breach and finding the truck were urged by finding that the type in magnitude of damages was reasonably foreseeable to the government at the time of contracting well before her ever purchased there should be no damages for r f c s purchaser later say if the court finds that the acquisition of r f c was foreseeable nevertheless the magnitude of damages awarded at the trial court was not foreseeable the evidence for this is that the contemporaneous valuations of r f c at the time of the sale showed that the true value estimated by eggers investment advisors was sixty seven million  up with the price and to see for that sixty four point four million dollars it was very close to that there's simply no evidence to support that anger at the time the sale could have foreseen that the sale warrants you would have  three hundred million dollars awarded for that by the trial court therefore under a reasonable foreseeability standard the magnitude of those damages was not foreseeable even if the type of damages the acquisition of a company such as as this court found it for example in old stone applying section three fifty one of the restatement of contracts the loss that actually occurred must be foreseeable here the notion that the bridge would require c and there was no reason for the government to have been able to foresee at the time of contracting that enter would buy or if see a subsidiary in a line of business it wasn't part of that act or would have to sell r f c rather than other act of congress to change the rules perhaps the entire situation would have been different but it's the question is what was reasonably foreseeable to the government at the time of contracting even if a change in the capital that the problem it seems to me comes down to this that the government got the company to take over these threats despite their having something like six hundred fifty moon dollars in net liabilities so it's coming in with a huge negative factor so they wouldn't presume to take in these things over without some substantial inducement inducement of course was substantial component of the difference between making the deal go and not making the deal go was the regulatory cap that regulatory capital necessarily translates in the mind of somebody who's looking at whether to take on these liabilities into prospect for profit in the government necessarily knew that that was right it was valuable because it provided a prospect for profit therefore it's difficult to say well you know it doesn't really amount to very much true the p amount of good will was such as to overcome six hundred fifty million dollars worth of net liabilities are some significant chunk of that then the government must have understood that if they took that away they that the later acquisition and sale or if she was foreseeable and it doesn't mean that the magnitude of damages that are se only earned under its new owner as opposed to what was known to act or at the time reaching that send its capital plan that did not foresee any damage from the sale of the regulator said they want to prove to say if they knew that there would be damage to anchors franchise from the sale if that magnitude of those damages is not foreseeable from that particular transaction or something that was reasonably foreseeable to the government at the time of contracting notwithstanding the amount of goodwill that lost is not foreseeable what why is the amount not foreseeable anchors in the business to make money the  well the reason they did not do well does not make the amount of the judgment foreseeable because enter represented in its capital plan in its own internal investment analyses do not project such damage even at the time of say if enter put in the foreseen damage at the time of sale the government certainly could not foresee damage from the loss that actually occurred the sale of r f c at the time of contract similar this falls damages for the sale of an income generating property is this court constructed in the first federal we can best case the reason for this is that the market value of the income generating asset at the time of the breach reflects what the market knows about the future dollars instead of over three hundred billion dollars if the market could have foreseen over three hundred million dollars of losses to enter from the sale that was the trouble were found presumably that price would have been bought up the market i'm not sure that it's fair to say that the move with the market for c d s necessarily dictates lost profits now as you know first lincoln disposed of the last profits aren't many and went to the big asset disposition question has to say this is a great deal even though the market doesn't know that you can that that's where people make money and here they had what turned out we know to be a great deal stream of profits that were not actually observe the real world rather own c e o no that attributes the sale of r f c at least in part to non breaching aspects of firing in the queue your question judge rater is at least in part in what is clear is that the non non breaching risk based capital provisions of fiery are operating in conjunction with the loss of six hundred million dollars of breached regulatory is their speculation and whether or not and would have departed from normal course of business and have done what g mac the trial court found that there was not speculation your honor and the key is c submitted a strategic plan to anchor in may of nine hundred eighty nine and by the way that was at a point in time when they were already knew that the risk based capital guidelines were coming to go back two hundred fifty seven million dollars of preferred stock that also counted towards regulatory capital that was not clear until the end of october when the implementing regulations were promulgated but throughout that planning period from february to actually would have saved one hundred seventy million dollars over what jim acted because g mac some simply self insured for that risk and took the losses so there was nothing she met did that was that was unusual compared to what or she was planning let me focus the kind of characterization that fits well with this case because the last it actually occurred here as it relates to the contract was the loss of the good will of that particular asset  and in both systems federal and first third both of those carelessness for reiterate cal fed and also the supreme court statement in one store that the purpose of these contracts was to leverage up the good will take more assets on your books generate profits and it was foreseeable that if you take it that way the goodwill the bank would either have to sell assets or raise capital and it's entitle to the damages it incurs in doing so and the citizens citizens was a case where the pla was requesting damages not for the cost of replacing its capital but for certain adverse tax consequences that have suffered as a result of that capital raising and this court said that it was a sufficient finding that it was foreseeable that the throat would have to replace the good deal and it then goes on to say there is no requirement that the particular method used to raise the capital or its consequences be foreseeable so the court there was not concerned with how the not required also to show that the precise economic conditions were foreseeable and so i think those cases respond to your question and show that the loss the foreseeable loss the type of loss at issue in these cases is the loss of the goodwill and the need to raise capital by selling assets or some by some other capital raising measure deal with the lincoln bank case we may discourages l plaintiff and lincoln did not claim that they wanted been in some better position sometime post breach than it was at the time of courage and i think it's important to look at the lincoln decision because it begins energy counsel and that exception is quote for profits that would have accrued over the course of a contract in those circumstances damages are measured throughout the course of the contras so that is lincoln reconfirming what this  energy capital the lincoln court then goes on to say but this is not a lost profits case the plaintiff trying to prove lost profits at trial the trial court found that they were not provable with reasonable certainty and so it turned to the last value of the of the deposits as an alternative form of measure and in that context and measuring value then yes you look at the fair market value as the best available proof but in terms of putting the pla the second circuit decision that too was a case where the plan to fail to prove lost profits the second circuit noted that lost profits and fair value or are separate and distinct categories of damages it did went on to consider and holding them as whole loans in portfolio as investments which is what led to the first crisis in the first place and anger strategy was to expand out of that into the mortgage banking market or ever could acquire loans wholesale where it could convert those more mortgages and resell them as mortgage backed securities retain the servicing rights on those mortgages as a source of not interest rate sensitive c income where it where it could use that and that mortgage banking about so the suburban transaction facilitated that strategy the breach in iraq today strategy by forcing anchor to sell or a city as soon as anchor came back into capital compliance it began looking to resume that strategy and then who represent first opportunity the trial court had it right because it looked at it from the from the standpoint of the benefits that the bank to rise from manc namco in our city and those benefits were a nationwide scope of business to do to diversify yes or are anchored to not fully come back into capital compliance there was there were there were there were a series of stages had to go through to comply with faria and then had to comply with addition the second that up their capital requirements not fully come out of compliance with those statutes until ninety three or ninety four you know this is the mortgage banking subsidiaries and then they had to build a cushion to worry would have the capital to make this kind recuperation it tried to acquire some some some brush networks that was unable to do but there has been no evidence presented in the record that there was some that anchor had the ability or the opportunity to mitigate before nine hundred ninety seven but the key fact substantial origination boy and diverse geographic footprint sophisticated mortgage banking operation a reliable source of non interest be in them both us so it's provided the exact same but it  lost profits are appropriate to become pretty close he said that we never have and they say that because we've rejected claims for lost profits on the ground that lost profits are too speculative to be recovered  this court and so that if we'd had this additional capital we would have lurched into some bucket of investments like the type we already have but what i don't believe any of those cases said here is the asset that we own that we would have continued least arguably it works for your quantum of damages but it doesn't seem to be it works for your foreseeability and what old stone language you know stoners talking about is foreseeability and where you don't have the asset in with respect to operating a subsidiary of this nature they said nothing about the breach or their capital levels being the reason for their sale it was solely the risk based capital requirements they prefer to be identified what the reason why i think it would reach i think anchor would tell us that in the break position they were being the secular accurate they couldn't meet these regulatory requirements because of the breach it already and danger of the risk based capital requirements and breach were both part by ria and only mention the risk capital requirements they did not mention the breach they did not mention their capital loss and there were good reasons for that because the risk base what otherwise be foreseeable if the form of damages is the disposition of an asset case thirteen seventeen first federal and said the most accurate measure of damages is the difference between what was receiving what the get their value would have been but for the breach at the time of the breach not the lost profits the asset would generate in the future with respects to the court's question as to whether the quantum of damages must have been foreseeable yes if it hadn't been foreseeable that's a separate requirement from the proper way to measure damages which is part of the we can construct in the case we just position of an asset is the  things at appendix page two hundred fourteen in the capital plan they state that they had alternative assets that they could sell that would raise seventy two million dollars in capital and not have a adverse impact on the franchise mr war o testimony that at page one hundred five three seven three eight that he did not personally believe that the things that andrew was selling including r f c as part of a capital plan would have an adverse impact on its franchise either if enter cannot foresee harm at the time of sale there was no way the government could have foreseen that harm five years earlier and there was also no reason to depar point four but here is sixty four point four it was certainly within the fair range there was one estimate it fit between fifty two and sixty five so certainly it was at the high end of the sceptical range