some of the district judges throughout the circuit and visiting judges later this week judge perry and i will be sitting this is this is in judge judge paula is one of our focus on three things what the nine hundred ninety four agreement means whether motor carrier was prejudiced by pharmacy is failure to get required notices and vicarious liability to discuss the no a claim only briefly if there's time at the end but i do as the provides for a motor carrier to be responsible for certain migrations of pollutants from the party site it refers to one government ordered clean up to voluntary and those references are followed by the critical phrase in each case of substances present that are which migrate from the carny site at any time after the effect of time for this record held that the modifying phrase applied only to voluntary clean up not to government ordered cleanup but that has to be wrong for a very simple reason the modifying phrase begins with the words in each case the district court made no attempt to explain how the words in each case can refer to anything other than the two types of cleanup just listed and set off by roman numerals pharmacy as witness about contract negotiation felder also made no attempt to explain those words in fact i need to point out because of all the emphasis pharmacy has briefed places on fellers testimony that every time a lawyer for either side tried to ask him about what any phrase of the judge brown sustained in objection because the words of the agreement speak for themselves that's of pages two forty two forty five to forty six to seventy three into eighty of the joint appendix so this case really does need to be resolved on appeal just as it was resolved in the district court by reference to the words of the agreement not through deference to supposed factual determinations now going back to section two point three and the in each case language candor does compel me to admit that the modifying phrase is not written in sections two point four two point five but the most natural explanation of the party's failure to repeat that phrase is that it was deemed unnecessary after section two point three has a clearly the limit of the  responsibilities the least natural explanation is the one pharmacy offers this court that the parties intended through sections two point four and two point five zero implicit in what you just said is that there are two interpretations of of the ambiguity in two point three and the district court while there is force to yours the district court believe there was greater force to the one that he adopted is that not a factual finding there is one of the third circuit case law interpret in arbitration clauses which are construed by reference to federal law in new jersey both are treated as matters of lot of people but there's another important principle in new jersey here and that is if there is ambiguity in this wrong about that the right results are each in this case would be to say that the contract is ambiguous and therefore should be construed against the indemnity against pharmacy a now if and only if i jersey  along yes your honor the spring creek holding case cited on page three of our reply brief is one of the new jersey cases saying in so many words interpretation and construction of the contract is a matter of law for the court subject to th can only if i lose the contract destruction issue the court will have to address the issue of prejudice for failure to give the required notice no you don't you at trial did not say present any evidence complete defense was what at trial your position was was it not the prejudice prejudice even now i think your prejudice is presumed that that is correct but there's also evidence of prejudice and the prejudice is now you're not saying you had to complete the sense you're saying that you would have had without it greg or you were able to require notices yeah you're saying that and that that the fact that you could have had beans prejudice shouldn't presume yes that's the new jersey law and we think it's appropriate on the facts of this case because we weren't given notice yes what would you have done had you received notice sooner and when do you claim you recei i'm not sure where you're taking it well under new jersey law there is a presumption of prejudice from a longstanding lack of notice that's all you really arguing is the presumption because you say that it's page forty nine you don't argue that had motor carrier received timely notice it would have done anything different you speculate what you could have done and you don't say that you would have achieved a better outcome then pharmacy yes you could have and that you say is why prejudice is presumed that's a correct summary of our position or yes so i think implicit in that is that there is no evidence of prejudice well i've must respectfully disagree with that the simple case for prejudice is  this case is judge brown failed to apply the presumption and when he addressed prejudice he made plainly mistaken comments about the factual record he got it wrong legally and factually if liability is not this that's not clear your are simple for this reason it's not clear what the magnitude of the potential liability is or why you think it is it's my best guess as i stand here is the magnitude is in the order of ten million dollars a true isn't that what this is that there is a point that there is an absence of corporate formalities but that's only one part of the temple in pharmacy a request i think it's was the provision thirteen point one teen requested a copy of the balance sheet and the income not and i never received them i'm not aware of any such request there was a request for assurance that the network was more than five million dollars which it was but they didn't receive the assurance  test what core piercing the corporate veil requires is abuse of the corporate form for the purpose of trying to protect assets from liability when motor carrier was bought in one thousand nine hundred four i'm sorry one hundred ninety eight it was a holding company with one major asset the carney property in two thousand and nine it's a holding company with one major asset the carney property nothing has gone in nothing has gone out nothing has changed the corporate form hasn't been of use here  corporate form has simply been used to take this company acquire this company and leave it exactly as in a little sound that are you saying that the ingredient of for the purpose is something that must be developed  that's all it did in two thousand and nine but that's nothing like the kind of abuse of well there's it's a two prong tested and got the corporate form and whether the meetings and all of those things and then there's whether or not there is an injustice being perpetrated which i think the judge is slow but his question about good motor carrier pay and judgment might very much relevant and you've got a what we're not liable for is your remediable damage that can't be cleaned up this is the no issue and i think that's what your honor was asking about natural resource damages are not they are by definition that which cannot be cleaned up and for which money is being paid to the natural resources trustee in this case noah because the damage can't be cleaned up that's your argument that's an argument yes yes it's very of course but that's  of no is natural resources damages claim was covered by his prior debts we think it's quite wrong we actually think the court in reverse and render on that issue that legal he dealt with it to him during the trial in another context there were numerous scattered references to natural resources damages during the trial but there was no natural resources damages claim that had been asserted at that point and you and i would respectfully suggest the references to natural resources damages in the trial are extremely favorable to our side they point out a lot in the record itself on this issue of widespread public knowledge that the sec river clean up is a potentially huge liability e p a has issued a draft focused feasibility study for the river which includes remedies ranging from about a billion to two point three billion so it's a major liability there are currently somewhere on the order of seventy five companies which include major companies and some are smaller companies that have signed up to a settlement with the e way twenty five fifty times simply for the reason rather that that we believe that the jurisdictional issue and there was no notice of appeal filed with respect to the january two thousand and eight order which was a separate document every two separate daughter needs a separate  examined numerous witnesses and significant evidence we believe should be reviewed under a clear or standard but the section two point three itself that's relied upon by the appellant if you look at that section it has basically two categories of cleanup and they're clearly separated by roman numerals as very distinct actions the first are government mandated cleanups and the second where the voluntary where the phrase appears your honor is is for voluntary cleanups and we believe that in each case is intended as did the court to modify the types of actions that could happen in a voluntary clean up meaning treat radiate dispose which are all in that provision as well as in the definition clean so it is not intended to modify a small room a number one in section two but merely actions that could be taken as part of a voluntary cleanup and i don't understand are you saying in each case the types of actions that are laid out in a voluntary cleanups and you think that the type of action required under subsection one is less comprehensive than that under subsection till now i think subsection one government mandated cleanups incorporates the definition of clean up which also includes some of those same types of that control so is there anything and i'm not sure you know you have you've difference is in that section the draft the drafters of the agreement put in a modifying clause that in our view pertains to the types of actions that can be undertaken as part of a directly and therefore what it's a separately illuminate enumerated provision and therefore you are not michael for what in that that's at issue in this case i'm trying to take what you're telling me to to a think it's basically referring to the different types of actions that could be taken whether it's an investigation a removal or disposal actions for of  you suggested that there's nothing ambiguous and us language and i'm suggesting that within that it's within a specific subsection that pertains the part about strictly nuts and if i could also address the fact that the other brief it was not raised in the opening brief as it should have been and therefore i think it's way well however the ramos the situation applies to a situation that doesn't exist here and that's a supreme court in new jersey decision in that case that was quibble language that the indemnity would be indemnified for so long to doing in this case there is unequivocal language that motor carriers is responsible for cleanup costs whether or not these substances were disposed of month by monsanto there's also a third circuit decisions that address this directly in terms of raw most of the caldwell trucking case and the smith kline beecham case which we would have raised had it been identified in the opening brief in both those cases the third circuit found that when you're dealing with an arms like negotiation between sophisticated parties ramos should not apply well you know ramos aside i think that position  not it occurred before or after the effective date and with respect to qualitative application of the contract i e whether or not it was intended to cover settlement and service were clear not all of those issues evidence was correct was a presented at trial to address all those issues is well frankly i think the result is going to be the same under either standard but i think our position is laid out in our brits that the court found ambiguity and therefore there should be a review based upon their review  stand clear air i'd like to address a couple of additional issues because my time is running out here with respect to the prejudice issue as the court  to produce a document from its own corporate files that that demonstrated notice was given but there were documents found in motor carrier spiles which evidence that they were clearly aware of the passaic river but it's always there is not the notice that you were required to give under the agreement there were time constraints there were specific requirements that i frankly speaking only for myself i believe were not complied with that does not mean that you aren't then you know they they were prejudiced that's right but and my question is there's an alternative holding by judge brown that you would indeed gave notice i suggest that whole alternative holding is wrong we were not able to demonstrate that we gave notice next line and them but you're you're you're you're contesting that we don't there's nothing in the record that i can see that i can see that says you gave notice there is they have you and you have an obligation to and there is a subsequent settlement which i don't know of for the record your honor but to do in our efforts to take over the r f s which is one hundred fifty two hundred million dollars study that's been taken on by the potentially responsible parties if i could just absolutely no evidence in the record whatsoever that corporate formalities were followed that they could meet the financial assurance requirements posited by by monsanto in response to the nine hundred ninety seven truck transaction and to say that there are a series of three letters in the record that require scrutiny the first is a request from mary mary coley a solution which was related to monsanto specifically the january hundred ninety seven letter after they learned about the stock purchase transaction which was originally going to be a purchase of real estate where when i did the due diligence it became a stock purchase transaction but there's a letter requesting specifically district court found now i'm sorry i will ask on the bottle whether makes a difference but my guess is it does make a difference yes x is a big company it's probably a lot more assets and how did it become with the seven three hundred forty thousand dollars from that i think you have to say that the district court must have found either that motor carrier effectively notified pharmacy about its network from a fail to respond to mary cody's requests or that the affiliates automatically become assurance affiliated under the agreement when motor carriers information that motor carrier had five million dollars now you are saying that the section thirteen point one nine of the agreement requires that affiliates automatically become assurance affiliates when the you thank you very much publicly traded company of this sort of establishing which corporate entity has which liabilities is a matter of some importance regardless of ability to pay a particular judgment does intermodal  for the court's benefit say the letters mr mcgovern was referring to were pages sixteen sixty five sixteen sixty seven and eighteen forty of the joint offending thank you so much that i could be spending a lot of work till midnight that that argument can't be sustained nor can the are going to be sustained at the process is automatic the purpose of section thirteen thousand the obvious purpose is to have someone with at least five million dollars of assets available not to have multibillion dollar it wouldn't have anything to do with the test for bail piercing if you look either at the recent opinion by judge smith or a panel of this court piercing the veil of cases name i forgotten or if you look at the twenty year old opinion by judge slow better for a unanimous panel reversing a veil piercing carriers problem not pharmacies if that's what the agreements as an article to but what article two point three says is if we're dealing with migrations and we have a government ordered or voluntary clean up in each case there is liability only for migrations after the effect of time now mr mcgowan says in each case refers to the immediately preceding language that just can't be right first of all as it should flow better pointed out in questions from the bench that makes the language in each case second that phrasing not investigate remediate and so on appears in more than one place in the agreement it appears in two point one c in the definition of clean up for example it's never followed by in each case to refer to each of the possible types of remediation instead in each case naturally unnecessarily refers back to roman one roman two and section two point three now because the other it's pretty clear from the other division the case of migrations of substances the eye ability was divided quite naturally depending on whether the migration occurred while monsanto was running a chemical plant on the property or a motor carrier for terry are we using it as a parking lot and we read two point three and in particular the in each case language it made monsanto liable what happened while monsanto own the property including migrations that happened while monsanto on the property made motor carrier responsible for migration of the top of water to rely on the property very natural reading now