holding on a motion to dismiss was error based on the district court's own findings and own reasoning and this court should reverse and remount in this case barely response to that argument it does not dispute that as a general matter you can have multiple claims for breach of contract and it does not dispute that the district court itself looked at this complaint and found that or they would adequately allege that some facts were not known at the time including the four we get to the settlement agreement i wonder if you could just point me to the provisions in the engagement agreement or a consulting agreement that gives rise to the breach of contract claim for failure to prepare an infrastructure plan or provide subcontractors with guidance i was struck by the absence of clearly defined deliverables in this contract  and the performance was really do at twenty five months not at eleven months you had an out at the third toll gate but there were very few concrete items that were specified in the in the contract and of concrete items so if you could point me to something in the agreement perhaps i've overlooked a relevant provision i'm happy to do that i want to make a policeman a point though before turning to the agreement this was something that was not before the district court so the motion to dismiss before the district court was a limited just to the release issue at sea i had asked permission to move with respect to the breach as well and was not granted that permission so they actually haven't yet moved to dismiss with respect to whether or not there's an you know a breach alleged in the complaint itself question because i mean i want to understand how the engagement contract worked before i got to what the release address write what claims were known or not known and i found it very difficult standalone system that will consist of both infrastructure and applications that's the end projects and then if you continue on and this is on page three zero five it talks about the program approach and that they'll be a program planning and this is a process oriented approach if you go a little bit and once again no deliverable this is just how we're going to do this job right and so i'm going to continue on if you go to the tollgate approach and this is that page three zero nine it does talk about tollgate three but it goes on after that to say we're going to then translate business requirements into technical requirements and importantly the tollgates and i don't think the i would dispute this because they argue this below what was promised with respect to the different tollgates only some of which are in the record at this or you know a number of additional promises along along the way and that's also incorporated into being gay an agreement i think most importantly is industry practice so if you look at the original complaint paragraph fifty three it says when you're entering into the sort of agreement for a transition project that is this complex you would certainly expect and you would contract for having these integrated plans infrastructure plans at the initial stage during eleven months of what was only a twenty five month contract would be standard practice and there's nothing in the contract that says you need to have done x by y period there's just kind of expectation and approach there's a general it is general in that respect again i think the tollgates have more specific promises that are  incorporated into and i think as a general matter of contract interpretation industry practice can be used to give meaning to what those terms are so what the program approaches and what you would expect at different stages of sick contract similarly in the settlement agreement can you point me to any term that obligates of see have to create new planning materials if we're talking about the second argument with respect to the breach of the saddam agreement so yes i would point the court to if you look at section three it's the transition services provision and it's not a question of new plans what it required of c m to do was to provide all reasonably required assistance that is necessary to transition so it's a broad broad term all reasonably required assistance what does that include it includes things like documentation information access to employees and so again you believe that's correctly interpreted to require the creation of new documents rather than just give us everything you prevent you've created to date it i think it's  correctly interpreted not necessarily that they had to crave i think actually am promised to provide what would be reasonably required under the circumstances and the circumstances are your eleven month into a twenty five month agreement we've agreed to pay over three million dollars for these services c m has dedicated three employees specific to infrastructure and has promised six months at least six months it would take try to and that's so i think at the very least it's ambiguous as to whether it includes a promise to provide these plans and transition services with respect to these plans and we're on a motion to dismiss the district court held as a matter of law that you absolutely cannot read that language to include such plans and that's what we're disputing before the court with respect to the settlement agreement if i could go back for a moment to the engagement agreement our primary argument here and it's one that was before the you know the district court in the first motion to dismiss is that the release was limited it was very limited to actually no and that is a unique release in that respect and it was carefully negotiated in that way the district court if you follow the opinion it starts off on page thirteen of the special appendix and it on page thirteen and fourteen walks are facts that were actually known at the time on page fifty and it gets to facts that were not actually known and that includes the failure to create this and infrastructure plan and then you get to page one thousand in the district court concludes that all claims relating to the engagement agreement have been released we would submit that that conclusion simply does not follow from the reasoning that comes before and it's not consistent with the standards that are political on a motion to dismiss on a motion to dismiss out of this court's decision and super zero the district court agrees if the emigres any ambiguity needs to be construed in favor of the plaintiffs in this case or throw the only thing before the court was the release respect to the engagement agreement and the claims that were then released by the settlement agreement i have a similar question to judge corning which is it's hard to see the claims for breach of the initial complaint even the amended complaint it appears that the claims for breach of contract were in fact known by those three people because the gist of the complaint is  they weren't doing it on time that's the essence of the breach of contract claim that was known and that was released what else was there so if i can i see my red light is on and i can answer that i'd like to walk you through the complaint this is equally true in the amended complaint but there is no question i mean we candidly admitted all along that there were certain breaches that were actually known at the time the most obvious one is the fact that they refused to perform work and certain countries that were deemed to be outside of the scope but the complaint is equally clear that there were other breaches that were not known and that the complaint was alleging multiple breaches a contract and so if you first look at paragraph seventy two of the original complaint and that is i believe j twenty one paragraph seventy two says that there is a material breach by failing to plan that's number one then if you go to paragraph seventy four seventy four says that certain claims amounting to a material breach of contract were not known by these employees suggesting that there are more than one there is more than one breach of contract certain breaches were known other breaches were not known paragraph seventy does what most most complaints do which is real ledges and allegations that came before and then if you look at the factual allegations look at paragraph five look at paragraph twenty nine look at paragraph thirty three thirty four look at paragraph forty five and especially look at paragraph forty nine to sixty two and it states time and time again that they were required to prepare these plans that they failed to do so and that this was something that was learned only after the settlement agreement and the reason why it was learned only after the settlement agreement was because there was an informational disadvantage here we didn't have access to the subcontractors that was a really important part of the settlement agreement you know you're true to appear to the point i'm waged to be a breach of original complaint it's alleged as a breach of the engagement agreement and in fact has argued all along that we added this additional breach of the settlement agreement for the first time in the amended complaint the original complaint  engagement agreement that may have been why the district court reached that conclusion but the original complaint doesn't support it thank you and you reserve two minutes  mr habib and realized it wasn't performing and wasn't delivered what had been committed under the agreement there is no suggestion there was any plan to be delivered in addition to the tollgate three plan that's laid out in the agreement and that judge buchwald referred to to prevent to provide toll gate three which will be a detailed transition plan including key milestones that document was provided on time ortho had an option to exit the agreement if it wasn't happy with that plan at the time that it received it that plan was received reviewed and signed off on by ortho including mr marcial who was one of the people who was charged with knowledge of things under the agreement there was no commitment to any other plan in the agreement and so forth that had first the plan that was promised under the agreement had the opportunity to consider whether it wanted to go forward with the agreement signed off on that plan which covers transition milestones in great detail and delivers everything that's referred  page three eleven of the joint appendix which is sherry referred to and that plan runs to i think three hundred ninety seven pages mother i have to say i have to say the plan looked like a power point the contract looked like a power point  sales document i mean i was struck by the vagueness of every aspect of these contracts and i do i came away wondering whether the record of the six but whether the record showed that ortho got anything for the over thirty seven million dollars that it paid over the course of this in gage meant is there does the record you know contain any material of substance yes your honor on this motion and i'm stuck with the complaint as alleged by or so or the obviously doesn't lay out what actually happened but i think there's enough in the complaint to show you that they knew of every breach they now alleged and they released the claims they knew of and they are stuck with their agreement which they shoved in front of the up c m and told them they had four hours to sign the other documents that were alluded to in the complaint and that the parties referred to in their discussions here is there nothing more i mean we have three volumes of appendix that includes such things as this tollgate three power point has a lot of icons and not much by way of specifics i take it there's nothing more well there's i'm going to address because that's what you're arguing to say i was answering a question from judge kearney is there more yes there is more it's not in the record here it may be on the record later on but there's enough in the record to show knowledge which is what judge buchwald found the complaint alleges that they didn't trust by people that they knew they hadn't performed that they hadn't delivered things they were promised under the contract that's all alleged in their complaint the same complaint that says they didn't know about any of this and in fact while miss sherry said they ca admitted they knew about some of the breaches of the contract in fact they submitted affidavits from the three people who supposedly had knowledge each of whom deny that they had any knowledge of any claim asserted in the complaint that's a yes supposedly had knowledge i have no knowledge then their lawyer showed up at the oral argument on the motion to dismiss and said well of course we had knowledge because one of the other documents they submitted also in opposition to our motion to dismiss was an e mail from their general counsel to our outside lawyer saying don't worry about the j and j claims on the out of scope claims we know about those so the record is amply clear that they knew about the contract violations and to the original contract based on their own allegations and their own submissions to the district court so i turned to the settlement agreement the district court quite clearly found that the settlement agreement is clear and unambiguous which it is it says that f c m will provide assistance with transition to other providers trent that is out of the picture and it will turn over documents that it has it will make its employees available and there were nine employees that had made available for a six to a nine month period for transition afterwards and to help with all of the information if c m had learned during the time period the language of that provision actually contradicts any arguments that what they were really bargaining for was a plan because the language of that paragraph that talks about transition assistance talks about why the work will be done going forward and says all summer all of the transition assistance can be provided at evidence in the agreement to suggest that they were entitled to an end and plan or that one had been promised and i submit to you that if such a plan had been promised any competent attorney would have drafted the agreement to say that such a plan should be delivered but to the contrary they submitted yet another affidavit on another motion to dismiss from the layton lawyer who drafted the transition assistance provision who said i understood that arthur was unhappy with f c m but i believe  i was under the impression i think is his phrase that if c m must have done something over the course of the agreement and i wanted to draft a provision that provided that that information would be made available to ortho there's no suggest affidavit that he was trying to capture was eight and plan to transition the software systems and it doesn't make any sense frankly that such a plan would exist and be turned over by a contractor at the beginning of the period with the kind of detail at f c ortho now says we should have provided which is the ability to transition every software program and measure and to match every step in the transition the mistress and we could agree with you on your lot on your argument on this latter issue i disagree with you on the first of that would not can make five points in response first of c m commits the same air as the dish according that it fails to disaggregate the different breaches that were alleged when it talks about what there is evidence of knowledge it talks about the out of scope countries it talks about the original complaint that says as a matter of industry practice that eleven months into a twenty five month plan you would expect them to have actually planned out what is supposed to be completed fourteen months later we can look at the contract  and find out if in fact there is any such provision not not at this stage of the proceed ings because again the only motion that was before the district court on the engagement agreement was limited to whether it was released under the settlement agreement so what i think your honor is talking about is where you would identify the breach in the agreement that would be something for the district court to look at it remained it just wasn't briefed in the district court and it hasn't been briefed in this court but don't we have to determine whether age i think you'd look to the allegations of complaint and you're right the engagement agreement is attached to the complaint but i think you would look at parrot the paragraphs i pointed you to insofar as the complaint goes paragraph five paragraph twenty three twenty four twenty nine and so forth but as far as the engagement agreement i think i'd go back to my answer and actually if you look at the engagement agreement you look at page three zero two you look at page three or five you look at the tollgates i mean the problem here is because this wasn't at issue before the district court you know tollgate three is the record and i want to talk about that briefly but the other tollgates that were provided which include additional promises that speak to this issue they're not in the record at this point in the in the proceedings as far as tollgate three goes your honor is right i mean there are thirty two pages it's a power point presentation there's thirty two pages talking about infrastructure that's not the plan we're talking about it was never intended to be that plan if you look at some of the pages six o five i mean it shows a map about you know with a picture of a truck in a cloud that's not the type of plan you would expect for a seventy million dollar transition project the two other points your honor if i may in terms of the affidavits and why they're in the record they're in the record because they alternatively moved on twelve b one grounds in order to try to get additional facts into the record and j one sixty two i think it's a note three says we're only introducing the affidavits for that limited purpose and finally i think my colleague said you know there's nothing more on the record that's precisely our point we're here on a motion to dismiss or limited to allegations in the complaint in the allegations in the complaint as the district court itself found were sufficient to so that there were some breaches of contract that were not actually known at the time the settlement agreement was