second of two matters on the first one being a much more significant arbitration in the state of michigan and the second case in the district court in los angeles  sounds like about thirty five thousand dollars or so to meet well that's not what we think your honor we think of the amount at stake is the difference between what we asked for in the trial court and the amount you settled for with i think the entire attorney's fees award and so we were a feeling that as to that just that part of the judgment but then you want to settle that's right so if we were to agree with you the court there on the application of michigan law to the amount calculation you would then seek to colac the differential between what you recovered from tracing against all mine plus the increased amount whatever the differential is between but not as against tracy because of the settlement course can i let me address that so if i understand your theory correctly the district court seem to focus on section five which is a fee shifting for them but and then turn to section seven the in attorney fees under section seven which is the indemnity provision joint and several as you say and that as an alternative that i could be wrong because i did this why impose in this way that as an alternative you also claim that you could recover fees although you seem to suggest against both alma and tracy under the fee shifting provision which has among the still somewhat confusing language to me the notion of a prevailing party the district court your position you're saying no under section seven we've got an award against both entities and whatever under second seven and that until you get that look  in my view the interplay between the two sections basically is this first of all let me start by saying that the district court found that the parties to the agreement basically almost and tracy prepare the read in the following manner that paragraph i'd like thank you is a paragraph that really deals i think with the situation of the inner please her that in the of that that there is a situation where there is against dollars being held by the bank or the us grow that that the bank that we're talking about inner pleader kind of situation because if you look at the language in that section it talks about the bank mention the word for his fee to the language of journeys and you have to read those two provisions in a way to give sense to both of them just common you know first year contract law and so you have to look at the language of both of them to give meaning to both of them and i think that's the way you look at the language of those two provisions to give meaning to paragraph five and give meaning to paragraph doesn't that five is an inner pleader type section with with the bank defending itself and then we're look and then we look at the situation what the section provide section seven provide it says that the bank is entitle to all of its these lives to reasonable agreement doesn't say actually well i think that's the question i thin and obviously the court doesn't sound like it's agreeing with you i think it does say that i mean i think you know i think that the word of all in there is meant to modify the the words am and the reason is as that michigan case talks about that there are instances when you get reasonable fees and there are instances when you get actual fees and remember the situation that we're faced with here we're faced with a situation situation where it was going to go out of pocket and do that work and we're talking about a situation where an escrow company in an a corporate estate kind of situation with only faced with dramatically increasing its rates for these kind of services that it's faced with the possibility of going out of pocket if it really forms its duties in a way worth did nothing wrong it did nothing wrong and that's what the court found it and that that standard of not being in vast faith and not being this was now and i submit to make sure that the bank was made full of the very thin go out of pocket the in recognition of the fact that the bank was charging a very very minimal fee to perform relatively limited services of thanks knocking on take this under any other circumstance that's how this whole escrow system works otherwise the whole restructure is going to dramatically change if that escrow runs the risk critical secondary review i mean you understand the point i'm going to feature and i think it's very forceful point would you be making the same pitch that you were just making to dr fleischer if the district court had not that that's not that's not even fees for the thing ok that's not even fees for the case so if they're true fees for the case i mean you know i think it is a legitimate policy issue into the true heart of what best rules do not only in the corporate escrow arena but in real estate that's for a reason everywhere else they need to be made whole otherwise the whole system of the charges that they throw arms has to be reevaluated regime i take it your position is that that does not mean that the law firm or the client can simply put forward whatever it decides that whatever outrageous or at shifting but maybe under contract as well but the contracts that i'm familiar with anyway i usually say i'm a reasonable attorney three so so what i'm trying to understand is if we were to try to address michigan law which i understand this case is governed by its friend well under the michigan law structure if you're talking about actual attorney fees is there room in that regime if you know for dealing with what two youngest in house associates along with a couple of outside pillsbury lawyers or whatever so you have four lawyers serving out a deposition and then the you put all that in and say well it's all attorney who says they're under the michigan regime and the opportunity to attack that and honestly i don't know the answer i don't think there's a michigan case that deals with this but fortunately we don't have that situation and their feet agreement with us not knowing if they're going to win or lose and so so there are there they have a fee agreement their pain that they're being billed they're paying the fees as they go and so that that tracy you mean counsel for three individual shareholders section five inspections seven as you would have to when you're dealing with this are putting any agreement and looking at all the provisions i believe they go and save harmless by the parties here too from all losses cross expenses including attorney fees which may be incurred by it as a result of its involvement and he would occasionally arising from the performance of its duties here under think one is entitle to its attorney's fees under that section also but my question is are you what are you we know what the court's two and what i'm trying to understand is do you disagree with the proposition that under section seven the bank one is in title two indemnification which includes attorney fees will get to the amount from both parties all mark and tracey know you are that's what the contact us that would be the issue here is when you know all the interpretations of the different kinds of facts that may be different to each of the cases that we have bank one is saying a contract that's what they're suing under a contract which is a contract of indemnity is what you're reading interpret ing putting a gloss on what the contract of indemnity says or just generally if like in your face if you're seeking indemnity over under principles of equitable and equitable indemnity you might be able to recover under the general rubric reasonable attorney fees as part of that but that wouldn't be based on cation and you couldn't have you know just plain groups but the district court here relied on a survey of a national survey that's totally mean it's this whole attorney's fees issues got to go back basically well you're on our are you mr do you know if you have no obligation it found that those fees are reasonable mocking you not abuse your discretion when you rely on a survey that has nothing whatsoever to do with the fees that are charged in the relevant community whether that be michigan or southern california and that has an objection outstanding that hasn't been ruled on and that it has no foundation and we don't know who conducted the survey or why or when or how it did it or what it methodology was or anything i don't believe that that that was all the factors that he told this in essence and that was what the district court said i mean it used the number that was whatever th had no foundation doesn't this have to go back anyway i take it you think no but tell me why well i think now because i don't i think that the there was no abuse of discretion in how the judge took these factors took the survey according to michigan law and what the court needs to do to  ok let me go back in you know in reporting the question judge fisher started with this i want to be sure i understand exactly what your position is because i now don't do you agree that the complaint is moot because it seems to me plain on the face of the a green light under section seven that bank one hands and indemnity claim against both and tracy well your honor the fact of the matter is that the court in ruling as it did was concentrating indemnity for and so it moots the rest of the claims and in many situations that would be true but here it has an expression indemnity agreement with both of you so how could it be moot let me just kind of a advance which is that having found against tracey so that it would fit within the rubric of prevailing party back with that as these are the tracy in the position of the prevailing party having done that you didn't need to reach anything about almost to address judge fletcher's situation if tracy turns out the two parties spent four hundred but in any lead had to be in various things i gather but so what if if if you doesn't this agreement to boil it down simply say that look the escrow holders over here and they have this look to you parties to hold us harmless and indemnified our you fight it out between the two of you is up to you but for us as the bank you guys are going to pay and if if we're gregg then and it's only because of one of you out there fighting but our duties are at issue we can still to under section seven come after both of you whether or not one of you is even a party to that dispute we can come after both of you you guys are saying we guarantee bank one your attorney fees will be covered by one of us and if it's one of us who wasn't even a party then we can go after our our the other folks by way of our right of equitable indemnification or whatever but you bank shareholders representatives and trace the industry you're not trace the industry we are not crazy in that you're not party to the section seven agreements only trace the industries as a party to that agreement at the time that that agreement was entered into the shareholders those words are meaningful in our context as well in terms of a full reimbursement of the bank and we also need to remember that almost there on many occasions refused the tenders that the bank made all night had many many instances where they could have come in one last point the redfern case the council cited although it is in indemnity contract case the contract does not mention attorneys fees at all or worse attorneys fees aren't in that contract so it's an entirely different