was not seeking to enforce its own rights this though is belied by the clear and well planned allegations of the complaint here in the complaints bt capital details both contractual and tort violations that were committed by the defense here not to make you claim they're not to read if you're out if you look at the complaint the contractual indicate obligations a bloomfield had to eat capital as manager and investment advisor of the synergy funds if you look at each if you look at the agreements which the court below did not do the bluefield agreed that it would refer to capital in connection with investment decisions it also agreed that it would maintain the confidentiality of the memorandum subscription agreement and also agreed to provid to make investment in the agreement and to end and directly to investment manager as a third party beneficiary yes we did the obligation was to defer ged capriles investment decisions with regard to the matter they bloomfield was attempting to alter and infuse its own investment decisions with regard to the funds as opposed to different g d capital but what why is why is that an you use the money not in the way that my agent tells you to open that there but there is there is injury here with regard to investment because it it's really it's an obligation and breached as to they agreed to refer to a capital investment strategy regardless of attorney a third party benefit friend do this for his benefit my money i want to spent in certain ways and i'm delegating to him the authority to give you instructions i don't do that for his sake and if you give him the finger that you're and what you're missing your honor is again the focus here is on on the breach and there's an obligation it's not the situation where you're talking about where there's a third party the party here catalyst reciprocally referenced in the agreements it's you directly yes or yes your honor and we we would be able to show that we would not give that opportunity to show that below that's what i also didn't really see very clearly pled in your terms and there's a general set out in the subscription agreement in much any other line although even that it was unclear to me what confidential material of your client as an investment manager had been published and to what damage could you could you just explain that aspect sure there are two two responses your first off the provision itself indicates that the parties agree that there is damage as a result of of a result of disclosure and just using the contracts the yes yes i was the publication that the publication of it was in the the filing of it in connection with the proceedings with the at the filing i'm sorry that the filing of the subscription agreement and the memorandum in the dutch court in the  it you're the one that has to give consent but that doesn't mean it's your property or you're the one who's injured or that this whole obligation is created for your benefit we have somebody who's got a lot of money right who's making an investment and just as they said follow the instructions of the apple they also say don't disclose you promise not to disclose any of my confidential information it doesn't say watch out now we're making this agreement not for my sake but for you the capitals say you promise not to disclose any of their confidential information and if you do you responsible because we're doing this for him where is there and if it seems to me still that we're talking about obligations that synergy wants to put in this contract for its benefit again you here as you know from the record there is an action pending in the netherlands with regard to the very money at issue here there was a question about an attachment there was money attached and synergy capital needed to make a bond payment they went to the netherlands court they got a lifting a partial lifting of the attachment and they were able to make their bond payment when the next plan payment came due they wrote to us that was  vet this law go back to the netherlands which had who had given them relief before they ran to court here i got a call as counsel was going to get a t r o to enjoin those proceedings to get the attachment released and netherlands essentially an anti suit injunction which now they're not even appealing the claim was there was going to be a death spiral and capital this energy was going to go into bankruptcy none of that has happened so w gone not as far as i know but if you read the transcript and if you read the allegations and the and the briefs below then the cries of hysteria  and the sky is falling are everywhere but more importantly what's tremaine today is that this is a situation where you have a contract description agreement between the synergy funds and  bloomfield there is a separate manager or advisor we it is very common in these situations and they have brought the claim now one media question is why did synergy bring the claim why did he the capital bring the claims case because they are removed they are derivative lee damage and i believe the answer is pretty simple if you look at the allegations in the complaint all of the parties that we represent are aliens synergy is a ca islands fund the only possible hook they had here was to bring it on behalf of the capital which has offices of thirty seven so what they did is some of some of the obligations in the subscription agreement do seem to run to the investment their brief and then it was expounded upon in their reply first off as you noted earlier this is cited under cayman law there is no came along the record there was one site in the reply we did not get notice some to forty for one so it's inappropriate we had absolutely no opportunity to respond to it we don't know what the lawyers are narry is that yes yes which i found to be a very very interesting title so we're starting with the premise that we don't have any this and more than that if you do look at the american law assuming that it is somewhat comparable in an out analogous it's not as simple as referencing e g capital or referencing the advisor in fact the main claim they make is it's been mentioned dozens of times that's not enough that the cases we speak to we cite the coalition for nine eleven case talk about clear direct language that sets out who the third party beneficiaries are now keep in mind this is a structure they put together this is a structure they wanted they wanted to separate out the advisor and the manager from the funds they wanted to have them in different jurisdictions i assure you if we bloomfield sued easy capital we would be told there was no privity there there's no relationship there whatsoever i'm sure that so this is their construct and now they come to the court and they act as if they're all one in the same in their party been fisheries they were were were reference and there's a separate advisory agreement right after the pages that were cited in the brief there's an it's references a separate advisor agreement which dictates the relationship between the funds and the on it i mean i agree with you but but judge marable looked at that in connection with the irreparable harm is that there was nothing played here and the and just saying it is not enough you need to show something significant with a prime efficient tort you need to show special damages with the abuse of process claim your honor that's that was a result of a southern district of new york seventeen eighty two proceeding where that discovery was ordered in by the special term judge unreasonable discovery demands on us so much it's going to go very far to me but i'm just guessing here that that's the merits it's they're the ones who are having the discovery demand for them if they say you disclose our confidential information and we're a third party beneficiary of this contract well maybe they aren't maybe that's not a claim that's going to stand up even on the six motion but that's not what the district where it said the district court said that's not their claim  but it is their claim that they're claiming to be a third party beneficiary and may be not legally sufficient where it may be legally may stand up on a motion to dismiss but you may eventually show that that's not a viable claim for trial and so on but those all seem to be merits and well like well my point would be this and judge moreira made this point look this was a twelve b one decision below what i told the six but i do think there is an area where they do overlap and what the point the point the judge was making is none of these claims if you look at the injury not of the injury directly went to capital it was all derivative of what happened below what and the essence of the claim with maybe derivative but they're saying i repeat i mean by this they're saying we who had the direct damage it's all synergy simply saying our reputation is damaged is derivative it means the for the fun's you sued the funds therefore our management fees are fund or a shareholder the city situation like a shareholder is he claims his her because something happens with the corporation they're separate entities un g synergy they all have separate officers and directors the action against synergy does not create a direct claim against capital it does not in the management fees are only paid if synergy is successful the reputation as alleged is only harmed if the attachment is improper we're making bogus claims about our subscription agreement and our subscription agreement is with center g so everything is derivative the relationship here is strictly between synergy and bloomfield so what they're saying and i believe just where i was one hundred percent right on this is all that if you look at it it flows from stems from we're not going to get paid  reputations going to get hurt because the funds collapse because the fund is insured because the fund is attached that's what they're saying and we represent the funds and their reputation goes if the funds so that's derivative your honor that otherwise the fund is damage nobody's sued the guys devices are ancillary they're on the side here ok so and and but more to the fact it's exactly what they plead they played and they said if you look at the transcript of the damage to you respond to the last point by opposing counsel and this is by its very nature derivative it's not your honor because if you if you look at the complaint which judge merit did not do in this decision we are alleging claims contract and tort claims contract claims which as we discussed earlier stem from bluefield agreement to you know maintain confidential her mation to defer to investment decisions and to indemnify and the tort claims are process that they sought here in new york was directed at the kaplan's he is it was not directed the synergy funds so the and the in the harm there is a you know there that that is you know that is the issue with own rights as we if you look at the complaint it was seeking to enforce its own rights and that is that is what the error was and then finally that's what i just of the record which is and it's a quote in the complaint of the subscription agreement as a strict scribe or acknowledges that the affected parties which includes capital drive independent economic value for confidential information not being generally known at that of the subscription to the publication of the very document that we're talking about here is creating your rights and its use in litigation proceedings to vindicate those rights one way or another in another and proceeding so you reserve decision