so we will dispense with the calling of the calendar and we'll proceed to the first case any of us versus sa ok go ahead i'm sorry judge i would break the case really into two parts could you even before you get into the argument just tell us about the when to stand another case a companion appeal that hasn't been briefed could you just tell are the differences what the status is can go ahead with this case without worrying about the other one though this case there's there's really arises out of the same litigation but this case  opposing counsel and i talked a little bit on the phone about whether or not the cases could be consolidated but we never came to any kind of a we actually didn't speak again after that so i did file a motion in the old nineties i didn't ask for consolidation of the cases because i knew this warden that was already on the calendar and i didn't want to inconvenience the court in that way but i thought the other case be fully briefed i think it should be my brief is due at the end of january so i would expect the case to be fully briefed me by m final sort of semi procedural question has he has any of the players here filed chapter no as far as i know know that ok i thought i'd seen something  fact that there really are two sides of the same coin as your honor said and it was just the way the case was postured essentially in the district court if the district court judge didn't enter the final word or which kind of surprised thought at least we wouldn't have had t following news of appeal yet they probably would have been on yeah but unfortunately that didn't happen but in one sense economists this case a little easier to decide that's really strictly on a summary judgment and it's strictly on whether or not my army corps issue cure notices raising problems right i mean what was what but yet your position that it was wrong for safeco to inject itself in the process even though number of options it could step in and complete itself could get someone else to complete and so forth and so forth and so on so you're saying that the keep the surety had to sort of sit contract that compel that result back in that sense that that said we can't start to look at our options to figure out how we're going to get out of this mess until there's a formal  these actions because the district court said everything's safe go did whether it was before the fall of the boy or to the left doesn't empower them how does it prohibit that's a different question but that's what you're saying they they were prohibited from going  meeting i'm saying they were prohibited from going to the meeting on the grounds of new york common law which is torsos in a figurative contract a breach of the like they were they were going to be on the hook for check they weren't a stranger to this transaction but here's the the district court judge said hey everything's safeco did was insulated by this and unless you can prove fraud in collusion you can't they're not liable that's wrong and the reason why it's wrong is because this doesn't give safe go any any action in this contract until there's a declaration and before that so that's important and a moment ago that new york common law prohibited safeco from going to the mean what in new york common law says that defenses it had against the government it's very important to separate out those two things that in their interest interests say go for your client to complete the contract i mean to be frank i don't know what i don't know if safeco made a mistake i don't know what was in their mind but the fact is my first position is this the district court judges are now district court judges analysis look because this doesn't give them an insulation if they took any actions it was either wrong for not on their governing what it was claimed they took that was wrongful that was tortious well with respect to the first agreement the pyro they went to the notice to cure a meeting over my client's objection and they talked behind closed doors with the government contracting officer and said don't worry we'll take over the claim that's wrongful and the reason why it's wrongful is because it back point in time your honor they were you and you using this form which you may be entitled to do to stretch out the repayment as long as you can allege ing i won't say frivolous claims but i would say claims that we have to can't do it your distinguished member of the bar so i would not use words like for evillest and i don't think it is broad think my argument is legally correct whether or not the with the government contracting officers without my client's participation with respect to that the joint venture project they did more they assured safeco hey you can rely on our lawyers with regards to talking to the government which turned out that that was not done in good faith we say and they also presented this memorandum of understanding they were going to enter into to avoid the the that gratian in the fall and then they would drew it at the last minute which of course called the government to issue it here's here's what distinguishes my case look at the certified claim letters that safeco wrote if i couldn't make my argument hold any water if the certified c letter had nothing in it the certified claim letters at safeco road show what my client and yes could have actually said had safeco not interfere in the contractual relationship if you completed the contract we wouldn't be there voided saying they were frivolous these are actually very important issues that the court should just make a definitive statement on look it safe this position is this essentially once we saw on the indemnity agreement then we have an interest in the project so you mean that the week after i signed the agreement could they call me in and start talking to the government contracting office or no is the answer so there's obviously a limit to when they can comment you can see the project was experiencing significant gone so honestly we don't really think all the difficulties were from the government they didn't have the funding necessary the federal law requires they have for the project and because they didn't have the funding they they started to say oh you're causing problems on to the contracts it really wasn't m e s s or you weren't going to do work if you weren't getting paid right actually my client did do a lot of work for which they didn't actually get paid safeco took the money after they stepped in doors so i mean  here's what's important you know if you if the shoulder fired ladders that safe go route in this case and i know i know i understand my time is up if there was no meat on the bones in the words judge if my client just walked away from the project have had to see more demand i could say hey they came in prematurely they should've stuck their nose in their business but if i had no argument as the contractor am yes then it would be like what's the difference you you would be faulted anyway and it timing of last night my son was asking me how much more to have to read good morning your honor and thank you i'm going to go ahead and just address some of the comments you made and then i will go back and and discuss where our position is as to to write to the level that somehow safeco acted in bad faith in fact what the record shows is they chose not to even depose people that were at the cure meeting or the government instead wanting to rest on its own concocted government is required to advise the surety when there is an imminent default terminations that's the other thing everyone's kind of conflating the words default and terminations when the government issues  notice they are asserting that the contractor is in default of its obligations under the contract and that's what happened here the issue to your notice saying they're not meeting the their delay they're delayed in completing the projects there's deficiencies we're going to we're we're considering terminations but terminations of a contractor and so under the forest they're required to provide notice to the surety and they in their tour notice demanded the surety he's a tenant and there is absolutely nothing in additionally m e s is directed to attend a meeting scheduled for january twenty ninth regarding this cure notice your presence as well as the presence of your bonding company is required  a four four five and it's the same language your honour's a four one one zero your bonding company is required to attend a four zero seven six your bonding company is also required to attend this meeting so that's the context by which and that's very typical of routine exactly for what your the the pyro project on the a t p f f project your honor we have their handwritten notes at eighty two three three zero and mia does agree to save close presence at the meeting with the cor and in fact on the a t p fs project they're arguing that oh they were duped to attend the cure meeting with safe because counsel and they had a whole other litigation on safe because counsel was representing them at the curing meeting so if they talk out of both sides of their mouths none of it is accurate your honor and most important point however your honor if they're conflating the bonding company's obligation to the united under the indemnity greenman such a thing have an independent and affirmative claim and the dummy's agreements are issued to the benefit of safety and thus their claimant defective as a matter of law m e s can point to no express provision or obligation which safeco has breach and that's because indomie agreement doesn't provide them with anything in demmy agreement because  x and issues the bonds that's obviously the exchange for the indemnity agreement and the consideration the rights then all go to safeco and then the right to safeco are to be indemnified and they have the right to be reimbursed for any claims discharge have all their obligations and then they have the exclusive right for itself in the indemnity to determine whether any claim shall on the basis of evidence shows is that at the cure meetings they discuss options for completion of the project that's a there's no no other discussions at the meeting there's zero evidence of anything safeco said or did in fact what any of us would have saved could do is repudiate its bond it's their contention we deposed m e s they said that save go said we will honor our obligations under the bond well they already had the government already had the bond safeco already agreed by issuing the bond in the first place that they would complete the project if there is a default under the terminations or provide the funds for it that's what the bond provides so in  we by giving them the bond they look to us to complete the project and we we have to say that they're trying and the us is trying to create a brand new course of action for which there is no case law in which an indemnity or somehow can turn surety law on its head and have an affirmative claim such that the surety would some have to have to pay the principle for its losses as a result of the bonnet contracts those agreements don't exist at all here on earth and in fact the expectation under the indemnity agreement is all the the essential objective of the agreement is to ensure that safe code gets indemnified and this is plainly these is that's what was bargained for by the parties this we did ask for sanctions with regard to the contempt of m e s and there was a separate vote on this for this appeal for this appeal we've asked for costs thank you your honor and  what are your thoughts on the other appeal whether we should go ahead and decide this appeal whether we should weigh whether what are your thoughts of five i think your honor that this appeal stands easily on its own because the there is no affirmative claim and that that's what they're trying to assert new york law does not recognize an affirmative claim for bad faith so instead they've cloaked it as a contract to preach under the indemnity agreement for breach of the indemnity agreement and the implied duty of good faith and fair dealing i think it's easily dispensed with and doesn't need to await the other appeal and also given the timing except her it's your honor the other point i want to make is there's absolutely no evidence that saved her in any way cause the terminations an independent intervening act or that any conduct was actually or approximately caused in that regard they have their own testimony in which the ranis and mr qadri testified that it was due to deficiencies in performance delays the cure notices  so again they m e s provided no evidence whatsoever again they took no depositions of anyone who was involved in any of these actions and that's been the consistent theme they just want to create a story they really don't want to know the facts attests we received a contempt order they failed from the very beginning to provide collateral the interim remedies that had to go to the second circuit as well your honor and then the court found them  contempt to this day they haven't provided one dollar to safeco they didn't provide under the in demi agreement so it's as you all accurately said it's a delay delay somehow there's still you know i don't want to get into the details of fancy cars and meals and everything else yet they claim they have no money and there's no insolvency proceedings and in the meantime is just a delay a delay process so they never have to pay us a dime and that's how it's been from travesty that we've had to endure nine years of litigation and spend all of this all these funds in the and the resources of the court over a litigation that was clear cut from the beginning the fact that safeco spent fifteen million dollars i your honor i would say that i believe in the us has the resources to pay on the judgment and that i mean it should pay the judgment or well in the in the second case you're right your honor as far as the c on this case that they should be sanctioned they should be sanctioned for asserting claims lacking any foundation in any fact whatever pardon good morning your honor jonathan bondi for liberty mutual i very i have one minute wait i will try to keep it even less than that unless you have already you know have fifty seconds oh if the all right if you don't have any specific questions  about the one point that addresses liberty which is the dismissal of any s's claims against liberty under the bonds that liberty issued for cami now i think dismissal was proper these are newly made up hope to avoid summary judgment facts i think we addressed in our brief one point that i apologize for not really being in our brief is that a notice was supposed to be in writing and the only newly created fact thrown against the wall by m p s in an effort to stave off summary judgment was i told people they were in default but any of the written correspondence and we outlined it chronologically in our papers shows that there is nothing that mentions the word default until after the lawsuit had been filed well after the time had passed by which liberty could undertaken any manner of performance under its bonds there are no questions i'll just fly on our papers for the rest and see my time to  but it's and it's the name tell me something about what it's a family name your honor my clients are becoming our family and they started to buy the business and they ended up selling it to him quirk l i think it's important to just look at it again it's two parts to the analysis i'm an appeal lawyer i wasn't involved in the district court below but i look at the way the district judge analyze government contracting officer options in lieu of terminating an army court directing your client to them there that doesn't make it however it's a how is it that faith for them to be there under those circumstances because at that point in time you're still arguing that it was bad faith for them to be big and then though the army corps which held the contract director joe klein to have them here there yeah that's right and this is the reason for explaining to me why that's not a