case show that the district judge abused its discretion in failing to adopt the report and recommendations of the magistrate judge which would have permitted you don't like to intervene in this matter as of right here ventured right vigorous defense put up by the defendant in the identical novel iow i asked about the insured interest and wasn't always for that one route of action open to s were quite different from the very beginning now you've decided to rely on them i don't quite know why but why wasn't the court certainly is discretion able to of the case there was only one issue before the court and that was whether the pence our policy could be rescinded and up until that time from their counterclaim from the discovery from everything the defendant is related is a multimillion dollar action my client does not ensure that the defendant in this case they have a contribution claim against ken starr for their own insurers so what they're seeking is money that see on that it was clear that they would depend and i called your honor's attention you bring up the settlement but back at early november two thousand and seventeen it was represented to the court that there could be no settlement that would be binding on so there was no opportunity to think that there would be a a settlement by the defendant because they represented the magistrate judge it should have had adelman the settlement truly was not binding then you're not prejudiced i exactly the same situation as you were before you can still go after him as you would have and there's no prejudice you're on i would agree with that one hundred percent because the problem we have here though is on appeal if you're honest may seem they're seeking to arguably be no prejudice then i don't think you can have it both ways so that you either have a situation where you might be prejudiced and then that is something that was clear at  right your honor and that's where we think it is an abuse of discretion because that that's really not the case there was again you can either rescind the policy or can't when they represent they can't settle and that they won't rescind the policy you have one minute i'm to  have one minute thank you that they can come to an agreement on that and that at all times they're dependent at all times defending the fact that that policy must be in effect and that is exactly or interest we're seeing the exact same thing the penn star policy needs to be and that we're not focusing on the motives and that's where the district judge focused on why we wanted to intervene it was so we the interests whether the penn star policy needed to be in effect and told you one wanted the opportunity whether it's in this case or to just with your comments earlier about another case while we don't have the other case and front of us yet we'll hear from the other side and then you have some time for a bottle thank you thank you  a good morning your honor spread was quick for penn star insurance company up in this matter and everyone here me yes jan why insurance is not so much appear to intervene or as they are proposed in  the dispute is as to the formation of the contract and the insurance policy based on what was represented depends dark the type of business it writes what it intended to write and what g n why want to prevent the rescission so that they can pursue a contribution action now the court has pokus to on this purported inconsistency between statements i made at the initial conference about the potential for reaching a settlement and stores later accepting maintenance asset management proper of judgment to all start with that because the court has also already considered the fact of the matter is that while both of those matters contemplated a settlement they were not actually the same it's the same word but it meant different things at the initial discussion was about a compromise shuttle meant wear and pen store would have been paying some interests were protected by existing parties i think what i'm hearing is it's not so much a notice argument it's more that he's saying as a legal matter they would not have been allowed to intervene how do you respond to that had every opportunity to intervene and we inform them on multiple occasions that the return on our in terms of my understanding of what they're saying is they would not have met the requirements for permissive intervention if they had tried so how do you respond to that if they couldn't meet them then they couldn't meet them now but see the point is that i guess the point is that they are saying that their interests were adequately represented at the time so that would have precluded permissive intervention i don't think that the record bears out that g n y's interests were represented by manos asset management at any time and the record can look you can look to the counterclaim as to the amended t time with any information that maintenance asset management intended to include alj and management as an additional insured consequently seven months before g m gen y moved in or being an xbox and star specifically informed that maintenance asset management was not disclosing anything dependent or about additional insurers the only possible conclusion from that information was that made sense asset management was not protecting the interests of  they came in at the conclusion or near the conclusion of discovery just to sit back and said well we're going to wait and see what happens in that we don't like the outcome will then seek intervention is not reasonable the standard here is not a subjective one where and why eventually came to the realization gee perhaps we should intervene in their brief the reply brief at nineteen they say and reiterate several times as an additional insured under penn stars policy as a consequence of those things the application was substantially late and the district court effect seeks to enforce its later acquired rights under a policy that according to the court of appeal in new york given the opera judgment that was made here should would happen others whom we not now or i have presented my argument as to why they could have and should have intervened if they thought that was appropriate at an earlier date i would reiterate that in the action before the district court the court ordered in the parties understood that the case was to proceed on a bifurcated basis st and foremost as to the rescission action and then if that didn't resolve the case to proceed and declaratory judgment neither g n y nor allergan management nor the building owners had anything to do with the insurance application submitted to  store rescission action looks to what the insured knew about its operations before the applications were submitted and at the time of the application and g n why their interest are contingent  occurred later in time so they were not necessarily an appropriate party to proceed into the rescission action and that's why i say that they were more in or medlars or proposed in or medl real quick my abas ary really depends stars position here that the record is clear that you want the interest we're not think but again given the fact that there was only one issue before the court decision you can only be on one side did which is why gene why would not have been able to intervene earlier because it's a factor the court's going to consider was there adequate representation the answer was yes because at all times the defendants were vigorously defending that issue and for mencia judge to say that even plaintiff to adopt that there was a bigger defense you know that you know once interest at all times were adequately represented and that is why the abuse of discretion occurred and the thing that counsel reference was and stars paying their defense even the underlying action so arguably the defendants are getting a benefit and starr's alleged prejudice is that they have to continue to pay defense the what if you go back to november th two thousand and seventeen when they said they couldn't  magistrate judge that prejudice isn't really they knew they couldn't settle yet they're claiming to this court their prejudice because they couldn't sell the notion that we're intermeddler when they knew about our right from the start and told the courts about it is contrary to the record so your owners do want want their opportunity say want their due process to be able to challenge the recession and we appreciate your honor's time for this argument