defendant that rely on an interest into an investment agreement relating to pharmaceutical research but the district court on the basis of several rulings of law declined to allow any remedy whatsoever to contract section three point three b which deals precisely with the circumstance of abbott's failure found by the court to span the aggregate spending target within the program period that means the itself of the remedy in three point three eight in we were to ensure that the spending ratio of abbott remained at sixty five percent thirty five percent i would ask this court to look him to spend half as much as abbott close quote and expressly rejected abbots to one ratio so the imply condition that would lock suggested was necessary here was rejected by the school or in an earlier decision even though because it is a separate case a separate provision it isn't binding has lost the case it is certainly instructive it is the position of hancock that there is nothing in this contract or  noted that suggests that there was an intent to have a two one spending ratio implied into the entire contract there is such a condition in section three point four the next group vision the one  three b in the circumstances of this case and three point three can be says that it does not spend the aggregate carry over amount is an understanding provision or because during the period of the ninety nine point one million the thirty percent is roughly thirty three million dollars and that amount on the face of the contract is due to hank let me turn to judge sylvia's question it is the case that judge would lock alternative performance provision or as a liquidated damages clause this is a case where the acknowledged victim if you will is hancock there were three material misrepresentation made as to three of the nine compounds and judge would walk found that anyone would likely have resulted in hancock not entering into the contract and paying the first one hundred  dollars which he did pay before it was expressly excused from paying the remaining two payments so this is a circumstance where the parties have agreed that you have abit which controlled all of the to spend the redeploy on alternative performance crap that was not that it was going to have to spend the ninety nine million dollars that was still contractually obligated to spend but rather that it could elect not to spend the balance which is what it did not to spend the entire year so called aggregate spending target of six hundred fourteen million with the same result chain if the  misrepresentation patients had been discovered before any money once advanced by cop you wonder if it had become apparent that there were that the misrepresentations had occurred and hancock had chosen at that point to exercise its right not to make the program payments the answer is yes and then i understand this is what judge would love to argue just well but that wouldn't be fair because he would have put no money in and would have realized a windfall but if we're going to talk about what is fair we should be looking at the actual facts of this case in which the innocent victim paid him more than one hundred million dollars looks then the contract provision that would allow it to recover recoup at least in part and we end up if the thirty three million is what is the contract clearly requires under its face hancock still at the end of the day has a net fifty six million dollars loss so we're going to talk about should we look at a hypothetical scenario in which hancock may realize a windfall and use that fear then we have to look at the fairness of what actually happened which i would suggest should wait materially more heavily than a hypothetical scenario and what we would then find is that hancock still ends up with a net loss of fifty six million dollars we were looking at a situation this is a situation with an even powers of the parties or abilities and we even imagine the scenario of how many workers along may have been involved over a year's worth of negotiations but you  highly sophisticated parties and while i recognize that judge would like found that the misrepresentations were not intentional he also found that the person for most of those misrepresentations esther drug eighty circumstance where the court has already found it's going to be very difficult to prove  some under the formula it in alternatively this is why i was explaining why we would not have spent the time on the issue that your honor is striking about because our primary position is it's an alternative damage performance  benefits and now we have it wants to escape it because otherwise it would be required to put in the additional lady going billion dollars this gives it a way out by only paying thirty three and then walking away but with regard to liquidated damages illinois is extremely clear that the more difficult it is to prove damages indeed one of the cases we cite speaks in terms of you just can't i'm sorry i said well he didn't prove damages but respected judge woodlot also said that the damages in this case be very difficult if not impossible to prove yes he did say he could see an avenue to prove what he actually says and we quote that morning in our grief that it would be case hancock three rescission was not made for expressly as a remedy but it was noted twice that hank was attempting to get the necessary evidence to make allegations for what is a significant and extraordinary remedy rescission is not given lightly to us the most important issue here is what judge woodlot found upon the audit breach the purpose of the audit was to try to figure out how extensive and serious the conduct had been in the misrepresentations the judge went on to find they were unintentional which would not preclude rescission but he was attempting to determine if they were intentional the judge finds covering that s misrepresentations were intentional eventually it went ahead and moved anyway for the  which is what we were trying to do thank you very quickly first with regard to the liquidated damages issue under illinois law we cite the case l h l l c a liquidated damages provision is perfectly enforceable if there is a value to performance provision and that is precisely what is asserted here and it was required to spend another ninety nine million instead of doing that it won its way out with thirty three million even though it was the party in the wrong in misrepresenting facts to do so to interrupt this agreement the provision is proportional the less apt it spins the more hancock recoups he doesn't have the choice of paying less each payments are specified it can only be of when those payments if it is excused performance by prior breach by abbott and that's what occurred so he does not spend less of it that controls that issue and the less avid spends more hancock recoups that's appropriate to the innocent party be the one left without a rarity turning quickly to the precision issue we respectfully suggest to the work that people want it findings in judge would locks report our decision are very different from what was just stated here he actually states that it wasn't even possible to perform a compliant audit at every step of the way his cock made it clear that