going to the st issue the question before the court turns on the meaning of the word contract in section eight hundred and twenty one and that section allows the f b i see as receiver to repudiate any contract or lease that it deems to be burdensome to the receivership and congress did not define the word contract here and so as both parties have acknowledged in their breeders the court should look to the ordinary meaning about term and in particular because it's a legal term the court should look to the generally accepted common law definition of a contract now under the classic definition of a contract it has certain features are going for exchange of promises a meeting of the minds consideration but a lot of credit does not share any of these features there is no bargain for exchange in fact it is rare that the issuer in the beneficiary actually negotiate the terms of the credit and he bargaining would take place in the new negotiations of the of the other two each other and there is no consideration required for the letter of credit to become binding on the issue letters of credit have a different history that have different purpose and different theoretical framework compared to contracts the history of letters of credit really goes back to antiquity but they have developed over the years as mercantile instruments to facilitate transactions they essentially allow the whole party to substitute its credit work credit worthiness for the credit are referred to on two occasions letters of credit as being on track it has referred in passing and as has to have some other courts but th court has also how are referred to or the credit in will barge as being an undertaking as opposed to a contract and so it you know in passing it's sort of referred to in both ways we've cited a bit more and talks about the different theoretical reasons for one for one why do you think a statute distinguishes between a contract and lease if it does it mentions both the contract and lease what's the purpose or the is that just leases are contracts but they're also historically recognized as being also something different there also recognizes the manses of land in sort of a bridge between contracts and probably ok it's all about in that way the classic definition makes sense because if you're talking about how tracks that are within the framework of contract law and then you want to make sure that also a compass has a lease which is sort of stems in your it doesn't make perfect sense to think of a letter of credit and terms of a contract you have in the purposes of that section well so the purpose is to allow you know banks to get out of birds and contracts the receivership before even solvency before the appointment of the receiver and so i don't i think it should already be on the books of the bank of the womb it's already been made and so i don't think it furthers the purpose and requires offer except in some consideration and these things are absent  here trying to damages even if a letter of credit were considered a contract even if it could be repudiated and even if it were properly repudiated that doesn't mean that the bit of fishery is judgment evidence supports that you incurred act your client incurred actual direct and satori and the case in amounts due and only so so we did not receive the nine point ninety five million dollars that  we should have been able to receive so that's not thought of as actual direct compensatory damages as an amount due and owing that's never been care that the amount due on the clip that you well so there was no summary judgment record this was brief as a rule twelve motion right in because you attached documents the district court converted it to two to seventy judgment million dollars as collateral until the obligation on the bond strong and so that's what i will not let me cut bargaining for expectancy damages is not compensatory damages that's the expectancy of the contract being fulfilled assuming argument it's a contract and i know that some time on that those are expectancy damages not compensatory losses that your c helpless on that well i think you've got to look for what were the wasa going if the if the contract was fulfilled versus not though and you can also look at for the next any position that we were before the weather or credit under any theory of damages well that's how you would measure the damages under u c c oracle five expectancy damages that i we're talking about under the statute which is narrowly because they want the be some also some negotiation there's others in the chain of title for these assets who might be contributing to the pool that we don't know what it's going to cost but it's going to cost a lot of money and so that's a process it's going to be honestly does it only cost you five established common long meaning you must use the established common law meaning of life and when the supreme court looks were the general common longing it does not state law a respected secondary treatise than what was in our contracts states as follows letters of credit are not the type of commercial specialty properly included within the definition of a formal contract differently than contracts even though as you pointed out your honor elease certainly fits within the classical definition of contract but for damages persons is very attridge leases differently for example  sends we are reviewing everything that we have at the bank to consider whether we could be period including the where of credit that you have and it goes on to say the following the receiver strongly suggest member you know we've got these bonds you have an obligation by security go get an alternate were credit and by the way if they have done that which is what you'd expect their damages in this case would be euro this any cost to get the new winners credit exactly exactly in that cage three hundred and eighty five thousand dollars which was the full amount of the letter read it had been claimed the prior to the data received whereas in this case no claim was ever made of subject matter jurisdiction because louisiana law does not impose a tort duty on an analogous private person acting in light circumstances to the f d i c and its pre receivership corporate regulatory capacity even if th court disagrees with the district court's tort duty analysis under louisiana law the discretionary function exception of the f t c applies which immunizes the f t c f b i sees corporate conduct from both judicial review and money damages and tort as i mentioned the district court resolved the united states jurisdictional motion exclusively on the basis of an absence of a tort duty that would apply to an individual in the private sector elected to address discretionary function x exception st and leave the private person analogy tort duty alone but it just elected to address them in the order of our brief but there wasn't any particular rhyme or reason to that we think they're both equally as strong quite frankly and it just seemed to make more sense to address the tort duty issue st because again it really lies at the center of congress's waiver of sovereign immunity the discretionary function exception is a carve out from the general and that is part of the court's inquiry into its own subject matter jurisdiction under the f t c the absence of a state law tort to you this court and numerous other federal courts across the country have held that and we've cited the fema formaldehyde trailer case from two thousand and twelve which includes some helpful discussion on the relationship between the private person analogy and the presence or absence of subject matter jurisdiction now the district court correctly observed and this is just a matter of common sense that no private person acting under state law does exactly the same sort of functions that the f d i c does under federal law in terms of regulating and supervising banks in that regard there's no perfect apples to apples comparison between the federal government action and what might occur in the private sector under state law the early case law under the f t c i would refer to federal banking regulation operation of a lighthouse inspection of mines as what they would call uniquely governmental function so in two thousand and five in any unanimous supreme court decision the supreme court said that when faced with those quote unquote unique governmental functions the court needs to stretch and look a little farther afield to find that private sector analog utilizing good samaritan principles of tort liability the louisiana supreme court has adopted the good samaritan standard found in re state and nd of toward section three hundred and twenty four dollars and if you apply that standard to lex on's allegations it becomes quite clear and evident that lex on the allegations failed on every single element they're not alleging physical harm they don't allege that the f b i c corporate undertook any special duties owed to lex so they don't allege that the f the receivership was sport in a place so to be clear here if the court were to reverse the district court on the torture to issue it would be unprecedented extension of tort law duties under louisiana law it would be a deviation from the plain language of restatement and twenty four dollars ad that louisiana supreme court has adopted and perhaps most importantly it would be a break and a forty year body of case law that says that the f d i c corporation owes no duties to the banks they supervise regulate much less to the banks customers borrowers officers directors or those that do business with a bank borrower like lex on in this case if they are no further questions from the court we've just urged the court to affirm the dismissal for like a jurisdiction on either basis the absence of a state law tort duty think the issue really got it squarely presented there in part because of the the way in which that he's came up with is a quote p six and so that it should just was not decided but in terms of whether you look to the underline for the wast here i think that would violate the independence which really characterizes letters i mean that's the independence principle is what gives letters of credit they're commercial my tally is the  so you really have to look at the letter of credit obligations separately from the underlying transaction and really here are the underlying transactions not even the bond that's the ongoing underlying transaction is the surety obligation  lender and myself so but you know the point that i want to make is you know counsel mentioned the repayment obligation there's nothing in the statute that allows the f d i c to accelerate receiver or the bank not so i'm very perplexed by your argument the granite didn't address the losses incurred on the day that the ph and in any kind of change of the way yes it's a twelve p case but it says it alleged the granite incurred substantial losses on the bonds and it would have used the letter credit to cover up to three hundred and eighty five thousand dollars of those losses but now list of within themselves so it's specifically lead that  already incurred substantial losses at the time and then it says either in realized these damages on or before june twenty three if in so it talks about the hering the damages already and that they're flat flat can you help us with that why that's not the holding of the kates well that there has to be an issue for it to be the holding and some of the the issue about whether if that had not been the case the claim would have been viable was therefore not this point do you have any authority that goes your way on this point this is the very point it is a very important one that's why i'm spending a lot of time on it i would just to the idea that even if you don't you know even if you don't measure this by the full value of the collateral there have there was at least some value there was at least some present value to lose the collateral when and at that point i'd actually like to direct the court to the citibank south dakota case which is the case that the apple is slated and their brief and their case involve the wausau of an intangible right not to compete and the court held that the present value of that intangible right could be determined that was an issue and i think that the same really holds true here even if you determine that the right to hold the collateral isn't going to be measured by the amount of the collateral the right to hold that ten million dollars in collateral at least had some present value and the loss of it had some existing was at the time of the repudiation or the time where the repudiation relates back to so if if this case had been presented in a different procedural context if we had had the opportunity to put together affidavits and present them to the court who fifty six dollars motion we would have certainly been able to present evidence as to exactly what that was was it might be for example the cost to reinsure that risk or there might be other ways to value what the problem here was that we didn't even get a chance to make those arguments because of the way this was  have a question about that because the court dismissed the initial complaint and then granted time for discovery in repeat leading in did that include just general discovery it was only limited to discovery about the proper parties and that sort of thing it was very targeted discovery in him the made issue of the time was in the on the initial complaint we haven't named of the f d i c as corporate capacity and we were trying to figure out what any were to be allocated among the two capacities so that's why it was targeted towards it was not a plan to rediscover did you complain in the district because the case stayed in the district court for some months while they or course will stay or will stand in recess until tomorrow afternoon and thank you very much