the basic approach of the court was to select certain numbers for the period nineteen they don't extend those numbers of ten years subject those nine not that the court said what i just said the court said you know they had given the trend in interest rates and so ha'p'orth the government's probably profiting from th increased interest rates the ninety percent basis points would increase if you decreased interest rates right a basis points might also increase but that doesn't affect the fare at the  ten years and that's what the trial judge did that took the ninety basis points it applied to every single year for ten years and there's no business in the world there are ninety eight basis  as both sides acknowledge this trial went on for four weeks and there were witnesses and i think that john i got this ninety eight basis point on mr davidson's testimony and you got to cross examine him so it's just difficult for us to sit here at this point given the standard to review and deal with your questioning the validity of him taking this ninety basis points and reading it over ten years  a week with a cross examination and then of course you wouldn't gripe about this particular point it would have been his choice of another number in it there's always some level of guesswork to be blunt thing going into this i think that  evidence of the record that says it would have beat libeler by fifty basis points why fifty basis points why not twenty five basis points that mr davidson testified to the court simply said well fifteen basis points the court also selected in the eight hundred thirty five million dollars as the assets what numbers do you want us to pick the numbers of that should be picked this is a nine million dollars case this this this of company this ari do you know that yes that's in the record no no no no what's in the record is that global transfers back to the holding company and that much seven point seven billion sold it's the first place they sold six out of seven we don't know what happened to the other thrift i still don't know what happened the other thrift and and the seven point the seven point seven million is what it say if it was the distribution left over after they took care of some liabilities isn't that correct  this this colloquy proves my it or illustrates my point which is that you've got fifteen minutes in front of us i've spent more than fifteen minutes trying to decipher all those numbers in your briefs collectively the trial court when i heard all of this heard the witnesses we can't retry the case here we can't recalculate all these numbers your arguments are very good i'm sorry you didn't make it the congress before they acted fiery and then we wouldn't have had to do any of this i'm having trouble trying to figure out how to help you let me move your focus to a different part of your case which i thought was actually your strongest point which is the one that you seem to be arguing that the trial court suddenly decided to take davidson's theory and patch it together in some way that nobody had anticipated and come up with a formula for a spec you judge rater unfortunately is correct this whole thing all of these cases make up numbers and there's nothing we can do about it i think the lost profits issue as you know our earlier discussions and opinions the whole thing's a nightmare somebody has got to make up the numbers i'm not prepared to make up any new numbers for you i'm sorry but what did seemed to strike me as a possible problem for you is the argument that somehow the trial judge shifted gears in the last minute without any warning and you never had a fair chance to go back to the trial judge and say wait a minute here's what's wrong with your new shift the trouble with that argument is didn't you have an opportunity to ask the trial judge for reconsideration or didn't you file some post judgment or post opinion briefing in which you said wait a minute you're doing this all wrong didn't the trial didn't didn't you get before did he address your argument that you never had a fair chance to critique what the trial judge had done though it was part of what let me just shift gears a little bit to just one one item which is that eight point two million dollars issue about and then we are adopting only part of it the court increased the damages by a million dollars no i think i understand at least the argument you're making in that regard my question is when you have the opportunity when it was all done and you saw what the judge had come up with these errors were so difficult to discern to read good so is that a problem for you want to appeal to be raising the eight million dollar intangible amortization issue when getting a credit when you had an opportunity seven million selling of the us is the government asking is an alternative over for in case we reject your good you more global argument are you saying that there were at least ought to be an offset for some portion of that seven million  and if you could give mr kane an additional three if he needs to use it they please for the morning i may address first comment from judge player with respect to whether or not the rules of the game were changed in midstream here it was no surprise that the judge ended up calculating damages in the way the judge did the government was on notice so i would specifically point the court to judge leno's summary judgment opinion in this case and the site would be in that on that page i may proceed just let it states most importantly the government's position against any lost profits measure of damages is doomed by the extensive portfolio of hedge mortgage backed securities that globe hell at the time of the breach that portfolio by itself could constitute faces for substantial damages measured by lost profits and he continue so there's great specificity there your honor with respect to the court relying on mr davis's projections also mr davidson is testimony both in deposition which has been incorporated into the record and the higher damages but it is equally inconsistent testimony on the other side of what mr davidson was supposedly doing curb sample and he remarks i hope the court will accept mr david since testimony is support for a small but important part of mr williams testimony that because after all mr williams has continued in this business etc one could have read that plus the davidson statement i have been retain counsel for the globe etc to review clubs investment strategy and to determine whether that strategy would have remained viable fact in one thousand night you're you could read those statements much more now we all respect my colleague who made that statement it r i don't think too much weight should be given to that statement i don't think that statement undercuts what judge lefkow said in his summary judgment order i don't think that statement undercuts what mr davidson said at trial and also as a matter of preparation mr davidson i deposition and this deposition statement is included in the record i don't believe it's in the appendix but it said page four eleven that the appendix of defense motion for summary judgment filed on april tenth two thousand and three mr davidson said the following deposition he said that is analysis quote was not necessarily a damage calculation it is a component of the damage calculation or it could be fit into a damage calculation but by itself it was not intended to be a complete damage calculation and then to continue this is a component to the damage analysis or of the potential damages that was this but this is in and of itself not it damage calculation again that statement was made a year and a half before trial but i don't believe my colleague mr cohen could fairly claim surprise prejudice any damage as a result of that everyone realized that the court may well use mr day mr davidson's calculations as an element of an overall damages claim mr cain can we move to the post nine hundred ninety nine calculation of the trial court is trying to determine the residual value of the thrifts the globe would have own but globe it already sold those in hundred ninety and received at least seven point seven million dollars for them why isn't it double calculation to allow the government to set the price of those entities in one nine hundred ninety and then to calculate again what the globe should receive for them in one thousand nine hundred nine this year at the as a minimal matter you have to back some portion of the seven point seven million out of the thirteen million residual value don't you because that was what was actually determined by the market to be there worth in one thousand not i don't believe so your honor seven point seven million was  liquid station value it was the return it what it represented your honor it represented perhaps four million dollars of earnings that are curt prior to the institution going out business it represented the vine that's part of the sales value of the institution you haven't changed anything it represented the return of the initial capital investment fine that's a part of the sales value that will be included they haven't changed anything it was not at all calculated clude it is part of the damages model that the judge adopted because certainly the damages model he is trying to decide the residual value of the thrifts that would have been oh man how can you ignore the fact that they already received seven point seven million dollars at least for those you're under the french's how come that doesn't at least get backed out because your honor we believe that seven point seven million dollars represents is profit is the return of profits that were heard through the hard work of the plane sure that's primarily what it that's in other words that's the value that is in the thrift and part of the sales price yes you're not making any headway on telling me why it shouldn't be backed out of the residual value  and the institute used to should pay for those bridges they bought those branches frankly from the united states and they receivership transaction yeah yeah and they when they bought those branches they pa premium something like two point six percent you know when they sold them they sold up not because there was part of their business strategy it was essentially a poor sale that has to show it had to go out of business understood that's why we're not going to say seven point seven million is the total damages in this case because of course they sold them under duress after the breach occurred and the breach had affected the value of the entire business that's why we're not saying that  you've been stuck with seven million dollars period but the question is when you're calculating the residual value of those institutions why don't you include what the market gave for those in  when you and back that out well your honor first of all the government made no showing of what the market gave for those the seven point seven million that the court is referring to i believe the phoenix right it went to phoenix and it reflects the profits the institution made big institution was successful from day one going into business it exceeded plan for every period every reported period after the contract was actually ok if seven point seven isn't the right amount then maybe we need to go back to the court and find out what was the value received for the sale of those institutions indicated i don't believe this court to go back and re evaluate every calculation george little made he made a lot of calculations very carefully very specifically and there's no indication there was any clear error in any of those calculations were singling out a single problem which is shouldn't the judge had should track that speculative award for the future obvious calculation which we can't follow to any record in the judgment that in hand and i mean we can do that i suppose we could do that as a midterm some time what is the point my point is i'm trying to i'm still trying to not make it well you're going to try to get the my point is that the seven point seven million dollars was not a building block necessary for low to achieve the lost profits that it would have earned in the real world had the breach not occurred because and the reason for that is simple for low to have continued business a out the seven point seven million dollars it would have had still fifty one million dollars so it could have carried forward with its lot with its business and achieve these lost profits without your honor because when you look at what george little did time in time after time he and he's very accurate in saying this he made conservative prudent decisions and calculations and we frankly viewed the war he came out is he had in mind your honour's i believe decision in glendale and the court's decision glendale and third in which the court said lost profits have been difficult and he looked at why is this case different in this case is different because there was a specific business plan that was based tiredly on the forbearance capital we had to find starting date and a defined ending date it's not a because it's not something that was it financed the trial it's not i believe it was something that may have been advanced but i believe judge crater as a question or maybe just play or whether  repairing and i believe it might be incorporated to page five of the order for entry or final judgment there was not a petition for harry but the judge required additional briefing after the initial decision and i think  page five other planes as i read that today that i believe that indicates that the government did make reference to this clay before judge let the final stay and so they did fancy but there were no findings on it and it's something when we think about it really doesn't make sense there is no element in this is not an issue again similar to the type of issue that this court facing glendale where the parties were attempting to achieve lost profits or different types of damages based on intangibles there was no intangible element to judge lives calculation judge procedure there was just no element so in addition to this only need to up the goodwill charge at once as i indicated earlier and i don't have a record cite to give you but if the court looks at the record the court will see that we wrote off this good will in the real world this goodwill was written off during the course of business and as part of the final liquidation there was no need to write off this good will again to improperly we believe does not exclude good will in the manner the government suggested was like indicated the real world globe wrote off the goodwill as part of its kind going business as it was winding down and the project caches less the projected cash expense that was the calculation your honor so in answer to your question we don't believe respect we don't believe the government under ask income that was projected from mr davis projections less the cash expenses as projected by mr williams that was the calculation that did not have this assets was not on the us in the sense that the cases which have referred to sales price because those cases deal with the loss of goodwill due to the  but fact should be the only issue on which we have to agree with you can't we do that ourselves and just send rather than remained well i know you could your honor but i think also the question is it was raised raised because the trial judge in the correct couldn't we just do that yes you could this could that was my question this i also want to emphasize the fact that we are not asking the court to get around to asking the court to  device new numbers over say is that these numbers really care no basis in the record mr davidson as we noted on page eighteen of our brief said i have not performed an analysis of the globe's investment strategy going forward so here's numbers are not based upon an investment strategy with respect to believe in the index for exit dition mr music does exhibit eight which is in the record