second case for the day a t m alliance nutrition versus s g a farm la please the court we're here on a case that was dismissed on a twelve b six motion judgment on the pleadings on the basis of attachments to the complaint a product development agreement and a settlement agreement and terminations agreement in the construction of all of those by the court on the initial police a d m alliance and the defendants entered an agreement where they would develop a product the product was and i don't mean and we've read the briefs so we know the history of the mr stock so i guess my question is what what was the harm in converting the motion to dismiss to a motion for judgment on the pleadings the complaint discusses the terminations agreement and the agreement was the source of the affirmative defense a release is there anything else you would have argued if you had received notice that the motion was going to be converted and we would have because we submit there are facts that are being determined when you examine or scrutinize a release you not only look at the language in the four corners with there needs to be a full understanding of the circumstances under which a release contract is determined by the release as it applies to claims whether known or unknown specifically spelling that out however illinois law first says that a general on claims the preceding paragraph section five of that release agreement section four that purports to terminate the agreement says except as to matters that are intended to survive or continue a following determination of the agreement another illinois policy we submit that's invited here is that the construction of that release an unknown cla agreement this was fraud in the performance of the first agreement as to a term that is intended to survive will continue even pursuant to the terms of the sudden agreement that the representations that are listed out they don't seem very similar to the representation of potency and it has to do with the tax liabilities and keeping information confidential the the clause has  items which by their nature are intended to survive and assess including but not limited to and it sets a series of provisions of the p t a or the product development agree with the product development agreement provisions that they attach also speaks to any warranties that are under the p t a and a certificate of analysis is a sworn statement telling a t m essentially its product description the most central and basic of what would be warranted when you secure something under this agreement so that where the fraud a curves is not on anything tangential it is to the very core in the center point of this agreement in the p t a the defendants are paid a commission in fact their earnings are based upon the potency of this feat added that their procuring to inject into the animal feeds into the overall product and that is where the fraud where the potency in those certificates of analysis was inflated so under him in connection with the performance of the first agreement there was fraud that yielded additional commission when we are asked to enter an agreement that would terminate that agreement that still had approximately five or six years left in its initial term  are additionally paying the defendants seven hundred fifty thousand dollars to extinguish an option they had to purchase the product that had been developed or an interest in the product to be developed so we are unaware i mean after all why would we enter a settlement agreement to terminate something that had we known of the breach already we would have terminated on the basis of breach and then certainly turn around and pay them seven hundred fifty thousand extra dollars to buy out something they would have four footed by virtue of their breach of the initial agreement so a t m a has no knowledge that they even have a  the defendant did so in the we submit that illinois law would apply and say as a general proposition to begin our analysis an unknown claim is not released by general release each other with no further litigation what language would it take it would take certainly it would take that language known and unknown but it would have to be free from  a fraud that is the base so there's you know language no language then in which parties can say we're giving up claims we might have as to unknown briefly i understood your argument in the district court primarily to be this point about ainsworth and fraud claims being on releasable i didn't see in your district court arguments the arguments you're making here about the continuing obligations under the bill was a paragraph four of the terminations agreement that talks about the provisions their very terms of quitting but not limited to several paragraphs are intended straw i didn't see that and i miss them yes we would be as you get to page out of it just as a specific reference for a night of our response to the twelve the six motion which is what we believe you were responding to at the time when we're discussing that the certificates of analysis were of a continuing surviving character exhibits that we're told on one hand of planets out of core but are being selectively read to do that and to determine the intent of the parties when they are entering a settlement agreement for that matter any agreement you release that may or may not be relevant but then says that we didn't raise anything about our position was perhaps were hovering above the issue higher than that to say it was a continuing surviving obligation that was not intended to be released in the first instance and that it is continuing obligation is on those portions of the first contract oh ready executed where they had made the sworn certification of product description that that survived and count one of our complaint simply attaches that is that this surviving obligation was breached that's the count one damages on breach of contract on count two and three where we get into the fraud which we submit also would invalidate because the fraud was used to secure an extra seven hundred fifty thousand dollars and that this does actually inviting is worth we're here in schrader on the one side pains worse on the other side that the two cases that are in conflict and determine which is most active in schrager there was not a first contract we are not dealing with a scenario where you have the parties in a written undertaking a written contract with obligations that have been breached that's not happening in schrager what you have is litigation and a decision to settle  and the representations are what induced the second agreement here we have fraud in the performance of the first which we submit is aynesworth fraud in the performance of the first so i want to get back to the section ten three of the purchase agreement and it says that there are certain warranties and representations that can survive termination of the agreement unless there waive the released right of what warranties a representation is in the purchase and bring that are you relying on to support your claim that they are  well first section two point two which is the certificate of analysis and that is a sworn certification which is the alleged fraud that this product had the potency upon which the past commissions have been paid and that you know that is where it begins those warranties and promises are incorporated in a subsequent section of the our product that we are procuring through mr you and through the defendants is is this additive in the certificate of analysis is central to it and it  sworn certificate we require and that's where the fraud occurred in the performance of the first agreement we never enter as we allege in our complaint we never entered the second agreement if we ever knew about the first fraud submit that the policy manifest in aynesworth is not overcome by the policies and schrager because we are enabling a defendant that knows he's fraud to simply secure a second agreement and protect himself from his breaches of the first agreement and aynesworth states the policy clearly that i would submit illinois law you know all force i'm a seen the supreme court rule on that would not accept that on it schrager even schrager has only extended non reliance clauses in the cases it cites to oral extrinsic representations this is not extremes they get all this is actually incorporated in adopted through the settlement agreement the terms of the p t a and it is not or is written that although this non reliance clause is not modifying representations with world no the non reliance cause it isn't but it also has qualifying language after it except as otherwise provided in this agreement so we have section nine section five and section four when you read them all together we have warranties that exist under the p t a p t a that are excepted from we submit non reliance or release but even if they are not when we get to the final stage of analysis they the defendants are asking that the rule in illinois that we say  th as a stablished and the cases they discuss and schrager in the cases it discusses has never extended the enforceability of a non reliance clause beyond oral extrinsic representations and here we have intrinsic written the four corners of what was required by the parties is in the two documents and this is an expansion of the ruling below is an expansion of what was the language used here but none r purdy's so you're saying that that implicitly is limited to oral statements illinois law will specially in the presence of fraud this is the battle of a non reliance clause to a fraud now a non reliance clause as to something that is not fraudulent and which we are not doing with fraudulent allegations we might have a different outcome i haven't reviewed that i have never seen a case unless you interpret schrager broadly where they have extended a non reliance clause to an oral or to excuse or to a written component of the document that is intrinsic to the deal so you've got about one minute left so do you want to say for your rebuttal all right thank really be summed up in this and that is that a t m a sophisticated business entity is in the position that it's in today because of its own choices a t m chose to relinquish its right to bring any and all claims arising out of the purchas between sta and a t m embodied in the purchase and development agreement so wanted to speak to mr stocks argument that one of the warranties of representation is in the purchase agreement at least implied was that the certificate of analysis that was struck there was an obligation that your client provided that it would be accurate and well that then exempt from the broad language known or unknown your a t m has raised this argument that section ten point three which doesn't mention the word certificate of analysis or poking right is not in there it's not in there their argument seems to be that section two point t which is not an exception to the terminations provision somehow funnels into section five point six dealing with warranties which is also not included in the terminations provision and that those two together somehow combine into ten point three and survive the termination provision governs the certificates of analysis and i would also point out that section two point two only requires that the certificate analysis be signed and sent with the product the potency isn't mentioned there so simply put i don't think that  the certificates of analysis are a warranty or representation even the purchase envelopment agreement so there are three key provisions in the terminations settlement agreement  that support the district court's dismissal of a t m s complaint the first is the release which has already been discussed a t m relinquished a broad range of planes known and unknown and i think it's worth noting that in the terminations settlement agreement there actually were sipek role release provision so that broad language applied to a t m but it also applied to my clients so that they couldn't bring claims against a t m so let me ask you this how exactly is the terminating agreement statement that no representations or commitments were made by the parties to induce each other to enter into this agreement a release of a fraud claim that a rolls before the terminations agreement was signed while it might release any claim that there was of the terminations agreement how exactly does that language preclude of fraud claim based on the earlier action i'm sorry how does the release how does that you know how does that language preclude a fraud claim based on the earlier action because it releases known and unknown claims and although it was unknown to a t m at the time i believe that covers that i would also argue that the non reliance clause covers prior representation so a d m is essentially saying we're waiving any claims that we have against s t a and we're not relying on anything as two years down the past so i think the combination of those provisions waives their right to bring a  the terminations settlement agreement but the non reliance provision in section nine cuts off the legal effect of these prior representations schrager actually analyze the aynesworth decision and held that representation is for not  continuing character when there's a non reliance laws and i know counsel mentioned that aynesworth involve two contracts and trigger only one i would say that the trigger triggers polling is not pending on the fact that there was only one contract there and two in prior agreement essentially the non reliance clause negates the justifiable reliance element that's required for common law fraud claims a t m is also argued that the schrader schrager decision was limited documents there's also no such language in the opinion that limits the holding of schrager to only oral representation and again i think the rationale for barring fraud claims is the same for both britain and oral representations and that is a party should not agree that they do not rely on outside representations and then bring a lawsuit alleging that the only reason they entered into the agreement is because of outside representations and we've already talked about the the terminations section of the purchase and again i think if two point two or five point six had been intended to survive the terminations of the first agreement they would have been included in that list of exceptions  i'll just briefly mention here some of the sort of minor issues in this case and then answer questions a t m s also challenge the district courts awarded attorney's fees in this case they haven't raised any and legal authority for vacating the award and there their primary argument seems to be tax s t a and shine you should not have been the prevailing parties in the lower court i would just ask that assuming my clients remain the prevailing parties one being the conversion of the twelve b six motion to a twelve c motion the other being the granting of leave to defendants to file a reply a reply brief again that that's evaluated under an abuse of discretion standard i don't think that there's been any real arguments that the district court abused its discretion in granting those and so i would conclude my remarks then and just ask that you would affirm the district court's dismiss schrager opinion sidestepped the fraud question the conflict we face in this case is fraud versus the non reliance cause at page paragraph thirty three of the schrader opinion they did not address the fraud question because the defendants in that case had made a payment to the plaintiff and they said therefore there is no evidence of that this would be injurious to the core system of our justice and the record doesn't support because of that they here we were paying them money in the second agreement schrager also every case analyzed  section five point one five point six of our p t a also says that the obligations are warrants issued a warrant to that the product shall strictly conform to the terms conditions specifications and