entered into a settlement agreement that settlement agreement was entered into in september of two thousand and six and has now been the subject of four appeals action for reformation a state court and we're back arguing on basically the same type of issue that we started in two thousand and six when this case was settled in two thousand and six exxon's position was we're going to pay what we correctly oh whatever that number may be and that's the gist of the settlement and that's been their position certainly for the last ten years at that point in time the parties agreed to the principle damages they agreed to the accrual dates for those damages and they agreed to who would be paid those damages down to the penny the parties agreement parties however did not agree to the rate of interest and they'd agree decided to submit that issue very narrow issue the parties thought at that point in time to judge holland for determination so that the correct now amount could be computed pending judge holland's determination of the correct amount exxon paid eight point five million dollars effectively towards a settlement that that point in time their liability as we now know wasn't eleven point five million dollars it was about eleven point seven million of them point six million so what happened at the time a settlement instead of paying the full amount of money that they actually owed arising from the oil scale spill and pain the correct amount they underpaid nautilus marine by three point one five million dollars now that number represents the additional interest of what they owed based on their argument first what the court ultimately decided that was the genesis of the settlement and under the settlement paragraph three point one says we're going to submit  correct rate of interest to judge hall and he's going to do the math he will decide if additional money is owing after the settlement seahawk decision case came down and it was determined that the determination of interest was going to be governed by state law which that which applicable to this case at this point in time was ten point five percent simple interest there was then a dispute arising under the terms of the agreement because under the agreement there is an incorporated judgment form which says it's compound it so that was incorporated as a term of the settlement agreement in the became an issue of whether or not that was a contractual document long story short just ten rules are going to reformation lawsuit in state court that it wasn't a contractual document and judge holland is free to do what he wants with it he can change some of the terms well we're now back trying to figure out how much interest is owing the new issue though isn't what was owed as of september two thousand and six which again was eleven point eight million dollars actually that's not correct john nautilus was owed six point seven million dollars they were short paid by three point one the settlement however included a partial settlement with c i piece of those numbers on the original settlement were grouped together however the actual damages for the parties were specifically itemized down to the penny both in the underlying letter agreement as well as in the context of the settlement agreement itself so each party see ip they are entitled to their share and all this marine is entitled to its share of what's happened since two thousand and six is that on the prior appeal to the ninth circuit judge fall into word of interest which was compound it was reversed so the original judgment is fake eight and i'm going to put a quotation mark around vacation because the original appeal was on a very limited issue if we look at the judgment itself there's five issues relating to multiple things only one of are it which resulted to how much additional interest w appeal was limited to that very narrow issue that's it the rest of the judgment wasn't touched wasn't appealed and pursuant to the terms of the settlement agreement those other issues were not even appear  appealable under section four of the contract court the ninth circuit court of appeals decision just says reversed judge paul and vacated the judgment now when we get back ten years later to judge holland saying ok there is an additional interest three million one hundred fifty thousand dollars there's now a gap issue of ten years with no interest being paid so our position that interest is due and payable to the appellants under two different alternative theories that all but both of which come under the basic concept of what is it just what is correct what was intended and the answer to that dissent keiser caution problem the supreme court it doesn't you know her because if you look at as a general proposition alaska law well i mean yes it's sort of like ok have something for a first for a way don't think it's a minor issue as opposed to a major issue then it doesn't matter no it doesn't matter in the context it into a what really happened was every minute or so it sent back down to recalculate what the correct amount of interest being owed is with the rest of the judgment sticking so to the extent there is a judgment that's now entered asked once of the final determination as to the amount owed the interest that's owed on that should relate back to the original judgment of july actually under the contract is not the judgment it's the award judge holmes award was on july thirteenth two thousand and seven under paragraph three point three of the contract propre post judgment that's the label they used interest on the award  accrues from the date of the award not the actual judgment in originally there is a about a week delay before they enter the judgment but in theory under the contract it relates to the award so kaiser doesn't under mine the part contractual obligations nor even the subsidy to what happened here is a remit or to or to correct the amount as opposed to a change in the liability so if we look under the paragraph three point three contract liability would continue in that ditch the interest rate which would ply under that particular paragraph to the un is going to be the federal interest rate in effect as of the date of that decision july  unwavering policy case is talking about word it's not talking about were damages have been paid here all the damages were paid this whole thing has been about the interest right but let me make a distinction under alaska law pre judgment interest is an economic damage in and of itself so to determine the correct amount owed we would say we take the lost income the extraordinary costs the lost profit and the pre judgment interest add those up for a total amount of damages that were owed at the time of the settlement with respect to the altering was three point one five million dollars more than what was actually paid i have to ask a question that i little unusual it ok so they're claiming that exxon is claiming that it wasn't the best evidence and therefore the declaration should be thrown out and therefore that there's not any evidence so they're not a lot of cases this far as i can tell that are reversed based on the past evidence rule and there's no you know i don't know what how do we if let's say it wasn't the best evidence i don't know whether it was or it wasn't but did they have to show prejudice or what i think because to go back a step and question is what evidence was introduced in this particular i'm talking about your deck i understand that's roger but step one is excellent has not introduced predicated on a distribution provision in the contract as opposed to specific provisions down to the penny computing the damages in the underlying letter cock about things that aren't in the record and so that's where they're i think claiming that the best evidence isn't before the court that you talk about certain agreements or document served things along those lines i don't know whether they exist or not i don't know whether what you said is true so it is two things opinion and best evidence and i'm the one hand and all the opinion and all the best evidence had to do with circumstances which preceded the settlement agreement and the settlement agreement said very clearly five million to you three and a half to see ip and that was the basis of exxon saying and the uterus should be figure the same way by point one is a distribution instruction for money to the attorneys trust accounts for further distribution paragraph five point two also says that exxon has no responsibility for the distributions or the allocation of the responsibility of pay me they have been there and they receive instruction how to write the checks but write in the instruction to write the checks is not the same thing as their liability what happened in between then you settle the c i p so its own position is that the total supplemental interest to ward should be but here's the proof what's wrong with an argument what's wrong with that argument is is that if there was an allocation distribution which was in effect regarding the supplemental proceeding while there is no evidence of that they didn't submit any by anybody ok none second even if that is true then if that agreement is in effect we still get to share in the monies paid by exxon to see i peek but they didn't pay me nautilus they took the money and gave it to see i in if there's a sharing agreement here and give it the c i pete and now they want to give not novelis who share the c i pete as well so if they want to have their cake and eat it too if there is a sharing agreement then we would be entitled to a share of the monies that p also collected because that's what the sharing and the there was a sharing that didn't happen exxon didn't pay us they won't even disclose what was paid or any information or the agreement unless there's a further question i would reserve the balance of my time well just before he said down in the just so i understand your affidavit said there were no documents basically is that right there are no documents didn't produce it because we had no interest in it that was their argument at the time and we've never seen it there is no sharing agreement that applies to the supplemental there are no documents there so there is no best evidence there is no don't just listen to this get remanded and they put you under oath you under the letter agreement there it specifically says that exxon's going to pay c i p one number and which is its damage just out of the penny and that letter agreement then says exelon is to quote pay uses those words precisely because i think paragraph five is still at most it can only be construed as an distribution or an allocation provision instruction please pay so and so please up pay make this how you distribute a check and paragraph five point two five point judgment interest in allocation all damages all of the compensatory damages were fully paid in two thousand and six and the undisputed amount of pre judgment interest was also paid in two thousand so in two thousand and six not a us marine received five million dollars is been litigated since then is whether and what amount of additional pre judgment interest that nautilus marine might be owed and at the time it wasn't clear that they would be owed any additional prejudgment interest there had been delays and those delays were acknowledged in the in the settlement agreement and they were provided for by the parties in the settlement agreement so i'm going to walk through the three issues and point to the contractual provisions that govern each so first pre judgment interest the district court's decision that prejudgment interest up to crean on november one two thousand and six should be affirmed that's clearly explicitly provided for in the settlement agreement at paragraph three point one that's excerpt of record six sixty eight and i'll just quote it quote the period for noted there's nothing in the us about that provision it clearly cuts off pre judgment interest as of november one two thousand and six and the reason for that is because all of the principal damages have been paid by that date that is what the parties contracted for it was acknowledged by the parties pointing to the letter agreement but they fail to acknowledge that the letter agreement has the same exact language in it that cuts off pre judgment interest again quote through november one two thousand and six or the date the court enters judgment whichever is earlier and that's  thousand and six and compromised its rights to prejudgment interest and there were express acknowledgements in the in the settlement agreement that there might be delays so for example the settlement funding date as to the supplemental settlement amount is defined in section two point twelve point three as this is a quote ten days following the date that all proceedings in the ninth circuit or any other appellate court with respect to the final judgment have been finally concluded unresolved because these appeals are continuing and there's not been a judgement that's now final following all of those appeals section three point one makes clear that the the additional amount should be paid quote when the district court has rendered its decision on the correct rate of pre judgement interest in such decision is final on appeal that exact language also appeals that appears in the letter agreement so the letter agreement side is excerpt of record five five four paragraph three and the settlement agreement side is an excerpt of record six sixty eight paragraph three point one and then finally you know exxon isn't even required to make this up a supplemental settlement payment after the settlement funding date until it receives payment instructions from c i p r nautilus marine so the parties clearly anticipated that there could be delays in the payments of these amounts so bets as to prejudgment interest post judgment interest  again the district courts award of poster human interest from the feb two thousand and seventeen judgment should be affirmed the settlement agreement provides post judgment interest from any award this is the language in full from section three point three post that judgment has to be supported by the evidence the damages have to have been ascertained and in this case the two thousand and seven judgment was based soley on the terms of the settlement agreement itself it was reversed by the ninth circuit on the grounds that the court had to consider the district had to consider its extensive evidence so here's the quote from that decision we conclude that the district court erred in failing to consider extrinsic evidence regarding whether the parties agreed to compound interest but what happened after that is that the case then went to state court there was a three bench trial where evidence was heard extrinsic evidence about whether there was an agreement to compound interest or not the it's about extremes of evidence that forms the basis of the tw seventeen judgement and indeed the twenty seven thousand judgement reaches the exact opposite conclusion of the two thousand judged two thousand and seven judgement in two thousand and seventeen the court found there was no agreement to pay compound interest and so compound interest isn't what's calculated out of the twenty seven judgement so under keyser the only judgement that properly ascertains the damages in this case is the twenty seven thousand judgment not the two thousand and seven judgment finally moving to the third issue so there was a question under so the settlement agreement clearly did not anticipate that one party might settle out because it requires identical payment instruction signed by both nautilus marine and sea ip that can't happen now because the  ten so the question is evidence in the record of the assignment that settlement agreement well i don't know that it's an issue of an assignment and that's not what mr white declaration went to no no but that's part of your contention it's based on the purported settle right well it's just based on the settlement the fact that c ip no longer has a claim that's been litigated because they settled in two thousand and ten and there i don't know that it's in this excerpt of record but certainly i don't think so when the case went to trial in two thousand and ten before the state court c a p had settled out at that point and the that there are there and they've not disputed that there's not going to be joint written instructions in terms of how to disperse the supplemental settlement amount you know what i'm getting at is you're making a best evidence objection based on a lot of evidence on your part no well i actually was a pretty good evidence case no argument is that the court has to decide what the allocation of that supplemental settlement amount is they haven't dispute that there needs to be an allocation that's not been in dispute by novelist marine what they say and our position was it should be based on the initial set the instructions that were given for the initial settlement amount in two thousand and six because those are the only written instructions we've ever received what mr weigel declaration does is it says in an attempt to get around that and say those initial settlement instructions judge holland are relevant what he said was that those initial payment instructions were based on other business relationships and i'm quoting quote other business relations loans joint fish processing agreements in a joint prosecution agreement which included sharing the initial settlement proceeds and that the joint prosecution agreement in sharing obligations were terminated shortly after the settlement and judge holland took it in his decision and said quote in light of this evidence it would not be reasonable to allocate the supplemental settlement amount based on how the initial settlement amount was allocated so did you have an opportunity present contrary declarations and evidence but we don't have any and any information about the joint prosecution agreements or they're sharing agreements or why in two thousand and six they chose to allocate the payment differently than the underlying damages the settlement agreement clearly could have could have said the payment of the initial settlement settlement amount or the supplemental settlement amount should be in accordance with the damages because as mr michael points out those damages are listed in the agreement to the point where you really prejudiced and why this why are you asking to reverse this you know like let's go another ten years well we're actually hoping to not going under ten years and what i was going to ask is the practical result you end up with a  with the only written instructions that have ever been received but if they say no we need to take external evidence then we're back to the priory mandan we have a full evidence you're hearing about that well that you have no basis you say to which  bit entry objections for some other points on which we raced best evidence they actually submitted the underlying evidence in this case they chose not to and those that response is that excerpt of record two six eight so they specifically chose not to submit whatever underlying written agreements or cancellation of those agreements exist so our position is that's done and the decision should be made on the record that's now before the court and this court is in just as good a position as the district court to look at the agreement itself in determine whether the allocation should be made on the written based on the written the prior written instructions which we believe is the correct determination of the cases says will determine when we reverse on the best evidence rule that the other side automatically objection then evidence of mr why google's crew should not have been considered and the only other evidence as to allocation is in the settlement agreement five versus three point five that's exactly right so our position is could find that our position is that it should be allocated based on the program instructions but either way it can be done on the basis of the settlement agreement i understand ok and ours are there so my time with quick i'll give you two will give you ten minutes oh thank you i don't need that the fundamental issue on the evidence is there was none submitted by exxon there is no sharing agreement they take their but you well why the exploration is why there is no sharing agreement that applies to this that i am aware of i'm the one who's been involved in all of this litigation i'm the one who was there with judge hand when we get them going off the rec this meetings in camera regarding their secret confidential settlement agreement which we never get ok why do they pay c f p and not us because there is no sharing agreement that's what happened i was there i do have personal knowledge of that i can't come forward with a sharing agreement on the cellphone agreement i've never seen or heard of in either of my client x one did not come in and say here's a copy of the sharing of it we settled with c i p and oh by the way they've assigned to something but wait a minute there is no assignment there is no declaration from exxon there's no declaration from michael shoop there is no dick or uk declaration from c i p saying there is an assignment or agreement or that knowledge marine over this any money none of that stuff was ever placed an issue had that been placed an issue in hindsight we've probably been would have been more elaborate in our presentation other than a short nail declaration for me we don't aren't aware of that i think the argument of the allocation is a complete red herring because even judged tan's as he found the letter agreement was really the settlement and underlined even that we correctly owe and what is that that is the damages specified in the letter agreement down to specifically and it's also a reference specifically in the settlement agreement itself down to the penny would what is owed to both parties if we want to have an alternative allocation fraud all the evidence then we shouldn't force a settlement agreement strictly as written there is no adjustment from the total amount out and because what that contract says is that exxon owes seafood processors ok which is now left is but left standing is novelist and here's the formula to compute it now if we do that the additional money owed isn't going to be three point one five million it's going to be five million because that in fact also encompasses c i p's we adjusted for that in our presentation our request to judge hall and i think that is the correct and result but if we took a strict interpretation of the contract exxon needs to write a check for all of the money not just a portion of it but for all of it and then if they want to come in and say we have another claim by the same and somehow let him come forward and do that they haven't seventeen as a contractual issue it's not it's not a contractual issue the settlement agreement is not the best drafted in the world there are provisions which were not clear method of all of the court's methodology in this type of situation basically involves three questions question one is there agreement that interest that is an agreement that there is no interest no that has to be an express agreement in the context of that question the answer is no there is nothing in this agreement that says there is no interest or rather what happened in this agreement is it included interest through november one which is a the cross appeal just very quickly so to be very clear what mr weigel has said repeatedly is that there is no evidence of a sharing agreement related to the supplemental settlement amount he's not disputing that there were written agreements that govern the just that the sharing of the initial settlement amount and exxon's argument to judge holland was that at this point because those are the only written instructions that have ever been in can be given that that's what should govern judge hollande will live on mr declaration that those agreements have since been terminated in making his decision and i'm not taking the position that if he had not considered that that evidence that i think what he would have then done because there was no other extrinsic evidence submitted is just look at the settlement agreement compare the different provisions and decided whether it should be allocated based on the prior written instructions or based on the damages and that's what we're asking this court to do but mr weigel the nautilus marine has never disputed that they may have argued before that they should get a ip but they've never disputed that c i p settled out of the case with exxon in two thousand and ten we had an entire trial before the state court in fact i think it's in the findings of facts and conclusions of law that see ip had settled out we had a three day bench trial without  i p as a party to it because the result of the contest happened it's objection no our best evidence objection is solely limited to the fact that they're relying on the existence of sharing agreements in a joint prosecution agreement from two thousand and six that they claim have been terminated inevitably the calculation he founded in part on the settlement agreement which was not produced on a mayor and not be relevant but it wasn't produced yourself you were that's right i mean it was not produced there were no there was no factual or that's right yes but we think that the dispute is whether or not under the contract in light of c a p now being an absent party how should that the additional money that's to be paid be allocated pursuant to the prior written instructions or pursuant to the damages i mean just so we're clear you didn't produce the settlement agreement to the other party and they claim that that was parson of the calculation your position is you don't need to see the contents of the agreement because the fact of the settlement is enough that's right and it's not the settlement agreement that we're relying on us and this goes both ways i should've been able to see that and i'm just summarizing where we are sure yeah but our argument was we didn't point to any term in a settlement agreement as the basis for why the allocation should be based on the