right our rd case for this morning is federal deposit insurance corporation and its capacity is receiver for founders bank against chicago title insurance company in chicago to address so we  whether eight hundred and twenty one c should be read i'll say aggressively to require a federal rule on pre judgment interest or whether it really leaves and enough undefined that the correct thing to do is to look to state law to define terms such as appropriate especially bearing in mind the fact that the f d i c in this whole group of cases is operating in its function as a receiver for a state institution and as you know the supreme court very frequently says in these commercial areas the content of what the federal agency is doing or what the federal law is is borrowed from the state law to keep things commercially consistent so it's quite possible that appropriate interest under illinois law is a different thing from appropriate interest under north dakota law or somebody who is law so so i would like you to talk a little bit about why you think we need to just jump right into federal common law for those in the face of the supreme court discouraging that you know  we are not arguing for federal common law we're arguing that the interpretation of the word appropriate interest and the federal statute is a matter of federal law that is done by the court and the usual principles of statutory construction and it doesn't in several law and that word is interpreted in accordance with state principles so to take one example that just pops into my mind title seven of the civil rights act of nine four spends a lot of time talking about who is an employer and who is an employee but if then you need to decide is somebody really an employee or are they an independent contractor what the federal courts will do is they will look to state law for guidance on what's an independent contractor you know is the employer sufficiently gauged to justify respond use period or liability so just because it's a word in a federal statute doesn't quite tell me that federal law operates completely independently of state princ or for corporate governance rights but this is not one of those exceptions to the statute here applies not only just to claims that the f b i he has against the service providers under state law the f b i as he often has claims against the sherbets provider is understood under decision which can be interpreted as a matter of federal law and courts here can easily appropriate can easily improper it appropriate can easily defined appropriate interest a sufficient interest or adequate interest because that's one of the dictionary definitions and what i'm trying to suggest is that for these particular claims pre judgment interest could easily wind up being a bit of a mess no matter which whether it's a this thought i mean you're suggesting an interpretation of what appropriate interest means but certainly there is a lot in the word appropriate that suggests discretion to me perhaps because of the complexities that judge hamilton is talking about so you know principle losses and if it's a principle losses and interest common when appropriate comma we probably wouldn't be having this debate but i'm not sure using it as an adjective supposed to a little phrase afterwards makes such a difference in the meaning relying in imposing a purported requirement that the defendant must withhold money in order to obtain an interest that that purported prerequisite does not exist in illinois law and has been express mail ejected by da have had during the know what about your allocation point you know it seems to me you st look at that five hundred say well maybe some of that overlapped some of it didn't but they didn't ask for an allocation the right time so that we should presume that to add to one question the judge hamilton asked so you're doing as i do that right now when i look at when i look at the pre judgment interest at you it seems to me the way you're telling us to to interpret this statute is is sort of as follows pre judgment interest is mandatory if it's mandatory breach or pre judgment interest is mandatory unless it's discretionary so i have some concern about that because it seems like it's seems like your  your argument is that appropriate modifies the word shall not just the word interest in couldn't couldn't the word appropriate interest refer to of course the amount of the interest and in particular the triggering event because in these cases i suspect there would be a huge dispute as to what is the triggering event for the determination of pre judgement interest so why should we read appropriate to modify the word shall and then prejudgment interest becomes mandatory unless it's not in shell doesn't really mean anything at all i don't think your honor that it's mandatory at all and that any of this language of the term appropriate in interest makes it may what do you do with the word shall then recoverable damages shall include dot dot dot appropriate interest well ed has said as the th circuit that directly addressed that issue i thought i would subscribe to their explanation which was that the word shall doesn't you know out the word appropriate and appropriate modifies the word interest it does not say that the damages shell include the losses and appropriate interest it still leaves the court creature decide what the measure of interest ought to be in the particular circumstances which might be informed by always determined that it's appropriate that is that it is governed by the law that governs the underlying claims and the language of a statute does not change the rule of p judgement interest is determined by the same law that determines the underlying claims it keeps interest in principle losses on the same footing there at the same and the same part of the sentence grammatically and you have to guess he doesn't argue that federal common law must govern recovery of principle l provides otherwise and now worrying that you're reading eight hundred and twenty one dollars l out of the statute you know the federal the receivership statute does provide something about what the respect to appropriate interest as to as to the time when the injuries were suffered will certainly the damages were crystallized upon the foreclosure sales which which actually is a matter that's relevant interrupt you there because i i pulled up i looked at your jointly proposed final pretrial order and on page thirty four the last sentence says excluded from the damages calculations are monies that founders bank lost after acquisition of the properties through its speculation in the real estate market renovation and resale properties isn't that exactly what the f t i c is referring to when it says that p v s could have settled a claim issue and that is because the f t c could not have gotten those damages on the basis of the allegations in its complaint of the claims that it actually asserted and the reason it couldn't have gotten those damages is the measure of damage to him mortgagee that is a lender that acquires the property at a foreclosure sale is the total out amount of debts minus the value of the property  foreclosure market losses those are simply not legally cognizable damages those are damages or if things went better for them it could have been a profits that are made for their own account so c had to come up with another wrong that caused an additional injury and the one that they came up with was the nd set of appraisals and unfortunately for them fortunately s that it didn't have against chicago title i think one of the questions you have answered earlier sorry asked earlier is whether this credit big theory applies to claims versus t v s and the answer is and phatic yes the credit beat theory out of your ego that we made our bid see in that amount because of t v s negligence well again that gets back to that nd group of appraisals the st group of appraisals and this never alleged a claim on the basis of that but it's more than that they not only never alleged a claim on the basis that they never had a colorable claim and that's why we go through all that space and i know your honor has as just only claim that they had and the only claim that they made is this is the one that created the same injury and chicago titles conduct so mr rosenberg i'd like to take you back for a minute to the pre judgment interest on the assumption that illinois law is where we ought to look for that i am very concerned that the district judges statement that there is some sort of with pending requirement if you look at the state of  wernick can you look at other illinois cases withholding is certainly sufficient for that but i don't see where it's necessary and i think the district court may have been in error here is a matter of law that four federal judges have examined this issue in every single one ending with judge would but every single one has come to the same conclusion on that issue and that conclusion is that under illinois law under equitable to complete that sentence is to make it whole by forcing the fiduciary to account for profits and interest he gain by the use of the injured parties money and there are so many cases in illinois not just the ones we've cited that have actually stated that this  the rule but it really says something that in all of these fiduciary duty cases in illinois many many of them that this this fact pattern comes up and it's not just a coincidence as so many courts have held well that's because it's a common fact pattern that but the fact is do we worry about the unjust enrichment of the breaching party or are we looking at economic loss suffered by the injured party because of the inability to use the injured parties money those are at least analytically distinct categories yes in there and some of the cases we have cited have indicated that it's that at least part and maybe all of the  rationale for this equitable rule is to force the defendant to disgorge the wrongful gains that it is made so that you know there are two policy policies behind pre judgment interest generally and with with respect to equitable pre judgment interest certainly one is not the only policy is certainly certainly a major policy is just gorgeous men of the wrongful gains ends and some of the policies that we've talked about and it's come up in many cases given the fact that money has time for all you if you don't put prejudgment interest in there you are not fully compensating the wronged party well and you know that's an argument of course that to compensate the plaintiffs however cases as i understand it are decided by their general purpose their general their decided by this to systems of the law including all the limitations of the law and that would include just about every branch of civil law is the basic purpose is to compensate the plane just for its losses but there are so many exceptions and and particularly in the area of pre judgment interest when for example in illinois you can't get pre judgment interest on the negatives claims period in the u s i think this is different i mean where the illinois court illinois pella court says the award provides compensation for any economic loss occasioned by the injured parties inability to use his or her money we don't have to ignore that phrase to go your way or are somehow see why it doesn't apply here and i don't see a gave founder's the impression that the injured at that the value of the properties were much higher than they were so for that reason we never we didn't include it in the complaint that he was not necessary to our claim for the full  example the supreme court's decision and general motors that is a decision interpreting a federal statute that gives discretion we argue that the court applied the same standard to interpret the statute here that the supreme court applied in general motors that yes the court has   to award interest but that discretion that means that interest would ordinarily be awarded except in exceptional circumstances for instance a quote the supreme court mentioned i'm due to lead could be an exceptional circumstance dischord in another case suggested that i did the period under state law or a longer period i may be six years under the federal statute however yes however he not necessary to provide further guidance for what appropriate interest means because what