exceptions not relevant here today they tried to escape that fact and that's why we were here last time a couple of years ago but they lost that so the only question this point is are they on the hook for indemnification and that turns as they acknowledge on the question of whether this is a claim arising out of post closing opera here your demographic ation here is not for the for the environmental damage it's for the legal costs of fighting about the environment the pollution a road lose way back long before the transaction you won below because that liability was transferred by the contract now we have the question in effect when did the claim arise and the the facts clearly arose before the closing well i think you have to look at the question normally when a claim arises isn't when somebody files a piece of paper or a lawsuit it's when the underlying facts occurred not saying that because they brought the claim against us that isn't that's what we're saying what we're saying is if you look at the language is the claim wind of the claim or did the claim arise post closing in what is the predicate for the claim here the predicate for the claim is the e p a s consent agreement with lockheed in fact that's what they say that's what they base their entire complaint on against well i don't think that's quite what the indemnification provisions says the claim has to arise out of operations right out of operations of ga see this would be after the closing date right yes i mean we were here for the first case  and boy i sure don't remember that first case being about whether the liability arose from post closing date operations well  why somebody is making an argument i'm interested in the merits of the case so i mean they they argued in that case this deal did not transfer this liability period and we said ye the issue wasn't was did this liability arise out of post closing operations are pretty close and everybody knew i thought everybody knew it was pretty clear if we're going to talk about we have a clause here that sets if the liability arose out of operations after the closing you went pretty close ing you loose fair summary yes ok and so and so the question there is operations that's an interesting word it's not you know caused pretty close in or you know it's operation so it's not rainfall it's not whether it's some something the business one of these businesses was doing and isn't isn't that thing that operation building near dock in one nine hundred twenty nine and then some recoding so presumably your respect for this ok now i want to know why you disagree that is why the e p a is use of environmental definitions and interpretations that quote use means letting it sit there on your property well you're under that i mean circle i guess that defines operations under this contract and that's do you have any you know authority where that sort of thing has been done maybe the other way to think about this is you know remediation here is not one size fits all in remediation in this case was predicated on lockheed's continuing use of the air dock like if it's just sitting there vacant they would have not done and not incur you know most of what they were costs are seeking to recover really i thought they were liable because they own this thing there is not a coincidence that the liability in this consent agreement was pegged in one nine hundred ninety seven it's not a coincidence because that's the year that lockheed became the owner it's the ownership right well it's their continuing use of the free but well there's no indication that they scratched the the siding and let the stuff out went through it it was a litany to continue the continuity of the operations of the air duct they agreed to training cleaning inspection maintenance sampling and all of that was done to ensure that workers could continue to work there for not today but for ten years down the road twenty years down the road and that is why you look at that the and i agree with you just have to as the operations is a little bit of a quirky word there i don't think it's quirky i think it's actually a nice job of limiting them but i think the underlying purpose was to say look once they're in charge they get all of the benefits of the operations and they get that can come in it detriments to and if they want to continue operations at the air dock you know for for the next fifty years that's great but if they're taking steps to ensure that's going to happen they're going to reap the benefits of it and that is why it is a post closing obligation under these circumstances and i do think i know you were not part of our argument was look if this is a pretty close enough legation they're stuck with a two year tail and they came back and said in there trying to get out of the two year tail and say no no this is a post closing this  oh yeah well you know i'm ready for that and i appreciate it because it's interesting to have one's work take you know be constructed in this manner by highly intelligent counsel on each side and i realize i need to to the release but imbedded in that is that good your did not cause or contribute to that and i think part of the reason for that as we point out is that they simply did not introduce any evidence into the record  after selling the air doc goodyear did not cause or contribute to the release of any p c b upon haleigh's detach and i guess you're saying air go locky did it after the sale ok i think one could also read this sentence is in are full as it is to say to me that good years post closing actions did not contribute to the contamination in other words not that good years actions period did not contribute but specifically good years post causing actions were not contributing and i think that that is a fair reading of that sentence but my point is that the underlying premise is that if there was some cause or contributing cause or contributed by goodyear i think the result may have been different based on how this paragraph was structured and so my point is there is no finding anything related to hailey stats so if it's not us it's them and there's no recovery from us what do they say though that you know this is just again an effect of the even if there is debate about whether some you know you could conceivably have a claim that arose straddle both pre post closing operations but i think that's where the in whole or in part language six point one can point to comes into the morning your honors may please the court my name is kate stetson i represent lockheed a few quick points and then i want to respond to a couple of mr berger on statements the first is judge bogs yes you're exactly right the the case that's in front of you now is a case about legal costs and those legal costs arose from a fight that the parties had about pollution that arose way back before the transaction so you're exactly right on that judge kept lynch you're also right that the reason you don't remember the first case as being about this question about when the claim arose is because section six point one nine was not even mentioned in the prior case it was not even mentioning it just was an issue that wasn't an issue at all it's exactly right the first case was about whether the air dock was an asset of the sea and not of a good year and there was a very complicated as mr berger on said technical aspect an argument that we brought to the court at that time that said one good years assets transferred and they said one thing when g a c as they said another we lost that fight but i want to make very clear that one of the themes that runs through good years briefing here is that because we lost that fight about whether the era dog is an asset somehow it carries forward that we must lose this one and that is a logical fallacy the question in this case of course is when did the claim a rose would the claim arise for which lockheed was seeking indemni were when did the operations out of which the cramer was take place that's right that's right and i think the operations as i think the claim actually arose i mean actually the claim arose when they found the stuff in their backyard at their dock i mean if that was a question you'd be in a tough spot i think you're right judge that if we if we isolate each of those statements and we put greatest emphasis on claim and put  so let's say you know we read it the way i just suggested about you know when did the what was the time frame of the operations from which the claim arose i know you think that goodyear has a way of the argue the whole or in part argument yes but why doesn't mr bergeron have a point that hey at least in part this claim i e all the liability that lockheed sustained mean presumably if they're using it they're doing things that might accelerate or after the fact the run off and therefore it's in part that usage even if it's one percent which first as i hundred twenty nine paragraph eight goodyear own the air dock until nine hundred eighty seven paragraph nine the air dock contained roberts and protective metal paragraph them so it's very clear even from the consent decree that the operations that gave rise to the need to remediate started in one nine hundred twenty nine but your question about whole or in part mean this is the reason that waiver is an issue because if this had been presented to the district court we would have been able to have a i believe you get what you will see at page fifty four and i'm looking at page fifty four of the asset cross agreement which is in the record page fifty four is the beginning of section six point one thousand point two and what it says and you have to clear away some of the underbrush but what it says is literal agrees to indemnify in whole g a c and goodyear harmless against and upon the respective demand to pay reimburse them for any and all losses liability use all these different words for money in whole or in part resulting from cause by arising out of breach non compliance or and this is on page fifty five for any claim arising out of the point two so if you look at the fourth line from the bottom of page fifty four of the asset purchase agreement you'll see the word pay or reimburse them for and they are all losses etc etc in whole or in part resulting from a breach material breach not fulfillment and then if you look at the fourth line from the bottom of that paragraph that carries over into page fifty five you'll see or for any claim arising out of the operations of j c so it even if we're going to count e this late breaking argument the problem mr bush on has is that there is no allocation in whole or in part relating to a claim a right any claim arising out of the operations of g a c subsequent to the closing date and you know back to my sort of every general starting point of this response reason that remediation was necessary was because the air dock was built in one thousand nine hundred twenty nine to contain robert's and protected metal that is the problem brief if i may mr berger i've contended in his brief to great fanfare that because we say at one point in our reply brief that the obligations arose after the closing date that we have somehow conceded that the operations occurred before or after the closing date operations and obligations are two different words they both start with zero and the end with patients but they are two different words the fact that we could even if you agreed that we somehow conceded for judicial struggle purposes which of course we didn't that we said something in our reply brief about an obligation of course an obligation was imposed lockheed after the closing date it was an obligation because at that point it was incumbent on us as the owner of the property to remediate the property that was our obligation but that is not a claim and it is not an operation and those are the words that are relevant to the it's a couple of responses first of all i think the remediation hinges on how you are using the property and that is another reason why this is a rising of like it operations because it depends on what workers they've got working there what they're doing that is why they are incurring a lot of the costs here incurring if that's not post closing operations i'm not really sure what it is as you say that is why they're incurring those costs by that are you asserting that they've caused additional pollution or you're just saying that that's a business reason it's well it's both because of course they would have to remediate under the e p a s requirements whether or not they were continuing to operate the well there's i mean one of the think they would have to remediate doing something but they would not have to incur all the obligations that they incurred to train the same plane all of that stuff they would have to hurl that if the air back was not operational in fact one of the things that because that's to protect the workers in their exactly exactly and one of the things in the consent agreement says one of your options is to cease using the or not well they didn't want to do that i mean it was critical to their business well mr version we don't have much of a record i guess as to what exactly their use is right and but the reason is that he didn't argue this in part theory below and  there just wasn't occasion to flesh out or what exactly are these uses and how exactly would they these operations themselves because of this this damage as opposed to the original construction i mean isn't that a practical reason to say you know it's waved well no i don't think so we quoted the language that has you know or are only twice in the complaint it was quote in the summary judgment and i will agree with you we did not feature that specific clause but i mean this is we're pointing to the very same section of the agreement we're not going out finding some other section saying this is a new argument i mean i think it's simply an additional refinement on the argument which i think happens every day and what are we supposed to do then because you know as the records before us this idea of their use is a pure abstraction basically i don't have the i mean maybe abstraction i unless i mean you know the record better than i but i can't describe specifically i don't know if they have blimps they're probably not i don't know what the heck else you put in this giant thank you know you you m it is saying you have to undertake all these obligations to ensure that workers are safe that everyone going there is not going to be you know contaminated etc etc so i think we can tell from what the the e p a what they agreed to with the