we'll hear argument next in appeal to the thousand and seven and five zero six seven american savings bank versus united states doesn't fit in this is the only remedy that any breach rule crigger what you are it what you think it actually is the only remedy available under the agreement so you must be thing that that remedy provision is intended and understood and have to be construed by often being exclusive of all other remedies of all of the remedies there are changes a lot of this time it would not be a remedy for example if the government stopped paying interest on of material change and they can get every doxepin the amount of tax benefits they have to share with the government that would be up to three hundred million dollars worth of benefits in this case what happened was the plaintiffs did in fact file a notice of material the agreement is absolutely clear and just on the face of the agreement there's no ambiguity and therefore we could say that it wasn't a bit about yesterday because it understood doesn't that kind of undercut your argument with respect to the court i mean summary judgment of no damages to that extent of the final judgment yes you are ready because so you're asking us to grant summary judgment to you in this appeal your autograph please define it a matter of law the legal theory that  pursue for damages restitution and don't support a possible war and if they're fine for the government to reverse the war it will do that on several i mean what are your arguments in that regard one we could do that in your view if the the day before they entered into it and that's a series of cases landmark hasn't put but on the right and i don't want to rush it but there's a lot going on there in the restatement it says that sort of a pretty broad exception which is the non breaching party does not when it's right in this case they walked in with the door three hundred fifty million dollars it with the restitution that the trucker three hundred forty six point five now with ninety nine percent on one that would mean that the only thing left was one percent but and they salvaged despite fire ear and now i'm not sure what you are trying to make is that if they hadn't been able to salvage it we understand the consequences for the government would have been enormous but you're mitigate it did better than mitigate with at least a mitigated the injury to the government i think there are arguments on both sides and we need to consider them but i am the what looks to me like a very one sided argument to because in the end they made money everything else needs to be decided against  roach is not an appropriate remedy briefly and i mean let me just ask a follow up to that let's assume hypothetically that we were to affirm the judge on the no forbearance question which is where the number of millions of dollars  wouldn't that would would your answer the judge newman be a little different in other words that that's based on the interest being cool of interest after the breach and so the government is suffering some liability from their continued three a and on the other side of the equation we've got the warrant forbearance is and the deposit base the deposit premium i guess i'm wondering what are the three would have these three factors that there are only three and what is each one if if the takings claim wasn't withdrawn by you and wasn't rejected on some legal basis by the trial judge then it would appear to still be hanging out there be if we hadn't consented to a final judgment i think that claim is merged into the final judgment so so this court firms the final judgment was a final judgment doesn't say anything about the takings claim is now mood or it's dismissed or it's conceded to be no longer part of this case or any such thing it just gives a judgment on the breach client but i may be this remembering your honor but i believe that the plaintiffs stipulated to the entry of final judgment on all claims on the basis of the trial judge's damages i if i'm incorrect in that i will send the court a letter plaintiffs promised to provide seventy percent of the regulatory capital in exchange for seventy percent ownership the physic promised to provide thirty percent of the regulatory capital in exchange for a war worth thirty percent of that but three hundred fifty million from the players and cash one hundred sixty seven million from the first leg in the form of the deposit base things that gave him comfort that there was no windfall here was that the overall amount of tax benefits last was smaller it was larger substantially larger than the amount of partial restitution that he was awarded so that and he said so that that says they're not seeking other damages as a consequence of this divisible reach then i don't have a problem with windfall tax that was my reading of his in here which doesn't show up in this court's opinion first nationwide but i do take mourning here we have two bridges rather than the on the basis of first nationwide because the parties intended in this contract that if there were immaterial bridge the parties were going to have to continue to perform and in continuing to perform seek images that were commensurate with whatever lost their might in this case fire ria abrogated invalidated the contribution of the war  capital that contribution has capital impossible and the consequence was that the party that contributed that was had promised to contribute the capital lost its right for the loss was that the plaintiffs were entitled to the entire entrepreneurial reward having made the entire entrepreneurial contribution and that and the government by virtue of its ability to grasp the warrant received thirty percent of the entrepreneurially were rewarded even though it wasn't intitled to that money because it had made an entrepreneurial contribution rate so your view is though there's  one to one correlation you gave thirty percent of the stock for one just the regulatory capital regulatory capital that's right that's right and so the players were perfectly happy and so one more week when if you go in and say we want to stock that they did all of the times that the parties attempted to resolve the issue of the ownership but you never filed to file suit three years later three years later right now is there a factual dispute as to whether one in fact was the concerted effort by the parties or whether or not there was a concerted effort by the parties to try to do this i don't think so and i don't think it's material you know in all stone the issue was it was nothing you have to run into court right away the issue was that the plaintiffs we had the capital baghdad going essentially the zero and and the planners were were in effect gambling with the house money here it's the opposite here the capital contribution that the physically had promised made the bank would have made the bank a much bigger better but somewhat riskier  by withdrawing the hundred sixty seven million in war with this were essentially made the bank a very low risk smaller low risk less risk to the positive sure and then they said even though we didn't take the risk if if the bank succeeds we are going to get the upside so the moral hazard is actually reversed in this case as compared with case like goldstone in first nation the critical issue for the court there were two critical issues it seems to me the first is whether the parties intended that the contract would be meaningfully divisible and and by that what i mean is that the party who is the victim of the rich has a right to continue performance intent including without them to take action the purpose and intent of the invalid provision and the and the agreement as a reform shall remain in full force in effect in other words the victim of the british does not have the right hundred two seventy two of the contract of the section twenty eight says in relevant part any liability forfeiture which is what we have here or other remedy for breach the former failure by any party to perform or comply any material was respect with any of its obligations here or or any other remit or understand a reference here and shop correspond to the magnitude of the economic loss thereby big parties did not have the option to terminate this contract and in the event of a material breach it was simply not an option for the plaintiffs to show up at the half the i c after the breach and say  ning our performance in order to preserve access to read it so the idea that that suddenly these plaintiffs elected to weigh the elected not to be able to see  partial restitution that is is belied by the contract terms and by the circumstances that this court found compelling in first nationwide was if sexually identical contract it was a different breach but it was the same kind of contract you give us the third the third is the is the goal is the absence of any mechanism to hand over the keys of a bank to the f t s but there is there is no way to do it except to allow the thing to become insolvent which makes a bad situation worse so it's two provisions of the contract and the absence of a mechanism for returning the bank inter meeting  we decide that the players have the ability to to see the partial restitution really it seems very clear that that negotiating history of what this poor look you're referring now to document from the negotiation history yeah and didn't the court of claims tell us that we shouldn't be considering anything other than final agreement that there's a difference between our asking as th as the defendant did on liability to vary the terms of the no big us integrated contract with parole evidence which we're not supposed to do and then say ok we've now determine what the promises we now  promise has been breached and so now let's decide on a remedy and what do we look to to the remedy and and there are all of the circumstances come in as as in any other case as  give you back the five minutes you had hoped to reserve basic contract law says that they do that if you if there's a breach you can say it is a total return walking away and if this in fact took that if they contracted away this right to to do that then they gave that up as part of the contract in doing so they they said that they would i mean basically said that they would pursue restitution because if they were going to walk away the third thing they said was is that there's no way to give back a threat for certain things you tell the regulators joint water running anymore and it becomes the regula happened in a number of fire reactors so neither of those can support the act the idea that this is a divisible contract and if so where that dividing line should be that are you are you arguing in a pact that there is no such a thing as just trying to understand where the argument or the claim is for partial restitution whether it is true as you seem to be arguing that the predicate is total break which didn't on the change in forbearance they have to cover based upon in the settlement agreement where in they recover it states that all claims that are raised in the notice of material change are completely resolved that they signed that agreement that can be found at two hundred six five six so there's no question that i mean we're not talking that this is hypothetical remedy maybe they could invoke if there was a remedy they didn't think they got a substantial amount of money not sure there's off the case  that alternative is to imagine a contract where the perry said look we'll put in a family where you can get up to three hundred million dollars and then you can also sewell's and we'll just ignore the fact that you got that three hundred million dollars and well forbearance cancellation hundred fifty million five million dollars was paid off so anybody that they would cover here is above and beyond with the already secured under the agreement and and as to the amount of money that they made on this this fifty million dollars in the pocket right now that are you made a billion dollars which is fine they deserved it they earned it they made a billion dollars if the court gives them four hundred million dollars the taxpayer money is not getting back on that date of three hundred fifty million dollars is putting that position one point four billion dollars that's not restitution it's not any kind of damage here but this is not the total picture doesn't consist of what capital they put on the table at the start of this series of events they volunteered through these inducements to shield the government from potentially catastrophic liability amount and in doing that took huge risks i think it's fair to say themselves and did so as a part of a very complicated arrangement where they had to do a number of things and you had the government had to do a number of things and in the end some of the government's obligations were virtually the money that the billion dollars if restitution is going backwards if they if they thought that they were harmed and they wanted to prove lost profit they chose not to then we could have a discussion about making more money on top of it but the idea of restitution is to go back that's that's the concept of restitution lost profits is ok they made you do it didn't they deserve more ok let's put some more popular but didn't didn't pursue last profits so that's not the discussion that we have that we should have sh discussion ok restitution let's look at the day before they did the deal mean that there are there are very distinct remix finally on the issue of discourse that your honor the players are only allowed to get back to the point where they started in restitution any more th