off the record by defendant's counsel it would have been negligent for me as counsel to have relied on those statements but if you do something after the conference to get that locked in that they were admitting the debt and i so much you could have done you could have served a request for admission you could have moved for partial summary judgment you go to me to rule sixty eight dollars offered but you let those issues carry on that withstanding what i don't think there's any dispute about happened at the initial set as i understand your honor i but i do think that submitting our pretrial memoranda that she does not allow summary judgments summary judgment motions i think defense counsel agreed to that about his letter why not just say this is what i heard at the conference this is what i think the position is that they're taking but they haven't amended their answer either it could be of as formal as a request for admissions or as informal as just asking the judge to say the state on the record what happened at the  were trying these issues or not when it could easily be resolved understood your honor and in retrospect i would i would have done so however i will reiterate i do think that it would be defendant's burden when they would be on the hook for these attorney's fees to make those steps to streamline if they were later going to argue no you didn't really prevail on that issue because we said from the outset that's a satellite issue the critical issue here is have you already won the half of your case are not that's  that's the salient issue not attorney's fees the salient issue is oh have they acknowledge it so that we don't have to prepare and spend our clients money preparing to take on affirmative defenses and whatever else is in the answer  have we already won half the case and that seems to me it just seems to me a little difficult to believe that you were actually somehow misled and were anticipating all the way through claims we still would have to establish think the contract and its terms and while in the stipulated is that if the big knowledge did what the what the contract is that would be helpful to you would simplify the trial it would and just to note this was a bench trial on submission so i will reference believe it's eight thousand two hundred and sixty one dollars of our appendix it most of the fees incurred between that initial conference and and the end and the judgment would have likely occurred regardless of whether whether defense counsel had written a letter or whether i had written a letter because a lot of the same proofs were required there were there was no testimony everything was submitted through a short memorandum and a reply and the the statement of facts in the trial and they at the proposed statement of fact that's an interesting argument but a different argument was that argument made to judge coat  t she picked the wrong date because really all the fees that were incurred in preparing for trial were well but that's not that's the point isn't it that that's her point that all those fees that were incurred in the time from the end of that first conference to the trial were all about the case that you had to try which you lost not the case that was conceded in the initial conference that's a fair point your honor but i would argue that that even the conclusory statement that we did not prevail in the litigation as a whole  occasion as a whole you got attorneys fees for the part that you did prevail on what the court says is but after that conference what was going on w something different now is not the claim that you want on it was the claim you lost on and that's what all the fees were about were preparing for a trial about something that turns out the other side won rightly or wrongly but we have to assume rightly because that's not what you're feeling well under under new york law there does need to be some sort of analysis as to which aspects of the the prevailing party are would be prevailing party did prevail on and those three factors are valid contracts which involve all of the affirmative defenses that could even if defendant were to say and to prove at trial or to admit on the record there was a valid contract plaintiff performed defendant didn't perform some of those affirmative defenses that still existed on the record up to the point of trial could have voided those contracts ab initio for example the usury defense or the penalty provision defenses so i think in terms of the the new york court analysis of whether a party is a prevailing party as a whole the st factor substantial relief your honor pointed out we didn't get most of what we wanted but that's only a part of the the question we did when relief under each of the three contracts at issue and that was relief in terms of the repayment of the principle and interest another factor that the court should have analyzed but did not as whether the claims were related to a common cor facts were based on related legal theory on the underlying contract what was common beyond the underlying contract the damages were undoubtedly interrelated if the date of default was related to the failed conversion the default interest in the repayment amounts would go up and the default and error and the principal to be repaid would go down the inverse is true of that as well as i had mentioned the affirmative defenses would be interrelated  and then the rd factor would be which which we just touched on would be whether councils time as a whole was devoted to to the litigation itself rather than the separate and distinct claims as as i mentioned to your honor's i think that they would but really i think the more important issue is is the judge coats reliance on that statement and there there are two ideas whether she she could rely on them and i think as a district court judge is perfectly entitled to rely on statements made off the record but if for example judge coat were to rely on this statement to come to her conclusion that the contracts were undisputed in her memory on the the issue itself liability itself i think she would be entitled to do so but whether she would do so it was was the question for myself and i think i was duty bound to pursue those claims up to the point where it was stated on the record by mr mckenna that they would not be disputing those claims and that point was on the eve of trial and we had already prepared our trial memorandum and that was the final date of the fees other than the motion for the fees  counsel and i throughout this have not been disingenuous with each other i think you would agree with that so i'll start out by saying i simply did not think of a rule sixty eight offer i should have offered judgment and i did not well if you're go straightforward and candid would you also holding the one hundred and sixty two dollars undisputed sixty thousand dollars undisputed amount over their heads as leverage is like you're not going to just give them money for free you want them to give up or compromise the conversion claim as well doesn't that the dynamic of the negotiations i guess that's a way of looking at it i actually didn't consider it that way we went into the conference and pretty much throughout the litigation saying the loans were made my roger and and that was said and you know i want to and i did not research this so i can't speak that eloquently about it but what's off the record when you're in open court before a judge and you say we had met this debt let me ask you about that let's had said mr mccann are you willing to stipulate to that i would have said yes because i had permission from my client to do so my clients never conceded that debt that didn't come up well never know what happens in part as well but nonetheless you know we were always willing to admit that debt and we did so on the record as the stipulated facts at trial also with that was never contention the only contention in this issue was whether or not they properly converted and we owed money for that what's going on between what is the july one the conference takes place in february when the pretrial order is agreed to there because working on other cases over their settlement negotiation without asking you what they were  up or not but that the issue of the debt has never been contended or denied by my client the issue of the raw debt has never been denied by my why any but it's what we're talking about is the immediate payment of the debt not just the acknowledgment that you know someday you're going to get a judgment for this amount but until you dispose of your conversion claim that the meek may never come on this is just another company that's waiting for a ship to come in so to speak it has stock and had offered stock and other manners of settlement the numbers were never reached the manner in which stock could be sold as leverage there were a lot of issues regard to that but with regard to my client saying we acknowledge we owe this debt and we have some manner in which we can offer payment absolutely truth has made to the main problem was not we know this but we're kind of hanging on and we have a one hundred whatever thousand dollars in our checkbook right now do you know i don't know books to pay this debt but we're not going to pay it the problem was they acknowledged they owed the debt but they had enough liquidity problems and other problems right start up that even if  judgment had come it would not necessarily be clear that the plaintiff would get their money the next day right the issue became this is out of the ordinary to discuss a settlement like this and i again we've been very frank with each other and i regarding how quickly the stock could be sold and the value of it came up and maybe higher numbers that the plaintiff wanted to make up for the fact that it had to risk the stock prices and everything else but i knew it was not that you had the money just you know there's no cash and we're refusing to pay it until some other concessions are made on the conversion issue or some other thing is going to happen and that's about the sentiment about the economic situation   a post appeal filing of the appeal settlement discussions and once again the issues came up relating to stock and everything else and the fact that this issue just sits in dispute you know and one issue if a court has no questions about that anymore i just want to say to me public policy and judicial economy also argue in favor of affirming the district court's opinion essentially at some point any plaintiffs if if the court were to reverse this ruling could go back to its clients and say hey don't worry we can go on forever and all our attorneys fees are going to be paid we already won the they said in their paper looking for the exact word they constantly use contention the contended facts they weren't related because there was no contention the court simply with no disrespect to the court rubber stamped what i admitted on behalf of my client at the pretrial what was stipulated in the undisputed facts and every contended every can issue of that was contained in contention was found in my client's favor that's why there is none we admitted the contracts we admitted the debts we admitted they weren't paid and i think all allow you to get back on track thank you roger thank you