silent on that your honor but it's not uncommon for small companies to not understand that a investigate of water that says we're investigating possible violations that may have occurred doesn't constitute a claim they went out and hired a lawyer well because they needed a lawyer to defend the action but that doesn't mean that they understood what they were in terms of policy set certainly if they did understand that they would have  that carry around notice but so it's there are lots of cases in which very similar circumstances many of them are cited in my great by my brief way theone case that this court decided something like that happened the all america accompanied the subpoenas says this is not any indication that the f c c is alleging any wrongdoing or as a reflection on any person so i can understand why claim i think it is constitutes a claim under the access policy in order for access to deny coverage for the two thousand and twelve lawsuit there has to be a claim by construing that two thousand of an order from the f c c to be something that doesn't trigger any obligations by the insurer i realize how it doesn't help you yes if we take that because of the timing but in general wouldn't the principle so there's no requirement that either they or the label saying i am wrong the lack you get the breadth of protection one that additional investigative order comes down you don't know exactly what the wrongful act a lawyer in response to getting the investigative order and the border had said hey first thing you should do is check with your insurance carrier and they did that and they had coverage at the time on a policy just like this you would be making exactly the opposite arguments here today about how to interpret that policy because that would provide your client with the full breadth of protection that claims made policy would which is to continue to cover later things that that in retrospect are based on the same wrongful act only if they are based on the same sure before act but we don't you would be arguing that there has to be a label coming with the investigative order and only if there's an company making exactly the opposite argument but i think our point is that if there's any ambiguity here interpreted how these causes work the law tells us to resolve the ambiguity moralists against the insurance company cuts against it because if we construe it in favor of the sure that means we're going to have to construe that type of thing the f c c sent in two thousand and eleven and that type of thing that fits within the language under the policy because insurers in general would want it to and that would hurt you here because you are legal argument is don't worry about what happened in two thousand and eleven none it has to do with me well you have to take ambiguity in the context of the particular case and this is what he says that that's what i think that's exactly that issue i don't know that there's any case suggesting that depending on the timing of when the insured is seeking coverage or do you defend that determines how we're going to read the policy as opposed to a general principle that we read policies in a manner that would favor which was alleged prior to the policy in this case prior to repast say there is an assay see investigated water which says we are investigating possible violations that may common nexus any fact connected with the prior claim that's correct doesn't it don't we now know that the suit in fact arose directly out of the investigation no you don't you don't know that when you're comparing with the right now in day don't we know that but this is a duty to defend the case and the duty to defend gets to side then at the outset of the case by comparing the two thousand and documents that the company by a letter that says we are not we the f c c are not alleging that anybody did anything wrong or that this is an indication as a reflection on any person i think a l the answer is that that's an analysis under the product or policy and we are the two thousand and twelve case comes during the access policy so you look at the access policy you say that and you had sought to get your current insurance carrier to defend you could you have i think we would of if if i'd been representing them we would have tendered this to them don't have the lord the god i'm asking if the two thousand and eleven order had actually been filed in two thousand and twelve when she was that access you need to defend me with respect to everything i then in order for x just to say it's not covered because of conduct that occurred pretty power say you go to the interrelated wrongful acts exclusion exclusionary language they allegations that took place pretty powerless say and the allegations that are in the two thousand and twelve complying that we're asking them to defend and as we brought you there are allegations in the two thousand and eleven complaint because it's not a complaint it simply says we are investigating possible violations that may have occurred and we're not accusing anybody of any wrongdoing and then the case similar or they may have a reason out of the same conduct you alcoa have to look at the specific allegations that are alleged and the words are the first circuit there has to be substantial overlap between the two believe the brown's decision in judge she hugs decision in brown versus a i g there has to be substantial overlap between the allegations and the two proceedings and when you have a proceeding that doesn't allege any wrong margolies i'm here for access screen surance company into court has it exactly right the cases that are being relied on by biochemical sadnesses to establish coverage are a line of cases that say when an insured and it was first made during our policy period we did not come on the list with this insured until nov thirteenth two thousand and eleven so the focus of our case is this was a claim first made prior to november previously banned from serving as a director or officer of a company selling securities john genesis has previously paid penalties in connection with a violation in a case called the basil act of pharmaceuticals the company the f c c has information that tends to show that from january not january of two thousand and nine and going forward biochemicals and its directors and officers and including john and they named him mrs by name in the first paragraph of the order has been engaging in scheme to are that this is to defraud its shareholders on three basic types of cars and that one is misrepresenting the valuation of biochemicals two is misrepresenting the business prospects during the policy period there are a whole lot of cases we cite that talk about if the plain language of the policy talks about coverage for an investigation or coverage for a subpoena as our policy does pacifically address those wrongful act right in the death is so there are a number of different words talking about being right so allegations in this sort of were before the court below on the route analysis favor in the instance where there's there's some sort of document that foster a definition claim and there's no wrongful acts anywhere that we can even point to i'm not sure axis would agree coverage you're saying in the third definition of our proceeding commenced by subpoena where it has been identified that an individual or an entity is individual or entity against whom a more formal proceeding may be brought so in order to grant this investigative coverage and in order to grant the subpoena coverage the court sees that and the other cases that have this type of language the court says the claim is for the wrong case gets resolved against the insurance company however it just benefits the insured in that case you we're in the case for addresses which of those two inter approaches is correct i think what the case try instructs the court to do is it says you can't accept a proposition by an insured that is asking this court to take in crysis inconsistent readings of the same passive language what this in short is saying is we didn't have coverage under our understanding of what x l provided so we got this new coverage from access and we're asking for coverage we believe it's covered under that but we don't want access to  intruded back because her no wrongful acts so they're relying on the line of cases that say investigations are no wrongful have no wrongful acts to state the proposition that they deserve a loss under our policy because their claim  and you're applying the facts that represented on the record to this court and i would also add this is one singular claim from the beginning of the time as he conducted the investigation all the way to the enforcement order it's one time one of the events it goes well within the precedent to say this is a crime first made prior to our policy based on an investigation and it's the s e c all the way through it's mrs malcolm x it's the same shareholders all the way through it's not like the cases they're pointing to  there's this claim i like all america there's a claim five years earlier by a single claimant and then later there's a class action and the court says those are interrelated they're two temporally different there's different people suing and so forth so these are clearly your policy had been in effect in two thousand and eleven they'd be covered for everything under that of i believe that is the case and i also believe is we tried to take the position they're taking and said ok there's a new retention every time you receive a subpoena ok there's a new limit definition of claim triggers the duty to defend or is your argument that this border because of the particular content of this order satisfies the obligation to have a gun because it a definition of crime that includes investigative order but you don't have an investment or that simply blank about what's at stake or what's happening here you have no vested or that sets forth what the conduct is it to being investigated and the whole concept of providing investigative coverage gives rise to the idea that a wrong track to be something that's contemplated as against insurance and there are a number of cases that hold that same thing and i believe that that's the case in this and this policy and this are nice facts before the court of the argument itself what is your response to that since that wars there are no allegations of wrongdoing how does it fit with the cause with causing you know word for it to be a claim that would trigger to do t you really only in that one lens then there's no investigative coverage at all the definition of quaint contemplates that an investigation can be this is what we suspect you are doing and are investigating  the two thousand and twelve policy so for access to deny coverage it has to show that it's an interim waited wrongful act and to do that it has to go through the kind of analysis that the court went through when all america and asked asked specific questions who was making the misrepresentations were they to the same people were they about the same products none of that can be done here because